exv10w4






Exhibit 10.4




FIRST AMENDMENT TO

CREDIT AGREEMENT




          THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “First Amendment”) is entered into as
of the 30th day of March, 2007, by and among WILLIAMS PRODUCTION RMT COMPANY (the
“Counterparty”), WILLIAMS PRODUCTION COMPANY, LLC (the “Guarantor”), CITIBANK,
N.A., as administrative agent (the “Administrative Agent”), CITIGROUP ENERGY INC., as
computation agent (the “Computation Agent”), CALYON NEW YORK BRANCH, as collateral agent
(in such capacity, the “Collateral Agent”) and PV determination agent (in such capacity,
the “PV Determination Agent”, and together with the Administrative Agent, the Computation
Agent and the Collateral Agent, the “Agents”), and the BANKS party hereto.




Preliminary Statement




          WHEREAS, the Counterparty, the Guarantor, the Agents and the Banks, are
 parties to that certain Credit Agreement dated as of February 23, 2007 (as same may be further
amended, restated, increased and extended, the “Credit Agreement”) and




          WHEREAS, the Counterparty and the Guarantor have now requested that the Banks and the Agents
modify the Credit Agreement and change certain terms thereof, and the Agents and the Banks party
hereto, which Banks constitute the Required Banks, have agreed to do so; and




          WHEREAS, the Counterparty, the Guarantor, the Agents and the Banks party
hereto wish to execute this First Amendment to evidence such agreement.




          NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
Counterparty, the Guarantor, the Agents and the Banks party hereto hereby agree as follows (all
capitalized terms used herein and not otherwise defined shall have the meanings as defined in the
Credit Agreement):




     Section 1. Amendment to Section 1.1.



          (a) Section 1 .1 of the Credit Agreement is hereby amended by amending and
restating the definition of “Acceptable Bank Guaranty” as follows:





     “Acceptable Bank Guaranty” means an agreement substantially in the form of
Exhibit K executed by a Bank or a direct or indirect parent of a Bank and delivered to the
Collateral Agent, provided that the senior unsecured long-term Dollar-denominated debt or
deposit obligations of such Bank or such direct or indirect parent is rated at least BBB by
S&P and Baa2 by Moody’s at the time such Acceptable Bank Guaranty is executed.”



 









 





          (b) Section 1.1 of the Credit Agreement is hereby further amended by inserting the
following new definitions in the appropriate alphabetical order:





     “Acceptable Added Bank Guarantor” means the direct or indirect parent of a
Bank, provided that the senior unsecured long-term Dollar-denominated debt or deposit
obligations of such direct or indirect parent is rated at least BBB by S&P and Baa2 by
Moody’s at the time such direct or indirect parent executes an Acceptable Added Bank
Guaranty and Acceptable Added Bank Guaranty (Credit Agreement).




     “Acceptable Added Bank Guaranty” means an agreement substantially in
the form of Exhibit O, executed by an Acceptable Added Bank Guarantor and
delivered to the Collateral Agent.




     “Acceptable Added Bank Guaranty (Credit Agreement)” means an
agreement substantially in the form of Exhibit P, executed by an Acceptable
Added Bank Guarantor and delivered to the Collateral Agent.




     “First Amendment” means the First Amendment to Credit Agreement,
dated as of March 30, 2007, amending this Credit Agreement.



     Section 2. Amendment to Section 2.1 to the Credit Agreement. Section 2.1 of the Credit Agreement is
hereby amended by adding the following new subsections (g) and (h) thereto:




     “(g) Acceptable Added Bank Guaranty. Each time a Bank becomes party to the Credit
Agreement pursuant to Section 2.8 and the senior unsecured long-term Dollar-denominated debt or
deposit obligations of such Bank is not rated at least BBB by S&P and Baa2 by Moody’s, such Bank
shall deliver or cause to be delivered to the Administrative Agent an Acceptable Added Bank
Guaranty. No Acceptable Added Bank Guaranty shall be released or materially modified so long as the
Bank referred to therein remains a party to the Credit Agreement.




     (h)
Acceptable Added Bank Guaranty (Credit Agreement). Each time a Bank becomes party
to the Credit Agreement pursuant to Section 2.8 and the senior unsecured long-term
Dollar-denominated debt or deposit obligations of such Bank is not rated at least BBB by S&P and
Baa2 by Moody’s, such Bank shall deliver or cause to be delivered to the Administrative Agent an
Acceptable Added Bank Guaranty (Credit Agreement). No Acceptable Added Bank Guaranty (Credit
Agreement) shall be released or materially modified so long as the Bank referred to therein remains
a party to the Credit Agreement.”



     Section 3. Amendment to Section 2.8 to the Credit Agreement. Clause (i) of the second sentence of
Section 2.8 of the Credit Agreement is hereby amended and restated as follows:



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     “(i) (x) the senior unsecured long-term Dollar-denominated debt or deposit
obligations of each added Bank is rated at least BBB by S&P and Baa2 by
Moody’s, or (y) such Bank delivers or causes to be delivered to the Administrative
Agent an Acceptable Added Bank Guaranty and an Acceptable Added Bank
Guaranty (Credit Agreement) pursuant to Sections 2.1(g) and (h)”



     Section 4. Amendment to Exhibits to the Credit Agreement.



          (a) The Exhibits to the Credit Agreement are hereby amended by adding the
following to such Exhibits: Exhibit O, attached hereto as Annex I, and Exhibit P, attached hereto
as Annex II.




          (b) The first sentence of Section 6 of Exhibit J is amended and restated in entirety as
follows:





     “The New Bank represents and warrants to the Counterparty, each Agent and each Bank that
[its/[Insert Name of Acceptable Added Bank Guarantor]’s] senior unsecured long-term
Dollar-denominated debt or deposit obligations are rated at least BBB by S&P and Baa2 by Moody’s,
determined consistent with Section 1.5 of the Credit Agreement.”



     Section 5. Representations True; No Default. Each of the Counterparty and the
Guarantor represents and warrants that:




	 	(i)	 	this First Amendment has been duly authorized, executed and delivered on its behalf; the
Credit Agreement, as amended hereby, together with the other Credit Documents to which it is a
party, constitute the legal, valid and binding obligation of the Counterparty or the
Guarantor, as applicable, enforceable against the Counterparty or Guarantor, as applicable, in
accordance with their terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights
generally and by general principles of equity;
	 
	 	(ii)	 	the representations and warranties of the Counterparty and the Guarantor contained in Article
IV of the Credit Agreement are true and correct in all material respects on and as of the date
hereof as though made on and as of the date hereof (other than those representations and
warranties that expressly relate to a specific earlier date, which representations and
warranties were true and correct in all material respects as of such earlier date); and
	 
	 	(iii)	 	after giving effect to this First Amendment, no Default or Event of Default
under the Credit Agreement has occurred and is continuing.





     Section 6. Expenses, Additional Information. The Counterparty shall pay to each Agent
all reasonable expenses incurred by such Agent in connection with the execution of this



3









 




First Amendment, including all reasonable expenses incurred in connection with any previous
negotiation and credit documentation.




     Section 7. Effectiveness. This First Amendment shall become effective on the date (the
“First Amendment Closing Date”) when, and only when the Administrative Agent notifies the
Counterparty that the Administrative Agent (or its counsel) has received from each party hereto
either (i) a counterpart of this First Amendment signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a
signed signature page of this First Amendment) that such party has signed a counterpart of this
First Amendment, which notice shall be conclusive and binding.



     Section 8. Post-Closing Requirements. Within 7 days of the First Amendment
Closing Date, the Counterparty and the Guarantor shall deliver to the Agents and the Banks:



          (a) a certificate of an authorized officer of the Counterparty and the Guarantor, as
applicable, dated as of the First Amendment Closing Date certifying (i) that the resolutions
delivered to the Banks and the Agents on the effective date of the Credit Agreement have not been
amended, modified, revoked or rescinded as of the First Amendment Closing Date, (ii) that the
applicable organizational documents of the Counterparty and the Guarantor have not been amended or
otherwise modified since the effective date of the Credit Agreement, except pursuant to any
amendments attached thereto, and (iii) as to the incumbency and signature of the officers of the
Counterparty and the Guarantor executing this First Amendment; and




          (b) a certificate of an officer of each of the Counterparty and the Guarantor dated as of the
First Amendment Closing Date certifying that each of the representations and warranties made by the
Counterparty or the Guarantor, as applicable, in Section 5 hereof is true and correct, and that no
Default or Event of Default has occurred and is continuing.




     Section 9. Miscellaneous Provisions.



          (a) From and after the execution and delivery of this First Amendment, the Credit Agreement
shall be deemed to be amended and modified as herein provided, and except as so amended and
modified the Credit Agreement shall continue in full force and effect.




          (b) The Credit Agreement and this First Amendment shall be read and construed as one and the
same instrument.




          (c) Any reference in any of the Credit Documents to the Credit Agreement shall be a reference
to the Credit Agreement as amended by this First Amendment.




          (d) This First Amendment shall be construed in accordance with and governed by the laws of the
State of New York.




          (e) This First Amendment may be signed in any number of counterparts and by different parties
in separate counterparts and may be in original or facsimile form, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.





4









 








          (f) The headings herein shall be accorded no significance in interpreting this First
Amendment.




     Section 10. Binding Effect. This First Amendment shall be binding upon and inure to
the benefit of the Counterparty, the Guarantor, the Banks and the Agents and their respective
successors and assigns, except that the Counterparty and the Guarantor shall not have the right to
assign their rights hereunder or any interest herein.



     Section 11. Reaffirmation of Guaranty. The Guarantor consents to the execution and
delivery by the Counterparty of this First Amendment and ratifies and confirms the terms of the
guaranty contained in Article IX of the Credit Agreement with respect to the Obligations. The
Guarantor acknowledges that, notwithstanding anything to the contrary contained herein or in any
other document evidencing any Obligations or any other obligation of the Counterparty, or any
actions now or hereafter taken by the Banks with respect to any obligation of the Counterparty, the
guaranty contained in Article IX of the Credit Agreement (i) is and shall continue to be an
absolute, unconditional, continuing and irrevocable guaranty of payment of the Obligations to the
extent and as provided therein, and (ii) is and shall continue to be in full  force and effect in
accordance with its terms. Nothing contained herein shall release, discharge, modify, change or
affect the original liability of the Guarantor under the guaranty contained in Article IX of the
Credit Agreement.



[Signature Pages Follow]





5












 





     IN WITNESS WHEREOF, the parties have caused this First Amendment to be executed by their
respective duly authorized officers on the 30th day of March, 2007, to be effective as
of the First Amendment Closing Date.



	 	 	 	 	 
	 	COUNTERPARTY:




WILLIAMS PRODUCTION RMT COMPANY

 	 
	 	By:  	/s/ Gary R. Belitz
 	 
	 	 	Name:  	Gary R. Belitz 	 
	 	 	Title:  	Vice President — Finance & Accounting 	 
	 



	 	 	 	 	 
	 	GUARANTOR:




WILLIAMS PRODUCTION COMPANY, LLC

 	 
	 	By:  	/s/ Gary R. Belitz
 	 
	 	 	Name:  	Gary R. Belitz 	 
	 	 	Title:  	Vice President —  Finance & Accounting 	 
	 



Signature Page to First Amendment to Credit Agreement



 









 





	 	 	 	 	 
	 	AGENTS:




CITIBANK, N.A. as Administrative Agent

 	 
	 	By:  	/s/ Todd J. Mogil
 	 
	 	 	Name:  	TODD J. MOGIL 	 
	 	 	Title:  	ATTORNEY-IN-FACT 	 
	 



					
	 	CITIGROUP ENERGY INC., as Computation Agent

 	 
	 	By:  	/s/ Joseph W. Toussaint
 	 
	 	 	Name:  	JOSEPH W. TOUSSAINT 	 
	 	 	Title:  	MANAGING DIRECTOR 	 
	 



					
	 	CALYON NEW YORK BRANCH, as Collateral Agent
 and as PV Determination Agent

 	 
	 	By:  	/s/ Michael D. Willis
 	 
	 	 	Name:  	Michael D. Willis 	 
	 	 	Title:  	Director 	 



	 	 	 	 	 
	 	By:  	/s/ Tom Byargeon
 	 
	 	 	Name:  	Tom Byargeon 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to First Amendment to Credit Agreement



 









 





	 	 	 	 	 
	 	BANKS:




CITIBANK, N.A.

 	 
	 	By:  	/s/ Todd J. Mogil
 	 
	 	 	Name:  	TODD J. MOGIL 	 
	 	 	Title:  	ATTORNEY-IN-FACT 	 



	 	 	 	 	 
	 	CALYON

 	 
	 	By:  	/s/ Michael D. Willis
 	 
	 	 	Name:  	Michael D. Willis 	 
	 	 	Title:  	Director 	 
	 	 	 
	 	By:  	/s/ Tom Byargeon
 	 
	 	 	Name:  	Tom Byargeon 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to First Amendment to Credit Agreement




 











 





ANNEX I TO




FIRST AMENDMENT



EXHIBIT O



ACCEPTABLE ADDED BANK GUARANTY



Guarantee of Obligations of [Name of Bank]

by [Name of direct or indirect parent or Bank]


Guarantee,
dated as of [                    ], of [Name of direct or indirect parent of Bank], (the
“Guarantor”), in favor of Williams Production RMT Company, a Delaware corporation (the
“Counterparty”). Capitalized terms used herein that are not defined herein, are not defined
in the Agreement and are defined in the Credit Agreement dated as of February 23, 2007 among the
Counterparty, _________ and others, as amended or otherwise modified from time to time, are used
herein as therein defined.



1. Guarantee. In order to induce the Counterparty to enter into an ISDA Master Agreement, dated as
of the date hereof (the “Agreement”), with a subsidiary of the Guarantor, [Name of Bank]
(“Primary Obligor”), the Guarantor absolutely and unconditionally guarantees to the
Counterparty, its successors and permitted assigns, as primary obligor and not as a surety, the
prompt payment of all amounts payable by Primary Obligor under the Agreement, whether due or to
become due, secured or unsecured, joint or several together with any and all expenses referred to
under Section 11 of the Agreement incurred by Counterparty in enforcing Counterparty’s rights under
this Guarantee (the “Obligations”) all without regard to any counterclaim, set-off,
deduction or defense of any kind which Primary Obligor or the Guarantor may have or assert, and
without abatement, suspension, deferment or diminution on account of any event or condition
whatsoever; provided however, that Guarantor’s obligations under this Guarantee shall be subject to
Primary Obligor’s defenses and rights to set-off, counterclaim or withhold payment as provided in
the Agreement. Any capitalized term used herein and not otherwise defined herein shall have the
meaning assigned to it in the Agreement.



2. Nature of Guarantee. This Guarantee is a guarantee of payment and not of collection. The
Counterparty shall not be obligated, as a condition precedent to performance by the Guarantor
hereunder, to file any claim relating to the Obligations in the event that Primary Obligor becomes
subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Counterparty
to file a claim shall not affect the Guarantor’s obligations hereunder. This Guarantee shall
continue to be effective or be reinstated if any payment to the Counterparty by Primary Obligor on
account of any Obligation is returned to Primary Obligor or is rescinded upon the insolvency,
bankruptcy or reorganization of Primary Obligor.



3.
Consents, Waivers and Renewals. The Guarantor agrees that the Counterparty may at any time
and from time to time, either before or after the maturity thereof, without notice to or further
consent of the Guarantor, change the time, manner or place of payment or any other term of, any
Obligation, exchange, release, nonperfection or
surrender any collateral for, or renew or change any term of any of the Obligations owing to it,
and may also enter into a written agreement with Primary Obligor or with any other party to the
Agreement or person liable on any Obligation, or interested therein, for the extension, renewal,
payment, compromise, modification, waiver, discharge or release thereof, in whole or in part,





 









 







without impairing or affecting this Guarantee. The Obligations of the Guarantor under this
Guarantee are unconditional, irrespective of the value, genuineness, validity, or enforceability of
the Obligations, any law, regulation or order of any jurisdiction or any other event affecting the
term of any Obligation or of Counterparty’s rights with respect thereto and, to the fullest extent
permitted by applicable law, any other circumstance which might constitute a defense available to,
or a discharge of, the Guarantor, including (a) any law, rule or policy that is now or hereafter
promulgated by any governmental authority (including any central bank) or regulatory body that may
adversely affect Counterparty’s ability or obligation to make or receive such payments, (b) any
nationalization, expropriation, war, riot, civil commotion or other similar event, (c) any
inability to convert any currency into the currency of payment of such obligation, (d) any
inability to transfer funds in the currency of payment of such obligation to the place of payment
therefor. The Guarantor agrees that the Counterparty may have recourse to the Guarantor for payment
of any of the Obligations, whether or not the Counterparty has proceeded against any collateral
security or any obligor principally or secondarily obligated for any Obligation. The Guarantor
waives demands, promptness, diligence and all notices that may be required by law or to perfect the
Counterparty’s rights hereunder except notice to the Guarantor of a default by Primary Obligor
under the Agreement, provided, however, that any delay in the delivery of notice shall in no way
invalidate the enforceability of this Guarantee. No failure, delay or single or partial exercise by
the Counterparty of its rights or remedies hereunder shall operate as a waiver of such rights or
remedies. All rights and remedies hereunder or allowed by law shall be cumulative and exercisable
from time to time.




4.
Representations and Warranties. The Guarantor hereby represents and warrants that:




          (i) the Guarantor is duly organized, validly existing and in good standing under the laws of the
State of Delaware;




          (ii) the Guarantor has the requisite corporate power and authority to issue this Guarantee and to
perform its obligations hereunder, and has duly authorized, executed and delivered this Guarantee;




          (iii) the Guarantor is not required to obtain any authorization, consent, approval,
exemption or license from, or to file any registration with, any government authority as a
condition to the validity of, or to the execution, delivery or performance of, this Guarantee;




          (iv) as of the date of this Guarantee, there is no action, suit or proceeding pending or threatened
against the Guarantor before any court or arbitrator or any governmental body, agency or official
in which there is a reasonable possibility of an adverse decision which could affect, in a
materially adverse manner, the ability of the Guarantor to perform any of its obligations under, or
which in any manner questions the validity of, this Guarantee;




          (v) the execution, delivery and performance of this Guarantee by the Guarantor does not contravene
or constitute a default under any statute, regulation or rule of any governmental authority or
under any provision of the Guarantor’s certificate of incorporation or by-laws or any contractual
restriction binding on the Guarantor; and




          (vi) this Guarantee constitutes the legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms, subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors’ rights
generally, and to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).



5. Subrogation. Upon payment by Guarantor of any sums to Counterparty under this Guarantee, all
rights of Guarantor against Primary Obligor arising as a result thereof by way of right of
subrogation or





 









 







otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full of all the obligations of Primary Obligor under the Agreement,
including all Transactions then in effect between Primary Obligor and Counterparty.



6. Termination. This Guarantee is a continuing guarantee and shall remain in full force and effect
until such time as it may be revoked by the Guarantor by notice given
to the Counterparty, such
notice to be deemed effective upon receipt thereof by the Counterparty or at such later date as
may be specified in such notice; provided, however, that such revocation shall not limit or
terminate this Guarantee in respect of any Transaction effected under the Agreement which shall
have been entered into prior to the effectiveness of such revocation. Notwithstanding anything to
the contrary in this Paragraph 6, this Guarantee shall terminate, and Guarantor shall be released
from all of the Obligations hereunder with respect to any Transaction(s), immediately upon the
transfer or assignment of such Transaction(s) to an entity which is not an Affiliate of Primary
Obligor (as such term is defined in Section 14 of the Agreement), if such transfer or assignment is
completed in accordance with the provisions of Section 7 of the Agreement.



7. Notices. Any notice or communication required or permitted to be made hereunder shall be made to
the appropriate addresses set forth below (or to such other addresses as either party may designate
by notice to the other party):





	 	 	 	 	 

	 

	 	If to the Counterparty:	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 
	 

	 	If to the Guarantor:	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 






8. GOVERNING LAW; JURISDICTION. This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York. The Guarantor hereby irrevocably consents to, for the
purposes of any proceeding arising out of this Guarantee, the exclusive jurisdiction of the courts
of the State of New York and the United States District Court located in the borough of Manhattan
in New York City.



9. Waiver of Immunity. To the extent that the Guarantor has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect
to the Guarantor or the Guarantor’s property, the Guarantor hereby irrevocably waives such immunity
in respect of the Guarantor’s obligations under this Guarantee.



10. Waiver of Jury Trial. The Guarantor hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Guarantee or the negotiation, administration or enforcement hereof.



11.
Miscellaneous. Each reference herein to the Guarantor, Counterparty or Primary Obligor
shall be deemed to include their respective successors and assigns. The provisions hereof shall
inure in favor





 









 







of each
such successor or assign. This Guarantee (i) shall supersede any prior or contemporaneous
representations, statements or agreements, oral or written, made by or between the parties with
regard to the subject matter hereof, (ii) may be amended only by a written instrument executed by
the Guarantor and Counterparty and (iii) may not be assigned by either party without the prior
written consent of the other party.




12. Limitation of Liability. Notwithstanding anything to the contrary contained herein or in the
Agreement, whether express or implied, Guarantor shall in no event be required to pay or be liable
to the Counterparty for any consequential, indirect or punitive damages, opportunity costs or lost
profits.



IN WITNESS WHEREOF, the undersigned has executed this Guarantee as of the date first above
written.



[NAME OF DIRECT OR INDIRECT PARENT OF BANK]




	 	 	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 	Date:  	 	 
	 




 











 





ANNEX II TO




FIRST AMENDMENT



EXHIBIT P



ACCEPTABLE ADDED BANK GUARANTY (CREDIT AGREEMENT)



Guarantee of Obligations of [Name of Bank]

by [Name of direct or indirect parent of Bank]


Guarantee,
dated as of [                     ], of [Name of direct or indirect parent of Bank], (the
“Guarantor”), in favor of Williams Production RMT Company, a Delaware corporation (the
“Counterparty”), Citibank, N.A., as administrative agent (the “Administrative
Agent”) under the Credit Agreement dated as of February 23, 2007 (the “Credit
Agreement”) among the Counterparty, _________ and others, as amended or otherwise modified from
time to time, Citigroup Energy Inc., as computation agent (the “Computation Agent”) under the
Credit Agreement, Calyon New York Branch, as collateral agent (in such capacity, the
“Collateral Agent”) and PV determination agent (in
such capacity the “ PV Determination
Agent”) under the Credit Agreement, and the Banks party to the Credit Agreement (the “Banks”,
and together with the Counterparty, the Administrative Agent, the Computation Agent, the Collateral
Agent and the PV Determination Agent, the ‘Beneficiaries”).



1.
Guarantee. As a condition to [Name of Bank]
 (“Primary Obligor”), a subsidiary of the Guarantor,
becoming party to the Credit Agreement, the Guarantor absolutely and unconditionally guarantees to
the each Beneficiary, its successors and permitted assigns, as primary obligor and not as a surety,
the prompt payment of all amounts payable by Primary Obligor under the Credit Agreement, whether
due or to become due, secured or unsecured, joint or several together with any and all expenses
incurred by any Beneficiary in enforcing such Beneficiary’s rights under this Guarantee (the
“Obligations”) all without regard to any counterclaim, set-off, deduction or defense of any
kind which Primary Obligor or the Guarantor may have or assert, and without abatement, suspension,
deferment or diminution on account of any event or condition whatsoever; provided however, that
Guarantor’s obligations under this Guarantee shall be subject to Primary Obligor’s defenses and
rights to set-off, counterclaim or withhold payment as provided in the Credit Agreement. Any
capitalized term used herein and not otherwise defined herein shall have the meaning assigned to it
in the Credit Agreement.



2. Nature of Guarantee. This Guarantee is a guarantee of payment and not of collection. The
Beneficiaries shall not be obligated, as a condition precedent to performance by the Guarantor
hereunder, to file any claim relating to the Obligations in the event that Primary Obligor becomes
subject to a bankruptcy, reorganization or similar proceeding, and the failure of any Beneficiary
to file a claim shall not affect the Guarantor’s obligations hereunder. This Guarantee shall
continue to be effective or be reinstated if any payment to any Beneficiary by Primary Obligor on
account of any Obligation is returned to Primary Obligor or is rescinded upon the insolvency,
bankruptcy or reorganization of Primary Obligor.



3. Consents, Waivers and Renewals. The Guarantor agrees that the Beneficiaries may at any time and
from time to time, either before or after the maturity thereof, without notice to or further
consent of the Guarantor, change the time, manner or place of payment or any other term of, any
Obligation, exchange, release, nonperfection or surrender any collateral for, or renew or change
any term of any of the Obligations owing to it, and may also enter into a written agreement with
Primary Obligor or with any other party to the Credit Agreement or person liable on any Obligation,
or interested therein, for the





 









 







extension, renewal, payment, compromise, modification, waiver, discharge or release thereof, in
whole or in part, without impairing or affecting this Guarantee. The Obligations of the Guarantor
under this Guarantee are unconditional, irrespective of the value, genuineness, validity, or
enforceability of the Obligations, any law, regulation or order of any jurisdiction or any other
event affecting the term of any Obligation or of any Beneficiary’s rights with respect thereto and,
to the fullest extent permitted by applicable law, any other circumstance which might constitute a
defense available to, or a discharge of, the Guarantor, including (a) any law, rule or policy that
is now or hereafter promulgated by any governmental authority (including any central bank) or
regulatory body that may adversely affect any Beneficiary’s ability or obligation to make or
receive such payments, (b) any nationalization, expropriation, war, riot, civil commotion or other
similar event, (c) any inability to convert any currency into the currency of payment of such
obligation, (d) any inability to transfer funds in the currency of payment of such obligation to
the place of payment therefor. The Guarantor agrees that the Beneficiaries may have recourse to the
Guarantor for payment of any of the Obligations, whether or not any Beneficiary has proceeded
against any collateral security or any obligor principally or secondarily obligated for any
Obligation. The Guarantor waives demands, promptness, diligence and all notices that may be
required by law or to perfect the Beneficiaries’ rights hereunder except notice to the Guarantor of
a default by Primary Obligor under the Credit Agreement, provided, however, that any delay in the
delivery of notice shall in no way invalidate the enforceability of this Guarantee. No failure,
delay or single or partial exercise by any Beneficiary of its rights or remedies hereunder shall
operate as a waiver of such rights or remedies. All rights and remedies hereunder or allowed by law
shall be cumulative and exercisable from time to time.



4. Representations and Warranties. The Guarantor hereby represents and warrants that:




          (i) the Guarantor is duly organized, validly existing and in good standing under the laws of the
State of Delaware;




          (ii) the Guarantor has the requisite corporate power and authority to issue this Guarantee and to
perform its obligations hereunder, and has duly authorized, executed and delivered this Guarantee;




          (iii) the Guarantor is not required to obtain any authorization, consent, approval,
exemption or license from, or to file any registration with, any government authority as a
condition to the validity of, or to the execution, delivery or performance of, this Guarantee;




          (iv) as of the date of this Guarantee, there is no action, suit or proceeding pending or threatened
against the Guarantor before any court or arbitrator or any governmental body, agency or official
in which there is a reasonable possibility of an adverse decision which could affect, in a
materially adverse manner, the ability of the Guarantor to perform any of its obligations under, or
which in any manner questions the validity of, this Guarantee;




          (v) the execution, delivery and performance of this Guarantee by the Guarantor does not contravene
or constitute a default under any statute, regulation or rule of any governmental authority or
under any provision of the Guarantor’s certificate of incorporation or by-laws or any contractual
restriction binding on the Guarantor; and




          (vi) this Guarantee constitutes the legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms, subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors’ rights generally, and to general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).





 









 







5. Subrogation. Upon payment by Guarantor of any sums to any Beneficiary under this Guarantee, all
rights of Guarantor against Primary Obligor arising as a result thereof by way of right of
subrogation or otherwise shall in all respects be subordinate and junior in right of payment to  the
prior indefeasible payment in full of all the obligations of Primary Obligor under the Credit
Agreement.



6. Termination. This Guarantee is a continuing guarantee and shall remain in full force and effect
until such time as it may be revoked by the Guarantor by notice given to the Beneficiaries, such
notice to be deemed effective upon receipt thereof by the Beneficiaries or at such later date as
may be specified in such notice; provided, however, that such revocation shall not limit or
terminate this Guarantee in respect of any Qualifying Hedge effected under the Credit Agreement
which shall have been entered into prior to the effectiveness of such revocation.



7. Notices. Any notice or communication required or permitted to be made hereunder shall be made to
the appropriate addresses set forth below (or to such other addresses as either party may designate
by notice to the other party):




	 	 	 	 	 

	 

	 	If to the Counterparty:	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	If to the Beneficiaries (other than the Counterparty):	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	If to the Guarantor:	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 





8. GOVERNING LAW; JURISDICTION. This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York. The Guarantor hereby irrevocably consents to, for the
purposes of any proceeding arising out of this Guarantee, the exclusive jurisdiction of the courts
of the State of New York and the United States District Court located in the borough of Manhattan
in New York City.



9. Waiver of Immunity. To the extent that the Guarantor has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect
to the Guarantor or the Guarantor’s property, the Guarantor hereby irrevocably waives such immunity
in respect of the Guarantor’s obligations under this Guarantee.



10. Waiver of Jury Trial. The Guarantor hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Guarantee or the negotiation, administration or enforcement hereof.





 









 







11. Miscellaneous. Each reference herein to the Guarantor, any Beneficiary or Primary Obligor shall
be deemed to include their respective successors and assigns. The provisions hereof shall inure in
favor of each such successor or assign. This Guarantee (i) shall supersede any prior or
contemporaneous representations, statements or agreements, oral or written, made by or between the
parties with regard to the subject matter hereof, (ii) may be amended only by a written instrument
executed by the Guarantor and the Beneficiaries and (iii) may not be assigned by any party without
the prior written consent of the other parties, except in the case of a transfer by any Bank (other
than the Guarantor) of its rights and obligations under the Credit Agreement pursuant to Section
8.5 thereof.



12. Limitation of Liability. Notwithstanding anything to the contrary contained herein or in the
Credit Agreement, whether express or implied, Guarantor shall in no event be required to pay or be
liable to any Beneficiary for any consequential, indirect or punitive damages, opportunity costs or
lost profits.



13. Enforcement of Guarantee. Notwithstanding anything to the contrary contained herein or in the
Credit Agreement, the Guarantor acknowledges that any Beneficiary may enforce this Guarantee or
exercise any rights or remedies hereunder without the necessity of any other Beneficiary joining in
such enforcement or exercise.



IN WITNESS WHEREOF, the undersigned has executed this Guarantee as of the date first above written.




[NAME OF DIRECT OR INDIRECT PARENT

OF BANK]




	 	 	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 	Date: