Exhibit 10.1


 


Execution Copy


 




 





SECOND
AMENDED AND RESTATED CREDIT AGREEMENT


[US/Canada Facilities]


 


PLAINS ALL AMERICAN PIPELINE, L.P., as US
Borrower,


 


PMC (NOVA SCOTIA) COMPANY and PLAINS
MARKETING CANADA, L.P.,


as Canadian Borrowers,


 


BANK OF AMERICA, N.A.,


 


as Administrative Agent,


 


BANK OF AMERICA, N.A., acting through its
Canada Branch,


 


as Canadian Administrative Agent,


 


 


WACHOVIA BANK, NATIONAL ASSOCIATION and
JPMORGAN CHASE BANK, N.A.,


as Co-Syndication Agents,


 


 


FORTIS CAPITAL CORP., CITIBANK, N.A., BNP
PARIBAS,


UBS SECURITIES LLC, SUNTRUST BANK and THE
BANK OF NOVA SCOTIA


as Co-Documentation Agents,


 


and CERTAIN FINANCIAL INSTITUTIONS, as
Lenders


 


$1,600,000,000 Revolving Credit Facility


 






 


BANC OF AMERICA SECURITIES LLC and


 


WACHOVIA CAPITAL MARKETS, LLC,


 


as Joint Lead Arrangers and Joint Book
Managers


 


 


July 31,
2006




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I. - Definitions and References

  	
  1

  
	
  Section 1.1.

  	
  Defined
  Terms

  	
  1

  
	
  Section 1.2.

  	
  Exhibits
  and Schedules; Additional Definitions

  	
  27

  
	
  Section 1.3.

  	
  Amendment
  of Defined Instruments

  	
  28

  
	
  Section 1.4.

  	
  References
  and Titles

  	
  28

  
	
  Section 1.5.

  	
  Calculations
  and Determinations

  	
  28

  
	
  Section 1.6.

  	
  Letter
  of Credit Amounts

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II. - The Loans and Letters of Credit

  	
   

  
	
  Section 2.1.

  	
  Commitments
  to Lend; Notes

  	
  29

  
	
  Section 2.2.

  	
  Requests
  for Loans

  	
  33

  
	
  Section 2.3.

  	
  Continuations
  and Conversions of Existing Loans

  	
  34

  
	
  Section 2.4.

  	
  Use of
  Proceeds

  	
  36

  
	
  Section 2.5.

  	
  Interest
  Rates and Fees

  	
  36

  
	
  Section 2.6.

  	
  [Intentionally
  deleted]

  	
  38

  
	
  Section 2.7.

  	
  [Intentionally
  deleted]

  	
  38

  
	
  Section 2.8.

  	
  Optional
  Prepayments

  	
  38

  
	
  Section 2.9.

  	
  Mandatory
  Prepayments

  	
  39

  
	
  Section 2.10.

  	
  Letters
  of Credit

  	
  40

  
	
  Section 2.10A.

  	
  Swing
  Line Loans

  	
  50

  
	
  Section 2.11.

  	
  Creation
  of Bankers’ Acceptances

  	
  54

  
	
  Section 2.12.

  	
  Terms
  of Acceptance by Canadian Lenders

  	
  55

  
	
  Section 2.13.

  	
  General
  Procedures for Bankers’ Acceptances

  	
  56

  
	
  Section 2.14.

  	
  Execution
  of Bankers’ Acceptances

  	
  57

  
	
  Section 2.15.

  	
  Prepayment
  of Bankers’ Acceptances

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.
  - Payments to Lenders

  	
  58

  
	
  Section 3.1.

  	
  General
  Procedures.

  	
  58

  
	
  Section 3.2.

  	
  Capital
  Reimbursement

  	
  61

  
	
  Section 3.3.

  	
  Increased
  Cost of Eurodollar Loans or Letters of Credit

  	
  61

  
	
  Section 3.4.

  	
  Notice;
  Change of Applicable Lending Office

  	
  62

  
	
  Section 3.5.

  	
  Availability

  	
  62

  
	
  Section 3.6.

  	
  Funding
  Losses

  	
  63

  
	
  Section 3.7.

  	
  Reimbursable
  Taxes

  	
  63

  
	
  Section 3.8.

  	
  Replacement
  of Lenders

  	
  65

  
	
  Section 3.9.

  	
  Currency
  Conversion and Indemnity

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.
  - Conditions Precedent to Lending

  	
  66

  
	
  Section 4.1.

  	
  Documents
  to be Delivered

  	
  66

  
	
  Section 4.2.

  	
  Additional
  Conditions Precedent

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.
  - Representations and Warranties

  	
  68

  
				



 


i

















 


	
  Section 5.1.

  	
  No
  Default

  	
  68

  
	
  Section 5.2.

  	
  Organization
  and Good Standing

  	
  68

  
	
  Section 5.3.

  	
  Authorization

  	
  69

  
	
  Section 5.4.

  	
  No
  Conflicts or Consents

  	
  69

  
	
  Section 5.5.

  	
  Enforceable
  Obligations

  	
  69

  
	
  Section 5.6.

  	
  Initial
  Financial Statements

  	
  69

  
	
  Section 5.7.

  	
  Other
  Obligations and Restrictions

  	
  69

  
	
  Section 5.8.

  	
  Full
  Disclosure

  	
  70

  
	
  Section 5.9.

  	
  Litigation

  	
  70

  
	
  Section 5.10.

  	
  ERISA
  Plans and Liabilities

  	
  70

  
	
  Section 5.11.

  	
  Compliance
  with Permits, Consents and Law

  	
  70

  
	
  Section 5.12.

  	
  Environmental
  Laws

  	
  71

  
	
  Section 5.13.

  	
  US
  Borrower’s Subsidiaries

  	
  71

  
	
  Section 5.14.

  	
  Title
  to Properties

  	
  71

  
	
  Section 5.15.

  	
  Government
  Regulation

  	
  71

  
	
  Section 5.16.

  	
  Insider

  	
  72

  
	
  Section 5.17.

  	
  Solvency

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.
  - Affirmative Covenants

  	
  72

  
	
  Section 6.1.

  	
  Payment
  and Performance

  	
  72

  
	
  Section 6.2.

  	
  Books,
  Financial Statements and Reports

  	
  72

  
	
  Section 6.3.

  	
  Other
  Information and Inspections

  	
  74

  
	
  Section 6.4.

  	
  Notice
  of Material Events

  	
  75

  
	
  Section 6.5.

  	
  Maintenance
  of Existence, Qualifications and Assets

  	
  75

  
	
  Section 6.6.

  	
  Payment
  of Taxes, etc

  	
  75

  
	
  Section 6.7.

  	
  Insurance

  	
  76

  
	
  Section 6.8.

  	
  Compliance
  with Agreements and Law

  	
  76

  
	
  Section 6.9.

  	
  Guaranties
  of Subsidiaries

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.
  - Negative Covenants

  	
  77

  
	
  Section 7.1.

  	
  Subsidiary
  Indebtedness

  	
  77

  
	
  Section 7.2.

  	
  Limitation
  on Liens

  	
  78

  
	
  Section 7.3.

  	
  Limitation
  on Mergers

  	
  79

  
	
  Section 7.4.

  	
  Limitation
  on New Businesses

  	
  80

  
	
  Section 7.5.

  	
  Transactions
  with Affiliates

  	
  80

  
	
  Section 7.6.

  	
  Limitation
  on Distributions

  	
  81

  
	
  Section 7.7.

  	
  Restricted
  Contracts

  	
  81

  
	
  Section 7.8.

  	
  Debt
  Coverage Ratio

  	
  81

  
	
  Section 7.9.

  	
  [Intentionally
  Deleted]

  	
  83

  
	
  Section 7.10.

  	
  Unrestricted
  Subsidiaries

  	
  83

  
	
  Section 7.11.

  	
  No
  Negative Pledges

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.
  - Events of Default and Remedies

  	
  84

  
	
  Section 8.1.

  	
  Events
  of Default

  	
  84

  
	
  Section 8.2.

  	
  Remedies

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.
  – Agents

  	
  87

  



 


ii

















 


	
  Section 9.1.

  	
  Appointment
  and Authority

  	
  87

  
	
  Section 9.2.

  	
  Rights
  as a Lender

  	
  87

  
	
  Section 9.3.

  	
  Exculpatory
  Provisions

  	
  88

  
	
  Section 9.4.

  	
  Reliance
  by Agents

  	
  88

  
	
  Section 9.5.

  	
  Delegation
  of Duties

  	
  89

  
	
  Section 9.6.

  	
  Resignation
  of Agent

  	
  89

  
	
  Section 9.7.

  	
  Non-Reliance
  on Agents and Other Lenders

  	
  90

  
	
  Section 9.8.

  	
  No
  Other Duties, Etc

  	
  90

  
	
  Section 9.9.

  	
  Guaranty
  Matters

  	
  90

  
	
  Section 9.10.

  	
  Indemnification

  	
  90

  
	
  Section 9.11.

  	
  Sharing
  of Set-Offs and Other Payments

  	
  91

  
	
  Section 9.12.

  	
  Investments

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.
  – Miscellaneous

  	
  92

  
	
  Section 10.1.

  	
  Waivers
  and Amendments; Acknowledgments

  	
  92

  
	
  Section 10.2.

  	
  Survival
  of Representations, Warranties and Agreements; Cumulative Nature

  	
  94

  
	
  Section 10.3.

  	
  Notices;
  Effectiveness; Electronic Communication

  	
  95

  
	
  Section 10.4.

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  96

  
	
  Section 10.5.

  	
  Successors
  and Assigns

  	
  98

  
	
  Section 10.6.

  	
  Treatment
  of Certain Information; Confidentiality

  	
  102

  
	
  Section 10.7.

  	
  Governing
  Law; Submission to Process

  	
  103

  
	
  Section 10.8.

  	
  Waiver
  of Judgment Interest Act (Alberta)

  	
  104

  
	
  Section 10.9.

  	
  Deemed
  Reinvestment Not Applicable

  	
  104

  
	
  Section 10.10.

  	
  Limitation
  on Interest

  	
  104

  
	
  Section 10.11.

  	
  Right
  of Offset

  	
  105

  
	
  Section 10.12.

  	
  Termination;
  Limited Survival; Payments Set Aside

  	
  105

  
	
  Section 10.13.

  	
  Severability

  	
  106

  
	
  Section 10.14.

  	
  Counterparts

  	
  106

  
	
  Section 10.15.

  	
  Waiver
  of Jury Trial.

  	
  106

  
	
  Section 10.16.

  	
  USA
  PATRIOT Act Notice

  	
  107

  
	
  Section 10.17.

  	
  Reallocation
  of Commitments under Existing Agreement

  	
  107

  



 


iii

















 


Schedules and Exhibits:


 


Schedule I – Facility Fees and Applicable Margin


Schedule II – Commitments and Pro Rata Shares


Schedule III – Disclosure Schedule


Schedule 10.3 - Administrative Agent’s Office; Certain Addresses
for Notices


 


Exhibit A-1 - US Note


Exhibit A-2 - Canadian Note


Exhibit A-3 – Swing Line Note


Exhibit B-1 - US Borrowing Notice


Exhibit B-2 - Canadian Borrowing Notice


Exhibit B-3 – Swing Line Loan Notice


Exhibit C-1 - US Continuation/Conversion Notice


Exhibit C-2 - Canadian Continuation/Conversion Notice


Exhibit D -  Certificate
Accompanying Financial Statements


Exhibit E-1 - Opinion of In-House Counsel for Restricted Persons


Exhibit E-2 - Opinion of Fulbright & Jaworski L.L.P.,
Counsel for Restricted Persons


Exhibit E-3 - Opinion of Bennett Jones, Canadian Counsel for
Restricted Persons


Exhibit F - Assignment and Assumption Agreement


 


iv

















 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


[US/Canada Facilities]


 


THIS SECOND AMENDED AND
RESTATED CREDIT AGREEMENT [US/Canada Facilities] is made as of July 31,
2006, by and among PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited
partnership (“US Borrower”), PMC (NOVA SCOTIA) COMPANY, a Nova Scotia
unlimited liability company, and PLAINS MARKETING CANADA, L.P., an Alberta
limited partnership (each a “Canadian Borrower” and collectively, the “Canadian
Borrowers”), BANK OF AMERICA, N.A., as administrative agent (in such
capacity, “Administrative Agent”), BANK OF AMERICA, N.A., acting through
its Canada Branch, as Canadian administrative agent (in such capacity, “Canadian
Administrative Agent”), WACHOVIA BANK, NATIONAL ASSOCIATION and JPMORGAN
CHASE BANK, N.A., as co-syndication agents (in such capacity, “Co-Syndication
Agents”), FORTIS CAPITAL CORP., CITIBANK, N.A., BNP PARIBAS, UBS SECURITIES
LLC, SUNTRUST BANK and THE BANK OF NOVA SCOTIA, as co-documentation agents (in
such capacity, “Co-Documentation Agents”), BANC OF AMERICA SECURITIES
LLC AND WACHOVIA CAPITAL MARKETS, LLC, as joint lead arrangers and joint book
managers (in such capacity, “Joint Lead Arrangers and Book Managers”)
and the Lenders referred to below. In consideration of the mutual covenants and
agreements contained herein the parties hereto agree as follows:


 


W I T N E S S E T H


 


US Borrower, Canadian
Borrowers, Administrative Agent and other agents and lenders entered into that
certain Amended and Restated Credit Agreement [US/Canada Facilities] dated November 4,
2005 (as amended prior to the effective date of this Agreement, the “Existing
Agreement”) and desire to amend and restate the Existing Agreement as set
forth herein.


 


In consideration of the
mutual covenants and agreements contained herein and in consideration of the
loans which may hereafter be made by Lenders and the Letters of Credit
which may be made available by LC Issuers to Borrowers and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


ARTICLE I. - Definitions and References


 


Section 1.1                                      Defined
Terms. As used in this Agreement, each of the following terms has the
meaning given to such term in this Section 1.1 or in the sections and
subsections referred to below:


 


“Acquisition Period”
means the period beginning, at the election of US Borrower, with the funding
date of the purchase price for a Specified Acquisition and ending on the
earliest of (a) the third following Fiscal Quarter end, (b) US
Borrower’s receipt of proceeds of a Specified Equity Offering; and (c) US
Borrower’s election in writing to terminate such Acquisition Period (provided,
at the time of such election, the Debt Coverage Ratio shall not, on a pro forma
basis, exceed 4.75 to 1.00); provided, however, if the Debt
Coverage Ratio exceeds 4.75 to 1.00 at the end of the Fiscal Quarter ending
next following such funding date, then the Acquisition Period 


 


1

















 


shall be deemed to
have commenced as of such funding date; provided, further, during
any Acquisition Period, no additional Acquisition Period shall commence, nor
shall such Acquisition Period be extended, by any subsequent Specified
Acquisition until the current Acquisition Period shall have expired and US
Borrower shall be in compliance with Section 7.8(ii).


 


“Administrative Agent”
means Bank of America, N.A., as Administrative Agent hereunder, and its
successors in such capacity.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by the relevant Agent.


 


“Affiliate” means,
as to any Person, each other Person that directly or indirectly (through one or
more intermediaries or otherwise) controls, is controlled by, or is under
common control with, such Person. A Person shall be deemed to be “controlled by”
any other Person if such other Person possesses, directly or indirectly, power
to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.


 


“Agent” means (i) with
respect to US Loans, Administrative Agent, (ii) with respect to Canadian
Loans, Canadian Administrative Agent, and (iii) their respective
successors in such capacity.


 


“Agreement” means this Credit Agreement.


 


“Applicable Lending
Office” means, for each Lender and for each Type of Loan, the “Lending
Office” of such Lender (or of an Affiliate of such Lender) designated for such
Type of Loan on such Lender’s Administrative Questionnaire or such other office
of such Lender (or an Affiliate of such Lender) as such Lender may from
time to time specify to Administrative Agent or Canadian Administrative Agent,
as applicable, and US Borrower by written notice in accordance with the terms
hereof as the office by which its Loans of such Type are to be made and
maintained.


 


“Applicable Margin”
means, as to any Type of Loan, the percent per annum set forth on Schedule I
as the “Applicable Margin” for such Type of Loan, based on the Applicable
Rating Level in effect on such date. Changes in the Applicable Margin will
occur automatically without prior notice as changes in the Applicable Rating
Level occur. Administrative Agent will give notice promptly to Borrowers,
Canadian Administrative Agent and Lenders of changes in the Applicable Margin.


 


“Applicable Rating Level” means for any day,
the level set forth below that corresponds to the PAA Debt Rating by the
Ratings Agencies applicable on such day; provided, in the event the PAA
Debt Rating by the Ratings Agencies differs by one level, the higher PAA Debt
Rating shall apply; provided  further, in the event the PAA Debt
Rating by the Ratings Agencies differs by more than one level, the PAA Debt
Rating one level above the lower PAA Debt Rating shall apply. As used in this
definition, “>“ means a rating equal to or more favorable than and “<“
means a rating less favorable than.


 


2

















 




	
  Rating Level

  	
   

  	
  S&P

  	
   

  	
  Moody’s

  
	
  Level I

  	
   

  	
  > A-

  	
   

  	
  > A3

  
	
  Level II

  	
   

  	
  BBB+

  	
   

  	
  Baa1

  
	
  Level III

  	
   

  	
  BBB

  	
   

  	
  Baa2

  
	
  Level IV

  	
   

  	
  BBB-

  	
   

  	
  Baa3

  
	
  Level V

  	
   

  	
  < BBB-

  	
   

  	
  < Baa3

  






 


If either of the Rating
Agencies shall not have in effect a PAA Debt Rating or if the rating system of
either of the Rating Agencies shall change, or if either of the Rating Agencies
shall cease to be in the business of rating corporate debt obligations, US
Borrower and Majority Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such Rating Agency, but until such an agreement shall be reached,
the Applicable Rating Level shall be based only upon the PAA Debt Rating by the
remaining Rating Agency.


 


“Approved Fund” means any Fund that is solely
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.


 


“Assignment and Assumption” means an assignment
and assumption entered into by a Lender and an Eligible Assignee, and accepted
by Administrative Agent, in substantially the form of Exhibit F.


 


“BA Discount Rate”
means, in respect of a BA being accepted by a Canadian Lender on any date, (i) for
a Canadian Lender that is listed in Schedule I to the Bank Act (Canada), the average bankers’
acceptance rate as quoted on Reuters CDOR page (or such other page as
may, from time to time, replace such page on that service for the purpose
of displaying quotations for bankers’ acceptances accepted by leading Canadian
financial institutions) at approximately 10:00 a.m. (Toronto, Ontario
time) on such drawdown date for bankers’ acceptances having a comparable
maturity date as the maturity date of such BA (the “CDOR Rate”); or, if
such rate is not available at or about such time, the average of the bankers’
acceptance rates (expressed to five decimal places) as quoted to Canadian
Administrative Agent by the Schedule I BA Reference Banks as of 10:00 a.m.
(Toronto, Ontario time) on such drawdown date for bankers’ acceptances having a
comparable maturity date as the maturity date of such BA; and (ii) for a
Canadian Lender that is listed in Schedule II to the Bank Act (Canada) or a Canadian Lender
that is listed in Schedule III to the Bank
Act (Canada) that is not subject to the restrictions and
requirements referred to in subsection 524 (2) of the Bank Act (Canada), the rate established by
Canadian Administrative Agent to be the lesser of (A) the CDOR Rate plus
10 Basis Points and (B) the average of the bankers’ acceptance rates
(expressed to five decimal places) as quoted to Canadian Administrative Agent
by the Schedule II BA Reference Banks or Schedule III BA Reference
Banks as of 10:00 a.m. (Toronto, Ontario time) on such drawdown date for
bankers’ acceptances having a comparable maturity date as the maturity date of
such BA.


 


“BA Equivalent Advance”
means a Canadian Advance provided hereunder by a Canadian Lender in lieu of
accepting and purchasing a BA pursuant to Section 2.12(f).


 


3

















 


“Bankers’ Acceptance”
or “BA” means a non-interest bearing bill of exchange on a Canadian
Lender’s usual form (or a bill of exchange within the meaning of the Bill
of Exchange Act Canada), or a depository bill within the meaning of the
Depository Bills and Notes Act (Canada), denominated in Canadian Dollars, drawn
by or on behalf of either Canadian Borrower, for a term selected by such
Canadian Borrower of either one, two, three or six months (as reduced or
extended by Canadian Administrative Agent, acting reasonably, to allow the
maturity thereof to fall on a Business Day) payable in Canada, and accepted by
a Canadian Lender in accordance with this Agreement.


 


“Bankruptcy and
Insolvency Act (Canada)” means the
Bankruptcy and Insolvency Act, S.C. 1992, c. 27, including the
regulations made and, from time to time, in force under that Act.


 


“Base Rate” means
for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by the Reference Bank as
its “prime rate.”  The “prime rate” is a
rate set by the Reference Bank based upon various factors including its costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such rate announced by the
Reference Bank shall take effect at the opening of business on the day
specified in the public announcement of such change.


 


“Base Rate Loan”
means (i) a US Loan, other than a Swing Line Loan, to US Borrower which
does not bear interest at a rate based upon the Eurodollar Rate, or (ii) a
Swing Line Loan to US Borrower which does not bear interest at a rate based
upon the Eurodollar Market Index Rate or the Eurodollar Rate.


 


“Board” shall have
the meaning given that term in clause (i) of the definition of the term “Change
of Control.”


 


“Borrowers” means,
collectively, US Borrower, each Canadian Borrower and their successors and
assigns, in each case, so long as it is permitted to borrow hereunder or
request the issuance of a Letter of Credit; “Borrower” means,
individually, any of such Persons.


 


“Borrowing” means (i) a
borrowing of new Loans of a single Type pursuant to Section 2.2 or (ii) a
Continuation or Conversion of existing Loans into a single Type (and, in the
case of Eurodollar Loans, with the same Interest Period) pursuant to Section 2.3
or (iii) the acceptance or purchase by Canadian Lenders of Bankers’
Acceptances issued by either Canadian Borrower under Section 2.12, or (iv) with
respect to Swing Line Loans, a Swing Line Borrowing.


 


“Borrowing Notice”
means a written or telephonic request, or a written confirmation, made by a
Borrower which meets the requirements of Section 2.2 or, with respect to
Swing Line Borrowings, the requirements of Section 2.10A(b).


 


“Business Day”
means: (i) with respect to Canadian Obligations a Canadian Business Day,
and (ii) with respect to all other Obligations, a US Business Day.


 


4

















 


“Canadian Administrative Agent” means Bank of
America, N.A., acting through its Canada branch, as Canadian Administrative
Agent hereunder, and its successors in such capacity.


 


“Canadian Advances” has the meaning given to
such term in Section 2.1(c).


 


“Canadian Allocated Commitment” means, as to each Lender, its,
its Canadian branch’s or its Affiliate’s Canadian Percentage Share as set forth
opposite such Lender’s, Canadian branch’s or Affiliate’s name on Schedule II or
in the Assignment and Assumption pursuant to which such Lender, Canadian branch
or Affiliate becomes a party hereto, as applicable, of the Canadian Allocated
Total Commitment.


 


“Canadian Allocated Maximum Total Commitment” means the
aggregate maximum Canadian Allocated Commitments of all Lenders, their Canadian
branches or Affiliates as set forth opposite such Lender’s, Canadian branch’s
or affiliate’s name on Schedule II or in the Assignment and Acceptance
pursuant to which such Lender, Canadian branch or affiliate becomes a party
hereto, as applicable, as may be increased pursuant to Section 2.1(d).


 


“Canadian Allocated Total Commitment” means the aggregate amount
of the US Commitments allocated by US Borrower from time to time as the
Canadian Allocated Total Commitment pursuant to Section 2.1(b), not to
exceed the Canadian Allocated Maximum Total Commitment.


 


“Canadian Allocation Period” means any time during which either (a) US
Borrower has allocated any portion of the US Commitments as the Canadian
Allocated Total Commitment pursuant to Section 2.1(b) or (b) the
Canadian Total Outstanding Amount exceeds zero.


 


“Canadian Borrowers”
means collectively, until termination of US Borrower’s right to allocate a
portion of the US Total Committed Amount as the Canadian Allocated Total
Commitment, PMC (Nova Scotia) Company, a Nova Scotia unlimited liability
company, and Plains Marketing Canada, L.P., an Alberta limited partnership; “Canadian
Borrower” means, individually, either of such Persons.


 


“Canadian Business Day”
means any day, other than a Saturday, Sunday or day which shall be in the Provinces
of Ontario, Quebec or Alberta a legal holiday or day on which banking
institutions are required or authorized to close. Any Business Day in any way
relating to Eurodollar Loans (such as the day on which an Interest Period
begins or ends) must also be a day on which commercial banks settle payments in
London.


 


“Canadian Commitment” means, as to each Canadian Lender, its
obligation during a Canadian Allocation Period to (a) make Canadian
Advances to either Canadian Borrower pursuant to Sections 2.1(c), (b) purchase
participations in Canadian LC Obligations pursuant to Section 2.10(c), and
(c) purchase participations in Swing Line Loans to either Canadian
Borrower, in an aggregate principal amount at any one time outstanding not to
exceed such Canadian Lender’s Canadian Allocated Commitment.


 


“Canadian Dollars” and “C$” means the
lawful currency of Canada.


 


5

















 


“Canadian Facility Fee
Rate” means, on any day during a Canadian Allocation Period, the rate per
annum set forth on Schedule I as the “Canadian Facility Fee Rate” based on
the Applicable Rating Level on such date. Changes in the applicable Canadian
Facility Fee Rate will occur automatically without prior notice as changes in
the Applicable Rating Level occur. Administrative Agent will give notice
promptly to Canadian Borrowers and Canadian Lenders of any change (and its
effective date) in the Applicable Rating Level and the applicable Canadian
Facility Fee Rate.


 


“Canadian LC Issuer”
means Bank of America, N.A., acting through its Canada branch, in its capacity
as the issuer of Canadian Letters of Credit hereunder, and its successors in
such capacity. Canadian Administrative Agent may, with the consent of Canadian
Borrowers and the Canadian Lender in question, or a Canadian Borrower may, with
the consent of Canadian Lender in question and notice to Canadian
Administrative Agent, appoint any Canadian Lender hereunder as a Canadian LC
Issuer in place of or in addition to Bank of America, N.A., acting through its
Canada Branch.


 


“Canadian LC
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Canadian Letters of Credit plus
the aggregate outstanding amount of all Unreimbursed Amounts with respect to
Canadian Letters of Credit that are not fully refinanced by a Canadian Advance
and, without duplication, all LC Borrowings with respect to Canadian Letters of
Credit. For all purposes of this Agreement, if on any date of determination a
Canadian Letter of Credit has expired by its terms but any amount may still
be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Canadian Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Canadian Lenders”
means, during a Canadian Allocation Period, each signatory hereto designated as
a Canadian Lender and the successors and permitted assigns of each such party
as holder of a Canadian Note and, as the context requires, includes the Swing
Line Lender.


 


“Canadian Lender
Parties” means Canadian Administrative Agent, Canadian LC Issuer, and
Canadian Lenders.


 


“Canadian Letter of
Credit” means any letter of credit issued by Canadian LC Issuer hereunder
at the application of either Canadian Borrower pursuant to Section 2.10. For
the avoidance of doubt, Canadian Letter of Credit includes a commercial or
documentary letter of credit and a standby letter of credit.


 


“Canadian Letter of
Credit Fee Rate” means, on any day during a Canadian Allocation Period, the
rate per annum set forth on Schedule I as the “Canadian LC Fee Rate” based
on the Applicable Rating Level on such date. Changes in the applicable Canadian
Letter of Credit Fee Rate will occur automatically without prior notice as
changes in the Applicable Rating Level occur. Administrative Agent will give
notice promptly to Canadian Administrative Agent of any change (and its
effective date) in the Applicable Rating Level, and Canadian Administrative
Agent will in turn give notice promptly to Canadian Borrowers and Canadian
Lenders of such change in the Applicable Rating Level and the applicable
Canadian Letter of Credit Fee Rate.


 


6

















 


“Canadian Loans”
has the meaning given such term in Section 2.1(c) hereof and
includes, as the context requires, including without limitation for purposes of
Section 2.5(a)(ii) hereof, Swing Line Loans by the Swing Line Lender
to either Canadian Borrower pursuant to Section 2.10A.


 


“Canadian Notes”
has the meaning given such term in Section 2.1(c) hereof.


 


“Canadian Obligations”
means all Liabilities from time to time owing by any Restricted Person to any
Lender Party under or pursuant to any of the Canadian Advances, Canadian Notes
and Canadian Letters of Credit, including all Canadian LC Obligations owing
thereunder, or under or pursuant to any guaranty of the obligations of either
Canadian Borrower under the Loan Documents. “Canadian Obligation” means
any part of the Canadian Obligations.


 


“Canadian Percentage Share” means:


 


(a)                                  at
any time the US Commitments remain outstanding and not during a Canadian
Allocation Period, with respect to each Lender, the Canadian Percentage Share
of such Lender, its Canadian branch or affiliate set forth opposite such Lender’s,
Canadian branch’s or affiliate’s name on Schedule II or in the Assignment
and Assumption pursuant to which such Lender, Canadian branch or affiliate
becomes a party hereto;


 


(b)                                 at
any time the Canadian Commitments remain outstanding and during a Canadian
Allocation Period, with respect to each Canadian Lender, a fraction (expressed
as a percentage, carried out to the sixth decimal place), the numerator
of which is the amount of the Canadian Commitment of such Canadian Lender at
such time and the denominator of which is the amount of the Canadian
Allocated Total Commitment at such time; and


 


(c)                                  upon
the termination of the US Commitments and Canadian Commitments pursuant to Section 8.1,
with respect to each Canadian Lender, a fraction (expressed as a percentage,
carried out to the sixth decimal place), the numerator of which is:


 


the sum of


 


(i) the Outstanding
Amount of Canadian Advances of such Canadian Lender plus


 


(ii) an amount equal
to (A) the Outstanding Amount of Canadian Advances of such Canadian Lender
divided by (B) the Outstanding Amount of Canadian Advances of all
Canadian Lenders times (C) the Outstanding Amount of all Canadian
LC Obligations, and


 


the denominator of which is the Canadian Total Outstanding
Amount.


 


The initial Canadian Percentage
Share of each Lender, its Canadian branch or affiliate is set forth opposite
the name of such Lender on Schedule II or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.


 


“Canadian Prime Rate”
means on any day a fluctuating rate of interest per annum equal to the higher
of (i) the rate of interest per annum most recently announced by Canadian
Administrative Agent as its reference rate for Canadian Dollar commercial
demand loans made 


 


7

















 


to a Person in
Canada; and (ii) Canadian Administrative Agent’s discount rate for Bankers’
Acceptances having a maturity of one month plus one-half percent (0.5%) per
annum. Changes in the Canadian Prime Rate resulting from changes in the foregoing
described reference rate or discount rate shall take place immediately without
notice or demand of any kind.


 


“Canadian Prime Rate
Loan” means a Canadian Loan which bears interest at a rate based upon the
Canadian Prime Rate.


 


“Canadian Total Committed Amount” means, at any time, the sum of
the aggregate amount of the Canadian Commitments at such time.


 


“Canadian Total Outstanding Amount” means, at any time, the sum
of (i) the Outstanding Amount of Canadian Advances at such time plus
(ii) the Outstanding Amount of Canadian LC Obligations.


 


“Canadian US Dollar
Base Rate” means for a day, the rate per annum equal to the higher of (a) the
Federal Funds Rate for such day plus one-half of one percent (0.5%) and (b) the
rate of interest per annum most recently established by Canadian Administrative
Agent as its reference rate for US Dollar commercial loans made to a Person in
Canada. Any change in the Canadian US Dollar Base Rate due to a change in
Canadian Administrative Agent’s reference rate shall be effective on the
effective date of such change.


 


“Canadian US Dollar
Base Rate Loan” means (i) a US Dollar-denominated Canadian Loan, other
than a US Dollar-denominated Swing Line Loan, to a Canadian Borrower, which
does not bear interest at a rate based upon the Eurodollar Rate, or (ii) a
US Dollar-denominated Swing Line Loan to a Canadian Borrower which does not
bear interest at a rate based upon the Eurodollar Market Index Rate or the
Eurodollar Rate.


 


“Capital Lease”
means a lease with respect to which the lessee is required concurrently to
recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.


 


“Capital Lease
Obligation” means, with respect to any Person and a Capital Lease, the
amount of the obligation of such Person as the lessee under such Capital Lease
which would, in accordance with GAAP, appear as a liability on a balance sheet
of such Person.


 


“Cash and Carry
Purchases” means purchases of Petroleum Products for physical storage or in
storage or in transit in pipelines which has been hedged by either a NYMEX
contract, an OTC contract, an Intercontinental Exchange contract, or a contract
for physical delivery.


 


“Cash Collateralize”
has the meaning specified in Section 2.10(g).


 


“Cash Equivalents” means Investments in:


 


(a)                                  marketable
obligations, maturing within 12 months after acquisition thereof, issued or
unconditionally guaranteed by the United States of America or the federal
government of Canada or an instrumentality or agency thereof and entitled to
the full faith and credit of the United States of America or the federal
government of Canada, as the case may be;


 


8

















 


(b)                                 demand
deposits and time deposits (including certificates of deposit) maturing within
12 months from the date of deposit thereof, (i) with any office of any
Lender or (ii) with a domestic office of any national, state or provincial
bank or trust company which is organized under the Laws of the United States of
America or any state therein, or the federal government of Canada or any
province therein, which has capital, surplus and undivided profits of at least
$500,000,000, and whose long term certificates of deposit are rated at least
Aa3 by Moody’s or AA- by S&P;


 


(c)                                  repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in subsection (a) above entered into with (i) any
Lender or (ii) any other commercial bank meeting the specifications of subsection (b) above;


 


(d)                                 open
market commercial paper, maturing within 270 days after acquisition thereof,
which are rated at least P-1 by Moody’s or A-1 by S&P; and


 


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


 


“Change of Control” means the occurrence of any
of the following events:


 


(i)                                   Qualifying
Directors cease for any reason to constitute collectively a majority of the
members of the board of directors of GP LLC (the “Board”) then in office;


 


(ii)                                  GP
LLC shall cease to be, directly or indirectly, the beneficial owner (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of all of the general partner interests of General Partner.


 


(iii)                               General
Partner shall cease to be, directly or indirectly, the beneficial owner (as
defined above) of all of the general partner interests of US Borrower; or


 


(iv)                              Neither
General Partner nor US Borrower shall continue to be, directly or indirectly,
the beneficial owner of all of the general partner interests in Plains
Marketing and Plains Pipeline; or


 


(v)                                 US
Borrower shall cease to be, directly or indirectly, the beneficial owner (as
defined above) of all of the outstanding partnership or equity interests in
either Canadian Borrower, if after giving effect thereto, such Canadian
Borrower has any outstanding Obligations or any Lender shall have any
outstanding Canadian Commitment thereto.


 


As used herein, “Qualifying
Director” means (i) any Person designated by any Qualifying Owner as
its representative on the Board, (ii) so long as Qualifying Owners own a
majority of the ownership interests of GP LLC entitling the holders thereof to
vote in elections for directors of GP LLC, any Person elected by a majority of
such owners of GP LLC entitled to vote thereon, and (iii) the chief
executive officer of GP LLC, and “Qualifying Owner” means Kayne Anderson
Investment Management, EnCap Investments LLC, Vulcan Energy Corporation or any
Affiliate of any of the foregoing.


 


9

















 


“Closing Date”
means the first date all the conditions precedent in Sections 4.1 and 4.2 are
satisfied or waived in accordance with Section 10.1 and a Borrower’s
initial funding request hereunder is so funded.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time, together with all rules and
regulations promulgated with respect thereto.


 


“Commitment”
means, collectively, the US Commitments and the Canadian Commitments.


 


“Commitment Period”
means the period from and including the date hereof until the Maturity Date
(or, if earlier, the day on which the obligation of Lenders to make Loans
to Borrowers hereunder pursuant to Section 2.1(a) or (c) and the
obligation of LC Issuers to issue Letters of Credit at the request of
Borrowers pursuant to Section 2.10 has been terminated or the day on which
any of the Notes first becomes due and payable in full).


 


“Companies’ Creditors
Arrangement Act (Canada)” means the Companies’
Creditors Arrangement Act, R.S.C. 1985, c. C-36, including the
regulations made and from time to time in force under that Act.


 


“Consolidated”
refers to the consolidation of any Person, in accordance with GAAP, with its
properly consolidated subsidiaries. References herein to a Person’s Consolidated
financial statements, financial position, financial condition, liabilities,
etc. refer to the consolidated financial statements, financial position,
financial condition, liabilities, etc. of such Person and its properly
consolidated subsidiaries.


 


“Consolidated EBITDA”
means, for any period, the sum of (1) the Consolidated Net Income during
such period, plus (2) all interest expense that was deducted in
determining such Consolidated Net Income for such period, plus (3) all
income taxes (including any franchise taxes to the extent based upon net
income) that were deducted in determining such Consolidated Net Income, plus
(4) all depreciation, amortization (including amortization of good will
and debt issue costs) and other non-cash charges (including any provision for
the reduction in the carrying value of assets recorded in accordance with GAAP)
which were deducted in determining such Consolidated Net Income, minus (5) all
non-cash items of income which were included in determining such Consolidated
Net Income.


 


“Consolidated Funded
Indebtedness” means as of any date, the sum of the following (without
duplication):  (i) the outstanding
principal amount of all Indebtedness which is classified as “long-term
indebtedness” on a consolidated balance sheet of US Borrower and its
Consolidated Subsidiaries (excluding Unrestricted Subsidiaries) prepared as of
such date in accordance with GAAP (subject to year-end audit adjustments with
respect to non-year end periods) and any current maturities and other principal
amount in respect of such Indebtedness due within one year but which was
classified as “long-term indebtedness” at the creation thereof; (ii) the
outstanding principal amount of Indebtedness for borrowed money of US Borrower
and its Consolidated Subsidiaries (excluding Unrestricted Subsidiaries)
outstanding under a revolving credit, term or similar agreement (and renewals
and extensions thereof); and (iii) the outstanding principal amount of
Indebtedness in respect of Capital Leases of US Borrower and 


 


10

















 


its Consolidated
Subsidiaries (excluding Unrestricted Subsidiaries); provided, however,
Consolidated Funded Indebtedness shall not, if otherwise applicable, include
(x) Indebtedness in respect of letters of credit, (y) Indebtedness incurred to
finance Cash and Carry Purchases or (z) margin deposits.


 


“Consolidated Net
Income” means, for any period, US Borrower’s and its Subsidiaries’
(excluding Unrestricted Subsidiaries) gross revenues for such period, including
any cash dividends or distributions actually received from any other Person
during such period, minus US Borrower’s and its Subsidiaries’ (excluding
Unrestricted Subsidiaries) expenses and other proper charges against income
(including taxes on income, to the extent imposed), determined on a
Consolidated basis after eliminating earnings or losses attributable to
outstanding minority interests and excluding the net earnings of any Person
other than a Subsidiary in which US Borrower or any of its Subsidiaries
(excluding Unrestricted Subsidiaries) has an ownership interest. Consolidated
Net Income shall not include (i) any gain or loss from the sale of assets,
(ii) any extraordinary gains or losses, or (iii) any non-cash gains
or losses resulting from mark to market activity as a result of the
implementation of SFAS 133 or EITF 98-10. In addition, Consolidated Net Income
shall not include the cost or proceeds of purchasing or selling options which
are used to hedge future activity, until the period in which such hedged future
activity occurs.


 


“Consolidated Tangible
Net Worth” means the remainder of (i) all Consolidated assets, as
determined in accordance with GAAP, of US Borrower and its Subsidiaries
(excluding Unrestricted Subsidiaries) minus (ii) the sum of (a) US
Borrower’s Consolidated liabilities (excluding liabilities of Unrestricted
Subsidiaries, to the extent included therein), as determined in accordance with
GAAP, (b) the book value of any equity interests in any of US Borrower’s
Subsidiaries (excluding Unrestricted Subsidiaries) which equity interests are
owned by a Person other than US Borrower or a Wholly Owned Subsidiary of US
Borrower; and (c) the net book value of all assets that would be treated
as intangible under GAAP, including goodwill, trademarks, trade names and
service marks, excluding fifty percent (50%) of goodwill attributed to the PPX
Acquisition. The effect of any increase or decrease of net worth in any period
as a result of items of income or loss not reflected in the determination of
net income but reflected in the determination of comprehensive income (to the
extent provided under GAAP as in effect on the date hereof) shall be excluded
in determining Consolidated Tangible Net Worth.


 


“Contango Credit
Agreement” means that certain Restated Credit Agreement dated November 19,
2004, as amended by First Amendment to Restated Credit Agreement dated April 20,
2005, Second Amendment to Restated Credit Agreement dated May 20, 2005,
Third Amendment to Restated Credit Agreement dated November 4, 2005, and
as further amended from time to time, among Plains Marketing, Bank of America,
N.A., as administrative agent, and the lenders named therein.


 


“Continue”, “Continuation”
and “Continued” shall refer to (i) the continuation pursuant to Section 2.3
of a Eurodollar Loan as a Eurodollar Loan from one Interest Period to the next
Interest Period and (ii) a rollover of a Banker’s Acceptance at maturity.


 


“Continuation/Conversion
Notice” means a written or telephonic request, or a written confirmation,
made by a Borrower which meets the requirements of Section 2.3.


 


11

















 


“Convert”, “Conversion”
and “Convert” refers to a conversion pursuant to Section 2.3 of one
Type of US Loan into another Type of US Loan, or of one Type of Canadian
Advance into another Type of Canadian Advance.


 


“Debt Coverage Ratio”
shall have the meaning given that term in Section 7.8.


 


“Default” means
any Event of Default and any default, event or condition which would, with the giving
of any requisite notices and the passage of any requisite periods of time,
constitute an Event of Default.


 


“Defaulting Lender”
means any Lender Party that (a) has failed to fund any portion of the
Loans or participations in LC Obligations or participations in Swing Line Loans
required to be funded by it hereunder or failed to issue any Letter of Credit
required to be issued by it hereunder, in either case within one Business Day
of the date required for such funding or issuance by it hereunder, unless
cured, (b) has otherwise failed to pay over to Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless cured or the subject of a good faith
dispute, (c) has otherwise materially breached any of its obligations
hereunder or under any other Loan Document, unless cured, or (d) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


“Default Rate”
means, at the time in question, two percent (2%) per annum plus:


 


(a)                                  the
Eurodollar Rate plus the Applicable Margin then in effect for each Eurodollar
Loan (up to the end of the applicable Interest Period),


 


(b)                                 the
Base Rate plus the Applicable Margin then in effect for each Base Rate Loan or
Dollar-denominated LC Borrowing by US Borrower, as the case may be,


 


(c)                                  the
Canadian Prime Rate plus the Applicable Margin for each Canadian Prime Rate
Loan or Canadian Dollar-denominated LC Borrowing by a Canadian Borrower, as the
case may be; or


 


(d)                                 the
Canadian US Dollar Base Rate plus the Applicable Margin for each Canadian
US Dollar Base Rate Loan or Dollar-Denominated LC Borrowing by a Canadian
Borrower, as the case may be;


 


provided, however, the Default Rate shall never exceed the Highest
Lawful Rate.


 


“Default Rate Period”
means (i) any period during which an Event of Default, other than pursuant
to Section 8.1(a) or (b), is continuing, provided that such period
shall not begin until notice of the commencement of the Default Rate has been
given to the applicable Borrower by the relevant Agent upon the instruction by
Majority Lenders and (ii) any period during which any Event of Default
pursuant to Section 8.1(a) or (b) is continuing unless such
applicable Borrower has been notified otherwise by the relevant Agent upon the
instruction by Majority Lenders.


 


12

















 


“Depository Bills and
Notes Act (Canada)” means the Depository
Bills and Notes Act (Canada), R.S.C. 1998, c. 13, including the
regulations made and, from time to time, in force under that Act.


 


“Disclosure Schedule”
means Schedule III hereto.


 


“Discount Proceeds” means, in respect of each
Bankers’ Acceptance, funds in an amount which is equal to:


 


	
   

  	
  Face Amount

  	
   

  
	
   

  	
  1 + 

  	
  (Rate x Term)

  	
   

  	
   

  
	
   

  	
  365

  	
   

  
					



 


(where “Face Amount” is
the principal amount of the Bankers’ Acceptance being purchased, “Rate” is the
BA Discount Rate divided by 100 and “Term” is the number of days in the term of
the Bankers’ Acceptance.)


 


“Distribution”
means (a) any dividend or other distribution (whether in cash or other
property, but excluding dividends or other distributions payable in equity
interests in US Borrower) with respect to any equity interest of US Borrower, (b) any
payment (whether in cash or other property, but excluding dividends or other
distributions payable in equity interests in US Borrower), including any
sinking fund or similar deposit, on account of the retirement, redemption,
purchase, cancellation, termination or other acquisition for value of any
equity interest of US Borrower or (c) any other payment by US Borrower to
any holder of equity interests of US Borrower with respect to such equity
interests held thereby other than payments made with equity interests in US
Borrower.


 


“Dollar Equivalent”
of any amount of any currency at any date means (i) if such currency is
Dollars, the amount of such currency, or (ii) if such currency is Canadian
Dollars, the equivalent in Dollars of such amount of such currency based upon
the rate of exchange for such conversion as quoted by the Bank of Canada at
approximately 12:00 noon, Toronto time (or, if not so quoted, the spot rate of
exchange quoted for wholesale transactions made by Administrative Agent) on the
date on or as of which such amount is to be determined.


 


“Dollars” and “$”
means the lawful currency of the United States of America, except where
otherwise specified.


 


“Eligible Assignee”
means (a) a Lender, and (b) any other Person (other than a natural
person), including Affiliates of Lenders and Approved Funds, approved by (i) Administrative
Agent (and, as to the Canadian Commitment, Canadian Administrative Agent), the
LC Issuers and the Swing Line Lender, and (ii) unless an Event of Default
is continuing, US Borrower (each such approval not to be unreasonably withheld
or delayed); provided, that notwithstanding the foregoing, “Eligible
Assignee” shall not include a Borrower or any of such Borrower’s Affiliates or
Subsidiaries or, unless an Event of Default is continuing, any Person who, at
the relevant time of determination, is a Defaulting Lender or an Affiliate of a
Defaulting Lender; provided  further, an Eligible Assignee of any
Lender shall include only those Persons which, through their respective Lending
Offices, are capable of lending Dollars to US Borrower without the imposition
of any withholding taxes on interest or principal owed to such Persons, and
Loans by 


 


13

















 


such Eligible
Assignee shall be made through such Lending Office (and, if such Lender’s US
Commitment may be allocated in whole or in part to the Canadian
Allocated Total Commitment, only those Persons which, through their respective
Lending Offices, are capable of lending Canadian Dollars to either Canadian
Borrower without the imposition of any withholding taxes on interest or
principal owed to such Persons, and Canadian Loans by such Persons shall be
made through such Lending Offices).


 


“EMIR Loan” means
a Swing Line Loan that bears interest at a rate based upon the Eurodollar
Market Index Rate.


 


“Environmental Laws”
means any and all Laws relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment
including ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
together with all rules and regulations promulgated with respect thereto.


 


“ERISA Affiliate”
means each Restricted Person and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control that, together with such Restricted Person, are treated as a
single employer under Section 414 of the Code.


 


“ERISA Plan” means
any employee pension benefit plan subject to Title IV of ERISA maintained by
any ERISA Affiliate with respect to which any Restricted Person has a fixed or
contingent liability.


 


“Eurodollar Loan”
means a Loan that bears interest at a rate based upon the Eurodollar Rate.


 


“Eurodollar Market
Index Rate” means, for any day with respect to a Swing Line Loan, the rate
per annum equal to the BBA LIBOR, as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
by the relevant Agent from time to time) at approximately 11:00 a.m.,
London time, for such day for Dollar deposits with a term equivalent to seven
days. If such rate is not available at such time for any reason, then the “Eurodollar
Market Index Rate” shall be the rate per annum determined by the Swing Line
Lender to be the rate at which deposits in Dollars in same day funds in the
approximate amount of the Swing Line Loan by the Reference Bank and with a term
of one month would be offered by the Reference Bank’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) on such day.


 


“Eurodollar Rate”
means, for any Interest Period with respect to a Eurodollar Loan, the rate per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the relevant Agent from time to time)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar 


 


14

















 


deposits (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any
reason, then the “Eurodollar Rate” for such Interest Period shall be the rate
per annum determined by the relevant Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by the Reference Bank and with a term equivalent to such Interest
Period would be offered by the Reference Bank’s London Branch to major banks in
the London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.


 


“Event of Default” has the meaning given to
such term in Section 8.1.


 


“Existing Agreement”
has the meaning given to such term in the second introductory paragraph hereof.


 


“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
Bank of America on such day on such transactions as determined by
Administrative Agent.


 


“Fee Letters”
means the letter agreements of even date herewith between US Borrower and (i) Administrative
Agent and Banc of America Securities LLC and (ii) Wachovia Bank, National
Association and Wachovia Capital Markets, LLC.


 


“Fiscal Quarter”
means a three-month period ending on March 31, June 30, September 30
or December 31 of any year.


 


“Fiscal Year”
means a twelve-month period ending on December 31 of any year.


 


“Fund” means any
Person (other than a natural person) that is engaged in making, purchasing or
holding commercial loans and similar extensions of credit in the ordinary
course of its business.


 


“GAAP” means those
generally accepted accounting principles and practices which are recognized as
such by the Financial Accounting Standards Board (or any generally recognized
successor) and which, in the case of US Borrower and its Consolidated Subsidiaries,
are applied for all periods after the date hereof in a manner consistent with
the manner in which such principles and practices were applied to the Initial
Financial Statements. If any change in any accounting principle or practice is
required by the Financial Accounting Standards Board (or any such successor) in
order for such principle or practice to continue as a generally accepted
accounting principle or practice, all reports and financial statements required
hereunder with respect to US Borrower or with respect to US Borrower and its
Consolidated Subsidiaries may 


 


15

















 


be prepared in
accordance with such change, but all calculations and determinations to be made
hereunder may be made in accordance with such change only after notice of
such change is given to each Lender and Majority Lenders agree to such change
insofar as it affects the accounting of US Borrower or of US Borrower and its
Consolidated Subsidiaries.


 


“General Partner”
means Plains AAP, L.P., a Delaware limited partnership, in its capacity as the
sole general partner of US Borrower.


 


“Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity thereof authorized by applicable Law to exercise executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to such government (including any supra-national bodies such
as the European Union or the European Central Bank).


 


“GP LLC” means
Plains All American GP LLC, a Delaware limited liability company.


 


“Guarantors”
means, as of the date hereof, US Borrower (except with respect to the US
Commitment) and any of its Subsidiaries (excluding each Canadian Borrower with
respect to its own Canadian Obligations) that now or hereafter executes and
delivers a guaranty of the Obligations to Administrative Agent pursuant to Section 6.9.


 


“Hazardous Materials”
means any substances regulated under any Environmental Law, whether as
pollutants, contaminants, or chemicals, or as industrial, toxic or hazardous
substances or wastes, or otherwise.


 


“Highest Lawful Rate”
means, with respect to each Lender Party to whom Obligations are owed, the
maximum nonusurious rate of interest that such Lender Party is permitted under
applicable Law to contract for, take, charge, or receive with respect to such
Obligations. All determinations herein of the Highest Lawful Rate, or of any
interest rate determined by reference to the Highest Lawful Rate, shall be made
separately for each Lender Party as appropriate to assure that the Loan
Documents are not construed to obligate any Person to pay interest to any
Lender Party at a rate in excess of the Highest Lawful Rate applicable to such
Lender Party.


 


“Income Tax Act
(Canada)” means the Income Tax Act,
R.S.C. 1985 c. 1 (fifth supplement), including the regulations made and, from
time to time, in force under that Act.


 


“Indebtedness” of any Person means each of the
following:


 


(a)                                  its
obligations for the repayment of borrowed money,


 


(b)                                 its
obligations to pay the deferred purchase price of property or services
(excluding trade account payables arising in the ordinary course of business),
other than contingent purchase price or similar obligations incurred in
connection with an acquisition and not yet earned or determinable,


 


(c)                                  its
obligations evidenced by a bond, debenture, note or similar instrument,


 


16

















 


(d)                                 its
obligations, as lessee, constituting principal under Capital Leases,


 


(e)                                  its
direct or contingent reimbursement obligations with respect to the face amount
of letters of credit pursuant to the applications or reimbursement agreements
therefor,


 


(f)                                    its
obligations for the repayment of outstanding banker’s acceptances, whether
matured or unmatured,


 


(g)                                 its
obligations under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing if the obligation
under such synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP (excluding, to the extent included herein, operating
leases entered into in the ordinary course of business), or


 


(h)                                 its
obligations under guaranties of any obligations of any other Person described in
the foregoing clauses (a) through (g).


 


“Initial Financial
Statements” means (i) the audited Consolidated financial statements of
US Borrower as of December 31, 2005, and (ii) the unaudited
consolidating balance sheet and income statement of US Borrower as of March 31,
2006.


 


“Interest Act (Canada)”
means the Interest Act, R.S.C.
1985, c. I-15, including the regulations made and, from time to time, in force
under that Act.


 


“Interest Expense”
means, with respect to any period, the sum (without duplication) of the
following (in each case, eliminating all offsetting debits and credits between
US Borrower and its Subsidiaries (excluding Unrestricted Subsidiaries) and all
other items required to be eliminated in the course of the preparation of
Consolidated financial statements of US Borrower and its Subsidiaries
(excluding Unrestricted Subsidiaries) in accordance with GAAP): (a) all
interest and facility or commitment fees in respect of Indebtedness of US
Borrower or any of its Subsidiaries (excluding Unrestricted Subsidiaries)
(including imputed interest on Capital Lease Obligations) which are accrued
during such period and whether expensed in such period or capitalized; plus (b) all
fees in respect of letters of credit issued for the account of US Borrower or
any of its Subsidiaries, which are accrued during such period and whether
expensed in such period or capitalized.


 


“Interest Payment Date”
means (a) with respect to each Base Rate Loan, Canadian Prime Rate Loan or
Canadian US Dollar Base Rate Loan, the last day of each March, June, September and
December beginning September 30, 2006, and (b) with respect to
each Eurodollar Loan, the last day of the Interest Period that is applicable
thereto and, if such Interest Period is six, or twelve months in length, the
dates specified by Administrative Agent or Canadian Administrative Agent, as
applicable, which are approximately three, six, and nine months (as
appropriate) after such Interest Period begins; provided that the last Business
Day of each calendar month shall also be an Interest Payment Date for each such
Loan so long as any Event of Default exists under Section 8.1 (a) or
(b).


 


17

















 


“Interest Period”
means, with respect to each particular Eurodollar Loan in a Borrowing, the
period specified in the Borrowing Notice or Continuation/Conversion Notice
applicable thereto, beginning on and including the date specified in such
Borrowing Notice or Continuation/Conversion Notice (which must be a Business
Day), and ending one, two, three, six or twelve months (if twelve months is
available for each Lender) thereafter (and, as to Loans, ending on a date less
than 30 days thereafter as may be specified by US Borrower or either
Canadian Borrower, if such lesser period is available for each Lender making
such Loans), as US Borrower or either Canadian Borrower may elect in such
notice; provided that:  (a) any
Interest Period which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day; (b) any Interest Period (other than an
Interest Period ending on a date less than 30 days after the beginning thereof
as may be specified by a Borrower and otherwise permitted hereunder) which
begins on the last Business Day in a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day in a calendar month;
and (c) notwithstanding the foregoing, no Interest Period may be
selected for a Loan to any Borrower that would end after the Maturity Date


 


“Interim 364-Day
Credit Agreement” means that certain Interim 364-Day Credit Agreement of
even date herewith among US Borrower, JPMorgan Chase Bank, N.A., as
administrative agent, and the lenders named therein, as from time to time
amended.


 


“Investment” means
any investment made, directly or indirectly in any Person, whether by
acquisition of shares of capital stock, indebtedness or other obligations or
securities or by loan, advance, capital contribution or otherwise, and whether
made in cash, by the transfer of property or by any other means.


 


“ISP” means, with respect to any Letter of
Credit, the “International Standby Practices 1998” published by the Institute
of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance).


 


“Issuer Documents”
means with respect to any Letter of Credit, the LC Application, and any other
document, agreement and instrument entered into by an LC Issuer and a Borrower
(or any Subsidiary) or by a Borrower or any Subsidiary in favor of such LC
Issuer and relating to any such Letter of Credit.


 


“Judgment Interest Act
(Alberta)” means the Judgment Interest
Act, S.A. 1984 c. J-O.5, including the regulations made and, from
time to time, in force under that Act.


 


“Law” means any
statute, law, regulation, ordinance, rule, treaty, judgment, order, decree,
permit, concession, franchise, license, agreement or other governmental
restriction of the United States or Canada or any state, province, or political
subdivision thereof or of any foreign country or any department, state, province
or other political subdivision thereof.


 


“LC Advance” means,
with respect to each Lender, such Lender’s funding of its participation in any
LC Borrowing in accordance with its US Percentage Share or Canadian Percentage
Share, as applicable. All LC Advances shall be denominated in Dollars, with
respect 


 


18

















 


to US Letters of
Credit and Dollar-denominated Canadian Letters of Credit, and in Canadian
Dollars, with respect to Canadian Dollar-denominated Canadian Letters of
Credit.


 


“LC Application”
means an application and agreement for the issuance or amendment of a Letter of
Credit in the form from time to time in use by (i) a US LC Issuer, as
to a US Letter of Credit, or (ii) a Canadian LC Issuer, as to a Canadian
LC Issuer, which in either case includes any electronic online letter of credit
application/request system of any LC Issuer.


 


“LC Borrowing”
means an extension of credit from an LC Issuer resulting from a drawing under
any Letter of Credit which has not been reimbursed by a Borrower on the date
when made or refinanced as a Borrowing. All LC Borrowings shall be denominated
in the currency of the Letter of Credit that was drawn upon that resulted in
such LC Borrowing.


 


“LC Credit Extension”
means, with respect to any Letter of Credit, the issuance thereof or extension
of the expiry date thereof, or the increase of the amount thereof.


 


“LC Issuer” means:
(i) with respect to any US Letter of Credit, the US LC Issuer that issued
or is requested to issue such Letter of Credit, (ii) with respect to any
Canadian Letter of Credit, the Canadian LC Issuer that issued or is requested
to issue such Canadian Letter of Credit, and (iii) their respective
successors in such capacity.


 


“LC Obligations”
means: (i) with respect to US Lenders, US LC Obligations, and (ii) with
respect to Canadian Lenders, Canadian LC Obligations.


 


“Lender Parties” means all Agents, all LC
Issuers and all Lenders.


 


“Lenders” means (i) with
respect to US Loans, US Lenders, (ii) with respect to Canadian Advances,
Canadian Lenders, and (iii) collectively, US Lenders and Canadian Lenders.


 


“Letter of Credit”
means a US Letter of Credit or a Canadian Letter of Credit.


 


“Letter of Credit
Expiration Date” means the day that is seven days prior to the Maturity
Date then in effect (or, if such day is not a Business Day, the next preceding
Business Day).


 


“Liabilities”
means, as to any Person, all indebtedness, liabilities and obligations of such
Person, whether matured or unmatured, liquidated or unliquidated, primary or
secondary, direct or indirect, absolute, fixed or contingent, and whether or
not required to be considered pursuant to GAAP.


 


“Lien” means, with
respect to any property or assets, any right or interest therein of a creditor
to secure Liabilities owed to it or any other arrangement with such creditor
which provides for the payment of such Liabilities out of such property or
assets or which allows such creditor to have such Liabilities satisfied out of
such property or assets prior to the general creditors of any owner thereof,
including any lien, mortgage, security interest, pledge, deposit, production
payment, rights of a vendor under any title retention or conditional sale
agreement or lease substantially equivalent thereto, tax lien, mechanic’s or
materialman’s lien, or any other charge or encumbrance for security purposes,
whether arising by Law or agreement or otherwise, but excluding any right of
offset which arises without agreement in the ordinary course of 


 


19

















 


business. “Lien”
also means any filed financing statement, any registration of a pledge (such as
with an issuer of uncertificated securities), or any other arrangement or
action which would serve to perfect a Lien described in the preceding sentence,
regardless of whether such financing statement is filed, such registration is
made, or such arrangement or action is undertaken before or after such Lien
exists.


 


“Loan Documents”
means this Agreement, the Notes, the Letters of Credit, the LC Applications,
the BAs, the written Borrowing Notices and all other agreements, certificates,
documents, instruments and writings at any time delivered in connection
herewith or therewith (exclusive of term sheets and commitment letters).


 


“Loans” means, collectively, the US Loans and
the Canadian Loans.


 


“Majority Lenders”
means Lenders who have in the aggregate more than fifty percent (50%) of (i) the
US Total Committed Amount plus, (ii) during any Canadian Allocation
Period, the Canadian Total Committed Amount; provided that the
Commitment of, and the portion of the US Total Committed Amount or Canadian
Total Committed Amount held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Majority Lenders.


 


“Material Adverse
Change” means (a) a material and adverse change in (i) US
Borrower’s Consolidated financial condition, (ii) US Borrower’s
Consolidated operations, properties or prospects, considered as a whole, or (iii) US
Borrower’s or either Canadian Borrower’s ability to timely pay its Obligations,
or (b) a material adverse effect on the enforceability of the material
terms of any Loan Document.


 


“Maturity Date” means the later of (a) July 29,
2011 and (b) if maturity is extended pursuant to Section 2.1(f), with
respect to each Lender consenting to such extension, the latest date to which
such maturity date has been extended as determined pursuant to such section,
unless in either such case terminated earlier in accordance with Section 8.1
or Section 10.12.


 


“Moody’s” means Moody’s Investor Service, Inc.,
or its successor.


 


“Net Proceeds”
means with respect to any Bankers’ Acceptance, the Discount Proceeds less the
amount equal to the applicable Stamping Fee Rate multiplied by the face amount
of such Bankers’ Acceptance.


 


“Notes” means,
collectively, the US Notes, the Canadian Notes and the Swing Line Notes.


 


“Obligations”
means, collectively, the US Obligations, the Canadian Obligations and all other
Liabilities from time to time owing by any Restricted Person to any Lender
Party under or pursuant to any of the Loan Documents. “Obligation” means
any part of the Obligations.


 


“Outstanding Amount”
means on any date (i) with respect to Loans or outstanding Canadian BAs,
the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Loans or Canadian BAs occurring on such date; and (ii) with respect
to any LC Obligations, the Dollar 


 


20

















 


Equivalent amount of the aggregate outstanding amount of such LC
Obligations on such date after giving effect to any LC Credit Extension
occurring on such date and any other changes in the aggregate amount of the LC
Obligations as of such date, including as a result of any reimbursements by any
Borrower of Unreimbursed Amounts.


 


“PAA Debt Rating”
means the rating then in effect by a Rating Agency with respect to the long
term senior unsecured non-credit enhanced debt of US Borrower.


 


“Participant” has
the meaning specified in Section 10.5(d).


 


“Permitted Lien” has the meaning given to such
term in Section 7.2.


 


“Person” means an
individual, corporation, partnership, limited liability company, association,
joint stock company, trust or trustee thereof, estate or executor thereof,
unincorporated organization or joint venture, Governmental Authority, or any
other legally recognizable entity.


 


“Petroleum Products”
means crude oil, condensate, natural gas, natural gas liquids (NGL’s),
liquefied petroleum gases (LPG’s), refined petroleum products or any blend
thereof.


 


“Plains Marketing”
means Plains Marketing, L.P., a Texas limited partnership.


 


“Plains Pipeline”
means Plains Pipeline, L.P., a Texas limited partnership.


 


“PPX Acquisition”
means (A) the merger of Pacific Energy Partners, L.P. (“PPX”) with
and into US Borrower as contemplated by that certain Agreement and Plan of
Merger dated as of June 11, 2006 by and among PPX and certain of its
Affiliates and US Borrower and certain of its Affiliates, (B) the purchase
by US Borrower from LB Pacific, LP of certain equity interests in PPX and in
certain Affiliates of PPX, as contemplated by that certain Purchase Agreement
dated as of June 11, 2006 by and among LB Pacific, LP and US Borrower, and
(C) the acquisition of other property and interests, in each case pursuant
to the foregoing agreements and related documents.


 


“Principal Property”
means, whether owned or leased on the date hereof or hereafter acquired:


 


(a) any pipeline
assets of any Restricted Person, including any related facilities employed in
the transportation, distribution, terminalling, gathering, treating,
processing, marketing or storage of crude oil or refined petroleum products,
natural gas, natural gas liquids, fuel additives or petrochemicals; and


 


(b) any processing
or manufacturing plant or terminal owned or leased by any Restricted Person;


 


except, in the
case of either clause (a) or (b): (i) any such assets consisting of
inventories, furniture, office fixtures and equipment, including data
processing equipment, vehicles and equipment used on, or useful with, vehicles,
and (ii) any such asset, plant or terminal which, in 


 


21

















 


the good faith
opinion of the Board, is not material in relation to the activities of US
Borrower and its Subsidiaries, taken as a whole.


 


“Rating Agency” means either S&P or Moody’s.


 


“Reference Bank” means, at any time, the
financial institution serving as Administrative Agent.


 


“Regulation D”
means Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect.


 


“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.


 


“Responsible Officer” means the chief executive
officer, president, chief financial officer, treasurer or assistant treasurer
of a Borrower, a Borrower’s general partner or the general partner of the
general partner of any Borrower, as the case may be. Any document
delivered hereunder that is signed by a Responsible Officer of a Borrower shall
be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Borrower, and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Borrower.


 


“Restricted Person”
means any of US Borrower and each Subsidiary of US Borrower, including but not
limited to Plains Marketing, Plains Pipeline, each Canadian Borrower, and each
Subsidiary of Plains Marketing, Plains Pipeline and Canadian Borrowers, but
excluding, for the avoidance of doubt, Unrestricted Subsidiaries.


 


“Restriction Exception”
means (i) any applicable Law or any instrument governing Indebtedness or
equity interests, or any applicable Law or any other agreement relating to any
property, assets or operations of a Person whose capital stock or other equity
interests are acquired, in whole or part, by a Restricted Person pursuant to an
acquisition (whether by merger, consolidation, amalgamation or otherwise), as
such instrument or agreement is in effect at the time of such acquisition
(except with respect to Indebtedness incurred in connection with, or in
contemplation of, such acquisition), or such applicable Law is then or
thereafter in effect (as applicable), which is not applicable to the acquiring
Restricted Person, or the property, assets or operations of the acquiring
Restricted Person, other than the acquired Person, or the property, assets or
operations of such acquired Person or such acquired Person’s Subsidiaries; provided
that in the case of Indebtedness, the incurrence of such Indebtedness is not
prohibited hereunder, (ii) provisions with respect to the disposition or
distribution of assets in joint venture agreements or other similar agreements
entered into in the ordinary course of business, (iii) (a) a lease,
license or similar contract, which restricts in a customary manner the
subletting, assignment, encumbrance or transfer of any property or asset that
is subject thereto or the assignment, encumbrance or transfer of any such
lease, license or other contract, (b) mortgages, deeds of trust, pledges
or other security instruments, the entry into which does not result in a Default,
securing indebtedness of a Restricted Person, which restricts the transfer of
the property subject to such mortgages, deeds of trust, pledges or other
security instruments, or (c) customary 


 


22

















 


provisions
restricting disposition of, or encumbrances on, real property interests set
forth in any reciprocal easements of any Restricted Person, (iv) restrictions
imposed pursuant to this Agreement and the other Loan Documents, (v) restrictions
on the transfer or encumbrance of property or assets which are imposed by the
holder of Liens on property or assets of a Restricted Person, provided
that neither the incurrence of such Lien nor any related Indebtedness results
in a Default, (vi) any agreement to, directly or indirectly, sell or
otherwise dispose of assets or equity interests to any Person pending the
closing of such sale, provided that such sale is consummated in
compliance with any applicable provisions of this Agreement, (vii) net
worth provisions in leases and other agreements entered into by any Restricted
Person in the ordinary course of business, and (viii) an agreement
governing Indebtedness incurred to refinance the Indebtedness issued, assumed
or incurred pursuant to an agreement referred to in clauses (iv) and (v) above;
provided, however, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness are no less
favorable to the such Restricted Person in any material respect as determined
by the Board in its reasonable and good faith judgment than the provisions
relating to such encumbrance or restriction contained in agreements referred to
in such clauses (iv) and (v).


 


“S&P” means
Standard & Poor’s Ratings Group (a division of McGraw Hill, Inc.)
or its successor.


 


“Schedule I BA
Reference Banks” means the Lenders listed in Schedule I to the Bank Act (Canada) as are, at such time,
designated by Canadian Administrative Agent, with the prior consent of Canadian
Borrowers (acting reasonably), as the Schedule I BA Reference Banks.


 


“Schedule II BA
Reference Banks” means the Lenders listed in Schedule II to the Bank Act (Canada) as are, at such time,
designated by Canadian Administrative Agent, with the prior consent of Canadian
Borrowers (acting reasonably), as the Schedule II BA Reference Banks.


 


“Schedule III BA
Reference Banks” means the Lenders listed in Schedule III to the Bank Act (Canada) as are, at such time,
designated by Canadian Administrative Agent, with the prior consent of Canadian
Borrowers (acting reasonably), as the Schedule III BA Reference Banks.


 


“Significant
Restricted Persons” means Borrowers, Plains Marketing, Plains Pipeline and
Subsidiaries of US Borrower that would be a “significant subsidiary” as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to
the Securities Exchange Act of 1934 and the Securities Act of 1933, each as
amended.


 


“Specified Acquisition”
means one or more acquisitions of assets or entities or operating lines or
divisions in any rolling 12-month period for an aggregate purchase price of not
less than $50,000,000.


 


“Specified Equity
Offering” means one or more issuances of equity by US Borrower for
aggregate net cash proceeds of not less than fifty percent (50%) of the
aggregate purchase price of the Specified Acquisition.


 


“Stamping Fee Rate”
means the rate per annum set forth on Schedule I as the “Stamping Fee Rate”
based on the Applicable Rating Level on such date, provided that during a
Default Rate Period, the Stamping Fee Rate shall be increased by two percent
(2%). Changes in the 


 


23

















 


applicable
Stamping Fee Rate will occur automatically without prior notice as changes in
the Applicable Rating Level occur and shall be effective with respect to BA’s
issued on and after such change. If during the term of a BA the Stamping Fee
Rate changes as a result of a change in the Applicable Rating Level, or as a
result of a Default Rate Period as provided above, the stamping fee paid with
respect to such BA (the “Initial Fee”) shall be recalculated based upon
such change for the number of days during the term of such BA that such change
is applicable, and if such recalculated amount is in excess of the Initial Fee,
the relevant Canadian Borrower shall pay such excess as an additional fee for
the acceptance of such BA, and if such recalculated amount is less than the
Initial Fee, such difference shall be credited to such Canadian Borrower
Administrative Agent will give notice promptly to Canadian Administrative Agent
of any change (and its effective date) in the Applicable Rating Level, and
Canadian Administrative Agent will in turn give notice promptly to Canadian
Borrowers and Canadian Lenders of such change in the Applicable Rating Level
and the applicable Stamping Fee Rate.


 


“Subsidiary”
means, with respect to any Person, any corporation, association, partnership,
limited liability company, joint venture, or other business or corporate
entity, enterprise or organization which is directly or indirectly (through one
or more intermediaries) controlled or owned more than fifty percent by such
Person (other than PAA/Vulcan Gas Storage, LLC and its subsidiaries, unless US Borrower shall also have the fully
matured right, directly or indirectly, to elect more than 50% of the board of
directors of PAA/Vulcan Gas Storage, LLC); provided, however,
that no Unrestricted Subsidiary shall be deemed a “Subsidiary” of any
Restricted Person for purposes of any Loan Document except as provided in Section 7.10.


 


“Swing Line” means
the revolving credit facility made available by the Swing Line Lender pursuant
to Section 2.10A.


 


“Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section 2.10A.


 


“Swing Line Lender”
means (i) Bank of America, N.A., in its capacity as provider of Swing Line
Loans to US Borrower, and (ii) Bank of America, N.A., acting through its
Canada Branch, in its capacity as provider of Swing Line Loans to Canadian
Borrowers, or any successor swing line lenders hereunder.


 


“Swing Line Loan”
has the meaning specified in Section 2.10A(a).


 


“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.10A(b),
which, if in writing, shall be substantially in the form of Exhibit B-3.


 


“Swing Line Notes”
has the meaning given such term in Section 2.10A(a).


 


“Swing Line Sublimit”
means (i) with respect to Swing Line Loans to US Borrower, the lesser of (a) $75,000,000
minus the Outstanding Amount of Swing Line Loans to Canadian Lenders and
(b) the US Commitment, and (ii) with respect to aggregate Swing Line
Loans to Canadian Borrowers, the lesser of (a) $75,000,000 minus
the Outstanding Amount of Swing Line Loans to US Borrower and (b) the
Canadian Commitment. The foregoing Swing Line Sublimits 


 


24

















 


are part of,
and not in addition to, the US Commitment and the Canadian Commitment,
respectively.


 


“Termination Event”
means (a) the occurrence with respect to any ERISA Plan of (i) a
reportable event described in Sections 4043(c)(5) or (6) of ERISA or (ii) any
other reportable event described in Section 4043(c) of ERISA other
than a reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation
under Section 4043(a) of ERISA, or (b) the withdrawal of any
ERISA Affiliate from an ERISA Plan during a plan year in which it was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA, or (c) the
filing of a notice of intent to terminate any ERISA Plan or the treatment of
any ERISA Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate any ERISA Plan by the Pension Benefit
Guaranty Corporation under Section 4042 of ERISA, or (e) any other
event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any ERISA Plan.


 


“Type” means, with
respect to any Loans, the characterization of such Loans as Base Rate Loans,
Eurodollar Loans, Canadian Prime Rate Loans, Canadian US Dollar Base Rate
Loans, or BAs.


 


“Unreimbursed Amount”
has the meaning specified in Section 2.10(c)(i).


 


“Unrestricted
Subsidiary” shall have the meaning given it in Section 7.10.


 


“US Borrower”
means Plains All American Pipeline, L.P., a Delaware limited partnership.


 


“US Business Day”
means any day, other than a Saturday, Sunday or day which shall be in New York,
New York a legal holiday or day on which banking institutions are required or
authorized to close. Any Business Day in any way relating to Eurodollar Loans
(such as the day on which an Interest Period begins or ends) must also be a day
on which commercial banks settle payments in London.


 


“US Commitment”
means, as to each US Lender, its obligations to (a) make US Loans to US
Borrower pursuant to Section 2.1, (b) purchase participations in US
LC Obligations pursuant to Section 2.10(c), and (c) purchase
participations in Swing Line Loans to US Borrower, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such US Lender’s name on Schedule II, as may be increased from time
to time pursuant to Section 2.1(d), or in the Assignment and Assumption
pursuant to which such US Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this
Agreement; provided, during a Canadian Allocation Period, the US
Commitment of any US Lender that is or has a branch or affiliate that is a
Canadian Lender shall be reduced by the Canadian Allocated Commitment of such
Canadian Lender. The US Commitment may be increased from time to time
pursuant to Section 2.1(d) or reduced from time to time pursuant to Section 2.5(b).


 


“US Facility Fee Rate”
means, on any day, the rate per annum set forth on Schedule I as the “US
Facility Fee Rate” based on the Applicable Rating Level on such date. Changes
in the 


 


25

















 


applicable US
Facility Fee Rate will occur automatically without prior notice as changes in
the Applicable Rating Level occur. Administrative Agent will give notice
promptly to US Borrower and US Lenders of changes in the US Facility Fee Rate.


 


“US LC Issuer”
means Bank of America, N.A., in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity. Administrative Agent may, with
the consent of US Borrower and the US Lender in question, or US Borrower may,
with the consent of US Lender in question and notice to Administrative Agent,
appoint any US Lender hereunder as a US LC Issuer in place of or in addition to
Bank of America, N.A.


 


“US LC Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding US Letters of Credit plus the aggregate outstanding
amount of all Unreimbursed Amounts with respect to US Letters of Credit that
are not fully refinanced by a Borrowing and, without duplication, all LC
Borrowings with respect to US Letters of Credit. For all purposes of this
Agreement, if on any date of determination a US Letter of Credit has expired by
its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such US Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.


 


“US Lender Parties”
means Administrative Agent, US LC Issuer and US Lenders.


 


“US Lenders” means
each signatory hereto designated as a US Lender, and the successors and
permitted assigns of each such party as holder of a US Note, and, as the
context requires, includes the Swing Line Lender.


 


“US Letter of Credit”
means any letter of credit issued by US LC Issuer hereunder at the application
of US Borrower pursuant to Section 2.10. For the avoidance of doubt, US
Letter of Credit includes a commercial or documentary letter of credit and a
standby letter of credit.


 


“US Letter of Credit
Fee Rate” means, on any day, the rate per annum set forth on Schedule I
as the “US LC Fee Rate” based on the Applicable Rating Level on such date. Changes
in the applicable US Letter of Credit Fee Rate will occur automatically without
prior notice as changes in the Applicable Rating Level occur. Administrative
Agent will give notice promptly to US Borrower and Lenders of changes in the US
Letter of Credit Fee Rate.


 


“US Loans” means
loans by US Lenders to US Borrower pursuant to Section 2.1(a), and, as the
context requires, including without limitation for purposes of Section 2.5(a)(i) hereof,
Swing Line Loans by the Swing Line Lender to US Borrower pursuant to Section 2.10A.


 


“US Notes” has the meaning given such term in Section 2.1(a) hereof.


 


“US Obligations”
means all Liabilities from time to time owing by any Restricted Person to any
Lender Party under or pursuant to any of the US Notes or US Letters of Credit,
including all US LC Obligations owing thereunder or under or pursuant to any
guaranty of the obligations of US Borrower under the Loan Documents. “US Obligation”
means any part of the US Obligations.


 


26

















 


“US Percentage Share” means:


 


(a)                                  at
any time the US Commitments remain outstanding, a fraction (expressed as a
percentage, carried out to the sixth decimal place), the numerator of
which is the amount of the US Commitment of such US Lender at such time and the
denominator of which is the amount of the US Total Committed Amount at
such time; and


 


(b)                                 upon
the termination of the Commitments pursuant to Section 8.1, a fraction
(expressed as a percentage, carried out to the sixth decimal place), the numerator
of which is:


 


the sum of


 


(i) the Outstanding
Amount of US Loans of such US Lender plus


 


(ii) an amount equal
to (A) the Outstanding Amount of US Loans of such US Lender, divided
by (B) the Outstanding Amount of all US Loans of all US Lenders, times
(C) the Outstanding Amount of all US LC Obligations, and


 


the denominator of which is the US Total
Outstanding Amount.


 


The initial US Percentage Share
of each US Lender is set forth opposite the name of such US Lender on Schedule II
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“US Total Committed
Amount” means, at any time, the sum of the aggregate amount of the US
Commitments at such time.


 


“US Total Outstanding
Amount” means, at any time, the sum of (i) the Outstanding Amount of
US Loans at such time plus (ii) the Outstanding Amount of US LC
Obligations.


 


“Utilization Rate”
means, on any day, the rate per annum set forth on Schedule I as the “Utilization
Rate” based on the Applicable Rating Level on such date. Changes in the
applicable Utilization Rate will occur automatically without prior notice as
changes in the Applicable Rating Level occur. Administrative Agent will give
notice promptly to Borrowers and Lenders of any change (and its effective date)
in the Applicable Rating Level and the applicable Utilization Rate.


 


“Wholly Owned
Subsidiary” means any Subsidiary of a Person, all of the issued and
outstanding stock, limited liability company membership interests, or
partnership interests of which (including all rights or options to acquire such
stock or interests) are directly or indirectly (through one or more
Subsidiaries) owned by such Person.


 


“Working Capital
Borrowings” has the meaning given to such term in Section 2.2(c).


 


Section 1.2.                                   Exhibits and
Schedules; Additional Definitions. All Exhibits and Schedules attached to
this Agreement are a part hereof for all purposes.


27

















 


Section 1.3.                                   Amendment of
Defined Instruments. Unless the context otherwise requires or unless
otherwise provided herein the terms defined in this Agreement which refer to a
particular agreement, instrument or document also refer to and include all
renewals, extensions, modifications, amendments and restatements of such
agreement, instrument or document, provided that nothing contained in this section shall
be construed to authorize any such renewal, extension, modification, amendment
or restatement.


 


Section 1.4.                                   References and
Titles. All references in this Agreement to Exhibits, Schedules, articles,
sections, subsections and other subdivisions refer to the Exhibits, Schedules,
articles, sections, subsections and other subdivisions of this Agreement unless
expressly provided otherwise. Titles appearing at the beginning of any
subdivisions are for convenience only and do not constitute any part of
such subdivisions and shall be disregarded in construing the language contained
in such subdivisions. The words “this Agreement,” “this instrument,” “herein,” “hereof,”
“hereby,” “hereunder” and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
phrases “this section” and “this subsection” and similar phrases refer only to
the sections or subsections hereof in which such phrases occur. The word “or”
is not exclusive, and the word “including” (in its various forms) means “including
without limitation.”  Pronouns in
masculine, feminine and neuter genders shall be construed to include any other
gender, and words in the singular form shall be construed to include the
plural and vice versa, unless the context otherwise requires. References to an “officer”
or “officers” of the General Partner or any Restricted Person shall mean and
include officers of such Person or the controlling management entity of such
Person as provided in such Person’s organizational documents, as applicable.


 


Section 1.5.                                   Calculations and
Determinations. All calculations under the Loan Documents of interest
chargeable with respect to Eurodollar Loans and of fees shall be made on the
basis of actual days elapsed (including the first day but excluding the last)
and a year of 360 days. All other calculations of interest made under the Loan
Documents shall be made on the basis of actual days elapsed (including the
first day but excluding the last) and a year of 365 or 366 days, as
appropriate. Each determination by a Lender Party of amounts to be paid under Article III
or any other matters which are to be determined hereunder by a Lender Party
(such as any Eurodollar Rate, BA Discount Rate, Business Day or Interest
Period) shall, in the absence of manifest error, be conclusive and binding.
Unless otherwise expressly provided herein or unless Majority Lenders otherwise
consent all financial statements and reports furnished to any Lender Party
hereunder shall be prepared and all financial computations and determinations
pursuant hereto shall be made in accordance with GAAP.


 


Section 1.6.                                   Letter of Credit
Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the Dollar Equivalent of the stated
amount of such Letter of Credit in effect at such time; provided, however,
that with respect to any Letter of Credit that, by its terms or the terms of
any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the Dollar
Equivalent of the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time; provided, further, that with respect
to any Letter of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic reductions 


 


28

















 


in the stated amount thereof, the amount of such Letter of Credit shall
be deemed to be the Dollar Equivalent of the amount available to be drawn under
such Letter of Credit at such time.


 


ARTICLE II. - The Loans and Letters of Credit


 


Section 2.1.                                   Commitments to
Lend; Notes.


 


(a)                                  US
Loans to US Borrower. Subject to the terms and conditions hereof, each
US Lender agrees to make US Loans to US Borrower upon US Borrower’s
request from time to time during the Commitment Period, provided that (a) subject
to Sections 3.3, 3.4 and 3.6, all US Lenders are requested to make US Loans of
the same Type in accordance with their respective US Percentage Shares and as part of
the same Borrowing, (b) after giving effect to such US Loans, the US Total
Outstanding Amount does not exceed the US Total Committed Amount determined as
of the date on which the requested US Loans are to be made, and (c) after
giving effect to such US Loans, the Outstanding Amount of US Loans by each US
Lender plus such US Lender’s US Percentage Share of the Outstanding Amount of
US LC Obligations does not exceed such US Lender’s US Commitment. The aggregate
amount of all US Loans in any Borrowing must be equal to $1,000,000 or any
higher integral multiple of $100,000. The obligation of US Borrower to repay to
each US Lender the aggregate amount of all US Loans made by such US Lender to
US Borrower, together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called such US Lender’s “US
Note”) made by US Borrower payable to the order of such US Lender in the form of
Exhibit A-1 with appropriate insertions. The amount of principal owing on
any US Lender’s US Note at any given time shall be the aggregate amount of all
US Loans theretofore made by such US Lender to US Borrower minus all
payments of principal theretofore received by such US Lender on such US Note.
Interest on each US Note shall accrue and be due and payable as provided herein
and therein. Each US Note shall be due and payable as provided herein and
therein, and shall be due and payable in full on the Maturity Date. Subject to
the terms and conditions of this Agreement, US Borrower may borrow, repay,
and reborrow under this Section 2.1(a). US Borrower may have no more
than seven Borrowings of Eurodollar Loans outstanding at any time. All payments
of principal and interest on the US Loans made pursuant to this Section 2.1(a) shall
be made in Dollars.


 


(b)                                 Canadian
Allocation of US Total Committed Amount. US Borrower shall have the right
to allocate (or reallocate, if previously allocated) a portion of the US Total
Committed Amount as the Canadian Allocated Total Commitment by notice to
Administrative Agent; provided that (i) any such notice shall be
received by Administrative Agent not later than 11:00 a.m. ten Canadian
Business Days prior to the date such allocation or reallocation shall become
effective, (ii) any such allocation or reallocation shall be in an aggregate
amount of $5,000,000 or any whole multiple in excess thereof, not to exceed the
Canadian Allocated Maximum Total Commitment, or shall be a reallocation to
zero, (iii) US Borrower shall not allocate or reallocate any portion of
the US Total Committed Amount if, after giving effect thereto and to any
concurrent prepayments hereunder (a) the US Total Outstanding Amount would
exceed the US Total Committed Amount, (b) the Canadian Total Outstanding
Amount would exceed the Canadian Allocated Total Commitment, (c) any US
Lender’s US Commitment would not equal or exceed the sum of the Outstanding
Amount of such US Lender’s US Loan plus such Lender’s US Percentage
Share of the Outstanding Amount of US LC Obligations; or (d) any Canadian 


 


29

















 


Lender’s Canadian Commitment would not equal
or exceed the sum of the Outstanding Amount of such Canadian Lender’s Canadian
Advances plus such Canadian Lender’s Canadian Percentage Share of the
Outstanding Amount of Canadian LC Obligations, and (iv) US Borrower shall
make not more than four allocations or reallocations of the US Total Committed
Amount in any calendar year. Administrative Agent will promptly notify Canadian
Administrative Agent and the Lenders or their Canadian branches or affiliates
with Canadian Allocated Commitments of any such notice of allocation or
reallocation of the US Total Committed Amount and the amount of their
respective Canadian Allocated Commitments, and shall notify all Lenders of the
US Commitments and Canadian Allocated Total Commitment upon the effectiveness
of such allocation or reallocation, which effectiveness shall require no vote
or consent of any Lender or Agent.


 


(c)                                  Canadian
Advances to Canadian Borrowers. Subject to the terms and conditions hereof,
each Canadian Lender agrees to extend credit to either Canadian Borrower, and
such extension of credit shall constitute separate Borrowings to such Canadian
Borrower, by (i) advancing funds in Dollars or Canadian Dollars to such
Canadian Borrower specified in a Borrowing Notice (herein called such Canadian
Lender’s “Canadian Loans”) and (ii) accepting and purchasing drafts
of Bankers’ Acceptances issued under this Agreement by such Canadian Borrower
specified in a Borrowing Notice (herein called such Canadian Lender’s “Bankers’
Acceptances”; each Canadian Lender’s Canadian Loans and Bankers’
Acceptances are herein collectively called such Canadian Lender’s “Canadian
Advances”) upon either Canadian Borrower’s separate request from time to
time during a Canadian Allocation Period, provided that (a) subject to
Sections 3.3, 3.4 and 3.6, all Canadian Lenders are requested to make Canadian
Advances of the same Type in accordance with their respective Canadian
Percentage Shares and as part of the same Borrowing with respect to each
Canadian Borrower, (b) after giving effect to such Canadian Advances, the
Canadian Total Outstanding Amount does not exceed the Canadian Total Committed
Amount determined as of the date on which the requested Canadian Advances are
to be made, and (c) after giving effect to such Canadian Advance the
Outstanding Amount of the Canadian Advances by each Canadian Lender plus such
Canadian Lender’s Canadian Percentage Share of the Outstanding Amount of
Canadian LC Obligations does not exceed such Canadian Lender’s Canadian
Commitment. The aggregate amount of all Canadian Loans in any Borrowing
advanced in Dollars must be equal to $1,000,000 or any higher integral multiple
of $100,000, the aggregate amount of all Canadian Loans in any Borrowing
advanced in Canadian Dollars must be equal to C$1,000,000 or any higher
integral multiple of C$100,000, and the aggregate amount of any Canadian
Advance pursuant to the issuance of Bankers’ Acceptances must be equal to
C$3,000,000 or any higher integral multiple of C$100,000. The obligation of
each Canadian Borrower to repay to each Canadian Lender the aggregate amount of
all Canadian Advances made by such Canadian Lender to such Canadian Borrower,
together with interest accruing in connection therewith, shall be evidenced by
a single promissory note (herein called such Canadian Lender’s “Canadian
Note”) made individually by each Canadian Borrower payable to the order of
such Canadian Lender in the form of Exhibit A-2 with appropriate
insertions. The amount of principal owing on any Canadian Lender’s Canadian
Note at any given time shall be the aggregate amount of all Canadian Advances
theretofore made by such Canadian Lender to the appropriate Canadian Borrower
minus all payments of principal theretofore received by such Canadian Lender on
such Canadian Note. Interest on each Canadian Note shall accrue and be due and
payable as provided herein and therein. Each Canadian Lender’s Canadian Note
shall be due and payable as provided herein and 


 


30

















 


therein, and shall
be due and payable in full on the Maturity Date. Subject to the terms and
conditions of this Agreement and within the limits of each Canadian Lender’s
Canadian Commitment, either Canadian Borrower may individually borrow,
repay, and reborrow under this Section 2.1(b). Each Canadian Borrower may have
no more than seven Borrowings of BA’s collectively outstanding at any time. All
payments of principal and interest on the Canadian Loans shall be made in the
currency in which such corresponding Canadian Loan was funded. Canadian Loans may be
made, at the option of either Canadian Borrower, in Dollars or Canadian
Dollars.


 


(d)                                 Increase
in US Total Committed Amount. US Borrower shall have the right, without the
consent of the Lenders but with the prior approval of Administrative Agent,
such approval not to be unreasonably withheld, to cause from time to time an
increase in the US Total Committed Amount by adding to this Agreement one or
more additional Lenders or by allowing one or more Lenders to increase their
respective US Commitments, which (in whole or part) may, at the request of US
Borrower and with the consent of such Lender, be designated as the Canadian
Allocated Commitment of such Lender (resulting in an increased Canadian
Allocated Maximum Total Commitment); provided  however (i) no
Event of Default shall have occurred hereunder which is continuing or would
result therefrom, (ii) no such increase shall result in the US Total
Committed Amount plus, without duplication, Canadian Total Committed Amount (if
any) to exceed $2,000,000,000, and (iii) no Lender’s Commitment shall be
increased or subject to allocation towards the Canadian Allocated Total
Commitment without such Lender’s consent. Upon any increase in the aggregate US
Total Committed Amount and/or the Canadian Allocated Total Commitment, as the
case may be, pursuant to the foregoing, the Lenders hereby authorize the
Agents and the Borrowers to make non-ratable borrowings and prepayments of the
Loans, and if any such prepayment requires the payment of Eurodollar Loans,
Borrowers shall pay any required amounts pursuant to Section 3.6 other
than on the last day of the applicable Interest Period, in order to ensure that
the Loans of the Lenders shall be outstanding on a ratable basis in accordance
with their US Percentage Shares and/or Canadian Percentage Shares, the US
Commitments and/or Canadian Commitments shall be as set forth in a revised Schedule II
and no such borrowing or prepayment shall violate any provisions of this
Agreement.


 


(e)                                  Termination
of Right to Canadian Allocation of US Total Committed Amount. If no
Canadian Allocation Period exists, US Borrower may at any time permanently
terminate its right to allocate a portion of the US Total Committed Amount as
the Canadian Allocated Total Commitment, at which time the obligations of each
Canadian Borrower hereunder and each Guarantor with respect to any Canadian
Obligations shall automatically terminate, and thereafter no Lender, nor its
Canadian branch or affiliate shall have any Canadian Allocated Commitment, nor
shall any Canadian Lender have any Canadian Commitment.


 


(f)                                    Extension
of Maturity Date.


 


(i)                                     Requests
for Extension. US Borrower may once each calendar year during the
Commitment Period, by notice to Administrative Agent (who shall promptly notify
the Lenders) not earlier than 30 days prior to the first anniversary of the
Closing Date and not later than 30 days prior to the Maturity Date then in
effect hereunder (the “Existing Maturity Date”), request that each
Lender extend such Lender’s Maturity Date for one additional year from the
Existing Maturity Date.


 


31

















 


(ii)                                  Lender
Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to Administrative Agent given not later than the
date (the “Notice Date”) that is 15 days after the date of US Borrower’s
notice to Administrative Agent under clause (i) above, advise
Administrative Agent not later than 5:00 p.m., New York, New York time,
whether or not such Lender agrees to such extension (each Lender that
determines not to so extend its Maturity Date, a “Non-Extending Lender”),
and any Lender that does not so advise Administrative Agent shall be deemed to
be a Non-Extending Lender. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.


 


(iii)                               Notification by
Administrative Agent. Following receipt by Administrative Agent of the
Lenders’ notices under Section 2.1(f)(ii), Administrative Agent shall on
the Notice Date (or, if such date is not a Business Day, on the next following
Business Day), notify the Borrower of each Lender’s determination under Section 2.1(f)(ii).


 


(iv)                              Additional
Commitment Lenders. The Borrower shall have the right, both before and
after the effectiveness of a requested extension under this Section 2.1(f),
to replace any Non-Extending Lender with, and add as “Lenders” under this
Agreement in place thereof, one or more Eligible Assignees (each such Eligible
Assignee replacing a Non-Extending Lender on or before the effectiveness of a
requested extension under this Section 2.1(f), an “Additional
Commitment Lender”) as provided in Section 3.8, each of which
Additional Commitment Lenders shall have entered into an Assignment and
Assumption pursuant to which such Additional Commitment Lender shall, effective
as of the effectiveness of such requested extension, undertake a Commitment
(and, if any such Additional Commitment Lender is already a Lender, its
Commitment shall be in addition to such Lender’s Commitment hereunder on such
date). Any Eligible Assignee replacing a Non-Extending Lender after the
effectiveness of a requested extension shall enter into an Assignment and
Assumption with such Non-Extending Lender assuming such Non-Extending Lender’s
Commitment with such extended Maturity Date.


 


(v)                                 Minimum
Extension Requirement. If Majority Lenders (determined after giving effect
to any Additional Commitment Lenders and their Commitments) shall approve any
such requested extension under this Section 2.1(f), then, subject to the
conditions set forth in Section 2.1(f)(vi), the Maturity Date as to each
Lender approving such requested extension and of each Additional Commitment
Lender shall be extended to the same date one year after the Existing Maturity
Date (except that, if such date is not a Business Day, such Maturity Date as so
extended shall be the next preceding Business Day) and each Additional
Commitment Lender shall thereupon become a “Lender” for all purposes of this
Agreement. The Maturity Date of each Non-Extending Lender remaining a Lender
hereunder shall remain the Existing Maturity Date; provided, the
Borrower shall continue to have the right to replace any such Non-Extending
Lender following the effectiveness of any such extension as provided in Section 2.1(f)(iv).


 


(vi)                              Conditions
to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Existing Maturity Date pursuant to this Section shall not
be effective with respect to any Lender unless:


 


(A)                              no
Default or Event of Default shall have occurred and be continuing on the date
of such extension and after giving effect thereto;


 


32

















 


(B)                                the
representations and warranties made by any Restricted Person in any Loan
Document are true and correct on and as of the date of such extension and after
giving effect thereto, as though made as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date or updated, modified or supplemented as of a subsequent date with
the consent of Majority Lenders (after giving effect to any Additional
Commitment Lenders), then in each case, as of such specific date); and


 


(C)                                on
the Maturity Date of each Non-Extending Lender, US Borrower and Canadian
Borrowers shall prepay US Loans and Canadian Loans, respectively, outstanding
on such date (and pay any additional amounts required pursuant to Section 3.6)
to the extent necessary to keep outstanding US Loans and Canadian Loans ratable
with any revised US Percentage Shares and Canadian Percentage Shares,
respectively, of the respective US Lenders and Canadian Lenders effective as of
such date.


 


Section 2.2.                                   Requests for
Loans. A requesting Borrower must give to the appropriate Agent written
notice (or telephonic notice promptly confirmed in writing) of any requested
Borrowing. Each such notice constitutes a “Borrowing Notice” hereunder and
must:


 


(a)                                  specify
(i) as to US Loans (A) the aggregate amount of any such Borrowing and
the date on which Base Rate Loans are to be advanced, or (B) the aggregate
amount of any such Borrowing of new Eurodollar Loans, the date on which such
Eurodollar Loans are to be advanced (which shall be the first day of the
Interest Period which is to apply thereto), and the length of the applicable
Interest Period, or (ii) as to Canadian Loans (A)  the aggregate
amount of any such Borrowing of new Canadian Prime Rate Loans (if Canadian
Dollar-denominated Loans) or Canadian US Dollar Base Rate Loans (if
Dollar-denominated Loans) and the date on which such Canadian Loans are to be
advanced, or (B) the aggregate amount of any such Borrowing by way of
Bankers’ Acceptances (subject to Section 2.12(f)), and the date on which
such Bankers’ Acceptances are to be accepted and the maturity of such Bankers’
Acceptances (if Canadian Dollar-denominated Loans) or the aggregate amount of
any such Borrowing of new Eurodollar Loans, the date on which such Eurodollar
Loans are to be advanced (which shall be the first day of the Interest Period
which is to apply thereto), and the length of the applicable Interest Period
(if Dollar-denominated Loans); and


 


(b)                                 be
received by the appropriate Agent not later than 11:00 a.m., New York, New
York time or Toronto, Canada time, as the case may be, on (i) the day
on which any such Base Rate Loans, Canadian Prime Rate Loans or Canadian US
Dollar Base Rate Loans are to be made, (ii) the third Business Day
preceding the day on which any such Eurodollar Loans are to be made or any such
Bankers’ Acceptances are to be issued; and


 


(c)                                  if
any requested Borrowing or portion thereof is to be utilized exclusively for
working capital purposes (such Borrowing or such portion being called a “Working
Capital Borrowing”), such Borrower shall specify in the Borrowing Notice
that such Borrowing or such portion is a Working Capital Borrowing. In
addition, any repayment of a Loan that is intended as a repayment of all or any
part of the outstanding amount of one or more Working Capital Borrowings
shall be so identified to the appropriate Agent at the time of such repayment.


 


33






 













 


Each such written request or confirmation must be made
in the form and substance of the “US Borrowing Notice” attached hereto as
Exhibit B-1 or the “Canadian Borrowing Notice” attached hereto as Exhibit B-2,
duly completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by such Borrower as to the matters which
are required to be set out in such written confirmation. Upon receipt of any
such Borrowing Notice, the appropriate Agent shall give each US Lender or
Canadian Lender, as the case may be, prompt notice of the terms thereof. If all
conditions precedent to such new Loans have been met, each US Lender or
Canadian Lender, as the case may be, will on the date requested promptly remit
to the appropriate Agent at its office in Boston, Massachusetts or Toronto,
Canada, as the case may be, the amount of such Lender’s new Loan in immediately
available funds, and upon receipt of such funds, unless to its actual knowledge
any conditions precedent to such Loans have been neither met nor waived as
provided herein, such Agent shall promptly make such Loans available to the
requesting Borrower. Unless an Agent shall have received prompt notice from a
Lender that such Lender will not make available to such Borrower such Lender’s
new Loan, such Agent may in its discretion assume that such Lender has made
such Loan available to such Agent in accordance with this section, and such
Agent may if it chooses, in reliance upon such assumption, make such Loan
available to such Borrower. If and to the extent such Lender shall not so make
its new Loan available to such Agent, such Lender and requesting Borrower
severally agree to pay or repay to such Agent within three days after demand
the amount of such Loan together with interest thereon, for each day from the
date such amount was made available to such Borrower until the date such amount
is paid or repaid to such Agent, with interest at (i) as to US Loans and
Dollar-denominated Canadian Loans, the Federal Funds Rate, and as to Canadian
Dollar-denominated Canadian Loans, the “Bank Rate” as set by the Bank of
Canada, as quoted on Reuters page BOCFAD, if such Lender is making such
payment, and (ii) the interest rate applicable at the time to the other new
Loans made on such date, if such Borrower is making such repayment. If neither
such Lender nor such Borrower pays or repays to such Agent such amount within
such three-day period, such Agent shall be entitled to recover from such
Borrower, on demand in lieu of the interest provided for in the preceding
sentence, interest thereon at the Default Rate, calculated from the date such
amount was made available to such Borrower. The failure of any Lender to make
any new Loan to be made by it hereunder shall not relieve any other Lender of
its obligation hereunder, if any, to make its new Loan, but no Lender shall be
responsible for the failure of any other Lender to make any new Loan to be made
by such other Lender. All Borrowings of US Loans shall be advanced in Dollars. Borrowings
of Canadian Loans, at either Canadian Borrower’s option, may be advanced in
Canadian Dollars or Dollars.


 


Section 2.3.            Continuations
and Conversions of Existing Loans. US Borrower may make the following
elections with respect to US Loans already outstanding: (i) to Convert, in
whole or in part, Base Rate Loans to Eurodollar Loans, (ii) to Convert, in
whole or in part, Eurodollar Loans to Base Rate Loans on the last day of the
Interest Period applicable thereto, and (iii) to Continue, in whole or in part,
Eurodollar Loans beyond the expiration of such Interest Period by designating a
new Interest Period to take effect at the time of such expiration. Subject to
the terms of Section 2.13 with respect to Bankers’ Acceptances, each Canadian
Borrower may make the following elections with respect to Canadian Advances
already outstanding: (i) to Convert any Type of Canadian Advance to any other
Type of Canadian Advance, provided that any such Conversion of a Bankers’
Acceptance must be made on the date of maturity thereof; and (ii) to
rollover any existing Bankers’ Acceptance by designating the new maturity date 


 


34

















 


applicable thereto. In making such elections, such Borrower may combine
existing US Loans to US Borrower or Canadian Advances to such Canadian Borrower
made pursuant to separate Borrowings into one new Borrowing or divide existing
US Loans to US Borrower or Canadian Advances to such Canadian Borrower made
pursuant to one Borrowing into separate new Borrowings, provided that US
Borrower may have no more than seven Borrowings of Eurodollar Loans outstanding
at any time and neither Canadian Borrower may have more than seven BA’s and
Eurodollar Loans in the aggregate outstanding at any time. To make any such
election, such Borrower must give to the appropriate Agent written notice (or
telephonic notice promptly confirmed in writing) of any such Conversion or
Continuation of existing Loans or Canadian Advances, with a separate notice
given for each new Borrowing. Each such notice constitutes a “Continuation/Conversion
Notice” hereunder and must:


 


(i)            specify
the existing US Loans or Canadian Advances which are to be Continued or
Converted;


 


(ii)           specify
(A) the aggregate amount of any Borrowing of Base Rate Loans, Canadian Prime
Rate Loans (as to Canadian Dollar-denominated Canadian Loans) or Canadian US
Dollar Base Rate Loans (as to Dollar-denominated Canadian Loans) into which
such existing US Loans or Canadian Advances, as the case may be, are to be
Continued or Converted and the date on which such Continuation or Conversion is
to occur, (B) the aggregate amount of any Borrowing of Eurodollar Loans into
which such existing Dollar-denominated Loans are to be Continued or
Converted,  the date on which such
Continuation or Conversion is to occur (which shall be the first day of the
Interest Period which is to apply to such Eurodollar Loans), and the length of
the applicable Interest Period, or (C) the amount of any Borrowing of Bankers’
Acceptances into which such existing Canadian Dollar-denominated Canadian
Advances are to be Continued or Converted, the date on which such Continuation
or Conversion is to occur, and the maturity of such Bankers’ Acceptances; and


 


(iii)          be
received by the appropriate Agent not later than 11:00 a.m. New York, New York
time or Toronto, Canada time, as the case may be, on (i) the day on which any
such Continuation or Conversion to Base Rate Loans, Canadian Prime Rate Loans
or Canadian US Dollar Base Rate Loans is to occur, or (ii) the third Business
Day preceding the day on which any such Continuation or Conversion to
Eurodollar Loans or Bankers’ Acceptances is to occur.


 


Each such written request or confirmation must be made
in the form and substance of the “US Continuation/Conversion Notice” attached
hereto as Exhibit C-1 or the “Canadian Continuation/Conversion Notice” attached
hereto as Exhibit C-2, as appropriate, duly completed. Each such telephonic
request shall be deemed a representation, warranty, acknowledgment and
agreement by the requesting Borrower as to the matters which are required to be
set out in such written confirmation. Upon receipt of any such
Continuation/Conversion Notice, the appropriate Agent shall give each US Lender
or Canadian Lender, as the case may be, 
prompt notice of the terms thereof. Each Continuation/Conversion Notice
shall be irrevocable and binding on the requesting Borrower. During the
continuance of any Default, US Borrower may not make any election to Convert
existing US Loans into Eurodollar Loans or Continue existing US Loans as
Eurodollar Loans beyond the expiration of their respective and corresponding
Interest Period 


 


35

















 


then in effect, nor may either Canadian Borrower make
any election to Convert existing Dollar-denominated Canadian Loans into
Eurodollar Loans or Continue existing Dollar-denominated Canadian Loans as
Eurodollar Loans beyond the expiration of their respective and corresponding
Interest Period then in effect, or Convert existing Canadian Dollar-denominated
Canadian Advances into Bankers’ Acceptances or to rollover existing Bankers’
Acceptances into new Bankers’ Acceptances. If (due to the existence of a
Default or for any other reason) any Borrower fails to timely and properly give
any Continuation/Conversion Notice with respect to a Borrowing of existing
Eurodollar Loans or Bankers’ Acceptances at least three days prior to the end
of the Interest Period applicable to such Eurodollar Loans or the maturity of
such Bankers’ Acceptance, any such Eurodollar Loans, to the extent not prepaid
at the end of such Interest Period, shall automatically be Converted into Base
Rate Loans (or, as to Canadian Loans, Canadian US Dollar Base Rate Loans) at
the end of such Interest Period, and any such Bankers’ Acceptances, to the
extent not prepaid at such maturity, shall automatically be Converted into
Canadian Prime Rate Loans at such maturity. No new funds shall be repaid by any
Borrower or advanced by any Lender in connection with any Continuation or Conversion
of existing US Loans or Canadian Advances pursuant to this section, and no such
Continuation or Conversion shall be deemed to be a new advance of funds for any
purpose; such Continuations and Conversions merely constitute a change in the
interest rate applicable to such already outstanding US Loans or Canadian
Advances.


 


Section 2.4.            Use
of Proceeds. Borrowers shall use all Loans and Canadian Advances (a) to
refinance outstanding indebtedness under the Existing Agreement including
letters of credit issued thereunder, and (b) for fees and expenses related to
this Agreement and the transactions contemplated hereby, capital expenditures
of any Restricted Person, reimbursement obligations of Letters of Credit,
working capital for operations and other general business purposes, including
acquisitions. Borrowers shall use all Letters of Credit for its and its
Subsidiaries’ general corporate purposes including in relation to the purchase
or exchange by any Restricted Person of Petroleum Products. In no event shall
the funds from any Loans, Canadian Advances or any Letters of Credit be used
directly or indirectly by any Person for personal, family, household or
agricultural purposes or for the purpose, whether immediate, incidental or
ultimate, of purchasing, acquiring or carrying any “margin stock” (as such term
is defined in Regulation U promulgated by the Board of Governors of the Federal
Reserve System) or to extend credit to others directly or indirectly for the
purpose of purchasing or carrying any such margin stock. Borrowers represent
and warrant that they are not engaged principally, or as one of their important
activities, in the business of extending credit to others for the purpose of
purchasing or carrying such margin stock.


 


Section 2.5.            Interest
Rates and Fees.


 


(a)           Interest Rates.


 


(i)            Each
US Loan shall bear interest as follows: (A) unless the Default Rate shall
apply, each Base Rate Loan shall bear interest on each day outstanding at the
Base Rate plus the Applicable Margin in effect on such day, each Eurodollar
Loan shall bear interest on each day during the related Interest Period at the
related Eurodollar Rate plus the Applicable Margin in effect on such day, and
each EMIR Loan to US Borrower shall bear interest on each day outstanding at
the Eurodollar Market Index Rate plus the Applicable Margin in effect on 


 


36

















 


such day, and (B) during a Default Rate Period, all US Loans shall bear
interest on each day outstanding at the applicable Default Rate.


 


(ii)           Each
Canadian Loan shall bear interest as follows: 
(A) unless the Default Rate shall apply, each Canadian Prime Rate Loan
shall bear interest on each day outstanding at the Canadian Prime Rate plus the
Applicable Margin in effect on such day, each Canadian US Dollar Base Rate Loan
shall bear interest on each day outstanding at the Canadian US Dollar Base Rate
plus the Applicable Margin in effect on such day, each Eurodollar Loan shall
bear interest on each day during the related Interest Period at the related
Eurodollar Rate plus the Applicable Margin in effect on such day, and each EMIR
Loan shall bear interest on each day outstanding at the Eurodollar Market Index
Rate plus the Applicable Margin in effect on such day, and (B) during a
Default Rate Period, all Canadian Loans shall bear interest on each day
outstanding at the applicable Default Rate.


 


(iii)          Accrued
and unpaid interest on each Loan shall be due and payable on each Interest
Payment Date; provided, during a Default Rate Period, accrued and unpaid
interest on all Loans shall be due and payable within three Business Days
following demand therefor by the relevant Agent to the relevant Borrower. If an
Event of Default based upon Section 8.1(a), Section 8.1(b) or, with respect to
any Borrower, based upon Section 8.1(h)(i), (h)(ii) or (h)(iii) exists and the
Loans are not bearing interest at the Default Rate, the past due principal and
past due interest shall bear interest on each day outstanding at the applicable
Default Rate.


 


(iv)          The
interest rate shall change whenever the applicable Base Rate, Eurodollar Rate,
Canadian Prime Rate, Canadian US Dollar Base Rate or Applicable Margin changes.
In no event shall the interest rate on any Loan exceed the Highest Lawful Rate.


 


(b)           Facility Fees; Reduction of
Commitments.


 


(i)            In
consideration of each US Lender’s US Commitment, US Borrower will pay to
Administrative Agent for the account of each US Lender a facility fee
determined on a daily basis equal to the US Facility Fee Rate in effect on such
day times such US Lender’s US Commitment on each day during the Commitment
Period.


 


(ii)           During
a Canadian Allocation Period, in consideration of each Canadian Lender’s
Canadian Commitment, Canadian Borrowers jointly and severally agree to pay to
Canadian Administrative Agent for the account of each Canadian Lender a
facility fee determined on a daily basis equal to the Canadian Commitment Fee
Rate in effect on such day times such Canadian Lender’s Canadian Commitment on
each day during such Canadian Allocation Period.


 


(iii)          Each
such facility fee shall be due and payable quarterly in arrears on the last day
of each Fiscal Quarter and at the end of the Commitment Period. US Borrower
shall have the right from time to time to permanently reduce the US Total Committed
Amount or Canadian Total Committed Amount, as the case may be, provided that
(A) notice of such reduction is given not less than two Business Days
prior to such reduction, (B) the resulting US Total Committed Amount or
Canadian Total Committed Amount is not less than the US Total Outstanding
Amount or the Canadian Total Outstanding Amount, respectively, and (C) each 


 


37

















 


partial reduction shall be in an amount at least equal to $1,000,000
and in multiples of $1,000,000 in excess thereof.


 


(c)           Utilization
Fee. US Borrower shall pay to Administrative Agent for the account of each
US Lender in accordance with such US Lender’s US Percentage Share, a
utilization fee determined on a daily basis equal to the Utilization Rate in
effect on such day times the
US Total Outstanding Amount on each day that the sum of (a) the US Total Outstanding Amount plus (b) the Canadian
Total Outstanding Amount exceeds fifty percent (50%) of the daily amount of the aggregate Commitments
then in effect (or, if terminated, in effect immediately prior to such
termination). Canadian Borrowers jointly and severally agree to pay to Canadian
Administrative Agent for the account of each Canadian Lender in accordance with
such Canadian Lender’s Canadian Percentage Share, a utilization fee determined
on a daily basis equal to the Utilization Rate in effect on such day times the Canadian Total Outstanding Amount on
each day that the sum of (a) the US
Total Outstanding Amount plus (b) the Canadian Total Outstanding Amount on
each day exceeds fifty percent (50%) of
the daily amount of the aggregate Commitments then in effect (or, if
terminated, in effect immediately prior to such termination). Utilization fees
shall accrue at all times that such excess outstandings are in effect,
including at any time during which one or more of the conditions in Article IV
is not met. Each such utilization fee shall be due and payable quarterly in
arrears on the last day of each Fiscal Quarter and at the end of the Commitment
Period. Each utilization fee shall be calculated quarterly in arrears.


 


(d)           Stamping
Fees. In consideration of each Canadian Lender’s commitment to accept or
participate in Bankers’ Acceptances under this Agreement, each Canadian
Borrower will pay to Canadian Administrative Agent for the account of such
Canadian Lender the Stamping Fee Rate multiplied by the face amount of each
Bankers’ Acceptance accepted by such Canadian Lender on behalf of such Canadian
Borrower under this Agreement calculated for the number of days in the term of
such Bankers’ Acceptance. Such fee shall be due and payable on the date on
which such Bankers’ Acceptances are accepted and shall be deducted from the
Discount Proceeds paid to such Canadian Borrower. Such fee shall be
non-refundable, notwithstanding any reduction in the Stamping Fee Rate during
the term of such Bankers’ Acceptances.


 


(e)           Agents’
Fees. In addition to all other amounts due to Administrative Agent or
Canadian Administrative Agent under the Loan Documents, US Borrower will pay to
Administrative Agent agent fees pursuant to the Fee Letter described in clause
(i) of the definition of the term “Fee Letters”.


 


Section 2.6.            [Intentionally
deleted] 


 


Section 2.7.            [Intentionally
deleted] 


 


Section 2.8.            Optional
Prepayments


 


(a)           US
Loans. US Borrower may, upon three Business Days’ notice, as to Eurodollar
Loans, or same Business Day’s notice, as to Base Rate Loans, to Administrative
Agent (and Administrative Agent will promptly give notice to the other US Lenders)
from time to time and without premium or penalty (other than any amounts due
under Section 3.6 hereof with respect 


 


38

















 


to prepayments of any Eurodollar Loans) prepay the US Loans, in whole
or in part, so long as the aggregate amounts of all partial prepayments of
principal on (i) Eurodollar Loans equals $2,500,000 or any higher integral
multiple of $250,000, and (ii) Base Rate Loans equals $250,000 or any higher
integral multiple of $50,000. Upon receipt of any such notice, Administrative
Agent shall give each US Lender prompt notice of the terms thereof.


 


(b)           Canadian Loans. Either
Canadian Borrower may, upon three Business Days’ notice as to Eurodollar Loans,
or same Business Day’s notice, as to Canadian Prime Rate Loans or Canadian US
Dollar Base Rate Loans, to Canadian Administrative Agent (and Canadian
Administrative Agent will promptly give notice to the other Canadian Lenders)
from time to time and without premium or penalty (other than any amounts due
under Section 3.6 hereof with respect to prepayments of any Eurodollar Loans)
prepay its Canadian Loans, in whole or in part, so long as the aggregate
amounts of all partial prepayments of principal on (i) Eurodollar Loans equals
$2,500,000 or any higher integral multiple of $50,000, (ii) Canadian Prime Rate
Loans equals C$250,000 or any higher integral multiple of C$50,000, and (iii)
US Dollar Base Rate Loans equals $250,000 or any higher integral multiple of
$50,000. No BA may be prepaid hereunder except in accordance with Section 2.15.


 


(c)           Swing Line Loans. Any Borrower
may, upon notice to the Swing Line Lender (with a copy to Administrative Agent
or Canadian Administrative Agent, as appropriate), at any time or from time to
time, voluntarily prepay Swing Line Loans made to it in whole or in part
without premium or penalty (other than any amounts due under Section 3.6 hereof
with respect to prepayments of any Eurodollar Loans); provided that (i)
such notice must be received by the Swing Line Lender and Administrative Agent
or Canadian Administrative Agent not later than 1:00 p.m. on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount
of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by any Borrower, such Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.


 


(d)           Accrued
and Unpaid Interest. Each prepayment of principal of a Loan under this
section shall be accompanied by all interest then accrued and unpaid on the
principal so prepaid. Any principal or interest prepaid pursuant to this
section shall be in addition to, and not in lieu of, all payments otherwise
required to be paid under the Loan Documents at the time of such prepayment.


 


(e)           Prepayment.
Following notice by any Borrower pursuant to Section 2.8(a) or (b) above, such
Borrower shall make such prepayment, and the prepayment amount specified in
such notice shall be due and payable, on the date specified in such notice.


 


Section 2.9.            Mandatory
Prepayments.


 


(a)           US
Loans to US Borrower. If at any time the US Total Outstanding Amount
exceeds the US Total Committed Amount (whether due to a reduction in the US
Total Committed Amount in accordance with this Agreement, or otherwise),
US Borrower shall immediately upon demand prepay the principal of the US
Loans made to US Borrower in an amount at least equal to such excess.


 


39

















 


(b)           Swing
Line Loans. Each Borrower shall repay each Swing Line Loan made to it on
the earlier to occur of (i) (A) with respect to a Loan other than a Eurodollar
Loan, the date fifteen Business Days after such Loan is made and (B) with
respect to a Eurodollar Loan, on the last day of the Interest Period that is
applicable thereto, and (ii) the Maturity Date.


 


(c)           Canadian
Loans. Except to the extent permitted by Section 2.9(e), if the Canadian
Total Outstanding Amount ever exceeds the Canadian Total Committed Amount, each
Canadian Borrower shall severally, but not jointly, immediately on demand
prepay the principal of the Canadian Advances made to such Canadian Borrower
(but shall not be required to prepay the principal of any Canadian Advances made
to the other Canadian Borrower) in an aggregate amount at least equal to such
excess. Any such excess shall be applied first to outstanding Canadian Loans to
such Canadian Borrower, and then to prepay BA’s in accordance with Section
2.15.


 


(d)           Working
Capital Borrowings. For an economically meaningful period of time in each
Fiscal Year, as reasonably determined by GP LLC, the aggregate outstanding
principal balance of all Working Capital Borrowings shall be reduced to a
relatively small amount as may be reasonably specified by GP LLC.


 


(e)           Currency
Fluctuations. Notwithstanding any other provision of this Agreement,
Canadian Administrative Agent shall have the right to calculate the outstanding
Canadian Total Outstanding Amount for all purposes including making a
determination from time to time of the available undrawn portion of the
Canadian Total Committed Amount. If following such calculation, Canadian
Administrative Agent determines that the Canadian Total Outstanding Amount is
greater than 105% of the Canadian Total Committed Amount, then Canadian
Administrative Agent shall so advise Canadian Borrowers and each Canadian
Borrower shall severally, but not jointly repay, on the earlier of five
Business Days after such advice and the next applicable Interest Payment Date
immediately following such advice, an aggregate amount sufficient to eliminate
such excess, together with all accrued interest on the amount so paid;
provided, each Canadian Borrower’s obligation to make such repayment shall be
limited to an amount not to exceed the Outstanding Amount of Canadian Advances
made to such Canadian Borrower, plus accrued interest. Any such excess shall be
applied first to outstanding Canadian Loans to such Canadian Borrower, and then
to prepay BA’s in accordance with Section 2.15.


 


(f)            Accrued
and Unpaid Interest. Each prepayment of principal under this section shall
be accompanied by all interest then accrued and unpaid on the principal so
prepaid. Any principal or interest prepaid pursuant to this section shall be in
addition to, and not in lieu of, all payments otherwise required to be paid
under the Loan Documents at the time of such prepayment.


 


Section 2.10.          Letters
of Credit


 


(a)           The Letter of Credit Commitment.


 


(i)            Subject
to the terms and conditions set forth herein, (A) each of US LC Issuer and
Canadian LC Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.10, (1) from time to time on any Business Day during
the period from the Closing 


 


40

















 


Date until the Letter of Credit Expiration Date, to issue Letters of
Credit denominated in Dollars (or, as to Canadian LC Issuer, Dollars or
Canadian Dollars) for the account of US Borrower or either Canadian Borrower,
respectively, and to amend or extend Letters of Credit previously issued by it,
in accordance with subsection (b) below, and (2) to honor drawings under the
Letters of Credit; and (B) the US Lenders and Canadian Lenders severally agree
to participate in US Letters of Credit and Canadian Letters of Credit,
respectively, issued for the account of US Borrower or Canadian Borrowers, respectively, and any drawings thereunder;
provided that after giving effect to any LC Credit Extension with
respect to any Letter of Credit, (x) as to US Letters of Credit, the US Total
Outstanding Amount does not exceed the US Total Committed Amount, and as to
Canadian Letters of Credit, the Canadian Total Outstanding Amount does not
exceed the Canadian Total Committed Amount, and (y) as to US Letters of
Credit, the aggregate Outstanding Amount of the US Loans of any US Lender,
plus such US Lender’s US Percentage Share of the Outstanding Amount of
all US LC Obligations shall not exceed such US Lender’s US Commitment, and as
to Canadian Letters of Credit, the aggregate Outstanding Amount of the
Canadian Advances of any Canadian Lender, plus such Canadian Lender’s
Canadian Percentage Share of the Outstanding Amount of all Canadian LC
Obligations shall not exceed such Canadian Lender’s Canadian Commitment. Each
request by a Borrower for the issuance or amendment of a Letter of Credit shall
be deemed to be a representation by such Borrower that the LC Credit Extension
so requested complies with the conditions set forth in the provisos to the
preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly each such Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired
or that have been drawn upon and reimbursed. All Letters of Credit outstanding under the Existing Agreement as of the
Closing Date shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and
conditions hereof.


 


(ii)           An
LC Issuer shall not issue any Letter of Credit, if:


 


(A)          subject
to Section 2.10(b)(iii), the expiry date of such requested Letter of Credit
would occur more than twelve months after the date of issuance or last
extension, unless the Majority Lenders have approved such expiry date; or


 


(B)           the
expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry date.


 


(iii)          An
LC Issuer shall not be under any obligation to issue any Letter of Credit if:


 


(A)          any
order, judgment or decree of any Governmental Authority or arbitrator having
jurisdiction over it shall by its terms purport to enjoin or restrain the LC
Issuer from issuing such Letter of Credit, or any Law applicable to the LC
Issuer or any request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over the LC Issuer shall prohibit,
or request or direct the LC Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon
the LC Issuer with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the LC Issuer is not otherwise permitted
hereunder to be compensated hereunder) not 


 


41

















 


in effect on the Closing Date, or shall impose upon the LC Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
(for which the LC Issuer is otherwise permitted hereunder to be compensated
hereunder) and which the LC Issuer in good faith deems material to it;


 


(B)           except
as otherwise agreed by Administrative Agent or Canadian Administrative Agent,
as applicable, and the LC Issuer, such Letter of Credit is in an initial stated
amount less than $100,000 (as to US Letters of Credit and Dollar-denominated
Canadian Letters of Credit) or C$100,000 (as to Canadian Dollar-denominated
Canadian Letters of Credit);


 


(C)           except
as otherwise agreed by Administrative Agent or Canadian Administrative Agent,
as applicable,  and the LC Issuer, such
Letter of Credit is to be denominated in a currency other than Dollars (or, as
to Canadian Letters of Credit, Dollars or Canadian Dollars); or


 


(D)          such Letter of Credit contains any provisions
for automatic reinstatement of the stated amount after any drawing thereunder.


 


(iv)          An
LC Issuer shall not amend any Letter of Credit if the LC Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.


 


(v)           An
LC Issuer shall be under no obligation to amend any Letter of Credit if (A) the
LC Issuer would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of
Credit.


 


(vi)          An
LC Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and an LC Issuer
shall have all of the benefits and immunities (A) provided to the Agents
in Article IX with respect to any acts taken or omissions suffered by
the LC Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and Issuer Documents pertaining to such Letters of Credit as
fully as if the term “Administrative Agent” as used in Article IX
included the LC Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the LC Issuer.


 


(b)           Procedures for Issuance and
Amendment of Letters of Credit;
Auto-Extension Letters of Credit.


 


(i)            Each
Letter of Credit shall be issued or amended, as the case may be, upon the request
of a Borrower delivered to the appropriate LC Issuer (with a copy to the
relevant Agent) in the form of a printed LC Application, appropriately
completed and signed by a Responsible Officer of such Borrower or an electronic
LC Application initiated by such Borrower pursuant to such LC Issuer’s online
electronic letter of credit application/request system. Such LC Application
must be received by the appropriate LC Issuer and the relevant Agent (A) not
later than 11:00 a.m. (New York, New York time) at least two Business Days
prior to the proposed issuance date or date of amendment, as the case may be, 


 


42

















 


of any Letter of Credit denominated in Dollars, and (B) not later than
11:00 a.m. (Toronto, Canada time) at least two Business Days prior to the
proposed issuance date or date of amendment, as the case may be, of any Letter
of Credit denominated in Canadian Dollars; or in each case such later date and
time as the appropriate Agent and LC Issuer may agree in a particular instance
in their sole discretion. In the case of a request for an initial issuance of a
Letter of Credit, such LC Application shall specify in form and detail
satisfactory to the LC Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount and currency thereof;
(C) the expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; (G) any modification in
respect of Rule 3.14 of the ISP, and (H) such other matters as the LC Issuer
may reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such LC Application shall specify in form and
detail satisfactory to the LC Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business Day); (C)
the nature of the proposed amendment (including any modification in respect of
Rule 3.14 of the ISP); and (D) such other matters as the LC Issuer may
reasonably require. Additionally, such Borrower shall furnish to such LC Issuer
and Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as such
LC Issuer or Agent may reasonably require.


 


(ii)           Promptly
after receipt of any LC Application, an LC Issuer will confirm with the
relevant Agent (by telephone or in writing) that such Agent has received a copy
of such LC Application and, if not, the LC Issuer will provide such Agent with
a copy thereof. Unless the LC Issuer has received written notice from such
Agent (who hereby agrees to provide contemporaneous notice to the relevant
Borrower) or any Restricted Person, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Article IV shall not then
be satisfied, specifying in reasonable detail the relevant condition or
conditions not then satisfied, and the basis for such assertion, and such
condition or conditions, as applicable, remain unsatisfied on such requested date
of issuance or amendment, then, subject to the terms and conditions hereof, the
LC Issuer shall, on the requested date, issue a Letter of Credit for the
account of such Borrower or enter into the applicable amendment, as the case
may be, in each case in accordance with the LC Issuer’s usual and customary
business practices. Immediately upon the issuance of each US Letter of Credit
or Canadian Letter of Credit, each US Lender or Canadian Lender shall be
respectively deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from such LC Issuer a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s US Percentage Share or Canadian
Percentage Share, as applicable, times the amount of such Letter of Credit.


 


(iii)          If any Borrower so requests in any applicable LC
Application, an LC Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of
Credit must permit such LC Issuer to deny any such extension at least once in
each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving written prior notice to the beneficiary thereof not later
than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon by such requesting Borrower and such LC Issuer at the
time such Letter of Credit is issued. The LC Issuer of any Auto-Extension
Letter of Credit hereby agrees to contemporaneously furnish to the appropriate
Borrower a copy of any denial of the extension of such Auto-Extension Letter of
Credit. Unless 


 


43

















 


otherwise directed by such LC Issuer, a
Borrower shall not be required to make a specific request to an LC Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been issued,
the US Lenders or Canadian Lenders, as the case may be, shall be deemed to have
authorized (but may not require) the US LC Issuer or Canadian LC Issuer to
permit the extension of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, however,
that such LC Issuer shall not permit any such extension if (A) the LC Issuer
has determined that it would not be permitted, or would have no obligation, at
such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.10(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before
the Non-Extension Notice Date (1) from the relevant Agent (who hereby
agrees to provide contemporaneous notice to the relevant Borrower) that the Majority Lenders have elected not to
permit such extension or (2) from the relevant Agent (who hereby agrees
to provide contemporaneous notice to the relevant Borrower) or Borrower that one or more of the applicable
conditions specified in Article IV is not then satisfied, specifying in
reasonable detail the relevant condition or conditions not then satisfied, and
such condition or conditions, as applicable, are unsatisfied on such extension
date, and the basis for such assertion, and in each such case directing the LC
Issuer not to permit such extension.


 


(iv)          Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
an LC Issuer will also deliver to the appropriate Borrower and the relevant
Agent a true and complete copy of such Letter of Credit or amendment.


 


(c)           Drawings and Reimbursements;
Funding of Participations.


 


(i)            Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the LC Issuer shall notify US Borrower and, if not
US Borrower, the appropriate Canadian Borrower and the relevant Agent thereof.
In the case of a Canadian Letter of Credit denominated in Canadian Dollars, the
appropriate Canadian Borrower shall reimburse the Canadian LC Issuer in
Canadian Dollars, unless the Canadian LC Issuer and such Canadian Borrower
otherwise agree that such Canadian Borrower will reimburse the Canadian LC
Issuer in Dollars, in which case the Canadian LC Issuer shall notify such
Canadian Borrower of the Dollar Equivalent of the amount of the related
drawing. If an LC Issuer shall give notice to the applicable Borrower prior to
11:00 a.m. (New York, New York or Toronto, Canada time, as applicable) on the
date of any payment by such LC Issuer under a Letter of Credit (such date, an “Honor
Date”), the account party Borrower shall reimburse such LC Issuer through
the relevant Agent in an amount equal to the amount of such drawing and in the
applicable currency (and if such LC Issuer shall give notice to such applicable
Borrower at or after such time, such account party Borrower shall reimburse
such LC Issuer by such time on the following Business Day). If a Borrower fails
to so reimburse the LC Issuer by the applicable time, the relevant Agent shall
promptly notify each US Lender or Canadian Lender, as appropriate, of the Honor
Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”),
and the amount of such Lender’s US Percentage Share or Canadian Percentage
Share, as applicable, thereof. In such event, such Borrower shall be deemed to
have requested a Borrowing of Base Rate Loans (or Canadian Prime Rate Loans or
US Dollar Base Rate Loans, as to Canadian Dollar- or Dollar-denominated
Canadian Letters of Credit, respectively) to be 


 


44

















 


disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.1
for the principal amount of Base Rate Loans (or Canadian Prime Rate Loans or US
Dollar Base Rate Loans, as the case may be), but subject to the amount of the
unutilized portion of the US Total Committed Amount or Canadian Total Committed
Amount, as applicable, and the conditions set forth in Article IV (without
giving effect to Borrower’s failure to so reimburse such LC Issuer as provided
in this Section 2.10(c)(i) above). Any notice given by an LC Issuer or an Agent
pursuant to this Section 2.10(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.


 


(ii)           Each
US Lender or Canadian Lender, as appropriate, shall upon any notice pursuant to
Section 2.10(c)(i) prior to 11:00 a.m. (New York, New York or Toronto, Canada
time, as applicable), make funds available to the relevant Agent, as the case
may be, for the account of the appropriate LC Issuer, in Dollars (or, as to
Canadian Dollar-denominated Canadian Letters of Credit, in Canadian Dollars),
at the relevant Agent’s Applicable Lending Office for Dollar denominated (or
Canadian Dollar-denominated) payments in an amount equal to such Lender’s US Percentage
Share or Canadian Percentage Share of the Unreimbursed Amount not later than
1:00 p.m. (New York, New York time) on the Business Day specified in such
notice by the relevant Agent (and, if such notice pursuant to Section
2.10(c)(i) is at or after 11:00 a.m. (New York, New York or Toronto, Canada
time, as applicable), each such Lender shall make such funds available not
later than 1:00 p.m. (New York, New York time) on the following Business Day), whereupon,
subject to the provisions of Section 2.10(c)(iii), each such Lender that so
makes funds available shall be deemed to have made a Base Rate Loan (or, as to
Canadian Lenders, a Canadian Prime Rate Loan (as to Canadian Dollar funds), or
a Canadian US Dollar Base Rate Loan (as to Dollar funds), to such Borrower in
such amount. The relevant Agent shall remit the funds so received to such LC
Issuer in Dollars (or, as to Canadian Dollar-denominated Canadian Letters of
Credit, in Canadian Dollars).


 


(iii)          With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
of Base Rate Loans (or Canadian Prime Rate Loans or Canadian US Dollar Base
Rate Loans, as set forth above) because the conditions set forth in Article IV
(without giving effect to Borrower’s failure to reimburse such LC Issuer as
provided in Section 2.10(c)(i)) cannot be satisfied, because LC Issuer’s notice
pursuant to Section 2.10(c)(i) is at or after 11:00 a.m. (New York, New York or
Toronto, Canada time, as applicable) or for any other reason, such Borrower
shall be deemed to have incurred from the LC Issuer an LC Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which LC Borrowing
shall be due and payable on the second Business Day following the corresponding
Honor Date (together with interest) and shall bear interest on the amount
thereof from time to time outstanding at the Base Rate in effect from time to
time, and if not repaid by 11:00 a.m. (New York, New York time) on such second
succeeding Business Day, shall thereafter bear interest on the amount thereof
from time to time outstanding at the Default Rate. In such event, each Lender’s
payment to the relevant Agent for the account of the LC Issuer pursuant to
Section 2.10(c)(ii) shall be deemed payment in respect of its participation in
such LC Borrowing and shall constitute an LC Advance from such Lender in
satisfaction of its participation obligation under this Section 2.10.


 


(iv)          Until
a Lender funds its Loan or LC Advance pursuant to this Section 2.10(c) to
reimburse an LC Issuer for any amount drawn under any Letter of Credit,
interest in 


 


45

















 


respect of such Lender’s US Percentage Share or Canadian Percentage
Share, as applicable, of such amount shall be solely for the account of such LC
Issuer.


 


(v)           Each
Lender’s obligation to make Loans or LC Advances to reimburse an LC Issuer for
amounts drawn under Letters of Credit, as contemplated by this Section 2.10(c),
shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against an LC Issuer, any Borrower, any Restricted
Person or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Loans pursuant to this Section 2.10(c) is
subject to the amount of unutilized portion of the US Total Committed Amount or
Canadian Total Committed Amount, as applicable, and the conditions set forth in
Article IV (without giving effect to Borrower’s failure to so reimburse such LC
Issuer pursuant to Section 2.10(c)(i) above). No such making of an LC Advance
shall relieve or otherwise impair the obligation of a Borrower to reimburse an
LC Issuer for the amount of any payment made by the LC Issuer under any Letter
of Credit issued at the request of such Borrower, together with interest as
provided herein.


 


(vi)          If
any Lender fails to make available to the relevant Agent for the account of an
LC Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.10(c) by the time specified in Section
2.10(c)(ii), the LC Issuer shall be entitled to recover from such Lender
(acting through the relevant Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the LC Issuer at a rate per
annum equal to the greater of (a) the Federal Funds Rate as to US Lenders, and
at the “Bank Rate” as set by the Bank of Canada, as quoted on Reuters page
BOCFAD, as to Canadian Lenders, and (b) a rate determined by the LC Issuer in
accordance with banking industry rules on interbank compensation. A certificate
of the LC Issuer submitted to any Lender (through the relevant Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.


 


(d)           Repayment
of Participations.


 


(i)            At
any time after an LC Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s LC Advance in respect of such
payment in accordance with Section 2.10(c), if the relevant Agent receives for
the account of the LC Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the appropriate Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
relevant Agent), the relevant Agent will distribute to such Lender its US
Percentage Share or Canadian Percentage Share, as applicable, thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s LC Advance was outstanding) in the
same funds as those received by such Agent.


 


(ii)           If
any payment received by the relevant Agent for the account of an LC Issuer
pursuant to Section 2.10(c)(i) is required to be returned under any of the
circumstances described in the second paragraph of Section 10.12 (including
pursuant to any settlement entered into by an LC Issuer in its discretion),
each Lender shall pay to the relevant Agent for the 


 


46

















 


account of such LC Issuer its US Percentage Share or Canadian
Percentage Share, as applicable, thereof on demand of the relevant Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to (A) the Federal Funds
Rate, as to US Letters of Credit or Dollar-denominated Canadian Letters of
Credit, or (B) the “Bank Rate” as set by the Bank of Canada, as quoted on
Reuters page BOCFAD, as to Canadian Dollar-denominated Canadian Letters of
Credit, from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)           Obligations
Absolute. The obligation of each Borrower to reimburse an LC Issuer for
each drawing under each Letter of Credit issued at the request of such Borrower
and to repay each LC Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:


 


(i)            any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;


 


(ii)           the
existence of any claim, counterclaim, setoff, defense or other right that such
Borrower or any Restricted Person may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), any LC Issuer or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;


 


(iii)          any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;


 


(iv)          any
payment by any LC Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by any LC Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any debtor relief Law;


 


(v)           any
adverse change in the relevant exchange rates or in the availability of the
Canadian Dollar to a Canadian Borrower or any Subsidiary or in the relevant
currency markets generally; or


 


(vi)          any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, such Borrower or any Restricted
Person or any Subsidiary.


 


47

















 


Each Borrower shall
promptly examine a copy of each Letter of Credit requested by it and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with such Borrower’s instructions or other irregularity, such
Borrower will immediately notify the appropriate LC Issuer, and the LC Issuer
will correct such claim in conformity with such Borrower’s instructions or as
otherwise agreed between such Borrower and such LC Issuer, subject to the terms
hereof. Each Borrower shall be conclusively deemed to have waived any such
claim against the LC Issuer and its correspondents with respect to any Letter
of Credit issued at such Borrower’s request unless such notice is given as aforesaid.


 


(f)            Role
of LC Issuer. Each Lender and each Borrower agrees that, in paying any
drawing under a Letter of Credit, no LC Issuer shall have any responsibility to
obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to
the validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. None of the LC Issuers, Agents, any
of their respective Related Parties nor any correspondent, participant or
assignee of an LC Issuer shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of the
Lenders or the Majority Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence, willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. Each Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude a Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the LC Issuers, the
Agents, any of their respective Related Parties nor any correspondent,
participant or assignee of an LC Issuer shall be liable or responsible for any
of the matters described in clauses (i) through (v) of Section 2.10(e); provided,
however, that anything in such clauses to the contrary notwithstanding,
a Borrower may have a claim against an LC Issuer, and an LC Issuer may be
liable to such Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by such Borrower
which such Borrower proves were caused by an LC Issuer’s willful misconduct,
gross negligence or material breach of any of its obligations hereunder or
under any Issuer Document or under any Letter of Credit issued on such Borrower’s
behalf after the presentation to such LC Issuer by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, an LC
Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and an LC Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit 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.


 


(g)           Cash
Collateral.


 


(i)            Within
one Business Day following the request of the relevant Agent, (A) if an LC
Issuer has honored any full or partial drawing request under any Letter of Credit
and such drawing has resulted in an LC Borrowing that remains outstanding for
more than two Business Days thereafter, or (B) if, as of the Letter of Credit
Expiration Date, any LC Obligation 


 


48

















 


with respect to any Borrower for any reason remains outstanding, such
Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all such LC Obligations.


 


(ii)           Canadian
Administrative Agent may, at any time and from time to time after the initial
deposit of non Canadian Dollar-denominated Cash Collateral securing any
Canadian Dollar-denominated Canadian Letter of Credit, request that additional
Cash Collateral be provided in order to protect against the results of exchange
rate fluctuations.


 


(iii)          For
purposes of this Agreement, “Cash Collateralize” means to pledge and deposit
with or deliver to the relevant Agent, for the benefit of the appropriate LC
Issuer and Lenders, as collateral for the applicable LC Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory
to the relevant Agent and such LC Issuer (which documents are hereby consented
to by the Lenders). Derivatives of such term have corresponding meanings. US
Borrower hereby grants to Administrative Agent, and each Canadian Borrower
hereby grants to Canadian Administrative Agent, for the benefit of the US LC
Issuer and US Lenders, and the Canadian LC Issuer and the Canadian Lenders,
respectively, as applicable and to the extent of each of their respective
interests in any such cash or deposit account balances, a security interest in
all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in blocked, interest bearing
deposit accounts at Administrative Agent.


 


When the LC Borrowing
giving rise to the posting of Cash Collateral has been discharged or such
Borrower otherwise has no LC Obligations outstanding, and no other event of the
nature described in Section 2.10(g)(i)(A) then exists, any Lien on any Cash
Collateral shall automatically terminate and the relevant Agent will promptly
return such Cash Collateral to the Borrower originally pledging such Cash
Collateral.


 


(h)           Applicability
of ISP. Unless otherwise
expressly agreed by an LC Issuer and a Borrower when a Letter of Credit is
issued (including any such agreement
applicable to any Letter of Credit outstanding under the Existing Agreement as
of the Closing Date), (i) the rules of the ISP shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial or documentary Letter of Credit.


 


(i)            Letter
of Credit Fees. Each Borrower shall pay, solely with respect to the Letters
of Credit issued at the request of such Borrower, to the relevant Agent for the
account of each US Lender or Canadian Lender, as appropriate, in accordance with
such Lender’s US Percentage Share or Canadian Percentage Share, respectively, a
Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of
Credit equal to the Applicable Margin for Eurodollar Loans times the Dollar
Equivalent of the daily amount available to be drawn under such Letter of
Credit. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined
in accordance with Section 1.6. Letter of Credit Fees shall be computed on a
quarterly basis in arrears and shall be due and payable on the first Business
Day after the end of each March, June,
September and December. If there is any change in such Applicable Margin
during any quarter, the daily amount available to be drawn 


 


49

















 


under each Letter of Credit shall be computed and multiplied by such
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect.


 


(j)            Fronting
Fee and Documentary and Processing Charges Payable to LC Issuer. Each Borrower shall pay directly to
the appropriate LC Issuer for its own account a fronting fee solely with
respect to each Letter of Credit requested by such Borrower, at such rate as
agreed to by Borrower and such LC Issuer, computed on the Dollar Equivalent of
the daily amount available to be drawn under such Letter of Credit on a
quarterly basis in arrears, and due and payable on the first Business Day after
the end of each March, June, September
and December. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.6. In addition, each Borrower shall pay
directly to each LC Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of such LC Issuer relating to letters of credit as from time to time
in effect, effective schedules of which will be provided to US Borrower upon
request. Such customary fees and standard costs and charges are due and payable
quarterly in arrears on the first Business Day after the end of each March,
June, September and December and are nonrefundable.


 


(k)           Conflict
with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.


 


(l)            Transferees
of Letters of Credit. If any Letter of Credit provides that it is
transferable, the LC Issuer thereof shall have no duty to determine the proper
identity of anyone appearing as transferee of such Letter of Credit, nor shall
such LC Issuer be charged with responsibility of any nature or character for
the validity or correctness of any transfer or successive transfers, and
payment by such LC Issuer to any purported transferee or transferees as
determined by such LC Issuer is hereby authorized and approved, and the
Borrower requesting such Letter of Credit releases each Lender Party from, and
agrees to hold each Lender Party harmless and indemnified against, any
liability or claim in connection with or arising out of the foregoing, WHICH INDEMNITY SHALL APPLY
WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT
CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY
ANY LENDER PARTY, provided
only that no Lender Party shall be entitled to indemnification for that
portion, if any, of any liability or claim which is proximately caused by its
own individual gross negligence or willful misconduct, as determined in a final
judgment.


 


Section 2.11.          Section
2.10A. Swing Line Loans.


 


(a)           The Swing Line. Subject to the
terms and conditions set forth herein, the Swing Line Lender agrees, in
reliance upon the agreements of the other Lenders set forth in this Section
2.10A, to make loans (each such loan, a “Swing Line Loan”) to US
Borrower or to either Canadian Borrower from time to time on any Business Day
during the Commitment Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit applicable to it,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Outstanding Amount of other US Loans and US LC Obligations, or of other
Canadian Loans and Canadian Obligations, as the case may be, of the Lender
acting as Swing Line Lender, may 


 


50

















 


exceed the amount
of such Lender’s US Commitment or Canadian Commitment, respectively; provided,
however, that after giving effect to any Swing Line Loan, (i) the US
Total Outstanding Amount or Canadian Total Outstanding Amount, as appropriate,
shall not exceed the US Total Committed Amount or Canadian Total Committed
Amount, respectively, and (ii) the Outstanding Amount of US Loans or Canadian
Loans by any US Lender or Canadian Lender, respectively, plus such US
Lender’s US Percentage Share of the Outstanding Amount of US LC Obligations or
such Canadian Lender’s Canadian Percentage Share of the Outstanding Amount of Canadian
LC Obligations, as the case may be, plus such US Lender’s US Percentage
Share of the Outstanding Amount of all Swing Line Loans made to US Borrower or
such Canadian Lender’s Canadian Percentage Share of the Outstanding Amount of
all Swing Line loans made to either Canadian Borrower, as the case may be,
shall not exceed such US Lender’s US Commitment or such Canadian Lender’s
Canadian Commitment, respectively, and provided, further, that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. The obligation of each Borrower to repay to the
Swing Line Lender Swing Line Loans made by such Swing Line Lender to such
Borrower, together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called the Swing Line Lender’s “Swing
Line Note”) made by each Borrower payable to the order of the Swing Line
Lender in the form of Exhibit A-3 with appropriate insertions. The amount of
principal owing on any Swing Line Note at any given time shall be the aggregate
amount of all Swing Line Loans theretofore made by the Swing Line Lender
to such Borrower minus all payments of principal theretofore received by the
Swing Line Lender on such Swing Line Note. Interest on each Swing Line Note
shall accrue and be due and payable as provided herein and therein. Each Swing
Line Note shall be due and payable as provided herein and therein, and shall be
due and payable in full on the Maturity Date. Within the foregoing limits, and
subject to the other terms and conditions hereof, any Borrower may borrow under
this Section 2.10A, prepay under Section 2.8(c), and reborrow under this
Section 2.10A. US Borrower may request Base Rate Loans, EMIR Loans or
Eurodollar Loans with an Interest Period not exceeding fifteen (15) days. Either
Canadian Borrower may request (i) Dollar-denominated Canadian US Dollar Base
Rate Loans, EMIR Loans or Eurodollar Loans with an Interest Period not
exceeding fifteen (15) days, or (ii) Canadian Dollar-denominated Canadian Prime
Rate Loans. Immediately upon the making of a Swing Line Loan to US Borrower or
either Canadian Borrower, each US Lender or Canadian Lender, as the case may
be, shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line
Loan in an amount equal to the product of such US Lender’s US Percentage Share,
or such Canadian Lender’s Canadian Percentage Share, as appropriate, times
the amount of such Swing Line Loan.


 


(b)           Borrowing
Procedures. Each Swing Line Borrowing shall be made upon a Borrower’s
irrevocable notice to the Swing Line Lender and Administrative Agent or
Canadian Administrative Agent, as applicable, which may be given by telephone.
Each such notice must be received by the Swing Line Lender and Administrative
Agent or Canadian Administrative Agent not later than 1:00 p.m. on the
requested borrowing date (or, for Eurodollar Loans, not later than 1:00 p.m. on
the third Business Day prior to the requested borrowing date), and shall
specify (i) the amount to be borrowed, which shall be a minimum of $1,000,000
(or, if denominated in Canadian Dollars, C$1,000,000), (ii) the requested
borrowing date, which shall be a Business Day, (iii) for Eurodollar Loans, the
length of the applicable Interest Period, (iv) for Swing Line Loans to US
Borrower, whether such Swing Line Loans are Base Rate Loans, EMIR 


 


51

















 


Loans or Eurodollar Loans, and (v) for Swing Line Loans to a Canadian
Borrower (1) whether such Swing Line Loans are Dollar-denominated or Canadian
Dollar-denominated, (2) if Dollar-denominated, whether such Swing Line Loans
are Canadian US Dollar Base Rate Loans, EMIR Loans or Eurodollar Loans, and (3)
if such Loans are Eurodollar Loans, the information described in clause (iii)
above. Either Canadian Borrower may request Dollar-denominated or Canadian
Dollar-denominated Swing Line Loans. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and Administrative
Agent or Canadian Administrative Agent, as appropriate, of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of
such Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with
Administrative Agent or Canadian Administrative Agent, as appropriate (by
telephone or in writing) that Administrative Agent or Canadian Administrative
Agent has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify Administrative Agent or Canadian Administrative Agent, as
appropriate (by telephone or in writing) of the contents thereof. Unless the
Swing Line Lender has received notice (by telephone or in writing) from
Administrative Agent or Canadian Administrative Agent (including at the request
of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan
as a result of the limitations set forth in the proviso to the first sentence
of Section 2.10A(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject
to the terms and conditions hereof, the Swing Line Lender will, not later than
3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to such Borrower.


 


(c)           Refinancing
of Swing Line Loans.


 


(i)            The
Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of any Borrower with any outstanding Swing Line Loans (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf), that
each US Lender make a Base Rate Loan (whether originally a Base Rate Loan, EMIR
Loan or Eurodollar Loan, which, if originally an EMIR Loan or Eurodollar Loan,
shall be deemed to have been Converted to a Base Rate Loan on such date), or
each Canadian Lender make a Canadian US Dollar Base Rate Loan (whether
originally a Canadian US Dollar Base Rate Loan, EMIR Loan or Eurodollar Loan,
which, if originally an EMIR Loan or Eurodollar Loan, shall be deemed to have
been Converted to a Base Rate Loan on such date) or Canadian Prime Rate Loan
(if originally made in Canadian Dollars), as applicable, in an amount equal to
such US Lender’s US Percentage Share or such Canadian Lender’s Canadian
Percentage Share, respectively, of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Borrowing for purposes hereof) and in accordance with the
requirements of Section 2.2, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, Canadian US Dollar
Base Rate Loans or Canadian Prime Rate Loans, as the case may be, but subject
to the unutilized portion of the US Commitment or Canadian Commitment, as the
case may be, and the conditions set forth in Section 4.2. The Swing Line Lender
shall furnish such Borrower with a copy of the applicable Borrowing Notice
promptly after delivering such notice to Administrative Agent or Canadian
Administrative Agent, as appropriate. Each US Lender or Canadian Lender, as the
case may be, shall make an amount equal to its respective US Percentage Share
or Canadian Percentage Share of the amount 


 


52

















 


specified in such Borrowing Notice available to Administrative Agent or
Canadian Administrative Agent, as appropriate, in immediately available funds
for the account of the Swing Line Lender not later than 1:00 p.m. on the day
specified in such Borrowing Notice, whereupon, subject to Section 2.10A(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan, Canadian US Dollar Base Rate Loan or Canadian Prime Rate Loan, as
the case may be, to such Borrower in such amount. Administrative Agent or
Canadian Administrative Agent shall remit the funds so received to the Swing
Line Lender.


 


(ii)           If
for any reason any Swing Line Loan cannot be refinanced by such a Borrowing in
accordance with Section 2.10A(c)(i), or pursuant to a Borrowing requested in
accordance with Section 2.2, as the case may be, the request for Loans
submitted by the Swing Line Lender as set forth in Section 2.10A(c)(i) shall be
deemed to be a request by the Swing Line Lender that each of the US Lenders or
Canadian Lenders, as the case may be, fund its risk participation in the
relevant Swing Line Loan and each such Lender’s payment to Administrative Agent
or Canadian Administrative Agent, as appropriate, for the account of the Swing
Line Lender pursuant to Section 2.10A(c)(i) shall be deemed payment in respect
of such participation.


 


(iii)          If
any Lender fails to make available to Administrative Agent or Canadian
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.10A(c) by the time specified in Section 2.10A(c)(i), the Swing Line
Lender shall be entitled to recover from such Lender (acting through
Administrative Agent or Canadian Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Swing Line
Lender at a rate per annum equal to the greater of the Federal Funds Rate (or,
as to Canadian Dollar-denominated Swing Line Loans, the “Bank Rate” as set by
the Bank of Canada, as quoted on Reuters page BOCFAD) and a rate determined by
the Swing Line Lender in accordance with banking industry rules on interbank
compensation. A certificate of the Swing Line Lender submitted to any Lender
(through Administrative Agent or Canadian Administrative Agent) with respect to
any amounts owing under this clause (iii) shall be conclusive absent manifest
error.


 


(iv)          Each
Lender’s obligation to make Loans or to purchase and fund risk participations
in Swing Line Loans pursuant to this Section 2.10A shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, any Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to
make Loans pursuant to this Section 2.10A(c) is subject to the conditions set
forth in Section 4.2. No such funding of risk participations shall relieve or
otherwise impair the obligation of any Borrower to repay Swing Line Loans made
to it, together with interest as provided herein.


 


(d)           Repayment
of Participations.


 


(i)            At
any time after a Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of
such Swing Line Loan, the Swing Line Lender will distribute to such Lender its
US Percentage Share or 


 


53

















 


Canadian Percentage Share, as the case may be, of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s risk participation was funded) in the
same funds as those received by the Swing Line Lender.


 


(ii)           If
any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in the second paragraph of
Section 10.12 (including pursuant to any settlement entered into by the Swing
Line Lender in its discretion), each Lender shall pay to the Swing Line Lender
its appropriate US Percentage Share or Canadian Percentage Share thereof on
demand of Administrative Agent or Canadian Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned, at a
rate per annum equal to the Federal Funds Rate (or, as to Canadian
Dollar-denominated Swing Line Loans, the “Bank Rate” as set by the Bank of
Canada, as quoted on Reuters page BOCFAD. Administrative Agent or Canadian
Administrative Agent, as appropriate, will make such demand upon the request of
the Swing Line Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.


 


(e)           Interest
for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing each Borrower for interest on the Swing Line Loans
made to it. Until a Lender funds its Base Rate Loan or risk participation
pursuant to this Section 2.10A to refinance such US Lender’s US Percentage
Share or such Canadian Lender’s Canadian Percentage Share, as appropriate, of
any Swing Line Loan, interest in respect of such US Percentage Share or
Canadian Percentage Share shall be solely for the account of the Swing Line
Lender.


 


(f)            Payments
Directly to Swing Line Lender. Each Borrower shall make all payments of principal
and interest in respect of the Swing Line Loans made to it directly to the
Swing Line Lender.


 


Section 2.12.          Creation
of Bankers’ Acceptances. Upon receipt of a Borrowing Notice requesting a
Borrowing by way of Bankers’ Acceptances, and subject to the provisions of this
Agreement, each Canadian Lender shall accept, in accordance with its Canadian
Percentage Share of the requested Borrowing from time to time such Bankers’
Acceptances as either Canadian Borrower shall request provided that:


 


(a)           Bankers’
Acceptances shall be issued on a Business Day;


 


(b)           each
Bankers’ Acceptance shall have a term of one, two, three or six months
(excluding days of grace), as selected by such Canadian Borrower in the
relevant Borrowing Notice provided that each Bankers’ Acceptance shall mature
on a Business Day;


 


(c)           the
face amount of each Bankers’ Acceptance shall be not less than C$3,000,000 and
in multiples of C$100,000 for any amounts in excess thereof; and


 


(d)           each
Bankers’ Acceptance shall be in a form acceptable to Canadian Administrative
Agent.


 


54

















 


Section 2.13.          Terms
of Acceptance by Canadian Lenders.


 


(a)           Delivery
and Payment. Subject to Sections 2.13 and 2.14 and only if a valid
appointment pursuant to Section 2.12(d) is not in place, each Canadian Borrower
shall pre-sign and deliver to each Canadian Lender bankers’ acceptance drafts
in sufficient quantity to meet each Canadian Borrower’s requirements for
anticipated Borrowings by way of Bankers’ Acceptances. Each Canadian Borrower
shall, at its option, provide for payment to Canadian Administrative Agent for
the benefit of Canadian Lenders of each Bankers’ Acceptance on the date on
which a Bankers’ Acceptance matures, either by payment of the full face amount thereof
or through utilization of a Conversion to another Type of Borrowing in
accordance with this Agreement, or through a combination thereof. Each Canadian
Borrower waives presentment for payment of Bankers’ Acceptances by Canadian
Lenders and shall not claim from Canadian Lenders any days of grace for the
payment at maturity of Bankers’ Acceptances. Any amount owing by a Canadian
Borrower in respect of any Bankers’ Acceptance which is not paid in accordance
with the foregoing, shall, as and from the date on which such Bankers’
Acceptance matures, be deemed to be outstanding hereunder as a Canadian Prime
Rate Loan.


 


(b)           No
Liability. Canadian Administrative Agent and Canadian Lenders shall not be
liable for any damage, loss or improper use of any bankers’ acceptance draft
endorsed in blank except for any loss arising by reason of Canadian
Administrative Agent or a Canadian Lender failing to use the same standard of
care in the custody of such bankers’ acceptance drafts as Canadian
Administrative Agent or such Canadian Lender use in the custody of their own
property of a similar nature.


 


(c)           Bankers’
Acceptances Purchased by Canadian Lenders. Each Canadian Lender shall
purchase Bankers’ Acceptances accepted by it for an amount equal to the
Discount Proceeds.


 


(d)           Power
of Attorney. To facilitate the procedures contemplated in this Agreement,
each Canadian Borrower appoints each Canadian Lender from time to time as the
attorney-in-fact of such Canadian Borrower to execute, endorse and deliver on
behalf of such Canadian Borrower drafts or depository bills in the form or
forms prescribed by such Canadian Lender for Bankers’ Acceptances denominated
in Canadian Dollars. Each Bankers’ Acceptance executed and delivered by a
Canadian Lender on behalf of a Canadian Borrower shall be as binding upon such
Canadian Borrower as if it had been executed and delivered by a duly authorized
officer of such Canadian Borrower. The foregoing appointment shall cease to be
effective, in respect of any Canadian Lender regarding a Canadian Borrower,
three Business Days following receipt by such Canadian Lender of a written
notice from such Canadian Borrower revoking such appointment (which notice
shall be copied to Canadian Administrative Agent); provided that any such
revocation shall not affect Bankers’ Acceptances previously executed and
delivered by such Canadian Lender pursuant to such appointment.


 


(e)           Pro-Rata Treatment of Canadian
Advances.


 


(i)            Each
Canadian Advance shall be made available by each Canadian Lender and all
repayments and reductions in respect thereof shall be made and applied in a
manner so that the Canadian Advances outstanding hereunder to each Canadian
Lender will, to the extent 


 


55

















 


possible, thereafter be pro rata in accordance with such Canadian
Lender’s Canadian Percentage Share. Canadian Administrative Agent is authorized
by Canadian Borrowers and each Canadian Lender to determine, in its sole and
unfettered discretion, the portion of each Canadian Advance and each Type of
Canadian Advance to be made available by each Canadian Lender to such Canadian
Borrower and the application of repayments and reductions of Canadian Advances
to give effect to the provisions of this section, provided that no Canadian
Lender shall, as a result of any such determination, have a Canadian Percentage
Share of the aggregate Canadian Advances which is in excess of its Canadian
Percentage Share of the Canadian Total Committed Amount.


 


(ii)           In
the event it is not practicable to allocate Bankers’ Acceptances to each
Canadian Lender such that the aggregate amount of Bankers’ Acceptances required
to be purchased by such Canadian Lender hereunder is in a whole multiple of
C$100,000, Canadian Administrative Agent is authorized by each Canadian
Borrower and each Canadian Lender to make such allocation as Canadian
Administrative Agent determines in its sole and unfettered discretion may be
equitable in the circumstances and, if the aggregate amount of such Bankers’
Acceptances is not a whole multiple of C$100,000, then Canadian Administrative
Agent may allocate (on a basis considered by it to be equitable) the excess of
such Canadian Advance over the next lowest whole multiple of C$100,000 to one
Canadian Lender, which shall purchase a Bankers’ Acceptance with a face amount
equal to the excess and having the same term as the corresponding Bankers’
Acceptances. In no event shall the portion of the outstanding Borrowings by way
of Bankers’ Acceptances of a Canadian Lender exceed such Canadian Lenders’
Canadian Percentage Share of the aggregate Borrowings by way of Bankers’
Acceptances by more than C$100,000 as a result of such exercise of discretion
by Canadian Administrative Agent.


 


(f)            BA
Equivalent Advances. Each Canadian Lender may, in lieu of accepting a BA on
the date of any Borrowing, make a BA Equivalent Advance. The amount of each BA
Equivalent Advance shall be equal to the Discount Proceeds (with reference to
the applicable BA Discount Rate) which would be realized from a hypothetical
sale of those BAs which, but for this subsection, would have been sold to such
Canadian Lender. If such Canadian Lender does not otherwise have a BA Discount
Rate applicable to it, the applicable BA Discount Rate will be calculated as
though such Canadian Lender was listed on Schedule II or Schedule III of the Bank Act (Canada). Any BA Equivalent
Advance shall be made on the relevant date of any Borrowing, and shall remain
outstanding for the term of the corresponding BA. On the maturity date of the
corresponding BA, such BA Equivalent Advance shall be repaid in an amount equal
to the face amount of a draft that would have been accepted by such Canadian
Lender if such Canadian Lender had accepted and purchase BA hereunder. Each BA
Equivalent Advance made pursuant to this subsection shall be deemed to be a BA
accepted and purchased by such Canadian Lender pursuant to the terms hereof,
and except in this subsection, any reference to a BA shall include such BA
Equivalent Advance.


 


Section 2.14.          General
Procedures for Bankers’ Acceptances.


 


(a)           Continuations.
In the case of a Continuation of maturing Bankers’ Acceptances of a Canadian
Borrower, each Canadian Lender in order to satisfy the continuing liability of
such Canadian Borrower to the Canadian Lender for the face amount of the
maturing Bankers’ Acceptances, shall retain for its own account the Net
Proceeds of each new Bankers’ Acceptance 


 


56

















 


issued by it in connection with such Continuation; and each Canadian
Borrower shall, on the maturity date of the maturing Bankers’ Acceptances of
such Canadian Borrower, pay to Canadian Administrative Agent for the benefit of
Canadian Lenders an amount equal to the difference between the face amount of
such maturing Bankers’ Acceptances and the aggregate Net Proceeds of such new
Bankers’ Acceptances.


 


(b)           Conversion
from Canadian Prime Rate Loans or Canadian US Dollar Base Rate Loans. In
the case of a Conversion from a Borrowing of Canadian Prime Rate Loans or
Canadian US Dollar Base Rate Loans to a Canadian Borrower into a Borrowing by
way of Bankers’ Acceptances to be accepted by a Canadian Lender pursuant to
Section 2.12, such Canadian Lender, in order to satisfy the continuing
liability of such Canadian Borrower to it for the principal amount of the
Canadian Prime Rate Loans or Canadian US Dollar Base Rate Loans being
converted, shall retain for its own account the Discount Proceeds of each new
Bankers’ Acceptance issued by it in connection with such Conversion; and such
Canadian Borrower shall, on the date of issuance of the Bankers’ Acceptances,
pay to Canadian Administrative Agent for the benefit of Canadian Lenders an
amount equal to the difference between the aggregate principal amount of the
Canadian Prime Rate Loans or Canadian US Dollar Base Rate Loans being converted
owing to the Canadian Lenders and the aggregate Discount Proceeds of such
Bankers’ Acceptances.


 


(c)           Authorization.
Each Canadian Borrower hereby authorizes each Canadian Lender to complete,
stamp, hold, sell, rediscount or otherwise dispose of all Bankers’ Acceptances
of such Canadian Borrower accepted by it pursuant to this section in accordance
with the instructions provided by such Canadian Borrower pursuant to Section
2.3, as applicable.


 


(d)           Depository
Notes. The parties agree that in the administering of Bankers’ Acceptances,
each Canadian Lender may avail itself of the debt clearing services offered by
a clearing house for depository notes pursuant to the Depository Bills and
Notes Act (Canada) and that the procedures set forth in Article II be
deemed amended to the extent necessary to comply with the requirements of such
debt clearing services.


 


Section 2.15.          Execution
of Bankers’ Acceptances. The signatures of any authorized signatory on
Bankers’ Acceptances which are authorized and requested hereunder by a Canadian
Borrower may, at the option of such Canadian Borrower, be reproduced in
facsimile and such Bankers’ Acceptances bearing such facsimile signatures shall
be binding on such Canadian Borrower as if they had been manually signed by
such authorized signatory. Notwithstanding that any person whose signature
appears on any Bankers’ Acceptance as a signatory may no longer be an
authorized signatory of such Canadian Borrower at the date of issuance of a
Bankers’ Acceptance, and notwithstanding that the signature affixed may be a
reproduction only, such signature shall, unless prior to its use such Canadian
Borrower has notified Canadian Administrative Agent in writing to contrary,
nevertheless be valid and sufficient for all purposes as if such authority had
remained in force at the time of such issuance and as if such signature had
been manually applied, and any such Bankers’ Acceptance so signed shall be
binding on such Canadian Borrower.


 


Section 2.16.          Prepayment
of Bankers’ Acceptances. Any amounts received by Canadian Administrative
Agent to be applied to outstanding Bankers’ Acceptances, whether pursuant to an



 


57

















 


Event of Default and acceleration of the Obligations under Section 8.1
or a prepayment as permitted or required under Section 2.8 or 2.9, shall be
deposited into an escrow account maintained by and in the name of Canadian
Administrative Agent for the benefit of Canadian Lenders for set-off against
such outstanding Bankers’ Acceptances as they mature, and pending such
application shall bear interest at the rate declared by Canadian Administrative
Agent from time to time as that payable by it in respect of deposits for such
amount and for such period relative to the maturity date of such Bankers’
Acceptances, as applicable. Upon the repayment of all such outstanding Bankers’
Acceptances, any amounts remaining (including accrued interest) will (i) during
the continuance of an Event of Default, be subject to such remedies as each
Lender Party may have hereunder or under applicable Law, or (ii) otherwise, be
released to the appropriate Canadian Borrower.


 


ARTICLE III. - Payments to Lenders


 


Section 3.1.            General
Procedures.


 


(a)           Each
Restricted Person shall pay all amounts owing by such Restricted Person with
respect to any US Obligations (whether for principal, interest, fees, or
otherwise) to Administrative Agent for the account of the US Lender Party to
whom such payment is owed in Dollars, without condition or deduction for any
counterclaim, defense, recoupment or setoff, and in immediately available funds
and each Restricted Person shall pay all amounts owing by such Restricted
Person with respect to any Canadian Obligations (whether for principal,
interest, fees, or otherwise) to Canadian Administrative Agent for the account
of the Canadian Lender Party to whom such payment is owed in the currency such
Canadian Loans were funded, without condition or deduction for any
counterclaim, defense, recoupment or setoff, and in immediately available funds.
If any payment is received on account of any US Obligation in any currency
other than Dollars (whether voluntarily or pursuant to any order or judgment or
the enforcement thereof or the realization of any security or the liquidation
of any Person or otherwise howsoever), such payment shall constitute a
discharge of the liability of a Restricted Person hereunder and under the other
Loan Documents in respect of such US Obligation only to the extent of the
amount of Dollars which the relevant Lender Parties are able to purchase with
the amount of the other currency received by it on the Business Day next
following such receipt by Administrative Agent in accordance with its normal
procedures and after deducting any premium and costs of exchange. If any
payment is received on account of any Canadian Obligation in any currency other
than the currency such Canadian Loans were funded (whether voluntarily or
pursuant to any order or judgment or the enforcement thereof or the realization
of any security or the liquidation of any Person or otherwise howsoever), such
payment shall constitute a discharge of the liability of a Restricted Person
hereunder and under the other Loan Documents in respect of such Canadian Obligation
only to the extent of the amount of Canadian Dollars or Dollars, as the case
may be, which the relevant Lender Parties are able to purchase with the amount
of the other currency received by it on the Business Day next following such
receipt by Canadian Administrative Agent in accordance with its normal
procedures and after deducting any premium and costs of exchange; provided,
however, if the Canadian LC Issuer is paid Dollars pursuant to 


 


58

















 


Section 2.10(c)(i), such payment shall constitute a full discharge of
the liability to which such payment relates. Each payment under the Loan
Documents must be received by the relevant Agent not later than noon, New York,
New York time or Toronto, Ontario time, as the case may be, on the date such
payment becomes due and payable, unless otherwise expressly provided herein. Any
payment received by the relevant Agent after such time will be deemed to have
been made on the next following Business Day. Should any such payment become
due and payable on a day other than a Business Day, the maturity of such
payment shall be extended to the next succeeding Business Day, and, in the case
of a payment of principal or past due interest, interest shall accrue and be
payable thereon for the period of such extension as provided in the Loan
Document under which such payment is due. Each payment under a Loan Document to
a US Lender Party shall be due and payable at the place provided therein and,
if no specific place of payment is provided, shall be due and payable at the
place of payment of Administrative Agent’s US Note. Each Payment under a Loan
Document to a Canadian Lender Party shall be due and payable at the place
provided therein, and, if no specific place of payment is provided, shall be
due and payable at the place of payment in Canadian Administrative Agent’s
Canadian Note.


 


(b)           When
Administrative Agent collects or receives money on account of the US
Obligations, Administrative Agent shall distribute all money so collected or
received, and each US Lender Party shall apply all such money so distributed,
as follows:


 


(i)            first,
for the payment of all US Obligations which are then due (and if such money is
insufficient to pay all such US Obligations, first to any reimbursements due
Administrative Agent under Section 10.4 and then to the partial payment of all
other US Obligations then due in proportion to the amounts thereof, or as US
Lender Parties shall otherwise agree);


 


(ii)           then
for the prepayment of amounts owing under the Loan Documents (other than
principal on the US Notes) if so specified by US Borrower;


 


(iii)          then
for the prepayment of principal on the US Notes, together with accrued and
unpaid interest on the principal so prepaid, or held by US LC Issuer and applied
to US LC Obligations as they mature; and


 


(iv)          last,
for the payment or prepayment of any other US Obligations.


 


All payments applied to principal or interest on any
US Note shall be applied first to any interest then due and payable, then to
principal then due and payable, and last to any prepayment of principal and
accrued interest thereon in compliance with Sections 2.8 and 2.9, as applicable.
All distributions of amounts described in any of subsections (ii), (iii), or
(iv) above shall be made by Administrative Agent pro rata to each US Lender
Party then owed US Obligations described in such subsection in proportion to
all amounts owed to all US Lender Parties which are described in such
subsection; provided that if any US Lender then owes payments to US LC Issuer
for the purchase of a participation under Section 2.10(a) or to Administrative
Agent under Section 9.10, any amounts otherwise distributable under this
section to such US Lender shall be deemed to belong to US LC Issuer, or
Administrative Agent, respectively, to the extent of such 


 


59

















 


unpaid payments, and Administrative Agent shall apply
such amounts to make such unpaid payments rather than distribute such amounts
to such US Lender.


 


(c)           When
Canadian Administrative Agent collects or receives money on account of the
Canadian Obligations, other than as provided in Section 3.9, Canadian
Administrative Agent shall distribute all money so collected or received, and
each Canadian Lender Party shall apply all such money so distributed, as
follows:


 


(i)            first,
for the payment of all Canadian Obligations which are then due (and if such
money is insufficient to pay all such Canadian Obligations, first to any
reimbursements due Canadian Administrative Agent under 10.4 and then to the
partial payment of all other Canadian Obligations then due in proportion to the
amounts thereof, or as Canadian Lender Parties shall otherwise agree);


 


(ii)           then
for the prepayment of amounts owing under the Loan Documents (other than
principal on the Canadian Notes) if so specified by a Canadian Borrower;


 


(iii)          then
for the prepayment of principal on the Canadian Notes, together with accrued
and unpaid interest on the principal so prepaid, or held by Canadian LC Issuer
and applied to Canadian LC Obligations as they mature; and


 


(iv)          last,
for the payment or prepayment of any other Canadian Obligations.


 


All payments applied to principal or interest on any
Canadian Note shall be applied first to any interest then due and payable, then
to principal then due and payable, and last to any prepayment of principal and
accrued interest thereon in compliance with Sections 2.8 and 2.9, as applicable.
All distributions of amounts described in any of subsections (ii), (iii), or
(iv) above shall be made by Canadian Administrative Agent pro rata to each
Canadian Lender Party then owed Canadian Obligations described in such
subsection in proportion to all amounts owed to all Canadian Lender Parties
which are described in such subsection; provided that if any Canadian Lender
then owes payments to Canadian LC Issuer for the purchase of a participation
under Section 2.10(a ) or to Canadian Administrative Agent under Section 9.10,
any amounts otherwise distributable under this section to such Canadian Lender
shall be deemed to belong to Canadian LC Issuer, or Canadian Administrative
Agent, respectively, to the extent of such unpaid payments, and Canadian
Administrative Agent shall apply such amounts to make such unpaid payments
rather than distribute such amounts to such Canadian Lender.


 


(d)           Unless
Administrative Agent or Canadian Administrative Agent shall have received
notice from the relevant Borrower prior to the date on which any payment is due
to Administrative Agent or Canadian Administrative Agent, as the case may be,
for the account of the Lenders or any LC Issuer hereunder that such Borrower
will not make such payment, Administrative Agent or Canadian Administrative
Agent, as the case may be, may assume that such Borrower has made such payment
on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the appropriate Lenders or the L/C Issuer, as the case may be,
the amount due. In such event, if such Borrower has not in fact made such
payment, then each of such Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to Administrative Agent or Canadian Administrative
Agent, as appropriate, forthwith on demand 


 


60

















 


the amount so
distributed to such Lender or the L/C Issuer, in immediately available funds
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to Administrative Agent
or Canadian Administrative Agent, at the greater of the Federal Funds Rate (or,
as to Canadian Dollar-denominated amounts, the “Bank Rate” as set by the Bank
of Canada, as quoted on Reuters page BOCFAD) and a rate determined by
Administrative Agent or Canadian Administrative Agent, as appropriate, in
accordance with banking industry rules on interbank compensation. A notice of
Administrative Agent or Canadian Administrative Agent to any Lender with
respect to any amount owing under this subsection (d) shall be conclusive,
absent manifest error.


 


Section 3.2.            Capital
Reimbursement. If either (a) the introduction or implementation of or the
compliance with or any change in or in the interpretation of any Law, or (b)
the introduction or implementation of or the compliance with any request,
directive or guideline from any central bank or other governmental authority
(whether or not having the force of Law) affects or would affect the amount of
capital required or expected to be maintained by any Lender Party or any
corporation controlling any Lender Party, then, within five Business Days after
demand by such Lender Party, the relevant Borrower will pay to the relevant
Agent for the benefit of such Lender Party, from time to time as specified by
such Lender Party, such additional amount or amounts which such Lender Party
shall determine to be appropriate to compensate such Lender Party or any
corporation controlling such Lender Party in light of such circumstances, to
the extent that such Lender Party reasonably determines that the amount of any
such capital would be increased or the rate of return on any such capital would
be reduced by or in whole or in part based on the existence of the face amount
of such Lender Party’s Loans, Letters of Credit, participations in Letters of
Credit, in Banker’s Acceptances, or commitments under this Agreement.


 


Section 3.3.            Increased
Cost of Eurodollar Loans or Letters of Credit. If any applicable Law
(whether now in effect or hereinafter enacted or promulgated, including
Regulation D) or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof (whether or not having the force of Law):


 


(a)           shall
change the basis of taxation of payments to any Lender Party of any principal,
interest, or other amounts attributable to any Eurodollar Loan or Letter of
Credit or otherwise due under this Agreement in respect of any Eurodollar Loan
or Letter of Credit (other than taxes imposed on, or measured by such Lender’
Party’s overall net income (however denominated), and franchise taxes imposed
on such Lender Party (in lieu of net income taxes) or any Applicable Lending
Office of such Lender Party by any jurisdiction in which such Lender Party or
any such Applicable Lending Office is located); or


 


(b)           shall
change, impose, modify, apply or deem applicable any reserve, special deposit
or similar requirements in respect of any Eurodollar Loan or any Letter of
Credit (excluding those for which such Lender Party is fully compensated
pursuant to adjustments made in the definition of Eurodollar Rate) or against
assets of, deposits with or for the account of, or credit extended by, such
Lender Party; or


 


(c)           shall
impose on any Lender Party or the interbank Eurocurrency deposit market any
other condition affecting any Eurodollar Loan or Letter of Credit, the result
of which is to 


 


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increase the cost to any Lender Party of funding or maintaining any
Eurodollar Loan or of issuing any Letter of Credit or to reduce the amount of
any sum receivable by any Lender Party in respect of any Eurodollar Loan or
Letter of Credit by an amount deemed by such Lender Party to be material, then
such Lender Party shall promptly notify relevant Agent and relevant Borrower in
writing of the happening of such event and of the amount required to compensate
such Lender Party for such event (on an after-tax basis, taking into account
any taxes on such compensation), whereupon (i) relevant Borrower shall, within
five Business Days after demand therefor by such Lender Party, pay such amount
to relevant Agent for the account of such Lender Party and (ii) relevant
Borrower may elect, by giving to relevant Agent and such Lender Party not less
than three Business Days’ notice, to Convert all (but not less than all) of any
such Eurodollar Loans into Base Rate Loans.


 


Section 3.4.            Notice;
Change of Applicable Lending Office. A Lender Party shall notify the
relevant Borrower of any event occurring after the date of this Agreement that
will entitle such Lender Party to compensation under Section 3.2, 3.3, or 3.5
hereof as promptly as practicable, but in any event within 180 days, after such
Lender Party obtains actual knowledge thereof; provided, that (i) if such
Lender Party fails to give such notice within 180 days after it obtains actual
knowledge of such an event, such Lender Party shall, with respect to
compensation payable pursuant to Section 3.2, 3.3, or 3.5 in respect of
any costs resulting from such event, only be entitled to payment under Section 3.2,
3.3, or 3.5 hereof for costs incurred from and after the date 180 days prior to
the date that such Lender Party does give such notice and (ii) such Lender
Party will designate a different Applicable Lending Office for the Loans
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such
Lender Party, be disadvantageous to such Lender Party, except that such Lender
Party shall have no obligation to designate an Applicable Lending Office
located in the United States of America. Each Lender Party will furnish to the
relevant Borrower a certificate setting forth the basis and amount of each
request by such Lender Party for compensation under Section 3.2, 3.3, or 3.5
hereof.


 


Section 3.5.            Availability.
If (a) any change in applicable Laws, or in the interpretation or
administration thereof of or in any jurisdiction whatsoever, domestic or
foreign, shall make it unlawful or impracticable for any Lender Party to fund
or maintain Eurodollar Loans, accept BA’s or to issue or participate in Letters
of Credit, or shall materially restrict the authority of any Lender Party to
purchase or take offshore deposits of dollars (i.e., “Eurodollars”), or (b) any
Lender Party determines that matching deposits appropriate to fund or maintain
any Eurodollar Loan are not available to it, or (c) any Lender Party determines
that the formula for calculating the Eurodollar Rate does not fairly reflect
the cost to such Lender Party of making or maintaining loans based on such
rate, in each case with respect to the relevant Commitment hereunder, then,
upon notice by such Lender Party to the relevant Borrower and the relevant
Agent, such Borrower’s right to elect Eurodollar Loans from such Lender Party or
issue BA’s (or, if applicable, to obtain Letters of Credit) shall be suspended
to the extent and for the duration of such illegality, impracticability or
restriction and all Eurodollar Loans of such Lender Party which are then
outstanding and all BA’s which are then outstanding or are then the subject of
any Borrowing Notice and which cannot lawfully or practicably be maintained,
funded or accepted shall immediately become or remain, or shall be funded as,
Base Rate Loans of such Lender Party. With respect to each Commitment, the
relevant Borrower agrees to indemnify each Lender Party extending credit
pursuant thereto, and hold each such Lender Party harmless 


 


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against all costs, expenses, claims, penalties, liabilities and damages
which may result from any such change in Law, interpretation or administration.
Such indemnification shall be on an after-tax basis, taking into account any
taxes imposed on the amounts paid as indemnity.


 


Section 3.6.            Funding
Losses. In addition to its other obligations hereunder, with respect to
each Commitment, the relevant Borrower will indemnify each Lender Party
extending credit pursuant thereto against, and reimburse each Lender Party on
demand for, any loss or expense incurred or sustained by such Lender Party
(including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender Party to fund
or maintain Eurodollar Loans), as a result of (a) any payment or prepayment
(whether or not authorized or required hereunder) of all or a portion of a
Eurodollar Loan on a day other than the day on which the applicable Interest
Period ends, (b) any payment or prepayment, whether or not required hereunder,
of a Loan made after the delivery, but before the effective date, of a
Continuation/Conversion Notice, if such payment or prepayment prevents such
Continuation/Conversion Notice from becoming fully effective, (c) the failure
of any Loan to be made or of any Continuation/Conversion Notice to become
effective due to any condition precedent not being satisfied or due to any
other action or inaction of any Restricted Person, or (d) any Conversion
(whether or not authorized or required hereunder) of all or any portion of any Eurodollar
Loan into a Base Rate Loan or into a different Eurodollar Loan on a day other
than the day on which the applicable Interest Period ends. Such indemnification
shall be on an after-tax basis, taking into account any taxes imposed on the
amounts paid as indemnity.


 


Section 3.7.            Reimbursable
Taxes. With respect to the Commitments, the relevant Borrower thereunder
covenants and agrees with each Lender Party extending credit pursuant thereto
that:


 


(a)           Such
Borrower will indemnify each such Lender Party against and reimburse each such
Lender Party for all present and future stamp and other taxes, duties, levies,
imposts, deductions, charges, costs, and withholdings whatsoever imposed,
assessed, levied or collected on or in respect of this Agreement, any
Eurodollar Loans, any BA’s or Letters of Credit (whether or not legally or
correctly imposed, assessed, levied or collected) including all taxes imposed
pursuant to Part XIII of the Income Tax Act (Canada) and any withholding or
other taxes imposed on any Lender Party under Canadian Law, excluding, however,
any taxes imposed on or measured by the overall net income (however
denominated) and franchise taxes imposed on (in lieu of income taxes) any Agent
or such Lender Party or any Applicable Lending Office of such Lender Party by
any jurisdiction in which such Lender Party or any such Applicable Lending
Office is located (all such non-excluded taxes, levies, costs and charges being
collectively called “Reimbursable Taxes” in this section). Such indemnification
shall be on an after-tax basis, taking into account any taxes imposed on the
amounts paid as indemnity.


 


(b)           All
payments on account of the principal of, and interest on, each such Lender
Party’s Loans and Notes, and all other amounts payable by such Borrower to any
such Lender Party hereunder, shall be made in full without set-off or
counterclaim and shall be made free and clear of and without deductions or
withholdings of any nature by reason of any Reimbursable Taxes, all of which
will be for the account of the relevant Borrower. In the event of any such
Borrower being compelled by Law to make any such deduction or withholding from
any payment to any such Lender Party, such Borrower shall pay on the due date
of such payment, by 


 


63

















 


way of additional interest, such additional amounts as are needed to
cause the amount receivable by such Lender Party after such deduction or
withholding to equal the amount which would have been receivable in the absence
of such deduction or withholding. If any such Borrower should make any
deduction or withholding as aforesaid, such Borrower shall within 60 days
thereafter forward to such Lender Party an official receipt or other official
document evidencing payment of such deduction or withholding.


 


(c)           If
any such Borrower is ever required to pay any Reimbursable Tax with respect to
any Eurodollar Loan, such Borrower may elect, by giving to the relevant Agent
and such Lender Party not less than three Business Days’ notice, to Convert all
(but not less than all) of any such Eurodollar Loan into a Base Rate Loan, but
such election shall not diminish such Borrower’s obligation to pay all
Reimbursable Taxes.


 


(d)           Notwithstanding
the foregoing provisions of this section, such Borrower shall be entitled, to
the extent it is required to do so by Law, to deduct or withhold (and not to
make any indemnification or reimbursement for) income or other similar taxes
imposed by the United States of America or Canada (other than any portion thereof
attributable to a change in federal income tax Laws effected after the date
hereof) from interest, fees or other amounts payable hereunder for the account
of such Lender Party, other than such a Lender Party (i) who is a US
person for Federal income tax purposes or (ii) who has the Prescribed
Forms on file with Administrative Agent (with copies provided to the relevant
Borrower) for the applicable year to the extent deduction or withholding of
such taxes is not required as a result of the filing of such Prescribed Forms,
provided that if such Borrower shall so deduct or withhold any such taxes, it
shall provide a statement to Administrative Agent and such Lender Party,
setting forth the amount of such taxes so deducted or withheld, the applicable
rate and any other information or documentation which such Lender Party may
reasonably request for assisting such Lender Party to obtain any allowable
credits or deductions for the taxes so deducted or withheld in the jurisdiction
or jurisdictions in which such Lender Party is subject to tax. As used in this
section, “Prescribed Forms” means such duly executed forms or statements, and
in such number of copies, which may, from time to time, be prescribed by Law
and which, pursuant to applicable provisions of (x) an income tax treaty
between the United States and the country of residence of such Lender Party
providing the forms or statements, (y) the Code, or (z) any applicable rules or
regulations thereunder, permit such Borrower to make payments hereunder for the
account of such Lender Party free of such deduction or withholding of income or
similar taxes.


 


(e)           As of the Closing Date, each Canadian Lender must be
a financial institution that is (i) not a non-resident of Canada for the
purposes of the Income Tax Act
(Canada) or (ii) an “authorized foreign bank” as defined in section 2 of the Bank Act (Canada) and in subsection 248(1)
of the Income Tax Act (Canada),
that is not subject to the restrictions and requirements referred to in
subsection 524(2) of the Bank Act
(Canada) and which will receive all amounts paid or credited to it under its
Canadian Loans and Canadian Note in respect of its “Canadian banking business”
for the purposes of paragraph 212(13.3)(a) of the Income Tax Act (Canada) (a “Canadian Resident Lender”).
In the event that a Canadian Lender
does not qualify as a Canadian Resident Lender, such Canadian Lender shall
deliver to Canadian Borrowers and the Canadian Administrative Agent on the date
on which such Canadian Lender does not qualify as a Canadian Resident Lender,
notice that it is not a Canadian Resident Lender. It is acknowledged by the
parties that there may be Canadian tax imposed under Part XIII of the Income Tax Act 


 


64

















 


(Canada) (“Canadian Withholding Tax”)
on any payments as, on account or in lieu of payment of, or in satisfaction of,
interest and other fees paid by Canadian Borrowers or Canadian Administrative
Agent with respect to the Canadian Obligations to persons who are not Canadian
Resident Lenders (such payments a “Taxable Payment”). As provided in
Section 3.7(a) and (b), Canadian Borrowers shall be obligated to make any
additional or increased payment under this Agreement in respect of any Canadian
Withholding Tax on a Taxable Payment, and Canadian Borrowers and Canadian
Administrative Agent shall be entitled to deduct and remit to the proper
Canadian taxing authorities any Canadian Withholding Tax on any Taxable
Payment.


 


Section 3.8.            Replacement
of Lenders. If any Lender Party requests compensation under Sections 3.2
through 3.7, or if any Lender Party has failed to fund any portion of the Loans
or participations in LC Obligations required to be funded by it hereunder or
failed to issue any Letter of Credit required to be issued by it hereunder, in
either case within two Business Days of the date required for such funding or
issuance by it hereunder, notwithstanding subsequent cure, or with respect to
any Non-Extending Lender under Section 2.1(f) hereof, then any Borrower may, at
its sole expense (except as otherwise provided hereunder) and effort, upon
notice to such Lender Party and the relevant Agent, require such Lender Party
to assign and delegate (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.5), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to
an assignee that shall assume such obligations (which assignee may be another
Lender Party, if a Lender Party accepts such assignment), provided that:


 


(a)           such
Lender Party shall have received payment of an amount equal to the outstanding
principal of its Loans and LC Obligations, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.6) from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
applicable Borrower (in the case of all other amounts); and


 


(b)           such
assignment does not conflict with applicable Laws.


 


Notwithstanding the
foregoing rights of each Borrower under this section, however, Borrowers may
not replace any Lender Party which seeks reimbursement for increased costs
under Section 3.2 through 3.7 unless such Borrower is at the same time
replacing all Lender Parties which are then seeking such compensation.


 


Section 3.9.            Currency
Conversion and Indemnity.


 


(a)           If,
for the purpose of obtaining or enforcing judgment in any court in any
jurisdiction, it becomes necessary to convert into a particular currency (the “Judgment
Currency”) any amount due under a Loan Document in the currency in which it
was effected (the “Agreed Currency”) then the conversion shall be made
on the basis of the rate of exchange prevailing on the Business Day preceding
the date such judgment is given and in any event each Restricted Person
obligated to pay such Obligation shall be obligated to pay the relevant Lender
Parties any deficiency in accordance with Section 3.9(b). For the foregoing
purposes “rate of exchange” means the rate at which the relevant Agent, as
applicable, in accordance with its normal banking procedures is able on the
relevant date to purchase the Agreed Currency with the Judgment Currency after
deducting any premium and costs of exchange.


 


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(b)           If
any Lender Party receives any payment or payments on account of the liability
of a Restricted Person under the Loan Documents pursuant to any judgment or
order in any currency other than the Agreed Currency (an “Other Currency”),
and the amount of the Agreed Currency which the relevant Lender Party is
able to purchase on the Business Day next following such receipt with the
proceeds of such payment or payments in accordance with its normal procedures
and after deducting any premiums and costs of exchange is less than the amount
of the Agreed Currency due in respect of such Obligations immediately prior to
such judgment or order, then the Borrower owing such Obligation on demand
shall, and such Borrower hereby agrees to, indemnify and save such Lender Party
harmless from and against any loss, cost or expense arising out of or in
connection with such deficiency. The agreement of indemnity provided for in
this Section 3.9(b) shall constitute an obligation separate and independent
from all other obligations contained in this Agreement, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by the Lender Parties or any of them from time to time, and
shall continue in full force and effect notwithstanding any judgment or order
for a liquidated sum in respect of an amount due hereunder or under any
judgment or order.


 


ARTICLE IV. - Conditions Precedent to Lending


 


Section 4.1.            Documents
to be Delivered. No Lender has any obligation to make its first Loan, and
no LC Issuer has any obligation to issue the first Letter of Credit, unless
Administrative Agent shall have received all of the following, at
Administrative Agent’s office in Boston, Massachusetts, duly executed and
delivered and in form, substance and date satisfactory to Administrative Agent,
each of which was so executed and delivered:


 


(a)           This
Agreement and any other document that Lenders are to execute in connection
herewith.


 


(b)           Each
Note and the guaranty of each Guarantor.


 


(c)           Certain
certificates including:


 


(i)            An
“Omnibus Certificate” of the secretary or assistant secretary and any vice
president of GP LLC, which shall contain the names and signatures of the
officers of GP LLC authorized to execute Loan Documents and which shall certify
to the truth, correctness and completeness of the following exhibits attached
thereto:  (1) a copy of resolutions duly
adopted by the Board and in full force and effect at the time this Agreement is
entered into, authorizing the execution of this Agreement and the other Loan
Documents delivered or to be delivered in connection herewith and the
consummation of the transactions contemplated herein and therein, (2) a copy of
the charter documents of US Borrower and all amendments thereto, certified by
the appropriate official of its jurisdiction of organization, and (3) a copy of
the agreement of limited partnership of US Borrower;


 


(ii)           An
“Omnibus Certificate” of the secretary or assistant secretary and any vice
president of Plains Marketing GP Inc., which shall contain the names and
signatures of the officers of such company authorized to execute Loan Documents
and which shall certify to the truth, correctness and completeness of the
following exhibits attached thereto:  (1)
a copy of 


 


66

















 


resolutions duly adopted by the board of directors of such company and
in full force and effect at the time this Agreement is entered into,
authorizing the execution of this Agreement and the other Loan Documents
delivered or to be delivered in connection herewith and the consummation of the
transactions contemplated herein and therein, (2) a copy of the charter
documents of each Significant Restricted Person, other than those Significant
Restricted Persons whose charter documents are attached to the certificates
described in Section 4.1(c)(i) above or Section 4.1(c)(iii) below and all
amendments thereto, certified by the appropriate official of its jurisdiction
of organization, and (3) a copy of any bylaws or agreement of limited
partnership of such Significant Restricted Persons;


 


(iii)          An
“Omnibus Certificate” of the secretary or assistant secretary and any vice
president of PMC (Nova Scotia) Company, which shall contain the names and
signatures of the officers of PMC (Nova Scotia) Company authorized to execute
Loan Documents and which shall certify to the truth, correctness and
completeness of the following exhibits attached thereto:  (1) a copy of resolutions duly adopted by the
board of directors of PMC (Nova Scotia) Company and in full force and effect at
the time this Agreement is entered into, authorizing the execution of this
Agreement and the other Loan Documents delivered or to be delivered in
connection herewith and the consummation of the transactions contemplated
herein and therein, (2) a copy of the charter documents of PMC (Nova Scotia)
Company and Plains Marketing Canada, L.P. and all amendments thereto, certified
by the appropriate official of its jurisdiction of organization, and (3) a copy
of the bylaws of PMC (Nova Scotia) Company and the agreement of limited
partnership of Plains Marketing Canada, L.P.; and


 


(iv)          A
certificate of a Responsible Officer of GP LLC, regarding satisfaction of
Section 4.2.


 


(d)           A
certificate (or certificates) of the due formation, valid existence and good
standing of each Significant Restricted Person in its respective jurisdiction
of organization, issued by the appropriate authorities of such jurisdiction.


 


(e)           Favorable
opinions of Tim Moore, Esq., General Counsel for Restricted Persons,
substantially in the form set forth in Exhibit E-1, Fulbright & Jaworski
L.L.P., special Texas and New York counsel to Restricted Persons, substantially
in the form set forth in Exhibit E-2, and Bennett Jones LLP, special Canadian
Counsel for Restricted Persons, substantially in the form set forth in Exhibit
E-3.


 


(f)            [Intentionally
deleted]


 


(g)           Consolidated
financial statements of US Borrower and its Subsidiaries as of March 31, 2006,
reflecting compliance with Section 7.8, together with a certificate by a
Responsible Officer of GP LLC certifying such financial statements.


 


(h)           No
Material Adverse Change shall have occurred since December 31, 2005.


 


(i)            Administrative
Agent shall have received all documents and instruments which Administrative
Agent has then requested (including opinions of legal counsel for Restricted
Persons and Administrative Agent; corporate documents and records; documents
evidencing governmental authorizations, consents, approvals, licenses and
exemptions; and certificates of 


 


67

















 


public officials and of officers and representatives of Borrowers and
other Persons), as to (i) the accuracy and validity of or compliance with all
representations, warranties and covenants made by any Restricted Person in this
Agreement and the other Loan Documents, (ii) the satisfaction of all conditions
contained herein or therein, and (iii) all other matters pertaining hereto and
thereto. All such additional documents and instruments shall be satisfactory to
Administrative Agent in form and substance.


 


(j)            Payment
of all commitment, facility, agency and other fees required to be paid to any
Agent or Lender pursuant to any Loan Documents or any commitment agreement
heretofore entered into.


 


Without limiting the
generality of the provisions of Section 9.4, for purposes of determining
compliance with the conditions specified in this Section 4.1, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless Administrative Agent shall have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto, and
Administrative Agent hereby agrees to promptly provide US Borrower with a copy
of any such notice received by Administrative Agent.


 


Section 4.2.            Additional
Conditions Precedent. No Lender has any obligation to make any Loan
(including its first), and no LC Issuer has any obligation to issue any Letter
of Credit (including its first), unless the following conditions precedent have
been satisfied:


 


(a)           All
representations and warranties made by any Restricted Person in any Loan
Document shall be true on and as of the date of such Loan or the date of
issuance of such Letter of Credit as if such representations and warranties had
been made as of the date of such Loan or the date of issuance of such Letter of
Credit except to the extent that such representation or warranty was made as of
a specific date or updated, modified or supplemented as of a subsequent date
with the consent of Majority Lenders, then in each such case, such other date.


 


(b)           No
Default shall exist at the date of such Loan or the date of issuance of such
Letter of Credit or result from such Loan or such issuance of such Letter of
Credit.


 


ARTICLE V. - Representations and Warranties


 


To confirm each Lender’s understanding concerning
Restricted Persons and Restricted Persons’ businesses, properties and
obligations and to induce each Lender to enter into this Agreement and to
extend credit hereunder, each of US Borrower and, with respect to itself and
its Subsidiaries, the other Borrowers represents and warrants to each Lender
that:


 


Section 5.1.            No
Default. No event has occurred and is continuing which constitutes a
Default, except as has been waived in accordance with this Agreement.


 


Section 5.2.            Organization
and Good Standing. Each Significant Restricted Person is duly organized or
formed, validly existing and in good standing under the Laws of its
jurisdiction of organization or formation, having all requisite corporate or
similar powers required to carry on its business and enter into and carry out
the transactions contemplated hereby. Each Significant 


 


68

















 


Restricted Person is duly qualified, in good standing, and authorized
to do business in all other jurisdictions wherein the character of the
properties owned or held by it or the nature of the business transacted by it
makes such qualification necessary except where the failure to so qualify would
not reasonably be expected to cause a Material Adverse Change.


 


Section 5.3.            Authorization.
Each Restricted Person has duly taken all action necessary to authorize the
execution and delivery by it of the Loan Documents to which it is a party and
to authorize the consummation of the transactions contemplated thereby and the
performance of its obligations thereunder. Each Borrower is duly authorized to
borrow funds hereunder.


 


Section 5.4.            No
Conflicts or Consents. The execution and delivery by each Restricted Person
of the Loan Documents to which it is a party, the performance by it of its
obligations, and the consummation of the transactions contemplated thereby, do
not and will not (i) violate any provision of (1) Law applicable to it, (2) its
organizational documents or (3) any judgment, order or material license or permit
applicable to or binding upon it, (ii) result in the acceleration of any
Indebtedness owed by it or (iii) result in or require the creation of any
consensual Lien upon any of its material assets or properties except as
expressly contemplated in, or permitted by, the Loan Documents. Except as
expressly contemplated in or permitted by the Loan Documents, disclosed in the
Disclosure Schedule or disclosed pursuant to Section 6.4, no permit, consent,
approval, authorization or order of, and no notice to or filing, registration
or qualification with, any Governmental Authority is required on the part of
any Restricted Person a party thereto pursuant to the provisions of any
material Law applicable to it as a condition to its execution, delivery or
performance of any Loan Document or (ii) to consummate any transactions
contemplated by the Loan Documents.


 


Section 5.5.            Enforceable
Obligations. This Agreement is, and the other Loan Documents when duly
executed and delivered will be, legal, valid and binding obligations of each
Restricted Person which is a party hereto or thereto, enforceable in accordance
with their terms except as such enforcement may be limited by bankruptcy,
insolvency or similar Laws of general application relating to the enforcement
of creditors’ rights and general principles of equity.


 


Section 5.6.            Initial
Financial Statements. US Borrower has heretofore delivered to each Lender
true, correct and complete copies of the Initial Financial Statements. The
Initial Financial Statements fairly present US Borrower’s Consolidated
financial position at the date thereof and the Consolidated results of US
Borrower’s operations for the periods thereof, and in the case of the annual
Initial Financial Statements, Consolidated cash flows for the period thereof. Except
as disclosed pursuant to Section 6.4, since the date of the annual Initial
Financial Statements, no Material Adverse Change has occurred. All Initial
Financial Statements described in clause (i) of that defined term were prepared
in accordance with GAAP.


 


Section 5.7.            Other
Obligations and Restrictions. As of the Closing Date, no Restricted Person
has any outstanding payment obligations of any kind (including contingent
obligations, tax assessments and unusual forward or long-term commitments) which
are, in the aggregate, material to US Borrower or material with respect to US
Borrower’s Consolidated financial condition and not reflected in the Initial
Financial Statements, disclosed in the Disclosure Schedule or otherwise
permitted under Section 7.1. Except as disclosed in the Disclosure


 


69

















 


Schedule or pursuant to Section 6.4, no Restricted Person is subject to
or restricted by any franchise, contract, deed, charter restriction, or other
instrument or restriction which would reasonably be expected to cause a
Material Adverse Change.


 


Section 5.8.            Full
Disclosure. No certificate, statement or other information delivered
herewith or heretofore by any Restricted Person to any Lender in connection
with the negotiation of this Agreement or in connection with any transaction
contemplated hereby contains any untrue statement of a material fact or omits
to state any material fact necessary to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading as of the date made or deemed made (or if such information expressly
relates or refers to an earlier date, as of such earlier date). All written
information furnished after the date hereof by or on behalf of any Restricted
Person to Administrative Agent or any Lender Party in connection with this
Agreement and the other Loan Documents and the transactions contemplated hereby
and thereby will be true, complete and accurate in every material respect in light
of the circumstances in which made or based on reasonable estimates, in each
case as of the date on which such information is stated or certified (or if
such information expressly relates or refers to an earlier date, as of such
earlier date). There is no fact known to any Restricted Person that has not
been disclosed to each Lender in writing which would reasonably be expected to
cause a Material Adverse Change.


 


Section 5.9.            Litigation.
Except as disclosed in the Initial Financial Statements, in the Disclosure
Schedule or pursuant to Section 6.4: 
(i) there are no actions, suits or legal, equitable, arbitrative or
administrative proceedings pending, or to the knowledge of any Restricted
Person overtly threatened, against any Restricted Person before any
Governmental Authority having jurisdiction over it which would reasonably be
expected to cause a Material Adverse Change, and (ii) there are no outstanding
judgments, injunctions, writs, rulings or orders by any such Governmental
Authority having jurisdiction over it against any Restricted Person or, to the
knowledge of US Borrower, any Restricted Person’s stockholders, partners,
directors or officers which would reasonably be expected to cause a Material
Adverse Change.


 


Section 5.10.          ERISA
Plans and Liabilities. All currently existing ERISA Plans are listed in the
Disclosure Schedule or pursuant to Section 6.4. Except as disclosed in the
Initial Financial Statements, in the Disclosure Schedule or pursuant to Section
6.4, no Termination Event has occurred with respect to any ERISA Plan and all
ERISA Affiliates are in compliance with ERISA in all material respects, to the
extent that the non-compliance therewith would not be reasonably expected to
cause a Material Adverse Change. No ERISA Affiliate is required to contribute
to, or has any other absolute or contingent liability in respect of, any “multiemployer
plan” as defined in Section 4001 of ERISA. Except as set forth in the
Disclosure Schedule or disclosed pursuant to Section 6.4:  (i) no “accumulated funding deficiency” (as
defined in Section 412(a) of the Code) exists with respect to any ERISA Plan,
whether or not waived by the Secretary of the Treasury or his delegate, and
(ii) the current value of each ERISA Plan’s benefits does not exceed the current
value of such ERISA Plan’s assets available for the payment of such benefits by
more than $5,000,000.


 


Section 5.11.          Compliance
with Permits, Consents and Law. Except as set forth in the Disclosure
Schedule or pursuant to Section 6.4, each Restricted Person has all permits,
licenses and authorizations required in connection with the conduct of its
businesses, except to the extent 


 


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failure to have any such permit, license or authorization would not
reasonably be expected to cause a Material Adverse Change. Except as set forth
in the Disclosure Schedule or pursuant to Section 6.4, each Restricted Person
is in compliance with the terms and conditions of all such permits, licenses
and authorizations, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any Law, including applicable
Environmental Law, or in any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent that non-compliance therewith would not
reasonably be expected to cause a Material Adverse Change or such term,
restriction or otherwise is being contested in good faith or a bona fide
dispute exists with respect thereto.


 


Section 5.12.          Environmental
Laws. Except as set forth in the Disclosure Schedule or disclosed pursuant
to Section 6.4, (i) US Borrower and its Subsidiaries are conducting their
businesses in material compliance with all applicable Laws, including
Environmental Laws, and have and are in compliance with all licenses and
permits required under any such Laws, unless failure to so comply or have such
licenses and permits would not reasonably be expected to cause a Material
Adverse Change; (ii) none of the operations or properties of US Borrower
or any of its Subsidiaries is the subject of federal, provincial or local
investigation evaluating whether any material remedial action is needed to
respond to a release of any Hazardous Materials into the environment or to the
improper storage or disposal (including storage or disposal at offsite
locations) of any Hazardous Materials, unless such remedial action would not
reasonably be expected to cause a Material Adverse Change; and
(iii) neither US Borrower nor any of its Subsidiaries (and to the actual
knowledge of US Borrower, no other Person) has filed any notice under any Law
indicating that any Restricted Person is responsible for the improper release
into the environment, or the improper storage or disposal, of any material
amount of any Hazardous Materials or that any Hazardous Materials have been
improperly released, or are improperly stored or disposed of, upon any property
of any such Person, other than of an alleged improper release, storage or
disposal that would not reasonably be expected to cause a Material Adverse
Change.


 


Section 5.13.          US
Borrower’s Subsidiaries. US Borrower has no Subsidiary and owns no stock in
any other corporation or association except as listed in the Disclosure
Schedule or disclosed after the Closing Date to Administrative Agent in writing.
No Restricted Person is a member of any general or limited partnership, limited
liability company, joint venture or association of any type whatsoever except
those listed in the Disclosure Schedule or disclosed after the Closing Date to
Administrative Agent in writing. US Borrower owns, directly or indirectly, the
equity interest in each of its Subsidiaries which is indicated in the
Disclosure Schedule except as disclosed after the Closing Date to
Administrative Agent.


 


Section 5.14.          Title
to Properties. Each Restricted Person has good and defensible title to all
of its material properties and assets, free and clear of all Liens (other than
Permitted Liens) and of all impediments to the use of such properties and
assets in such Restricted Person’s business, other than such impediments that
would not reasonably be expected to cause a Material Adverse Change.


 


Section 5.15.          Government
Regulation. Neither any Borrower nor any other Restricted Person owing
Obligations is subject to regulation under the Investment Company Act of 1940
(as 


 


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amended) or any other Law which regulates the incurring by such Person
of Indebtedness, including Laws relating to common contract carriers or the
sale of electricity, gas, steam, water or other public utility services. Neither
any Borrower nor any other Restricted Person is subject to regulation under the
Federal Power Act which would violate, result in a default of, or prohibit the
effectiveness or the performance of any of the provisions of the Loan
Documents.


 


Section 5.16.          Insider.
No Restricted Person, nor any Person having “control” (as that term is defined
in 12 U.S.C. § 375b(9) or in regulations promulgated pursuant thereto) of any
Restricted Person, is a “director” or an “executive officer” or “principal
shareholder” (as those terms are defined in 12 U.S.C. § 375b(8) or (9) or in
regulations promulgated pursuant thereto) of any Lender, of a bank holding
company of which any Lender is a Subsidiary or of any Subsidiary of a bank
holding company of which any Lender is a Subsidiary.


 


Section 5.17.          Solvency.
Upon giving effect to the issuance of the Notes, the execution of the Loan
Documents by Borrowers and each Guarantor and the consummation of the
transactions contemplated hereby, (i) each Borrower and each Guarantor will be
solvent (as such term is used in applicable bankruptcy, liquidation,
receivership, insolvency or similar Laws), and the sum of each Borrower’s and
each Guarantor’s absolute and contingent liabilities, including the Obligations
or guarantees thereof, shall not exceed the fair market value of such
Restricted Person’s assets, and (ii) each Borrower’s and each Guarantor’s
capital should be adequate for the businesses in which such Restricted Person
is engaged and intends to be engaged. Neither any Borrower nor any other
Restricted Person has incurred (whether under the Loan Documents or otherwise),
nor does any Restricted Person intend to incur or reasonably foreseeably
believes that it will incur, debts which will be beyond its ability to pay as
such debts mature.


 


ARTICLE VI. - Affirmative Covenants


 


To conform with the terms and conditions under which
each Lender is willing to have credit outstanding to Borrowers, and to induce
each Lender to enter into this Agreement and extend credit hereunder, each of
US Borrower and, with respect to itself and its Subsidiaries, the other
Borrowers, covenants and agrees that until the full and final payment of the
Obligations and the termination of this Agreement, unless Majority Lenders, or
all Lenders as required under Section 10.1, have previously agreed otherwise:


 


Section 6.1.            Payment
and Performance. Each Restricted Person will pay all amounts due from it
pursuant to the provisions of the Loan Documents to which it is a party in
accordance with the terms thereof and will observe, perform and comply with
every covenant, term and condition imposed on it pursuant to the provisions of
such Loan Documents.


 


Section 6.2.            Books,
Financial Statements and Reports. Each Restricted Person will at all times
maintain full and accurate books of account and records. US Borrower will maintain
and will cause its Subsidiaries to maintain a standard system of accounting,
will maintain its Fiscal Year, and will furnish the following statements and
reports to each Lender at US Borrower’s expense:


 


(a)           Promptly
upon the filing thereof, and in any event within ninety (90) days after the end
of each Fiscal Year, a copy of US Borrower’s Form 10-K, which report shall
include US 


 


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Borrower’s complete Consolidated financial statements together with all
notes thereto, prepared in reasonable detail in accordance with GAAP, together
with an opinion, without material qualification, based on an audit using
generally accepted auditing standards, by PricewaterhouseCoopers LLP, or other
independent certified public accountants selected by General Partner, stating
that such Consolidated financial statements have been so prepared. These
financial statements shall contain a Consolidated balance sheet as of the end
of such Fiscal Year and Consolidated statements of earnings for such Fiscal
Year. Such Consolidated financial statements shall set forth in comparative
form the corresponding figures for the preceding Fiscal Year.


 


(b)           Promptly
upon the filing thereof, and in any event within sixty (60) days after the end of
each of the first three Fiscal Quarters of each Fiscal Year, a copy of US
Borrower’s Form 10-Q, which report shall include US Borrower’s unaudited
Consolidated balance sheet as of the end of such Fiscal Quarter and
Consolidated statements of US Borrower’s earnings and cash flows for such
Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter. In addition US Borrower will, together
with each such set of financial statements and each set of financial statements
furnished under subsection (a) of this section, furnish a certificate in the
form of Exhibit D signed by the chief financial officer, principal accounting
officer or treasurer of General Partner stating that such financial statements
are accurate and complete in all material respects (subject to normal year-end
adjustments), stating that he has reviewed the Loan Documents, containing
calculations showing compliance (or non-compliance) at the end of such Fiscal
Quarter with the requirements of Section 7.8, stating that, to the best of his
knowledge, no Default exists at the end of such Fiscal Quarter or at the time
of such certificate or specifying the nature and period of existence of any
such Default, and identifying any Subsidiary designated as an Unrestricted
Subsidiary since the date of the most-recently delivered prior certificate
under this Section 6.2(b).


 


(c)           Promptly
upon their becoming available, copies of all Form 8-K’s filed by US Borrower
with any securities exchange, the Securities and Exchange Commission or any
similar governmental authority.


 


(d)           Promptly
upon their becoming available, copies of all financial statements, reports,
notices and proxy statements sent by US Borrower to its unit holders and all
registration statements filed by US Borrower with any securities exchange, the
Securities and Exchange Commission or any similar governmental authority.


 


(e)           Prompt
notice of any publicly announced change in PAA’s Debt Rating by either Standard
& Poor’s or Moody’s.


 


Documents required to be delivered pursuant to Section
6.2(a), (b), (c) or (d), (to the extent any such documents are included in
materials otherwise filed with the Securities and Exchange Commission) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date on which the Borrower posts such documents, or provides a
link thereto, on the Borrower’s website on the Internet at the website address
listed on Schedule 10.3, and notifies Administrative Agent of such posting or link.


 


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Section 6.3.                                   Other Information
and Inspections. In each case subject to the last sentence of this Section
6.3, each Restricted Person will furnish to Administrative Agent any
information which Administrative Agent or any Lender may from time to time
reasonably request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with any Restricted Person’s businesses
and operations. In each case subject to the last sentence of this Section 6.3,
each Restricted Person will permit representatives appointed by Administrative
Agent (including independent accountants, auditors, agents, attorneys,
appraisers and any other Persons), upon reasonable prior notice, to visit and
inspect during normal business hours any of such Restricted Person’s property,
including its books of account, other books and records, and any facilities or
other business assets, and to make extra copies therefrom and photocopies and
photographs thereof, and to write down and record any information such representatives
obtain, and each Restricted Person shall permit Administrative Agent or its
representatives to investigate and verify the accuracy of the information
furnished to Administrative Agent or any Lender in connection with the Loan
Documents and to discuss all such matters with its officers, employees and,
upon reasonable prior notice to US Borrower, its representatives. Each of the
foregoing inspections and examinations shall be made subject to compliance with
applicable safety standards and the same conditions applicable to any
Restricted Person in respect of property of that Restricted Person on the
premises of Persons other than a Restricted Person or an Affiliate of a
Restricted Person, and all information, books and records furnished or requested
to be made, all information to be investigated or verified and all discussion
conducted with any officer, employee or representative of any Restricted Person
shall be subject to any applicable attorney-client privilege exceptions which
the Restricted Person determines is reasonably necessary and compliance with
conditions to disclosures under non-disclosure agreements between any
Restricted Person and Persons other than a Restricted Person or an Affiliate of
a Restricted Person and the express undertaking of each Person acting at the
direction of or on behalf of any Lender Party to be bound by the
confidentiality provisions of Section 10.6 of this Agreement.


 


Each Borrower hereby acknowledges that (a)
Administrative Agent will make available to the Lenders and the LC Issuer
materials and/or information provided by or on behalf of such Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to any Borrower or its securities)
(each, a “Public Lender”). If Borrower clearly, conspicuously and
prominently marks the front page of any Borrower Materials furnished by it with
the term “PUBLIC”, then (x) the Borrower shall be deemed to have authorized
Administrative Agent, the LC Issuer and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrowers or
their respective securities for purposes of United States Federal and state
securities laws; (y) all Borrower Materials so marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated “Public
Investor;” and (z) Administrative Agent shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Investor.”


 


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Section 6.4.                                   Notice of
Material Events. US Borrower will notify each Lender Party, not later than
five (5) Business Days after any executive officer of US Borrower has knowledge
thereof, stating that such notice is being given pursuant to this Agreement,
of:


 


(a)                                  the
(i) occurrence of any Material Adverse Change or (ii) occurrence of any event
or condition that is covered by any of Section 5.6 (next-to-last sentence), 5.7
(last sentence), 5.9, 5.10, 5.11 or 5.12 which would reasonable be expected to
cause a Material Adverse Change,


 


(b)                                 the
occurrence of any Default,


 


(c)                                  the
acceleration of the maturity of any Indebtedness owed by any Restricted Person
or of any default by any Restricted Person under any indenture, mortgage,
agreement, contract or other instrument to which any of them is a party or by
which any of them or any of their properties is bound, if such acceleration or
default would reasonably be expected to cause a Material Adverse Change,


 


(d)                                 the
occurrence of any Termination Event,


 


(e)                                  any
claim under any Environmental Law adverse to a Restricted Person or of
potential liability with respect to such claim, or any other adverse claim
asserted against any Restricted Person or with respect to any Restricted Person’s
properties taken as a whole, in each case, which claim would reasonably be
expected to cause a Material Adverse Change, and


 


(f)                                    the
filing of any suit or proceeding, or the assertion in writing of a claim
against any Restricted Person or with respect to any Restricted Person’s
properties, which would reasonably be expected to cause a Material Adverse
Change.


 


Upon the occurrence of any of the foregoing the
applicable Restricted Person will take all necessary or appropriate steps to
remedy promptly, if applicable, any such Material Adverse Change, Default,
acceleration, default or Termination Event, to protect against any such adverse
claim, to defend any such claim, suit or proceeding, and to resolve all
controversies on account of any of the foregoing.


 


Section 6.5.                                   Maintenance of
Existence, Qualifications and Assets. Each Significant Restricted Person
(i) will maintain and preserve its existence and its rights (including permits,
licenses and other authorizations required under Environmental Laws) and
franchises in full force and effect, (ii) will qualify to do business in all
states or jurisdictions where required by applicable Law, and (iii) keep all of
its material assets that are useful in and necessary to its business in good
working order and condition (ordinary wear and tear and obsoleteness excepted)
except, in each case (a) where the failure so to maintain, preserve, qualify or
keep would not be reasonably expected to cause a Material Adverse Change, (b)
as permitted in Section 7.3 or as a result of statutory conversions or (c) as a
result of a release permitted pursuant to Section 6.9. US Borrower will notify
Administrative Agent in writing of any changes in its or any other Significant
Restricted Person’s name or the location of its or any other Significant
Restricted Person’s chief executive office or principal place of business.


 


Section 6.6.                                   Payment of Taxes,
etc. Each Significant Restricted Person will (a) timely file all required
tax returns (including any extensions), (b) timely pay all taxes, assessments,
and 


 


75

















 


other governmental charges or levies imposed upon it or upon its
income, profits or property, and (c) maintain appropriate accruals and reserves
for all of the foregoing as required by GAAP, except to the extent that (y) it
is in good faith contesting the validity thereof by appropriate proceedings, if
necessary, and has set aside on its books adequate reserves therefor which are
required by GAAP or (z) such non-filing, non-payment or non-maintenance would
not reasonably be expected to cause a Material Adverse Change.


 


Section 6.7.                                   Insurance. In
accordance with industry standards, each Significant Restricted Person will
keep insured (by responsible and reputable insurance companies or associations)
or self-insured, at the option of US Borrower or such Significant Restricted
Person, in such amounts and against such risks as are usually insured by
Persons engaged in the same or similar businesses and owning similar properties.
The insurance coverages and amounts will be reasonably determined by US
Borrower, based on coverages carried by prudent owners of similar property, and
with respect to each Restricted Person, may be maintained by US Borrower.


 


Section 6.8.                                   Compliance with
Agreements and Law. Each Significant Restricted Person will perform all
material obligations it is required to perform under the terms of each
indenture, mortgage, deed of trust, security agreement, lease, franchise and
other material agreement, contract or other instrument (including all
contractual obligations and agreements with respect to environmental
remediation or other environmental matters) to which it is a party or by which
it or any of its properties is bound to the extent that non-performance
therewith would not reasonably be expected to cause a Material Adverse Change. Each
Restricted Person will conduct its business and affairs in compliance, in all
material respects, with all Laws (including Environmental Laws) applicable
thereto to the extent non-compliance therewith would not reasonably be expected
to cause a Material Adverse Change or such requirement of Law is being
contested in good faith or a bona fide dispute exists with respect thereto.


 


Section 6.9.                                   Guaranties of
Subsidiaries. Each Significant Restricted Person that has outstanding
Indebtedness (other than guarantees hereunder), other than a Significant
Restricted Person with assets that are regulated by the California Public Utility
Commission (the “CPUC”) or other similar regulatory body and such
Significant Restricted Person is restricted by the CPUC or such body from
providing any guaranties of Indebtedness, shall execute and deliver to
Administrative Agent an absolute and unconditional guaranty of the timely
repayment of the Obligations (in each case for which such Person is not a
borrower, account party or similar primary and direct obligor), which guaranty
shall be reasonably satisfactory to Administrative Agent in form and substance;
provided, with respect to any such Person that is not a Wholly Owned
Subsidiary of US Borrower, for which consent or approval of third parties is
required for the delivery of such guaranty, such Person shall not be required
to deliver such guaranty, but shall use its commercially reasonable best
efforts, as determined by Administrative Agent, to deliver such guaranty.
Notwithstanding any provision contained herein to the contrary, in no event
shall any Unrestricted Subsidiary be required to execute and deliver any
guaranty for, or in respect of, the Obligations, or any part thereof. US
Borrower will cause each of its Subsidiaries required to deliver a guaranty
pursuant to this Section 6.9 to deliver to Administrative Agent, simultaneously
with its delivery of such a guaranty, written evidence satisfactory to
Administrative Agent that such Subsidiary has taken all corporate, limited
liability company or partnership action necessary to duly approve and authorize
its execution, delivery and 


 


76

















 


performance of such guaranty. US Borrower may at any time request the
release of one or more Guarantors from their guaranty of the Obligations (other
than the guaranty by US Borrower of the Canadian Obligations), and each such
Guarantor shall be so released upon such request, provided, no Default
exists immediately prior thereto or immediately after giving effect thereto,
and either (a) such Guarantor has no outstanding Indebtedness or guaranties of
Indebtedness (other than guaranties hereunder) or (b) the request is in
contemplation of the sale or disposition of such Subsidiary (including all or
substantially all of its assets). Each Agent, as applicable, is authorized to
execute and deliver to US Borrower evidence of any such release, as reasonably
requested by, and at the expense of, US Borrower.


 


ARTICLE VII. - Negative Covenants


 


To conform with the terms and conditions under which
each Lender is willing to have credit outstanding to each of Borrowers and to
induce each Lender to enter into this Agreement and make the Loans, each of US
Borrower and, with respect to itself and its Subsidiaries, the other Borrowers,
covenants and agrees that until the full and final payment of the Obligations
and the termination of this Agreement, unless Majority Lenders, or all Lenders
as required under Section 10.1, have previously agreed otherwise:


 


Section 7.1.                                   Subsidiary
Indebtedness. No Subsidiary of US Borrower will incur any Indebtedness
other than:


 


(a)                                  the
Obligations;


 


(b)                                 Guaranties
by Guarantors of, and the incurrence of obligations by Guarantors as a
co-obligor on (as distinguished from, and in addition to incurring such
obligation as, a guarantor of), Indebtedness (i) arising under the Interim
364-Day Credit Agreement, or (ii) of US Borrower or any other Restricted
Person, the incurrence of which did not result in a Default or an Event of
Default;


 


(c)                                  Indebtedness
of Plains Marketing pursuant to the Contango Credit Agreement;


 


(d)                                 Indebtedness
of any Restricted Person owing to another Restricted Person;


 


(e)                                  Indebtedness
of any Subsidiary described in clause (b) of the definition of “Indebtedness”
that is determinable but not yet earned; provided, US Borrower
reasonably contemplates that such Indebtedness will be repaid from the proceeds
of one or more advances made by US Borrower to such Subsidiary;


 


(f)                                    Indebtedness
of a Subsidiary acquired (including acquisition by merger, consolidation or
amalgamation) after the date hereof by a Restricted Person, which Indebtedness
was incurred by such Subsidiary before the time of such acquisition, merger,
consolidation or amalgamation, and was not created in contemplation thereof; provided,
that contemporaneously with such acquisition, merger, consolidation or
amalgamation, and so long as no adverse tax and/or regulatory consequences are
caused thereby, such Subsidiary shall be a Guarantor subject to the provisions
of Section 6.9; and


 


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(g)                                 Indebtedness
not otherwise described in the foregoing clauses (a) through (f) owing by any
one or more Guarantors in an aggregate principal amount not to exceed at any
time outstanding the greater of (A) $100,000,000 and (B) fifteen percent
(15%) of Consolidated Tangible Net Worth.


 


Section 7.2.                                   Limitation on
Liens. No Restricted Person will create, assume or permit to exist any Lien
upon any Principal Property or upon the stock, membership interests,
partnership interests or other equity ownership interests of any Subsidiary of
US Borrower (other than Unrestricted Subsidiaries), except the following (“Permitted
Liens”):


 


(a)                                  Liens
securing (i) on a pari passu basis, both (x) the Obligations and (y) the
Liabilities of any Restricted Person arising under the Interim 364-Day Credit
Agreement, and (ii) if required, any related interest hedge rate agreements;


 


(b)                                 [Intentionally
deleted]


 


(c)                                  Liens
imposed by any governmental authority for taxes, assessments or charges not yet
due or the validity of which is being contested in good faith and by appropriate
proceedings, if necessary, for which adequate reserves are maintained on the
books of any Restricted Person in accordance with GAAP;


 


(d)                                 pledges
or deposits of cash or securities under worker’s compensation, unemployment
insurance or other social security legislation;


 


(e)                                  carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other
like Liens (including without limitation, Liens on property of any Restricted
Person in the possession of storage facilities, pipelines or barges) arising in
the ordinary course of business for amounts which are not more than 60 days
past due or the validity of which is being contested in good faith and, if
necessary, by appropriate proceedings, and for which adequate reserves are
maintained on the books of any Restricted Person in accordance with GAAP;


 


(f)                                    Liens
on cash and Cash Equivalents under or with respect to accounts with brokers or
counterparties with respect to hedging contracts consisting of cash,
commodities or futures contracts, options, securities, instruments, and other
like assets securing only hedging contracts;


 


(g)                                 deposits
of cash or securities to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;


 


(h)                                 easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of real property or minor
imperfections in title thereto which, in the aggregate, are not material in
amount, and which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the business
of any Restricted Person;


 


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(i)                                     Liens
in respect of operating leases;


 


(j)                                     Liens
upon any property or assets directly or indirectly acquired after the date
hereof by a Restricted Person, each of which either (i) existed on such
property or asset before the time of its acquisition and was not created in
anticipation thereof, or (ii) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including the cost of construction) of such property or asset; provided
that no such Lien shall extend to or cover any property or asset of a
Restricted Person other than the property or asset so acquired (or
constructed); and any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancings, refundings or replacements),
in whole or part, of the foregoing, provided, however, that such Liens shall
not cover or secure any additional Indebtedness, obligations, property or
asset;


 


(k)                                  rights
reserved to or vested in any governmental authority by the terms of any right,
power, franchise, grant, license or permit, or by any provision of law, to
revoke or terminate any such right, power, franchise, grant, license or permit
or to condemn or acquire by eminent domain or similar process;


 


(l)                                     rights
reserved to or vested by Law in any governmental authority to in any manner,
control or regulate in any manner any of the properties of any Restricted
Person or the use thereof or the rights and interests of any Restricted Person
therein, in any manner under any and all Laws;


 


(m)                               rights
reserved to the grantors of any properties of any Restricted Person, and the
restrictions, conditions, restrictive covenants and limitations, in respect
thereto, pursuant to the terms, conditions and provisions of any rights-of-way
agreements, contracts or other agreements therewith;


 


(n)                                 inchoate
Liens in respect of pending litigation or with respect to a judgment which has
not resulted in an Event of Default under Section 8.1;


 


(o)                                 Liens
securing obligations in an aggregate principal amount not to exceed at any time
outstanding 10% of US Borrower’s Consolidated Tangible Net Worth; and


 


(p)                                 Liens
related to the extension, renewal, refinancing, refunding or replacement (or
successive extensions, renewals, refinancings, refundings or replacements), in
whole or in part, of clauses (a), (b) and (o) of this Section 7.2; provided,
however, that such Liens shall not cover or secure any additional Indebtedness.


 


Section 7.3.                                   Limitation on
Mergers. Except as expressly provided in this section, no Significant
Restricted Person (other than (i) a Guarantor for whom a release has been
requested pursuant to an event described in clause (b) of Section 6.9 and
otherwise is so released, or (ii) such other Significant Restricted
Person, other than a Borrower, that is the subject of any such event described
in such clause (b) of Section 6.9) will (a) merge or consolidate or
amalgamate with any Person, or liquidate, wind up or dissolve or (b) sell,
transfer, lease, exchange or otherwise dispose of, in one transaction or a
series of related transactions, all or substantially all of its business or
property, whether now owned or hereafter acquired, to any 


 


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Person; provided, any such Significant Restricted Person, other
than a Borrower, may (A) merge into or consolidate or amalgamate with, and such
business and property may be disposed of to:


 


(i)                                     any
other Subsidiary of US Borrower; provided, if such Significant
Restricted Person or such Subsidiary is a Guarantor, a Guarantor is the
surviving or transferee (as applicable) business entity,


 


(ii)                                  any
Borrower, so long as such Borrower is the surviving or transferee (as
applicable) business entity and after giving effect thereto, no Default exists,
or


 


(iii)                               any other Person
pursuant or incidental to, or in connection with, any contemporaneous or
substantially contemporaneous acquisition, provided that for purposes of
this clause (iii) such merging, amalgamating, consolidating or transferor
Significant Restricted Person is not a Borrower, Guarantor or a Wholly Owned
Subsidiary of US Borrower, other than a Wholly Owned Subsidiary that was
formed, acquired or created solely for purposes of such acquisition or
otherwise conducted no operations and owned no assets, other than of an
inconsequential amount and


 


(B) dissolve, liquidate or wind up if such
dissolution, liquidation and winding up results from dispositions not
prohibited by this Agreement.


 


Section 7.4.                                   Limitation on New
Businesses. No Restricted Person will materially or substantially engage
directly or indirectly in any business or conduct any operations other than (i)
marketing, gathering, transporting (by barge, pipeline, ship, truck or other
modes of hydrocarbon transportation), terminalling, storing, producing,
acquiring, developing, exploring for, exploiting, producing, processing,
dehydrating and otherwise handling hydrocarbons, including, without limitation,
constructing pipeline, platform, dehydration, processing and other
energy-related facilities, (ii) any other business that generates gross income
that constitutes “qualifying income” under Section 7704(d) of the Internal
Revenue Code of 1986, as amended, or (iii) activities or services reasonably
related or ancillary thereto, including entering into hedging obligations to
support those businesses.


 


Section 7.5.                                   Transactions with
Affiliates. No Restricted Person will engage in any material transaction
with any of its Affiliates except as follows: (a) transactions among US
Borrower and its Subsidiaries or between Subsidiaries of US Borrower; (b) if
and to the extent any of them constitute transactions with Affiliates,
transactions governed by the Amended and Restated Omnibus Agreement between
Plains Resources Inc., US Borrower, Plains Marketing, GP LLC, Plains Marketing
GP, Inc. and Plains Pipeline (and successors of each) dated July 23, 2004, as amended
and in effect; the Administrative Services Agreement between GP LLC and Vulcan
Energy Company dated October 14, 2005, as amended and in effect; the Amended
and Restated Limited Liability Company Agreement of PAA/Vulcan Natural Gas
Storage, LLC, dated as of September 16, 2005, and amended by the First
Amendment thereto dated as of May 9, 2006, as further amended and in effect;
the Natural Gas Supply Agreement between US Borrower and PAA/Vulcan Natural Gas
Storage, LLC dated as of May 9, 2006, as amended and in effect, or the Amended
and Restated Crude Oil Marketing Agreement among Plains Resources Inc., Calumet
Florida, LLC and Plains Marketing dated as of July 23, 2004, as amended;
(c) any employment, equity award, equity option or equity appreciation agreement
or plan entered into 


 


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by US Borrower or any of its Subsidiaries in the ordinary course of
business of US Borrower or such Subsidiary; (d) transactions effected in
accordance with the terms of agreements as in effect on the Closing Date; (e)
customary compensation, indemnification and other benefits made available to
officers, directors or employees of US Borrower, any of its Subsidiaries or GP
LLC, including reimbursement or advancement of out-of-pocket expenses and
provisions of officers’ and directors’ liability insurance; (f) transactions as
contemplated by US Borrower’s agreement of limited partnership; and (g)
transactions on terms which are no less favorable to such Restricted Person
than those which would have been obtainable at the time in arm’s-length
transactions with Persons other than such Affiliates.


 


Section 7.6.                                   Limitation on
Distributions. US Borrower shall not declare or pay any Distribution so
long as any Default or Event of Default has occurred and is continuing or would
result therefrom.


 


Section 7.7.                                   Restricted
Contracts. Except as expressly provided for in the Loan Documents, the
Interim 364-Day Credit Agreement and as described in the Disclosure Schedule or
pursuant to a Restriction Exception, the substance of which, in detail
satisfactory to Administrative Agent, is promptly reported to Administrative
Agent, no Restricted Person will, directly or indirectly, enter into, create,
or otherwise allow to exist any contract or other consensual restriction on the
ability of any Subsidiary of US Borrower, including but not limited to either
Canadian Borrower and any Subsidiary of such Persons to:  (a) pay dividends or make other
distributions to US Borrower or either Canadian Borrower, (b) redeem
equity interests held in it by US Borrower or either Canadian Borrower,
(c) repay loans and other indebtedness owing by it to US Borrower or
either Canadian Borrower, or (d) transfer any of its assets to
US Borrower or either Canadian Borrower.


 


Section 7.8.                                   Debt Coverage
Ratio. At the end of any Fiscal Quarter, the Debt Coverage Ratio will not
be greater than the amount set forth below for the applicable time set forth
below:


 


	
  (i)

  	
   

  	
  During an Acquisition Period:

  	
   

  	
  5.25 to 1.0

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  Other than an Acquisition Period:

  	
   

  	
  4.75 to 1.0

  



 


As used herein, “Debt Coverage Ratio” means the
ratio of (a) Consolidated Funded Indebtedness to (b) Consolidated EBITDA,
for the four Fiscal Quarter period (or other period specified below) most
recently ended prior to the date of determination for which financial
statements contemplated by Section 6.2(a) or (b) are available to US Borrower; provided,
for purposes of this Section 7.8, if, since the beginning of the four Fiscal
Quarter period ending on the date for which Consolidated EBITDA is determined,
any Restricted Person shall have made any asset disposition or acquisition,
shall have consolidated or merged with or into any Person (other than another
Restricted Person), or shall have made any disposition or acquisition of a
Restricted Person or disposition or acquisition of any partial ownership
interest in any other Person, Consolidated EBITDA shall be calculated giving
pro forma effect thereto as if the disposition, acquisition, consolidation or
merger had occurred on the first day of such period; provided, with
respect to any Person not constituting a Subsidiary of US Borrower, such pro
forma calculation of Consolidated EBITDA, with respect to any such Person,
shall be limited to not more than 75% 


 


81

















 


of (i) such Restricted Person’s ownership interest in
such Person times (ii) the difference of such Person’s (A) Consolidated
EBITDA minus (B) Interest Expense and capital expenditures. Such pro
forma calculations shall be determined (i) in good faith by the chief financial
officer of US Borrower, and (ii) without giving effect to any anticipated
or proposed change in operations, revenues, expenses or other items included in
the computation of Consolidated EBITDA, except cost reductions specifically
identified at the time of disposition, acquisition, consolidation or merger
that are attributable to personnel reductions, non-recurring maintenance and
environmental costs and allocated corporate overhead; provided further,
Consolidated EBITDA may include, at US Borrower’s option, any Material Project
EBITDA Adjustments as provided below.


 


As used herein, “Material Project EBITDA Adjustments” means, with respect to the
construction or expansion of any capital project of US Borrower or any of its
Consolidated Subsidiaries (excluding Unrestricted Subsidiaries), the aggregate
capital cost of which (inclusive of capital costs expended prior to the
acquisition thereof) is reasonably expected by US Borrower to exceed, or exceeds,
$50,000,000 (a “Material Project”):


 


(A) prior to the date on which a Material Project
has achieved commercial operation (the “Commercial Operation Date”) (but
including the fiscal quarter in which such Commercial Operation Date occurs), a
percentage (based on the then-current completion percentage of such Material
Project) of an amount to be approved by Administrative Agent as the projected
Consolidated EBITDA attributable to such Material Project for the first
12-month period following the scheduled Commercial Operation Date of such
Material Project (such amount to be determined based on customer contracts or
tariff-based customers relating to such Material Project, the creditworthiness
of the other parties to such contracts or such tariff-based customers, and
projected revenues from such contracts, tariffs, capital costs and expenses,
scheduled Commercial Operation Date, oil and gas reserve and production
estimates, commodity price assumptions and other factors deemed appropriate by
Administrative Agent), which may, at US Borrower’s option, be added to actual
Consolidated EBITDA for the fiscal quarter in which construction or expansion
of such Material Project commences and for each fiscal quarter thereafter until
the Commercial Operation Date of such Material Project (including the fiscal
quarter in which such Commercial Operation Date occurs, but net of any actual
Consolidated EBITDA attributable to such Material Project following such
Commercial Operation Date); provided that if the actual Commercial Operation
Date does not occur by the scheduled Commercial Operation Date, then the
foregoing amount shall be reduced, for quarters ending after the scheduled
Commercial Operation Date to (but excluding) the first full quarter after its
Commercial Operation Date, by the following percentage amounts depending on the
period of delay (based on the period of actual delay or then-estimated delay,
whichever is longer): (i) 90 days or less, 0%, (ii) longer than 90 days, but
not more than 180 days, 25%, (iii)
longer than 180 days but not more than 270 days, 50%, (iv) longer than 270 days
but not more than 365 days, 75%, and (v) longer than 365 days, 100%; and


 


(B) beginning with the first full fiscal quarter
following the Commercial Operation Date of a Material Project and for the two
immediately succeeding fiscal quarters, an amount equal to the projected
Consolidated EBITDA attributable to such 


 


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Material
Project for the balance of the four full fiscal quarter period following such
Commercial Operation Date, which may, at US Borrower’s option, be added to
actual Consolidated EBITDA for such fiscal quarters.


 


Notwithstanding
the foregoing:


 


(i) no such Material Project EBITDA Adjustment shall
be allowed with respect to any Material Project unless:


 


(a) at least 30 days prior to the last day of the
Fiscal Quarter for which US Borrower desires to commence inclusion of such
Material Project EBITDA Adjustment in Consolidated EBITDA with respect to a
Material Project for purposes of determining compliance with this Section 7.8
(the “Initial Quarter”), US Borrower shall have delivered to
Administrative Agent written pro forma projections of Consolidated EBITDA
attributable to such Material Project and


 


(b) prior to the last day of the Initial Quarter,
Administrative Agent shall have approved (such approval not to be unreasonably
withheld) such projections and shall have received such other information and
documentation as Administrative Agent may reasonably request, all in form and
substance satisfactory to Administrative Agent, and


 


(ii) the aggregate amount of all Material Project
EBITDA Adjustments during any period shall be limited to 15% of the total
actual Consolidated EBITDA for such period (which total actual Consolidated
EBITDA shall be determined without including any Material Project EBITDA
Adjustments).


 


Section 7.9.                                   [Intentionally
Deleted]


 


Section 7.10.                             Unrestricted
Subsidiaries. So long as no Default or Event of Default has occurred and is
continuing, and after giving effect to such designation, no Default or Event of
Default would result therefrom, US Borrower or any Wholly Owned Subsidiary of
US Borrower may designate one or more Subsidiaries that are not Borrowers or
Guarantors as unrestricted Subsidiaries (each such Subsidiary, and each of its
Subsidiaries, an “Unrestricted Subsidiary”), which Unrestricted Subsidiaries
shall be subject to the following:


 


(a)                                  No
Unrestricted Subsidiary shall be deemed to be a “Restricted Person” or a “Subsidiary”
of US Borrower for purposes of this Agreement or any other Loan Document, and
no Unrestricted Subsidiary shall be subject to or included within the scope of
any provision herein or in any other Loan Document, including without
limitation any representation, warranty, covenant or Event of Default herein or
in any other Loan Document, except as set forth in this Section 7.10.


 


(b)                                 No
Restricted Person shall guarantee or otherwise become liable in respect of any
Indebtedness of, grant any Lien on any of its property to secure any
Indebtedness of or other obligation of, or provide any other form of credit
support to, any Unrestricted Subsidiary, and no Restricted Person shall enter
into any contract or agreement with any Unrestricted Subsidiary, except on
terms no less favorable to such Restricted Person, as applicable, than could be



 


83

















 


obtained in a comparable arm’s length transaction with a non-Affiliate
of such Restricted Person; provided, Restricted Persons may guarantee
trade accounts payable of Unrestricted Subsidiaries that arise in the ordinary
course of business in an amount not to exceed five percent (5%) of Consolidated
Tangible Net Worth.


 


(c)                                  Borrowers
shall at all times maintain, as between Restricted Persons and Unrestricted
Subsidiaries, the separate existence of each Unrestricted Subsidiary.


 


(d)                                 Restricted
Persons shall notify each Lender Party, not later than five (5) Business Days
after any executive officer of Restricted Persons has knowledge of, any claim,
including any claim under any Environmental Law, or any notice of potential
liability under any Environmental Law, asserted against any Unrestricted
Subsidiary or with respect to any Unrestricted Subsidiary’s properties that
would reasonably be expected to result in a Material Adverse Change, stating
that such notice is being given pursuant to this Section 7.10.


 


US Borrower may designate any Unrestricted Subsidiary
to become a Restricted Person if a Default or Event of Default is not
continuing, such designation would not result in a Default or an Event of
Default, and immediately thereafter such Subsidiary has no outstanding
Indebtedness. Immediately thereafter, US Borrower shall promptly notify
Administrative Agent of such designation and provide to it an officer’s
certificate that such designation was made in compliance with this Section
7.10.


 


Section 7.11.                             No Negative Pledges.
Except as described in the Disclosure Schedule or pursuant to a Restriction
Exception, the substance of which, in detail satisfactory to Administrative
Agent, is promptly reported to Administrative Agent, no Restricted Person will,
directly or indirectly, enter into, create, or consent to be bound to any
contract or other consensual restriction that restricts the ability of any Restricted
Person to create or maintain Liens on its assets in favor of Agents, LC Issuers
and Lenders to secure, in whole or part, the Obligations.


 


ARTICLE VIII. - Events of Default and Remedies


 


Section 8.1.                                   Events of Default.
Each of the following events constitutes an Event of Default under this
Agreement:


 


(a)                                  Any
Borrower fails to pay the principal component of any Loan made to it or any LC
Borrowing when due and payable, whether at a date for the payment of a fixed
installment or as a contingent or other payment becomes due and payable or as a
result of acceleration or otherwise,


 


(b)                                 Any
Restricted Person fails to pay any Obligation for which it is contractually
liable (other than the Obligations in subsection (a) above) when due and
payable, whether at a date for the payment of a fixed installment or as a
contingent or other payment becomes due and payable or as a result of
acceleration or otherwise, within three Business Days after the same becomes
due;


 


(c)                                  Any
Restricted Person fails to duly observe, perform or comply with any covenant,
agreement or provision of Section 6.4 or Article VII;


 


84

















 


(d)                                 Any
Restricted Person fails (other than as referred to in subsections (a), (b) or
(c) above) to duly observe, perform or comply with any of its obligations under
any covenant, agreement, condition or provision of any Loan Document to which
it is a party, and such failure remains unremedied for a period of thirty (30)
days after notice of such failure is given by Administrative Agent to US
Borrower;


 


(e)                                  Any
representation or warranty previously, presently or hereafter made in writing
by or on behalf of any Restricted Person in connection with any Loan Document
shall prove to have been false or incorrect in any material respect on any date
on or as of which made, or any Loan Document at any time ceases to be valid,
binding and enforceable as warranted in Section 5.5 for any reason other
than its release or subordination by Administrative Agent;


 


(f)                                    Any
Restricted Person shall default in the payment when due of any principal of or
interest on any of its other Indebtedness, or any net hedging obligations, in
excess of the Dollar Equivalent of $25,000,000 in the aggregate (other than
such Indebtedness or hedging obligations the validity of which is being
contested in good faith, by appropriate proceedings (if necessary) and for
which adequate reserves with respect thereto are maintained on the books of
such Restricted Person as required by GAAP), or any event specified in any
note, agreement, indenture or other document evidencing or relating to any such
Indebtedness or hedging obligations shall occur for a period beyond the
applicable grace, cure extension, forbearance or other similar period, if the
effect of such event is to cause, or (with the giving of any notice or the
lapse of time or both) to permit the holder or holders of such Indebtedness or
hedging obligations (or a trustee or agent on behalf of such holder or holders)
to cause, as applicable, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise), prior
to its stated maturity, or an early termination event or similar event to occur
and such Restricted Person’s related net hedging obligations in excess of the
Dollar Equivalent of $25,000,000 to become due and payable;


 


(g)                                 Either
(i) any “accumulated funding deficiency” (as defined in Section 412(a) of the
Code) in excess of $5,000,000 exists with respect to any ERISA Plan, whether or
not waived by the Secretary of the Treasury or his delegate, or (ii) any
Termination Event occurs with respect to any ERISA Plan and the then current
value of such ERISA Plan’s benefit liabilities exceeds the then current value
of such ERISA Plan’s assets available for the payment of such benefit
liabilities by more than $5,000,000 (or in the case of a Termination Event
involving the withdrawal of a substantial employer, the withdrawing employer’s
proportionate share of such excess exceeds such amount);


 


(h)                                 GP
LLC, General Partner, or any Significant Restricted Person:


 


(i)                                     has
entered against it a judgment, decree or order for relief by a Governmental
Authority of competent jurisdiction having jurisdiction over it in an
involuntary proceeding commenced under any applicable bankruptcy, insolvency or
other similar Law of any jurisdiction now or hereafter in effect, including the
federal Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada) or the
Companies’ Creditors Arrangement Act (Canada), as from time to time amended, or
has any such proceeding commenced against it, in each case, which remains
undismissed for a period of sixty days; or


 


85

















 


(ii)                                  commences
a voluntary case under any applicable bankruptcy, insolvency or similar Law now
or hereafter in effect, including the federal Bankruptcy Code, the Bankruptcy
and Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act
(Canada), as from time to time amended; or applies for or consents to the entry
of an order for relief in an involuntary case under any such Law; or makes a
general assignment for the benefit of creditors; or is generally unable to pay
(or admits in writing its inability to so pay) its debts as such debts become
due; or takes corporate or other action to authorize any of the foregoing; or


 


(iii)                               has entered against it
the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of all or a substantial
part of its assets in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor discharged
within sixty days after the making thereof, or such appointment or taking
possession is at any time consented to, requested by, or acquiesced to by it;
or


 


(i)                                     Any
Significant Restricted Person:


 


(i)                                     has
entered against it a final judgment for the payment of money in excess of the
Dollar Equivalent of $25,000,000 (in each case not covered by insurance
satisfactory to Administrative Agent in its discretion), unless the same is
stayed or discharged within thirty days after the date of entry thereof (or
longer period for which a stay of enforcement is allowed by applicable Law) or
an appeal or appropriate proceeding for review thereof is taken within such
period and a stay of execution pending such appeal is obtained; or


 


(ii)                                  suffers
a writ or warrant of attachment or any similar process to be issued by any
Governmental Authority having jurisdiction over it against all or any substantial
part of its assets, and such writ or warrant of attachment or any similar
process is not stayed or released within sixty days after the entry or levy
thereof (or longer period for which a stay of enforcement is allowed by
applicable Law) or after any stay is vacated or set aside;


 


(j)                                     Any
Change in Control occurs.


 


Upon the occurrence of an Event of Default described
in subsection (h)(i), (h)(ii) or (h)(iii) of this section: (a) with respect to
US Borrower, all of the Obligations or (b) with respect to any other Borrower,
all of such Borrower’s Obligations, shall thereupon be immediately due and
payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate, declaration
or notice of acceleration, or any other notice or declaration of any kind, all
of which are hereby expressly waived by each Borrower and each Restricted
Person who at any time ratifies or approves this Agreement. Upon any such
acceleration, any obligation of any Lender to make any further Loans and any
obligation of any LC Issuer to issue Letters of Credit hereunder to or for the
account of such Borrower shall be permanently terminated. During the
continuance of any other Event of Default, Administrative Agent at any time and
from time to time may (and upon written instructions from Majority Lenders,
Administrative Agent shall), without notice to any Borrower or any other
Restricted Person, do either or both of the following:  (1) terminate or suspend any obligation of
Lenders to make Loans hereunder and any obligation of any LC Issuer to issue
Letters of Credit hereunder, and (2) declare any or all of the Obligations
immediately due and 


 


86

















 


payable, and all such Obligations shall thereupon be
immediately due and payable, without demand, presentment, notice of demand or
of dishonor and nonpayment, protest, notice of protest, notice of intention to
accelerate, declaration or notice of acceleration, or any other notice or
declaration of any kind, all of which are hereby expressly waived by each
Borrower and each Restricted Person who at any time ratifies or approves this
Agreement. If the Obligations or any part thereof become immediately due and
payable pursuant to the foregoing, then, unless all Lenders otherwise
specifically elect to the contrary (which election may thereafter be retracted
by any Lender at any time), all LC Obligations shall become immediately due and
payable without regard to whether or not actual drawings or payments on the
Letters of Credit have occurred, and each Borrower shall be obligated to
immediately pay to the appropriate LC Issuer an amount equal to the aggregate
LC Obligations which are then outstanding with respect to Letters of Credit
issued by such LC Issuer at the request of such Borrower, to be held by such LC
Issuer and applied to such LC Obligations as they mature.


 


Section 8.2.                                   Remedies. If
any Default shall occur and be continuing, each Lender Party may protect and
enforce its rights under the Loan Documents by any appropriate proceedings,
including proceedings for specific performance of any covenant or agreement
contained in any Loan Document, and each Lender Party may enforce the payment
of any Obligations due it or enforce any other legal or equitable right which
it may have. All rights, remedies and powers conferred upon Lender Parties
under the Loan Documents shall be deemed cumulative and not exclusive of any
other rights, remedies or powers available under the Loan Documents or at Law
or in equity.


 


ARTICLE IX. – Agents


 


Section 9.1.                                   Appointment and
Authority. Each of the Lenders and the LC Issuers hereby irrevocably
appoints Bank of America to act on its behalf as Administrative Agent and Bank
of America, N.A., acting through its Canada Branch to act on its behalf as
Canadian Administrative Agent, as the case may be, hereunder and under the
other Loan Documents and authorizes the Agents to take such actions on its
behalf and to exercise such powers as are delegated to such Agents by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit
of the Agents, the Lenders and the LC Issuers, and neither any Borrower nor any other Lender
Party shall have rights as a third party beneficiary of any of such
provisions (other than the right to reasonably approve a successor Agent under
Section 9.6 or with respect to application of payments among Lenders as
provided in Section 9.11).


 


Section 9.2.                                   Rights as a
Lender. The Person serving as Administrative Agent or Canadian
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the
Person serving as an Agent hereunder in its individual capacity. Such Person
and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if such Person were not an Agent hereunder and without any duty to
account therefor to the Lenders.


 


87

















 


Section 9.3.                                   Exculpatory
Provisions. Neither Agent shall have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting
the generality of the foregoing, neither Agent:


 


(a)                                  shall
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;


 


(b)                                 shall
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that such Agent is required to exercise as directed
in writing by the Majority Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that the Agents shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose such
Agent to liability or that is contrary to any Loan Document or applicable law;
and


 


(c)                                  shall,
except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, nor shall it be liable for the failure to disclose, any
information relating to any of  the Borrowers or any of their respective Affiliates that is
communicated to or obtained by the Person serving as the relevant Agent or any
of its Affiliates in any capacity.


 


Neither Agent shall be liable for any action taken or
not taken by it (i) with the consent or at the request of the Majority Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the relevant shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.1 and 8.2) or (ii) in the absence of
its own gross negligence or willful misconduct. Neither Agent shall be deemed
to have knowledge of any Default unless and until notice describing such
Default is given to such Agent by a Borrower, a Lender or an LC Issuer.


 


Neither Agent shall be responsible for nor have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement,
any other Loan Document or any other agreement, instrument or document or (v)
the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to Administrative Agent.


 


Section 9.4.                                   Reliance by
Agents. Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person. Each Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or an LC Issuer, each Agent may presume that such 


 


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condition is satisfactory to such Lender or such LC Issuer unless such
Agent shall have received notice to the contrary from such Lender or such LC
Issuer prior to the making of such Loan or the issuance of such Letter of
Credit. Each Agent may consult with legal counsel (who may be counsel for any Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.


 


Section 9.5.                                   Delegation of
Duties. Each Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of such
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as an Agent.


 


Section 9.6.                                   Resignation of
Agent. Either Agent may at any time give notice of its resignation to the
Lenders, the LC Issuers and the Borrowers, which notice shall set forth the
proposed date of resignation. Upon receipt of any such notice of resignation,
the Majority Lenders shall have the right to appoint a successor (subject to
the approval of US Borrower, unless a Default has occurred and is continuing,
which approval will not be unreasonably withheld), which shall, with respect to
Administrative Agent, be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States, and, with respect
to Canadian Administrative Agent, be a commercial bank organized or licensed to
conduct a banking or trust business under the Laws of the Dominion of Canada or
of any province thereof. If no such successor shall have been so appointed by
the Majority Lenders and shall have accepted such appointment within
30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may on behalf of the Lenders and the LC Issuers, appoint a
successor Agent meeting the qualifications set forth above; provided
that if such Agent shall notify US Borrower and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through such Agent shall instead
be made by or to each Lender and each LC Issuer directly, until such time as
the Majority Lenders appoint a successor Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as an Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Agent, and
the retiring Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrowers
to a successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
retiring Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.4 shall continue in effect for
the benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Agent was acting as Agent.


 


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Any resignation by Bank of America or Bank of America,
N.A., acting through its Canada Branch, as an Agent pursuant to this Section
shall also constitute its resignation as LC Issuer and Swing Line Lender. Upon
the acceptance of a successor’s appointment as Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring LC Issuer and Swing Line Lender, (b) the
retiring LC Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor LC Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession
or make other arrangement satisfactory to the retiring LC Issuer to effectively
assume the obligations of the retiring LC Issuer with respect to such Letters
of Credit.


 


Section 9.7.                                   Non-Reliance on
Agents and Other Lenders. Each Lender and each LC Issuer acknowledges that
it has, independently and without reliance upon the Agents or any other Lender
or any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender and each LC Issuer also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender or
any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.


 


Section 9.8.                                   No Other Duties,
Etc. Anything herein to the contrary notwithstanding, neither the Agents,
Co-Syndication Agents nor the Co-Documentation Agents listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement
or any of the other Loan Documents, except in its capacity, as applicable, as
Agent, a Lender or an LC Issuer hereunder.


 


Section 9.9.                                   Guaranty Matters.
The Lenders and the LC Issuers irrevocably authorize each Agent, at its option
and in its discretion, to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder or as otherwise expressly provided in any Loan Document.


 


Upon request by an Agent at
any time, the Majority Lenders will confirm in writing an Agent’s authority to
release any Guarantor from its obligations under the Guaranty pursuant to this
Section 9.9.


 


Section 9.10.                             Indemnification. Each
Lender agrees to indemnify each Agent (to the extent not reimbursed by US
Borrower or Canadian Borrowers within ten (10) days after demand) from and
against such Lender’s US Percentage Share or Canadian Percentage Share, as the
case may be, of any and all liabilities, obligations, claims, losses, damages,
penalties, fines, actions, judgments, suits, settlements, costs, expenses or
disbursements (including reasonable fees of attorneys, accountants, experts and
advisors) of any kind or nature whatsoever (in this section collectively called
“liabilities and costs”) which to any extent (in whole or in part) may be
imposed on, incurred by, or asserted against such Agent growing out of,
resulting from or in any other way associated with the Loan Documents and the
transactions and events (including the enforcement thereof) at any time
associated therewith or contemplated therein and any borrower’s use of loan
proceeds (whether arising in contract or in tort or otherwise and including 


 


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any violation or noncompliance with any Environmental Laws by any
Person or any liabilities or duties of any Person with respect to Hazardous
Materials found in or released into the environment).


 


THE FOREGOING INDEMNIFICATION SHALL
APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT
OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR
CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY
ANY AGENT, provided only that no Lender shall be obligated
under this section to indemnify any Agent for that portion, if any, of any
liabilities and costs which is proximately caused by such Agent’s own
individual gross negligence or willful misconduct, as determined in a final
judgment. Cumulative of the foregoing, each Lender agrees to reimburse each
Agent promptly upon demand for such Lender’s US Percentage Share or Canadian
Percentage Share, as the case may be, of any costs and expenses to be paid to
such Agent by US Borrower or Canadian Borrowers under Section 10.4(a) to the
extent that such Agent is not timely reimbursed for such expenses by such
Persons as provided in such section. As used in this section the term “Agent”
shall refer not only to the Persons designated as such in Section 1.1 but also
to each director, officer, agent, attorney, employee, representative and
Affiliate of such Person.


 


Section 9.11.                             Sharing of Set-Offs and
Other Payments. Each Lender Party agrees that if it shall, whether through
the exercise of rights of banker’s lien, set off, or counterclaim against any
Borrower or otherwise, obtain payment of a portion of the aggregate Obligations
owed to it which, taking into account all distributions made by either Agent
under Section 3.1, causes such Lender Party to have received more than it would
have received had such payment been received by either Agent and distributed
pursuant to Section 3.1, then (a) it shall be deemed to have simultaneously
purchased and shall be obligated to purchase interests in the Obligations as
necessary to cause all Lender Parties to share all payments as provided for in
Section 3.1, and (b) such other adjustments shall be made from time to time as
shall be equitable to ensure that such Agent and all Lender Parties share all
payments of Obligations as provided in Section 3.1; provided, however, and for
the avoidance of doubt, that nothing herein contained shall in any way affect
the right of any Lender Party to obtain payment (whether by exercise of rights
of banker’s lien, set-off or counterclaim or otherwise) of indebtedness other
than the Obligations. Each Borrower expressly consents to the foregoing
arrangements, subject to Section 10.11. If all or any part of any funds
transferred pursuant to this section is thereafter recovered from the seller
under this section which received the same, the purchase provided for in this
section shall be deemed to have been rescinded to the extent of such recovery,
together with interest, if any, if interest is required pursuant to the order
of a Governmental Authority to be paid on account of the possession of such
funds prior to such recovery.


 


Section 9.12.                             Investments. Whenever
either Agent in good faith determines that it is uncertain about how to
distribute to Lender Parties any funds which it has received, or whenever
either Agent in good faith determines that there is any dispute among Lender
Parties about how such funds should be distributed, such Agent may choose to
defer distribution of the funds which are the subject of such uncertainty or
dispute. If either Agent in good faith believes that the uncertainty or dispute
will not be promptly resolved, or if either Agent is otherwise required to
invest funds pending distribution to Lender Parties, such Agent shall invest
such funds pending distribution; all interest on any such Investment shall be
distributed upon the distribution of such 


 


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Investment and in the same proportion and to the same Persons as such
Investment. All moneys received by any Agent for distribution to Lender Parties
(other than to the Person who is Administrative Agent in its separate capacity
as a Lender Party, or the Person who is Canadian Administrative Agent in its
separate capacity as a Lender Party) shall be held by such Agent pending such
distribution solely as such Agent for such Lender Parties, and such Agent shall
have no equitable title to any portion thereof.


 


ARTICLE X. – Miscellaneous


 


Section 10.1.                             Waivers and Amendments;
Acknowledgments.


 


(a)                                  Waivers
and Amendments. No failure or delay (whether by course of conduct or
otherwise) by any Lender in exercising any right, power or remedy which such
Lender Party may have under any of the Loan Documents shall operate as a waiver
thereof or of any other right, power or remedy, nor shall any single or partial
exercise by any Lender Party of any such right, power or remedy preclude any
other or further exercise thereof or of any other right, power or remedy. No
waiver of any provision of any Loan Document and no consent to any departure
therefrom shall ever be effective unless it is in writing and signed as
provided below in this section, and then such waiver or consent shall be
effective only in the specific instances and for the purposes for which given
and to the extent specified in such writing. This Agreement and the other Loan
Documents set forth the entire understanding between the parties hereto with
respect to the transactions contemplated herein and therein and supersede all
prior discussions and understandings with respect to the subject matter hereof
and thereof, and no amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by a Borrower or any
other Restricted Person therefrom, shall be effective unless in writing signed
by the Majority Lenders and the applicable Borrower or the applicable
Restricted Person, as the case may be, and acknowledged by Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:


 


(i)                                     waive
any condition set forth in Section 4.1 without the written consent of each
Lender (provided Administrative Agent may in its discretion withdraw any
request it has made under Section 4.1(i) to the extent such request does not
pertain to an item expressly covered by any other subsection of Section 4.1);


 


(ii)                                  extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.1) without the written consent of such Lender;


 


(iii)                               postpone any date fixed
by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby;


 


(iv)                              reduce
the principal of, or the rate of interest specified herein on, any Loan or LC
Borrowing, or (subject to clause (iii)
of the proviso at the end of this Section 10.1) any fees or other amounts
payable hereunder or under any other Loan Document, or change the manner of computation of any financial ratio (including
any change in any applicable defined 


 


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term) used in determining the Applicable Margin that would result in a
reduction of any interest rate on any Loan or any fee payable hereunder without
the written consent of each Lender directly affected thereby; provided, however,
and for the avoidance of doubt, that only the consent of the Majority Lenders
shall be necessary (A) to amend the definition of “Default Rate” or to waive
any obligation of any Borrower to pay interest, Letter of Credit Fees or
stamping fees at the Default Rate or (B) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or LC Borrowing
or to reduce any fee payable hereunder;


 


(v)                                 change
Section 9.11 or Section 8.2 in a manner that would alter the pro rata sharing
of payments required thereby without the written consent of each Lender; or


 


(vi)                              change
any provision of this Section or the definition of “Majority Lenders” or any
other provision hereof specifying the number or percentage of Lenders required
to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender;  or


 


(vii)                           except as expressly provided
herein or in any other Loan Document, release (A) any Borrower from its
obligation to pay such Lender’s Note, (B) any Guarantor from its guaranty of
such payment or (C) any Restricted Person from the negative pledge covenant set
forth in Section 7.11 hereof.


 


and, provided  further,
that (i) no amendment, waiver or consent shall, unless in writing and signed by
an LC Issuer in addition to the Lenders required above, affect the rights or
duties of an LC Issuer under this Agreement or any LC Application relating to
any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent
shall, unless in writing and signed by Administrative Agent or Canadian
Administrative Agent, as the case may be, in addition to the Lenders required
above, affect the rights or duties of such Agent under this Agreement or any
other Loan Document; and (iv) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder or any other Loan Document, nor shall a Defaulting Lender’s
vote or status as a Lender be required in determining majority, unanimity or
other condition or effect of any vote, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.


 


(b)                                 Acknowledgments
and Admissions. Each Borrower hereby represents, warrants, acknowledges and
admits that (i) it has been advised by counsel in the negotiation, execution
and delivery of the Loan Documents to which it is a party, (ii)  no Lender Party has any fiduciary obligation
toward such Borrower with respect to any Loan Document or the transactions
contemplated thereby, (iii) the relationship pursuant to the Loan Documents
between such Borrower and the other Restricted Persons, on one hand, and each
Lender Party, on the other hand, is and shall be solely that of debtor and
creditor, respectively, and (iv) no partnership or joint venture exists with
respect to the Loan Documents between any Restricted Person and any Lender
Party.


 


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(c)                                  Representation
by Lenders. Each Lender hereby represents that it will acquire its Notes
for its own account in the ordinary course of its commercial lending or
investing business; however, the disposition of such Lender’s property shall at
all times be and remain within its control and, in particular and without
limitation, such Lender may sell or otherwise transfer its Note, any
participation interest or other interest in its Note, or any of its other
rights and obligations under the Loan Documents subject to compliance with
Section 10.5 and applicable Law.


 


(d)                                 JOINT
ACKNOWLEDGMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.


 


THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


(e)                                  Annual
Rates of Interest. For the purposes of the Interest
Act (Canada), whenever interest payable pursuant to this Agreement
is calculated on the basis of a period other than a calendar year (in this
Section 10.1(e), the “Interest Period”), each rate of interest determined
pursuant to such calculation expressed as an annual rate is equivalent to such
rate as so determined multiplied by the actual number of days in the calendar
year in which the same is to be ascertained and divided by the number of days
in the Interest Period.


 


(f)                                    Joint
and Several Liability. All Obligations which are incurred by two or more
Restricted Persons shall be their joint and several obligations and liabilities
of such Restricted Persons.


 


(g)                                 No
Recourse to Other Persons. No past, present or future director, officer,
partner, employee, incorporator, manager, stockholder, unitholder or member of
US Borrower, General Partner or GP LLC, and no past, present or future
director, officer, partner, employee, incorporator, manager, stockholder,
unitholder or member of any Borrower or any Guarantor who, in each such case,
is a natural person, shall have any liability for any Obligations or for any
claim based on, in respect of, or by reason of, the Obligations or their creation.
Each Lender Party waives and releases all such liability. The waiver and
release are part of the consideration for the making of the Notes.


 


Section 10.2.                             Survival of
Representations, Warranties and Agreements; Cumulative Nature. All of
Restricted Persons’ various representations, warranties, covenants and
agreements in the Loan Documents shall survive the execution and delivery of
this Agreement and the other Loan Documents and the performance hereof and
thereof, including the making or granting of the Loans and the delivery of the
Notes and the other Loan Documents, and shall further survive until all of the
Obligations are paid in full to each Lender Party and all of Lender Parties’
obligations to Borrowers are terminated. Such representations and warranties
have been or will be relied upon by the Agents and each Lender, regardless of
any investigation made by either Agent or any Lender or on their behalf and
notwithstanding that either Agent or any Lender may have had notice or
knowledge of any Default at the time of any credit extension hereunder. The
rights, powers, and privileges granted to Lender Parties in the Loan Documents,
are cumulative, and, except for expressly specified waivers and consents, no
Loan Document shall be construed 


 


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in the context of another to diminish, nullify, or otherwise reduce the
benefit to any Lender Party of any such right, power or privilege.


 


Section 10.3.                             Notices; Effectiveness;
Electronic Communication.


 


(a)                                  Notices
Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone or otherwise (and except as provided in
subsection (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier or other
electronic transmission as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:


 


(i)                                     if
to any Borrower, either Agent or either LC Issuer, to the address, telecopier
number, electronic mail address or telephone number specified for such Person
on Schedule 10.3; and


 


(ii)                                  if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire if it has
been delivered to the party sending such notice or communication; otherwise to
such address reasonably believed to be correct by the sending party.


 


Notices sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given when
received (except that, if not given during normal business hours for the
recipient, shall be deemed to have been received at the opening of business on
the next business day for the recipient), with confirmation of the transmittal
of any such telecopied notice evidencing receipt thereof. Notices delivered
through electronic communications to the extent provided in subsection (b)
below, shall be effective as provided in such subsection (b).


 


(b)                                 Electronic
Communications. Notices and other communications to the Lenders and the LC
Issuers hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the relevant Agent, provided that the foregoing shall not
apply to notices to any Lender or either LC Issuer pursuant to Article II if
such Lender or such LC Issuer, as applicable, has notified Administrative Agent
that it is incapable of receiving notices under such Article by electronic
communication. Either Agent or any Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or communications.


 


Unless the relevant Agent otherwise prescribes,
(i) notices and other communications sent to an e-mail address shall be
deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the 


 


95

















 


next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


(c)                                  Change
of Address, Etc. Each of the Borrowers, the Agents and the LC Issuers may
change its address, telecopier, e-mail address or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each
other Lender may change its address, telecopier, e-mail address or telephone
number for notices and other communications hereunder by notice to the
Borrowers, the Agents and the LC Issuers.


 


(d)                                 Reliance
by Agents, LC Issuers and Lenders. The Lender Parties shall be entitled to
rely and act upon any notices each of them reasonably believes is purportedly
given by or on behalf of any Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. Each
Borrower shall jointly and severally indemnify the Lender Parties from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice it reasonably believes is purportedly given by or on
behalf of any Borrower, as provided in Section 10.4(b). All telephonic notices
to and other telephonic communications with either Agent may be recorded by
such Agent, and each of the parties hereto hereby consents to such recording.


 


Section 10.4.                             Expenses; Indemnity;
Damage Waiver.


 


(a)                                  Payment
of Expenses. Each Borrower shall jointly and severally pay (i) all
reasonable out-of-pocket expenses incurred by the Agents and their respective
Affiliates (including the reasonable fees, charges and disbursements of counsel
for Administrative Agent), in connection with the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred
by the LC Issuers in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by any Agent, any Lender or any
LC Issuer (including the fees, charges and disbursements of any counsel for any
Agent, any Lender or any LC Issuer and
all fees and time charges for attorneys who may be employees of any Agent or
any LC Issuer), in connection with the enforcement or protection of its
rights under this Agreement and the other Loan Documents, including its rights
under this Section and out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.


 


(b)                                 Indemnity.
Each Borrower agrees to indemnify each Lender Party from and against any and
all liabilities, obligations, claims, losses, damages, penalties, fines,
actions, judgments, suits, settlements, costs, expenses or disbursements
(including reasonable fees of attorneys, accountants, experts and advisors) of
any kind or nature whatsoever (in this section collectively called “liabilities
and costs”) which to any extent (in whole or in part) may be imposed on,
incurred by, or asserted against such Lender Party growing out of, resulting
from or in any other way associated with the Loan Documents and the transactions
and events (including 


 


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the enforcement or defense thereof) at any time associated therewith or
contemplated therein and any Borrower’s use of Loan proceeds (whether arising
in contract or in tort or otherwise and including any violation or
noncompliance with any Environmental Laws by any Lender Party or any other
Person or any liabilities or duties of any Lender Party or any other Person
with respect to Hazardous Materials found in or released into the environment).
In the case of an investigation, litigation or proceeding to which the
indemnity in this Section 10.4 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any
Borrower, any of its equity holders, Affiliates or creditors or a Lender Party
or any third party and whether or not a Lender Party is otherwise a party
thereto.


 


THE
FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS
ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR
THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT
OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided
only that no Lender Party shall be entitled under this section to receive
indemnification for that portion, if any, of any liabilities and costs which
(i) is proximately caused by its own (A) individual gross negligence or willful
misconduct, as determined in a final judgment, or (B) material breach of any of
its obligations hereunder or under any other Loan Documents, as determined in a
final judgment or (ii) arises by reason of a claim (A) by any one or more
Lender Parties against any one or more other Lender Parties or (B) by an
equity-interest owner of any Lender Party against any one or more Lender
Parties, so long as in either such case, such claim is not proximately caused
solely by the breach hereunder or under any other Loan Document by any Borrower
or its Affiliates. If any Person (including any Borrower or any of its
Affiliates) ever alleges gross negligence or willful misconduct pursuant to the
preceding clause (i)(A) (but, for the avoidance of doubt, not with respect to
an allegation of a material breach pursuant to the preceding clause (i)(B)) by
any Lender Party, the indemnification provided for in this section shall
nonetheless be paid upon demand, subject to later adjustment or reimbursement,
until such time as a court of competent jurisdiction enters a final judgment as
to the extent and effect of the alleged gross negligence  or willful
misconduct. As used in this section the term “Lender Party” shall refer not
only to each Person designated as such in Section 1.1 but also to each
director, officer, trustee, agent, attorney, employee, representative and
Affiliate of such Persons. So long as no Default has occurred and is continuing
and US Borrower is financially solvent, no Lender Party may settle any claim to
be indemnified without the consent of US Borrower, such consent not to be
unreasonably withheld; provided that US Borrower may not reasonably withhold
consent to any settlement that a Lender Party proposes, if US Borrower does not
have the financial ability to pay all its obligations outstanding and asserted
against US Borrower at that time, including the maximum potential claims
against the Lender Party to be indemnified pursuant to this Section 10.4.


 


(c)                                  Reimbursement
by Lenders. To the extent that any amounts required to be paid to any
Agent, an LC Issuer or any Related Party of any of the foregoing pursuant to
subsection (a) or (b) of this Section 10.4 are not indefeasibly paid, each
Lender severally agrees to pay to such Agent, the LC Issuer or such Related
Party, as the case may be, such Lender’s US Percentage Share or Canadian
Percentage Share, as appropriate (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against any
Agent, or an LC Issuer in its 


 


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capacity as such, or against any such Related Party of any of the
foregoing acting for such Agent or LC Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) shall be several, as
provided in the second next to last sentence of Section 2.2 with respect
to the several obligations of Lenders to make Loans.


 


(d)                                 Waiver
of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no party hereto or Related Party of
any party hereto shall assert, and hereby waives, any claim against each other
party hereto and its Related Parties (including, as applicable, each indemnitee
referred to in subsection (b) above), on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than as a result of such indemnitee’s
gross negligence, willful misconduct or material breach of any of its
obligations under any Loan Document.


 


(e)                                  Interest.
Each Borrower hereby promises to pay to each Lender Party interest at the
Default Rate on all obligations to pay fees or to reimburse or indemnify any
Lender Party which such Borrower has promised to pay to such Lender Party
pursuant to this Section 10.4 and which are not paid when due. Such interest
shall accrue from the date such Obligations become due until they are paid.


 


(f)                                    Payments.
All amounts due under this Section shall be payable not later than ten Business
Days after demand therefor and US Borrower’s receipt of reasonably detailed
invoices or statements related thereto.


 


(g)                                 Survival.
The agreements in this Section shall survive the resignation of the Agents and
the LC Issuers, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other Obligations.


 


Section 10.5.                             Successors and Assigns.


 


(a)                                  Successors
and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Borrower nor any other
Restricted Person may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of Administrative Agent
or Canadian Administrative Agent, as applicable, and each Lender, and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f)
of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any 


 


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Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Affiliates of the Agents, the LC Issuers and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


(b)                                 Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), participations in LC Obligations and Swing
Line Loans) at the time owing to it); provided that:


 


(i)                                     except
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitments, if any, and the Loans at the time owing to it,
or (B) in the case of an assignment to a Lender and the assigning Lender
retains a Commitment of $5,000,000, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
Commitment is not then in effect, the principal outstanding balance of the
Loans of the assigning Lender subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the relevant Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000, unless the relevant Agent and, so long as no Event of Default has
occurred and is continuing, US Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed);


 


(ii)                                  each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, any assignment of a Lender’s
US Commitment that may be allocated in whole or in part to the Canadian
Allocated Total Commitment shall include a proportionate assignment by such
Lender (or its affiliate) of such allocable amount, and no assignment of a
Canadian Lender’s Canadian Commitment shall be made unless a proportionate
assignment of such Lender’s (or its affiliate’s) US Commitment is also
assigned, except that this clause (ii) shall not apply to rights of the Swing
Line Lender in respect of Swing Line Loans;


 


(iii)                               any assignment of a
Commitment must be approved by the relevant Agent, LC Issuer and Swing Line
Lender unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and


 


(iv)                              the
parties to each assignment shall execute and deliver to the relevant Agent an
Assignment and Assumption, together with a processing and recordation fee
payable by such assignor Lender (and not at Borrower’s expense) of $3,500, and
the Eligible Assignee, if it shall not be a Lender, shall deliver to the
relevant Agent an Administrative Questionnaire.


 


Subject to acceptance and
recording thereof by the relevant Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement 


 


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(and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Sections 3.2, 3.3, 3.6 and
3.7 and Section 10.4 with respect to facts and circumstances occurring prior to
the effective date of such assignment. Upon request, each applicable Borrower
(at its expense), as applicable, shall execute and deliver a Note to the
assignee Lender against receipt by such Borrower of the canceled original Note
of the assignor, if its entire Commitment was assigned, or evidence that such
assignor’s Note is marked to reflect its reduction.. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.


 


Each
Eligible Assignee of a US Lender which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, must (to the extent it has not already done so) provide
Administrative Agent and US Borrower with the “Prescribed Forms” referred to in
Section 3.7(d).


 


Each
Eligible Assignee of a Canadian Lender must be a financial institution that is
(i) not a non-resident of Canada for the purposes of the Income Tax Act (Canada) or (ii) an “authorized
foreign bank” as defined in section 2 of the Bank
Act (Canada) and in subsection 248(1) of the Income Tax Act (Canada), that is not
subject to the restrictions and requirements referred to in subsection 524(2)
of the Bank Act (Canada) and
which will receive all amounts paid or credited to it under its Canadian Loans
and Canadian Note in respect of its “Canadian banking business” for the
purposes of paragraph 212(13.3)(a) of the Income
Tax Act (Canada). Any purported assignment by a Canadian Lender to
an assignee failing to satisfy the foregoing conditions shall be null and void
on its face.


 


(c)                                  Register.
Administrative Agent or, with respect to Canadian Obligations, Canadian
Administrative Agent, acting solely for this purpose as an agent of US Borrower
or Canadian Borrowers, as applicable, shall maintain at its Applicable Lending
Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and LC Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, absent manifest error, and
each Borrower, the relevant Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof, and its
correspondingly recorded Commitment, as a Lender hereunder owning such
Commitment for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by Borrowers and the
LC Issuers at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time (i) requested by US Borrower or (ii) that a
request for a consent for a material or substantive change to the Loan
Documents is pending, US Borrower or any Lender wishing to consult with other
Lenders in connection therewith, as applicable, may request and receive from
the relevant Agent a copy of the Register.


 


(d)                                 Participations.
Any Lender may at any time, without the consent of, or notice to, any Borrower
or any Agent, sell participations to any Person (other than a natural person or
the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”)
in all or a 


 


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portion of the Obligations owing to such Lender and such Lender’s
rights related thereto and such Lender’s obligations under this Agreement
(including all or a portion of its Commitment and/or the Obligations (including
such Lender’s participations in LC Obligations and/or Swing Line Loans) owing
to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the relevant Agent, the Lenders and the LC
Issuers shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.


 


Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 10.1 that directly affects such Participant. Subject
to subsection (e) of this Section, each Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.2, 3.3, 3.6 and 3.7 and the
obligations imposed by such Sections, and shall be subject to replacement
pursuant to Section 3.8, to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.11 as
though it were a Lender, provided such Participant agrees to be subject to
Section 9.11 as though it were a Lender.


 


(e)                                  Limitation
upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Sections 3.2 through 3.7 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with a Borrower’s prior written
consent, which consent sets forth an express waiver of the limitation on
Sections 3.2 through 3.7 which are set forth in this subsection.


 


(f)                                    Certain
Pledges. Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute (or, except as to the Federal Reserve Bank,
permit the substitution of) any such pledgee or assignee for such Lender as a
party hereto, and all costs, fees and expenses related to any such pledge shall
be for the sole account of such Lender.


 


(g)                                 Electronic
Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.


 


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(h)                                 Resignation
as LC Issuer after Assignment. Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitments
and Loans pursuant to subsection (b) above, Bank of America and Bank of
America, N.A., acting through its Canada Branch, may, (i) upon 30 days’ notice
to Borrowers and the Lenders, resign as an LC Issuer and/or (ii) upon 30 days’
notice to Borrowers, resign as Swing Line Lender. In the event of any such
resignation as LC Issuer or Swing Line Lender, the Borrowers shall be entitled
to appoint from among the Lenders successor LC Issuers or successor Swing Line
Lender hereunder; provided, however, that no failure by Borrowers
to appoint any such successor shall affect the resignation of Bank of America
and Bank of America, N.A., acting through its Canada Branch, as an LC Issuer or
Swing Line Lender, as the case may be. If Bank of America or Bank of America,
N.A., acting through its Canada Branch, resigns as an LC Issuer, it shall
retain all the rights and obligations of the LC Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its
resignation as an LC Issuer and all LC Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section 2.10(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.10A(c).
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring LC Issuer or Swing Line Lender, as the
case may be, and (b) the successor LC Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such
Letters of Credit.


 


(i)                                     Lost
Notes. Upon receipt of an affidavit reasonably satisfactory to US Borrower
of an officer of any Lender as to the loss, theft, destruction or mutilation of
its Note which is not of public record, and, in the case of any such loss,
theft, destruction or mutilation, upon cancellation of such Note, such Borrower
will execute and deliver, in lieu thereof, a replacement Note in the principal
amount of such Lender’s then Commitment or if no Commitment is in effect, the
outstanding principal amount owed to such Lender and otherwise of like tenor.


 


Section 10.6.                             Treatment of Certain
Information; Confidentiality. Each of the Agents, the Lenders and the LC
Issuers (for itself and each of its Affiliates, and its and their Related
Parties) agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to
its and its Affiliates’ respective partners, directors, officers, employees,
agents, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential and will
agree to maintain such confidences), (b) to the extent requested or required by
applicable laws or regulations or by any subpoena or similar legal process, (c)
subject to this Section 10.6, to any other party hereto, (d) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
in connection with any Default or anticipated Default, the enforcement of
rights hereunder or thereunder, (e) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant


 


102

















 


in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to, and requested by, a Borrower and its obligations, (f)
with the consent of the applicable Borrower, or (g) to the extent such
Information becomes publicly available other than as a result of a breach of
this Section, or becomes available to any Agent, any Lender, any LC Issuer or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrowers.


 


For purposes of this Section, “Information”
means all information received from any of the Borrowers or any Subsidiary
relating to any of the Borrowers or any Subsidiary, or any Affiliate of any of
them, or any of their respective businesses, other than any such information
that is available to any Agent, any Lender or the LC Issuer on a nonconfidential
basis prior to disclosure by any of the Borrowers or any Subsidiary, provided
that, in the case of information received from any of the Borrowers or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


Section 10.7.                             Governing Law;
Submission to Process. EXCEPT TO THE
EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY ELECTED IN A LOAN
DOCUMENT, THE LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND INSTRUMENTS MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS
OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. EACH BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST
SUCH BORROWER WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OF THE LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS LENDER
PARTIES MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, EACH BORROWER ACCEPTS
AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
BORROWER AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK SHALL APPLY TO THE LOAN DOCUMENTS AND WAIVES ANY RIGHT
TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON
THE BASIS OF FORUM NON CONVENIENS. IN FURTHERANCE OF THE FOREGOING, EACH
BORROWER HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CORPORATION SERVICE
COMPANY, 80 STATE STREET, ALBANY, NEW YORK 12207, AS AGENT OF SUCH BORROWER TO
RECEIVE SERVICE OF ALL PROCESS BROUGHT AGAINST SUCH BORROWER WITH RESPECT TO
ANY SUCH PROCEEDING IN ANY SUCH COURT IN NEW YORK, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY SUCH BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT. COPIES OF ANY SUCH PROCESS SO SERVED SHALL ALSO, IF PERMITTED BY LAW,
BE SENT BY REGISTERED MAIL TO THE RELEVANT BORROWER AT ITS ADDRESS SET FORTH
BELOW, BUT THE FAILURE OF SUCH BORROWER TO RECEIVE SUCH COPIES SHALL NOT AFFECT
IN ANY WAY THE SERVICE OF SUCH PROCESS AS AFORESAID. EACH BORROWER SHALL
FURNISH TO LENDER PARTIES A CONSENT OF CORPORATION SERVICE COMPANY AGREEING TO
ACT HEREUNDER PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. NOTHING HEREIN
SHALL 


 


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AFFECT THE RIGHT OF LENDER PARTIES TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
LENDER PARTIES TO BRING PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION. IF FOR ANY REASON CORPORATION SERVICE COMPANY SHALL RESIGN
OR OTHERWISE CEASE TO ACT AS ANY BORROWER’S AGENT, EACH BORROWER HEREBY
IRREVOCABLY AGREES TO (A) IMMEDIATELY DESIGNATE AND APPOINT A NEW AGENT
ACCEPTABLE TO ADMINISTRATIVE AGENT TO SERVE IN SUCH CAPACITY AND, IN SUCH
EVENT, SUCH NEW AGENT SHALL BE DEEMED TO BE SUBSTITUTED FOR CORPORATION SERVICE
COMPANY FOR ALL PURPOSES HEREOF AND (B) PROMPTLY DELIVER TO ADMINISTRATIVE
AGENT THE WRITTEN CONSENT (IN FORM AND SUBSTANCE SATISFACTORY TO ADMINISTRATIVE
AGENT) OF SUCH NEW AGENT AGREEING TO SERVE IN SUCH CAPACITY.


 


Section 10.8.                             Waiver of Judgment
Interest Act (Alberta). To the extent permitted by Law, the provisions of
the Judgment Interest Act (Alberta) shall not apply to the Canadian Notes and
the other Loan Documents and are hereby expressly waived by each Canadian
Borrower.


 


Section 10.9.                             Deemed Reinvestment Not
Applicable. For the purposes of the Interest Act (Canada), the principle of
deemed reinvestment of interest shall not apply to any interest calculation
under the Loan Documents, and the rates of interest stipulated in this
Agreement are intended to be nominal rates and not effective rates or yields.


 


Section 10.10.                       Limitation on Interest. Lender
Parties, Restricted Persons and any other parties to the Loan Documents intend
to contract in strict compliance with applicable usury Law from time to time in
effect. In furtherance thereof such Persons stipulate and agree that none of
the terms and provisions contained in the Loan Documents shall ever be
construed to create a contract to pay, for the use, forbearance or detention of
money, interest in excess of the maximum amount of interest permitted to be
contracted for, charged, or received by applicable Law from time to time in
effect. Neither any Restricted Person nor any present or future guarantors,
endorsers, or other Persons hereafter becoming liable for payment of any
Obligation shall ever be liable for unearned interest thereon or shall ever be
required to pay interest thereon in excess of the maximum amount that may be
lawfully contracted for, charged, or received under applicable Law from time to
time in effect, and the provisions of this section shall control over all other
provisions of the Loan Documents which may be in conflict or apparent conflict
herewith. Lender Parties expressly disavow any intention to contract for,
charge, or receive excessive unearned interest or finance charges in the event
the maturity of any Obligation is accelerated. If (a) the maturity of any
Obligation is accelerated for any reason, (b) any Obligation is prepaid and as
a result any amounts held to constitute interest are determined to be in excess
of the legal maximum, or (c) any Lender or any other holder of any or all of
the Obligations shall otherwise collect moneys which are determined to
constitute interest which would otherwise increase the interest on any or all
of the Obligations to an amount in excess of that permitted to be contracted
for, charged or received by applicable Law then in effect, then all sums
determined to constitute interest in excess of such legal limit shall, without
penalty, be promptly applied to reduce the then outstanding principal of the
related Obligations or, at such Lender’s or holder’s option, promptly returned
to Borrower or other payor thereof upon such determination. In determining
whether or not the interest paid or payable, under any specific circumstance,
exceeds the maximum amount permitted under applicable Law, Lender Parties and
Restricted Persons (and any other payors thereof) shall to the greatest extent
permitted under 


 


104

















 


applicable Law, (i) characterize any non-principal payment as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate,
allocate, and spread the total amount of interest throughout the entire
contemplated term of the instruments evidencing the Obligations in accordance
with the amounts outstanding from time to time thereunder and the maximum legal
rate of interest from time to time in effect under applicable Law in order to
lawfully charge the maximum amount of interest permitted under applicable Law. In
the event applicable Law provides for an interest ceiling under Chapter 303 of
the Texas Finance Code (the “Texas Finance Code”) as amended, to the
extent that the Texas Finance Code is mandatorily applicable to any Lender, for
that day, the ceiling shall be the “weekly ceiling” as defined in the Texas
Finance Code, provided that if any applicable Law permits greater interest, the
Law permitting the greatest interest shall apply. In no event shall Chapter 346
of the Texas Finance Code apply to this Agreement or any other Loan Document,
or any transactions or loan arrangement provided or contemplated hereby or
thereby. In no event shall the aggregate “interest” (as defined in section 347
of the Criminal Code (Canada)) payable under the Loan Documents exceed the
maximum effective annual rate of interest on the “credit advanced” (as defined
in that section) permitted under that section and, if any payment, collection
or demand pursuant to this Agreement in respect of “interest” (as defined in
that section) is determined to be contrary to the provisions of that section,
such payment, collection or demand shall be deemed to have been made by mutual
mistake of Borrowers, Agents and Lenders and the amount of such excess payment
or collection shall be refunded to the relevant Borrower. For purposes of the
Canadian Notes, the effective annual rate of interest shall be determined in accordance
with generally accepted actuarial practices and principles over the term
applicable thereto on the basis of annual compounding of the lawfully permitted
rate of interest and, in the event of dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by Canadian Administrative Agent
shall be prima facie evidence,
for the purposes of such determination.


 


Section 10.11.                       Right of Offset. At any
time and from time to time during the continuance of any Event of Default, each
Lender is hereby authorized to offset against the Obligations then due and
payable (without notice to any Restricted Person), (a) any and all moneys,
securities or other property (and the proceeds therefrom) of such Restricted
Person now or hereafter held or received by or in transit to any Lender or its
Affiliates from or for the account of such Restricted Person, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, (b) any
and all deposits (general or special, time or demand, provisional or final) of
such Restricted Person with any Lender or its Affiliates, and (c) any other
credits and claims of such Restricted Person at any time existing against any
Lender, including claims under certificates of deposit.


 


Section 10.12.                       Termination; Limited
Survival; Payments Set Aside. In its sole and absolute discretion
US Borrower may at any time that no Obligations are owing or outstanding
elect in a written notice delivered to Administrative Agent to terminate this
Agreement. Upon receipt by Administrative Agent of such a notice, if no
Obligations are then owing or outstanding this Agreement and all other Loan
Documents shall thereupon be terminated and the parties thereto released from
all prospective obligations thereunder. Notwithstanding the foregoing or
anything herein to the contrary, any waivers or admissions made by any
Restricted Person in any Loan Document, any Obligations under Sections 3.2
through 3.6, and any obligations which any Person may have to indemnify or
compensate any Lender Party shall survive any termination of this Agreement or
any other Loan Document. At the request and expense of Borrower, 


 


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Administrative Agent shall prepare and execute all necessary
instruments to reflect and effect such termination of the Loan Documents. Administrative
Agent is hereby authorized to execute all such instruments on behalf of all
Lenders, without the joinder of or further action by any Lender.


 


To the extent that any payment by or on behalf of any
Borrower is made to any Agent, the LC Issuer or any Lender, or any Agent, the
LC Issuer or any Lender exercises its right of setoff, and such payment or the
proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by such Agent, the LC Issuer or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any debtor relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and the LC Issuer severally agrees to pay to
such Agent upon demand its applicable share (without duplication) of any amount
so recovered from or repaid by such Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect, in the applicable currency
of such recovery or payment. The obligations of the Lenders and the LC Issuer
under clause (b) of the preceding sentence shall survive the payment in full of
the Obligations and the termination of this Agreement.


 


Section 10.13.                       Severability. If any term
or provision of any Loan Document shall be determined to be illegal or
unenforceable all other terms and provisions of the Loan Documents shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable Law.


 


Section 10.14.                       Counterparts. This
Agreement may be separately executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to constitute one and the same Agreement.


 


Section 10.15.                       Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


106

















 


Section 10.16.        USA
PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and each Agent (for itself and not on behalf of any Lender) hereby
notifies each Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law November 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or such Agent, as applicable, to
identify such Borrower in accordance with the Act.


 


Section 10.17.        Reallocation
of Commitments under Existing Agreement. In connection with the amendment
and restatement of the Existing Agreement pursuant hereto, Borrowers,
Administrative Agent and Lenders shall as of the Closing Date make adjustments
to the outstanding principal amount of “US Loans” and “Canadian Loans” under
the Existing Agreement (as such terms are defined therein) (but not any interest
accrued thereon prior to the Closing Date or any accrued commitment fees under
the Existing Agreement prior to the Closing Date), including the borrowing of
additional US Loans and/or Canadian Loans hereunder and the repayment of US
Loans and/or Canadian Loans plus all applicable accrued interest, fees and
expenses as shall be necessary to provide for US Loans by each US Lender in the
amount of its US Percentage Share of all US Loans as of the Closing Date and
for Canadian Loans by each Canadian Lender in the amount of its new Canadian
Percentage Share of all Canadian Loans as of the Closing Date, but in no event
shall such adjustment of any Eurodollar Loans (i) constitute a payment or
prepayment of all or a portion of any Eurodollar Loans or (ii) entitle any
Lender to any reimbursement under Section 3.6 hereof, and each Lender
shall be deemed to have made an assignment of its outstanding Loans and
commitments under the Existing Agreement, and assumed outstanding Loans and
commitments of other Lenders under the Existing Agreement as may be necessary
to effect the foregoing.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


107

















 


IN WITNESS WHEREOF, this Agreement is executed as of
the date first written above.


 


	
  US BORROWER:

  	
  PLAINS ALL AMERICAN PIPELINE, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PLAINS AAP, L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PLAINS ALL AMERICAN GP LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Al Swanson

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice President – Finance and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CANADIAN BORROWERS:

  	
  PMC (NOVA SCOTIA) COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Al Swanson

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  PLAINS MARKETING CANADA, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PMC (Nova Scotia) Company,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Al Swanson

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTOR:

  	
  PLAINS ALL AMERICAN PIPELINE, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PLAINS AAP, L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PLAINS ALL AMERICAN GP LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Al Swanson

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice President – Finance and Treasurer

  
	
   

  	
   

  	
   

  
	
  Address for Borrowers and Guarantors:

  	
  333 Clay Street, Suite 1600

  
	
   

  	
  Houston, Texas 77002

  
	
   

  	
  Attention: Al Swanson

  
	
   

  	
  Telephone: (713) 646-4455

  
	
   

  	
  Fax: (713) 646-4564

  
	
   

  	
  Website: www.paalp.com

  



 


108

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Todd MacNeill

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Todd MacNeill

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
  Agency Management Officer III

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  LC Issuer and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert D. Valbona

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert D. Valbona

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  acting through its Canada Branch,

  
	
   

  	
  as Canadian Administrative Agent, Canadian LC

  
	
   

  	
  Issuer and a Canadian Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Medina Sales de Andrade

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Medina Sales de Andrade

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
					



 


109

















 


	
   

  	
  WACHOVIA BANK, NATIONAL

  
	
   

  	
  ASSOCIATION,

  
	
   

  	
  Co-Syndication Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Shawn Young

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Shawn Young

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA CAPITAL FINANCE

  
	
   

  	
  CORPORATION (CANADA), a Canadian Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Enza Agosta

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Enza Agosta

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


110

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  Co-Syndication Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Tara Narasiman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Tara Narasiman

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  TORONTO BRANCH, a Canadian Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Tara Narasiman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Tara Narasiman

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
					



 


111

















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Todd J. Mogil

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Todd J. Mogil

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK, N.A., Canadian branch,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Niyousha
  Zarinpour

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Niyousha Zarinpour

  
	
   

  	
   

  	
  Title:

  	
  Authorised Signer

  
					



 


112

















 


	
   

  	
  THE BANK OF NOVA SCOTIA,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  N. Bell

  	
   

  
	
   

  	
   

  	
  Name:

  	
  N. Bell

  
	
   

  	
   

  	
  Title:

  	
  Senior Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Andrew Kellock

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Andrew Kellock

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  
					



 


113

















 


	
   

  	
  FORTIS CAPITAL CORP.,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Deirdre
  Sanborn

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Deirdre Sanborn

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Diran
  Cholakian

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Diran Cholakian

  
	
   

  	
   

  	
  Title:

  	
  SVP, Trade Finance

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FORTIS CAPITAL (CANADA) LTD.,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Diran
  Cholakian

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Diran Cholakian

  
	
   

  	
   

  	
  Title:

  	
  SVP, Trade Finance

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Doug Clark

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Doug Clark

  
	
   

  	
   

  	
  Title:

  	
  SVP, Global Oil & Gas

  
					



 


114

















 


	
   

  	
  UBS LOAN FINANCE LLC,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Richard L.
  Tavrow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard L. Tavrow

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
  Banking Products Services, US

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Irja R. Otsa

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Irja R. Otsa

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
   

  	
  Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UBS AG, CANADA BRANCH,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Loba
  Lumbantobing

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Loba Lumbantobing

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
   

  	
  Banking Products Services, US

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Barbara
  Ezell-McMichael

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Barbara Ezell-McMichael

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
   

  	
  Banking Products Services, US

  
					



 


115

















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Marcie Weiss

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Marcie Weiss

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Richard J.
  Wernli

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard J. Wernli

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNP PARIBAS CANADA, a Canadian Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Edward Pak

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Edward Pak

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Jean-Philippe
  Cadot

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jean-Philippe Cadot

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 


116

















 


	
   

  	
  SUNTRUST BANK,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Kelley
  Brandenburg

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Kelley Brandenburg

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


117

















 


	
   

  	
  DNB NOR BANK ASA,

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Philip F.
  Kurpiewski

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Philip F. Kurpiewski

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Giacomo Landi

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Giacomo Landi

  
	
   

  	
   

  	
  Title:

  	
  First Vice President

  
					



 


118

















 


	
   

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Jo Ann Vasquez

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jo Ann Vasquez

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


119

















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI UFJ,

  
	
   

  	
  LTD., NEW YORK BRANCH,

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Billy Tracy

  	
   

  
	
   

  	
   

  	
  Billy Tracy, Vice President

  



 


120

















 


	
   

  	
  SUMITOMO MITSUI BANKING

  
	
   

  	
  CORPORATION, Managing Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  William M.
  Ginn

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William M. Ginn

  
	
   

  	
   

  	
  Title:

  	
  General Manager

  
					



 


121

















 


	
   

  	
  COMERICA BANK,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Juli Bieser

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Juli Bieser

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COMERICA BANK, CANADA BRANCH,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  John H. Tan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John H. Tan

  
	
   

  	
   

  	
  Title:

  	
  Managing Director & Principal

  
	
   

  	
   

  	
   

  	
  Officer

  
					



 


122

















 


	
   

  	
  BMO CAPITAL MARKETS FINANCING, INC.,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Cahal Carmody

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Cahal Carmody

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BANK OF MONTREAL, a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  John H. Tan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Cahal Carmody

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


123

















 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Kimberly Coil

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Kimberly Coil

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  UNION BANK OF CALIFORNIA, N.A.,

  
	
   

  	
  CANADA BRANCH, a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Phil Taylor

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Phil Taylor

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


124

















 


	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  David A.
  McCluskey

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David A. McCluskey

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


125

















 


	
   

  	
  SOCIETE GENERALE,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Chung-Taek Oh

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Chung-Taek Oh

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Emmanuel
  Chesneau

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Emmanuel Chesneau

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCIETE GENERALE (CANADA)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Charles
  Ritchie

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Charles Ritchie

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Gregoire
  Bonhomme

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gregoire Bonhomme

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 


126

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Jose M.
  Aldeanueva

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jose M. Aldeanueva

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  
	
   

  	
  TORONTO BRANCH, a Canadian Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Margaret Lane

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Margaret Lane

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


127

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Justin M.
  Alexander

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Justin M. Alexander

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


128

















 


	
   

  	
  ING CAPITAL LLC, a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Richard Ennis

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard Ennis

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


129

















 


	
   

  	
  BAYERISCHE LANDESBANK,

  
	
   

  	
  CAYMAN ISLANDS BRANCH, a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Nikolai von
  Mengden

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Nikolai von Mengden

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Norman McClave

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Norman McClave

  
	
   

  	
   

  	
  Title:

  	
  First Vice President

  
					



 


130

















 


	
   

  	
  MIZUHO CORPORATE BANK, LTD., a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Raymond
  Ventura

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Raymond Ventura

  
	
   

  	
   

  	
  Title:

  	
  Deputy General Manager

  
					



 


131

















 


	
   

  	
  COMMERZBANK AG, NEW YORK AND

  
	
   

  	
  GRAND CAYMAN BRANCHES, a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Andrew
  Campbell

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Andrew Campbell

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Barbara Stacks

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Barbara Stacks

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
					



 


132

















 


	
   

  	
  AMEGY BANK NATIONAL ASSOCIATION,

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  W. Bryan
  Chapman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  W. Bryan Chapman

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
  Energy Lending

  
					



 


133