ex4-1form8k9apr2012.htm






  





  


 





  



Exhibit 4.1
















 









CREDIT AGREEMENT


 


dated as of


 


April 5, 2012,


 


among


 


MARATHON OIL CORPORATION


 


The Lenders Party Hereto







THE ROYAL BANK OF SCOTLAND PLC,


 


as Syndication Agent,


 


CITIBANK, N.A.


 


MORGAN STANLEY SENIOR FUNDING, INC.


 


and


 


UBS SECURITIES LLC,


 


as Documentation Agents,


 


and


 


JPMORGAN CHASE BANK, N.A.,


 


as Administrative Agent


 


_________________________________


 


J.P. MORGAN SECURITIES LLC


 


RBS SECURITIES INC.


 


CITIGROUP GLOBAL MARKETS INC.


 


MORGAN STANLEY SENIOR FUNDING, INC.


 


and


 


UBS SECURITIES LLC,


 


as Arrangers and Bookrunners


 







 










 







 







 




  





  


 





  








TABLE OF CONTENTS


 


 


ARTICLE 1


 


 







 


 


Definitions


 



	
SECTION 1.01.

	
Definitions 

	1






	
SECTION 1.02.

	
Terms Generally 

	15






	
SECTION 1.03.

	
Accounting Terms and Determinations 

	15






	
SECTION 1.04.

	
Classification of Borrowings 

	16





 


ARTICLE 2


 


 







 


 


The Credits


 



	
SECTION 2.01.

	
Commitments to Lend 

	16






	
SECTION 2.02.

	
Notice of Revolving Borrowing 

	16






	
SECTION 2.03.

	
Swingline Loans 

	17






	
SECTION 2.04.

	
Letters of Credit 

	18






	
SECTION 2.05.

	
Notice to Lenders; Funding of Loans 

	23






	
SECTION 2.06.

	
Registry; Notes 

	24






	
SECTION 2.07.

	
Maturity of Loans 

	25






	
SECTION 2.08.

	
Interest Rates 

	25






	
SECTION 2.09.

	
Method of Electing Interest Rates 

	26






	
SECTION 2.10.

	
Fees 

	27






	
SECTION 2.11.

	
Termination or Reduction of Commitments 

	27






	
SECTION 2.12.

	
Optional Prepayments 

	28






	
SECTION 2.13.

	
General Provisions as to Payments 

	
28








	
SECTION 2.14.

	
Funding Losses 

	29






	
SECTION 2.15.

	
Computation of Interest and Fees 

	29






	
SECTION 2.16.

	
Change of Control 

	29






	
SECTION 2.17.

	
Optional Increase in Commitments 

	30






	
SECTION 2.18.

	
Extension Option 

	31






	
SECTION 2.19.

	
Defaulting Lenders 

	32





 


ARTICLE 3


 


 







 


 


Conditions


 



	
SECTION 3.01.

	
Effectiveness 

	
34








	
SECTION 3.02.

	
Borrowings and Issuances of Letters of Credit 

	
35








	
SECTION 3.03.

	
Existing Credit Agreement 

	
 36







 


ARTICLE 4


 


 







 


 


Representations and Warranties


 



	
SECTION 4.01.

	
Corporate Existence and Power 

	
36








	
SECTION 4.02.

	 Corporate and Governmental Authorization; Non-contravention	
36








	
SECTION 4.03.

	
Binding Effect 

	
36








	
SECTION 4.04.

	
Financial Information 

	
37








	
SECTION 4.05.

	
Litigation 

	
37








	
SECTION 4.06.

	
Environmental Matters 

	
37








	
SECTION 4.07.

	
Taxes 

	
37








	
SECTION 4.08.

	
Compliance with Laws 

	
37








	
SECTION 4.09.

	
ERISA 

	
37








	
SECTION 4.10.

	
Marathon 

	
37








	
SECTION 4.11.

	
Use of Proceeds 

	
38








	
SECTION 4.12.

	
Investment Company Status 

	
38







 


ARTICLE 5


 


 







 


 


Covenants


 



	
SECTION 5.01.

	
Information 

	
38








	
SECTION 5.02.

	
Consolidations and Mergers 

	
39








	
SECTION 5.03.

	
Negative Pledge 

	
40








	
SECTION 5.04.

	
Sale and Leaseback 

	
41








	
SECTION 5.05.

	
Maximum Consolidated Leverage Ratio 

	
42







 


ARTICLE 6


 


 







 


 


Defaults


 



	
SECTION 6.01.

	
Events of Default 

	
42








	
SECTION 6.02.

	
Notice of Default 

	
44








	
SECTION 6.03.

	
Cash Cover 

	
44







 


ARTICLE 7


 


 







 


 


The Administrative Agent


 



	
SECTION 7.01.

	
Appointment and Authorization 

	44






	
SECTION 7.02.

	
Administrative Agent and Affiliates 

	44






	
SECTION 7.03.

	
Action by Administrative Agent 

	44






	
SECTION 7.04.

	
Consultation with Experts 

	44






	
SECTION 7.05.

	
Liability of Administrative Agent 

	45






	
SECTION 7.06.

	
Indemnification 

	45






	
SECTION 7.07.

	
Credit Decision 

	45






	
SECTION 7.08.

	
Successor Administrative Agent 

	46






	
SECTION 7.09.

	
Administrative Agent’s Fee 

	46






	
SECTION 7.10.

	
Other Agents 

	46





 


ARTICLE 8


 


 







 


 


Change in Circumstances


 



	
SECTION 8.01.

	
Basis for Determining Interest Rate Inadequate or Unfair 

	46






	
SECTION 8.02.

	
Illegality 

	47






	
SECTION 8.03.

	
Increased Cost and Reduced Return 

	47






	
SECTION 8.04.

	
Base Rate Loans Substituted for Affected Euro-Dollar Loans 

	49






	
SECTION 8.05.

	
Taxes 

	49






	
SECTION 8.06.

	
Substitution of Lender 

	52






	
SECTION 8.07.

	
Notice Mandatory 

	53





 


ARTICLE 9


 


 







 


 


Miscellaneous


 



	
SECTION 9.01.

	
Notices 

	53






	
SECTION 9.02.

	
No Waivers 

	54






	
SECTION 9.03.

	
Expenses; Indemnification 

	55






	
SECTION 9.04.

	
Sharing 

	
56








	
SECTION 9.05.

	
Amendments and Waivers 

	56






	
SECTION 9.06.

	
Successors and Assigns 

	56






	
SECTION 9.07.

	
Survival 

	59






	
SECTION 9.08.

	
Governing Law; Submission to Jurisdiction 

	59






	
SECTION 9.09.

	
Counterparts; Integration 

	59






	
SECTION 9.10.

	
WAIVER OF JURY TRIAL 

	59






	
SECTION 9.11.

	
USA Patriot Act 

	59






	
SECTION 9.12.

	
No Fiduciary Relationship 

	60






	
SECTION 9.13.

	
Confidentiality 

	60






	
SECTION 9.14.

	
Non-Public Information 

	61




















SCHEDULES:







Pricing Schedule


Commitment Schedule








	
Exhibit A

	
-

	
Form of Assignment and Assumption Agreement








	
Exhibit B-1

	
-

	
Form of Opinion of Internal Counsel for the Borrower








	
Exhibit B-2

	
-

	
Form of Opinion of Baker Botts L.L.P., Counsel for the Borrower








	
Exhibit C

	
-

	
Form of U.S. Tax Certificate








	
Exhibit D

	-	
Form of Note






















 




  





  


 





  













CREDIT AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) dated as of April 5, 2012, among MARATHON OIL CORPORATION; the LENDERS party hereto; THE ROYAL BANK OF SCOTLAND PLC (“RBS”), as syndication agent; CITIBANK, N.A. (“Citibank”), MORGAN STANLEY SENIOR FUNDING, INC. (“MSSF”) and UBS SECURITIES LLC (“UBS Securities”), as documentation agents; and JPMORGAN CHASE BANK, N.A. (“JPMCB”), as administrative agent.


 


The parties hereto agree as follows:


 


ARTICLE 1                      


 







 


Definitions


 


SECTION 1.01. Definitions.  The following terms, as used herein, have the following meanings:


 


“Administrative Agent” means JPMCB, in its capacity as administrative agent for the Lenders hereunder, and its successors in such capacity.


 


“Administrative Questionnaire” means, with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent, completed by such Lender and returned to the Administrative Agent (with a copy to the Borrower).


 


“Adjusted London Interbank Offered Rate” means, with respect to any Euro-Dollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the London Interbank Offered Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.


 


“Agreement” has the meaning set forth in the preamble hereto.


 


“Applicable Euro-Dollar Margin” means, as of any date, a percentage per annum determined by reference to the Pricing Schedule.


 


“Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an affiliate of a Lender or (iii) an entity or an affiliate of an entity that administers or manages a Lender.


 


“Assignment and Assumption Agreement” means an Assignment and Assumption Agreement in substantially the form of Exhibit A hereto.


 


“Bankruptcy Event” means, with respect to any Person, that such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the 


 




  





 


 





  






 


2


good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment; provided, that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.


 


“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 1⁄2 of 1% and (c) the London Interbank Offered Rate for a one month Interest Period on such day (or if such day is not a Euro-Dollar Business Day, the immediately preceding Euro-Dollar Business Day) plus 1%; provided, that for purposes of this definition, the London Interbank Offered Rate for any day shall be based on the rate appearing on Page LIBOR01 of the Reuters screen (or on any successor or substitute page of such service, or any successor or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time on such day.  Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the London Interbank Offered Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or the London Interbank Offered Rate, respectively.


 


“Base Rate Loan” means a Loan that bears interest at a rate determined pursuant to Section 2.08(a) on the basis of the Base Rate pursuant to the applicable Notice of Revolving Borrowing, Notice of Swingline Borrowing, Notice of Interest Rate Election or Section 2.09(d) or Article 8.


 


“Base Rate Margin” has the meaning specified in the Pricing Schedule.


 


“Base Rate Revolving Loan” means a Revolving Loan that is a Base Rate Loan.


 


“Base Rate Swingline Loan” means a Swingline Loan that is a Base Rate Loan.


 


“Board” means the Board of Governors of the Federal Reserve System of the United States of America.


 


“Borrower” means Marathon Oil Corporation, a Delaware corporation, and its successors.


 


“Borrower’s 2011 Form 10-K” means the Borrower’s annual report on Form 10-K for 2011, as filed with the SEC pursuant to the Exchange Act.


 


 




  





 


 





  






3


 


“Borrowing” means (a) Revolving Loans of the same Type made, converted or continued on the same date and, in the case of Euro-Dollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.


 


“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (as GAAP was in effect on December 31, 2011), and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP (as GAAP was in effect on December 31, 2011).


 


“Change in Law” means the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption of any law, rule, regulation or treaty by any Governmental Authority, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 8.03(b), by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any rule, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all rules, guidelines or directives thereunder or issued in connection therewith and (ii) all rules, guidelines or directives concerning capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” to the extent enacted, adopted, promulgated or issued by any Governmental Authority or otherwise having the force of law, regardless of the date so enacted, adopted, promulgated or issued.


 


“Change of Control” has the meaning set forth in Section 2.16.


 


“Citibank” has the meaning set forth in the preamble hereto.


 


“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.


 


“Commitment” means (i) with respect to each Lender listed on the Commitment Schedule, the amount set forth opposite such Lender’s name on the Commitment Schedule, (ii) with respect to any financial institution which becomes a Lender pursuant to Section 2.17, the amount of the Commitment extended by it as of the applicable Increase Effective Date and (iii) with respect to any assignee which becomes a Lender pursuant to Section 9.06(b), the amount of the transferor Lender’s Commitment assigned to it pursuant to Section 9.06(b), in each case as such amount may be changed from time to time pursuant to Section 2.11, 2.17, 8.06(b) or 9.06(b); provided that, if the context so requires, the term “Commitment” means the obligation of a Lender to extend credit up to 


 




  





 


 





  






4


 


such amount to the Borrower hereunder. The aggregate amount of the Commitments as of the date hereof is $2,500,000,000.


 


“Commitment Fee Rate” has the meaning specified in the Pricing Schedule.


 


“Commitment Schedule” means the Commitment Schedule attached hereto.


 


“Consenting Lender” has the meaning specified in Section 2.18.


 


“Consolidated Capitalization” means, at any time, the sum of Consolidated Shareholders’ Equity of the Borrower and Consolidated Total Indebtedness.


 


“Consolidated Net Tangible Assets” means the aggregate value of all assets of the Borrower and its Subsidiaries on a consolidated basis after deducting therefrom (a) all current liabilities (excluding all long-term debt due within one year), (b) all investments in unconsolidated subsidiaries and all investments accounted for on the equity method and (c) all goodwill, patents and trademarks, unamortized debt discount and other intangibles (all determined in conformity with GAAP and calculated on a basis consistent with the Borrower’s most recent audited consolidated financial statements).


 


“Consolidated Shareholders’ Equity” means, at any time, (a) with respect to the Borrower, the consolidated shareholders’ equity of the Borrower, determined in accordance with GAAP in a manner consistent with that used to prepare the annual and quarterly financial statements filed by the Borrower with the SEC and (b) with respect to any other Person, the consolidated shareholders’ equity of such Person, determined in accordance with GAAP.


 


“Consolidated Total Indebtedness” means the total Indebtedness of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.


 


“Credit Event” has the meaning specified in Section 3.02.


 


“Credit Exposure” means, with respect to any Lender at any time, (i) the amount of its Commitment (whether used or unused) at such time or (ii) if the Commitments have terminated in their entirety, such Lender’s Outstanding Amount.


 


“Credit Party” means the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender.


 


“Declining Lender” has the meaning specified in Section 2.18.


 


“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.


 


“Defaulting Lender” means any Lender that (a) has failed, within three Domestic Business Days of the date required to be funded or paid, to (i) fund any portion of its Revolving Loans, unless such Lender notifies the Administrative Agent in writing that 


 


 




  





 


 





  






5


 


such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless (in the case of this clause (iii)) such Lender notifies the Administrative Agent in writing that such failure is the result of a good faith dispute with respect to the requirement to pay such amount, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Domestic Business Days after request by the Borrower, the Administrative Agent, an Issuing Bank or the Swingline Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Revolving Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the receipt by the Borrower, the Administrative Agent, the applicable Issuing Bank or the Swingline Lender, as the case may be, of such certification (with a copy to the Administrative Agent if the Administrative Agent shall not have been the requesting party), or (d) has become the subject of a Bankruptcy Event.


 


“Documentation Agents” means Citibank, MSSF and UBS Securities, in their capacity as documentation agents in connection with the credit facility provided under this Agreement.


 


“dollars” or “$” refers to lawful money of the United States of America.


 


“Domestic Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.


 


“Effective Date” means the date the Commitments become effective in accordance with Section 3.01.


 


“Eligible Assignee” means (i) any Lender other than a Defaulting Lender; (ii) an affiliate of any Lender other than a Defaulting Lender; (iii) an Approved Fund; and (iv) any other Person (other than the Borrower (or any of its Subsidiaries or affiliates), a natural Person or a Person that would be a Defaulting Lender upon effectiveness of the applicable assignment) approved by the Administrative Agent, each Issuing Bank, the Swingline Lender and, unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld, conditioned or delayed).  If the consent of the Borrower to an assignment to an Eligible Assignee is required hereunder (including a consent to an assignment which does not meet the minimum assignment thresholds specified in paragraph (b)(i) of Section 9.06), the Borrower shall be deemed to have given its consent ten Domestic Business Days after the date notice 


 


 




  





 


 





  






6


 


thereof has been delivered by the assigning Lender (through the Administrative Agent) and receipt thereof has been acknowledged by the Borrower, unless such consent is expressly refused by the Borrower prior to such tenth Domestic Business Day.


 


“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, or any successor statute as amended from time to time, and the regulations promulgated and rulings thereunder.


 


“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.


 


“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.


 


“Euro-Dollar Business Day” means any Domestic Business Day on which commercial banks are open for international business (including dealings in dollar deposits) in London.


 


“Euro-Dollar Loan” means a Loan that bears interest at a Euro-Dollar Rate pursuant to the applicable Notice of Revolving Borrowing or Notice of Interest Rate Election.


 


“Euro-Dollar Margin” has the meaning specified in the Pricing Schedule.


 


“Euro-Dollar Rate” means a rate of interest determined pursuant to Section 2.08(c) on the basis of the Adjusted London Interbank Offered Rate.


 


“Events of Default” has the meaning specified in Section 6.01.


 


“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.


 


 




  





 


 





  






7


 


“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be deducted or withheld from a payment to or for the account of a Recipient:  (a) franchise Taxes or Taxes imposed on (or measured by) net income (however denominated) or net profits, in each case, imposed by the United States of America (or any state or political subdivision thereof), or by the jurisdiction under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits Taxes imposed by the United States of America or any similar Taxes imposed by any other jurisdiction described in clause (a) above, (c) in the case of any Recipient (other than an assignee pursuant to a request by the Borrower under Section 8.06(b)), any U.S. Federal Taxes (including withholding Taxes) resulting from any law in effect on the date such Recipient becomes a party to this Agreement (or designates a new lending office), except to the extent that such Recipient (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such Taxes pursuant to Section 8.05(a), (d) Taxes attributable to such Recipient’s failure to comply with Section 8.05(f) or 8.05(g), (e) any Taxes imposed under FATCA, (f) any U.S. Federal backup withholding Taxes, and (g) Other Connection Taxes.


 


“Existing Credit Agreement” means the Credit Agreement dated as of May 20, 2004 (as amended to the date hereof) among the Borrower and the lenders, agents and other parties thereto.


 


“Existing Termination Date” has the meaning specified in Section 2.18.


 


“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version of such provisions that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.


 


“Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) 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 Domestic Business Day next succeeding such day; provided that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day and (ii) if no such rate is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Administrative Agent on such day for such transactions as determined in good faith by the Administrative Agent.


 


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


 


 




  





 


 





  






8


 


“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.


 


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


 


“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.


 


“Increase Effective Date” has the meaning specified in Section 2.17.


 


“Increasing Lender” has the meaning specified in Section 2.17.


 


“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable and accrued liabilities incurred in the ordinary course of business and (ii) amounts which are being contested in good faith and for which reserves in conformity with GAAP have been provided), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, but only to the extent of such property’s fair market value, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of (i) all letters of credit or letters of guaranty issued to support Indebtedness of any Person and (ii) other drawn letters of credit and letters of guaranty that have been called upon and (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances.  The Indebtedness of any Person shall include the Indebtedness of any other 


 


 




  





 


 





  






9


 


entity (including any partnership in which such Person is a general partner) to the extent such Person is legally liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  The Indebtedness of any Person shall not include endorsements of checks, bills of exchange and other instruments for deposit or collection in the ordinary course of business.


 


“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by the Borrower hereunder and (b) to the extent not otherwise described in clause (a) of this definition, Other Taxes.


 


“Indemnitee” has the meaning specified in Section 9.03(b).


 


“Initial Loans” has the meaning specified in Section 2.17.


 


“Interest Period” means, with respect to each Euro-Dollar Borrowing, the period commencing on the date of borrowing specified in the applicable Notice of Revolving Borrowing or on the date specified in an applicable Notice of Interest Rate Election and ending one, two, three or six months thereafter, as the Borrower may elect in such notice; provided that: (i)  any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business Day, (ii) any Interest Period which begins on the last Euro-Dollar 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, subject to clause (iii) below, end on the last Euro-Dollar Business Day in a calendar month and (iii)  no Interest Period shall end after the Termination Date.


 


“Issuing Bank” means (i) each of JPMCB, RBS, Citibank, MSSF and UBS AG, Stamford Branch, and (ii) any other Lender designated by the Borrower that may agree to issue Letters of Credit hereunder pursuant to an instrument in form reasonably satisfactory to the Administrative Agent, each in its capacity as an issuer of a Letter of Credit hereunder.  Each Issuing Bank may arrange for one or more Letters of Credit to be issued by affiliates of such Issuing Bank (subject to the consent of the Borrower in the case of any affiliate that is not a U.S. Person), in which case the term “Issuing Bank” shall, for all purposes of this Agreement, include any such affiliate with respect to Letters of Credit issued by such affiliate (it being agreed that such Issuing Bank shall, and shall cause such affiliate to, comply with all obligations of an Issuing Bank under this Agreement); provided that, for purposes of the definition of “Excluded Taxes,” such affiliate shall be deemed to have become a party to this Agreement on the date such affiliate issues a Letter of Credit.


 


“JPMCB” has the meaning set forth in the preamble hereto.


 


“Lender” means (i) each bank or other institution listed on the Commitment Schedule, (ii) each financial institution which becomes a Lender pursuant to Section 2.17, 


 


 




  





 


 





  






10


 


(iii) each assignee which becomes a Lender pursuant to Section 9.06(b) and (iv) their respective successors, other than any such Person that has ceased to be a Lender as a result of one or more assignments pursuant to Section 9.06(b) or as otherwise provided herein.


 


“Letter of Credit” means a letter of credit issued hereunder by an Issuing Bank.


 


“Letter of Credit Commitment” means, (i) as to each of JPMCB, RBS, Citibank, MSSF and UBS AG, Stamford Branch, $100,000,000, and (ii) as to each other Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit pursuant to Section 2.04 as set forth in the instrument under which such Issuing Bank became an Issuing Bank.


 


“Letter of Credit Liabilities” means, for any Lender at any time, such Lender’s ratable participation in the sum of (x) the aggregate amount then owing by the Borrower in respect of amounts paid by the Issuing Banks upon drawings under Letters of Credit issued hereunder and (y) the aggregate amount then available for drawing under all outstanding Letters of Credit.


 


“Letter of Credit Termination Date” means the fifth Domestic Business Day prior to the Termination Date.


 


“Loan” means a Revolving Loan or a Swingline Loan.


 


“London Interbank Offered Rate” means, for any Interest Period, the rate appearing on Page LIBOR01 of the Reuters screen (or on any successor or substitute page of such service, or any successor or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Euro-Dollar Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period.  In the event that such rate is not available at such time for any reason, then the “London Interbank Offered Rate” for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.


 


“Material Adverse Change” means any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.


 


“Material Adverse Effect” means a material adverse effect on (a) the business, operations, property or financial condition of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of the Borrower to perform its obligations under this Agreement or (c) the rights and remedies of the Administrative Agent and the Lenders hereunder.


 


 




  





 


 





  






11


 


“MNPI” means material information concerning the Borrower, any Subsidiary or any affiliate of any of the foregoing or their securities that has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD under the Securities Act and the Exchange Act.  For purposes of this definition, “material information” means information concerning the Borrower, the Subsidiaries or any affiliate of any of the foregoing, or any of their securities, that could reasonably be expected to be material for purposes of the United States federal and state securities laws.


 


“Money Market Rate” means (a) the “ASK” rate for Federal Funds appearing on the applicable Reuters screen (or on any successor or substitute for such screen, providing rate quotations comparable to those currently provided on such screen, as determined by the Swingline Lender from time to time for purposes of providing quotations of the offer rates applicable to Federal Funds for a term of one Domestic Business Day) at the time reviewed by the Swingline Lender plus (b) the Euro-Dollar Margin.  In the event that part (a) of such rate is not available at such time for any reason, then part (a) of such rate will be the rate agreed to between the Swingline Lender and the Borrower (or, in the absence of such agreement, a rate reasonably determined by the Swingline Lender and communicated to the Borrower). The Borrower understands and agrees that the rate quoted from such applicable Reuters screen is a real-time rate that changes from time to time.  The rate quoted by the Swingline Lender and used for the purpose of setting the interest rate for any Swingline Loan bearing interest at the Money Market Rate will be the rate on the screen of the Swingline Lender at the time of setting the rate and will not be an average or composite of rates for that day.


 


“Money Market Rate Loan” means a Swingline Loan that bears interest at a rate determined pursuant to Section 2.08(b) on the basis of the Money Market Rate pursuant to the applicable Notice of Swingline Borrowing.


 


“Moody’s” means Moody’s Investors Service, Inc., or any successor to the rating agency business thereof.


 


“Mortgage” has the meaning set forth in Section 5.03.


 


“MSSF” has the meaning set forth in the preamble hereto.


 


“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“Non-U.S. Lender” means a Lender that is not a U.S. Person.


 


“Notice of Interest Rate Election” has the meaning specified in Section 2.09(a).


 


“Notice of Issuance” has the meaning specified in Section 2.04(b).


 


“Notice of Revolving Borrowing” has the meaning specified in Section 2.02.


 


“Notice of Swingline Borrowing” has the meaning specified in Section 2.03.


 


 




  





 


 





  






12


 


“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising solely from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, this Agreement, or sold or assigned an interest in this Agreement).


 


“Other Taxes” means any present or future stamp, court, documentary, intangible, recording, filing or similar excise or property Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the registration, receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, except any such Taxes that are imposed with respect to an assignment (other than an assignment under Section 8.06(b)).


 


“Outstanding Amount” means, with respect to any Lender at any time, the sum of (i) the aggregate outstanding principal amount of its Revolving Loans at such time and (ii) the aggregate amount of its Letter of Credit Liabilities at such time and (iii) the aggregate amount of its Swingline Liabilities at such time, all determined at such time after giving effect to any prior assignments by or to such Lender pursuant to Section 9.06(b).


 


“Participant” has the meaning specified in Section 9.06(g).


 


“Participant Register” has the meaning specified in Section 9.06(d).


 


“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor performing similar functions.


 


“Percentage” means, with respect to any Lender at any time, the percentage of the aggregate amount of all the Commitments represented by such Lender’s Commitment at such time.  At any time after the Commitments shall have terminated, the term “Percentage” shall refer to a Lender’s Percentage immediately before such termination, adjusted to reflect any subsequent assignments pursuant to Section 9.06(b).


 


“Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.


 


“Plan” means, at any time, an employee pension benefit plan (other than a Multiemployer Plan) subject to Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Pricing Schedule” means the Pricing Schedule attached hereto.


 


 




  





 


 





  






13


 


“Prime Rate” means the rate of interest publicly announced by JPMCB in New York City from time to time as its Prime Rate.


 


“Quarterly Payment Dates” means each March 31, June 30, September 30 and December 31.


 


“RBS” has the meaning set forth in the preamble hereto.


 


“Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank.


 


“Register” has the meaning specified in Section 9.06(c).


 


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


 


“Reimbursement Obligation” has the meaning specified in Section 2.04(c).


 


“Required Lenders” means, at any time, subject to Section 2.19, Lenders having more than 50% in aggregate amount of the Credit Exposures at such time.


 


“Revolving Credit Period” means the period from and including the Effective Date to but not including the Termination Date.


 


“Revolving Borrowing” means a Borrowing consisting of Revolving Loans.


 


“Revolving Loan” means a loan made by a Lender pursuant to Section 2.01; provided, that if any such loan or loans (or portions thereof) are combined or subdivided pursuant to a Notice of Interest Rate Election, the term “Loan” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.


 


“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof.


 


“SEC” means the Securities and Exchange Commission.


 


“Specified Oil and Gas Property” means any property interest in oil and gas reserves located in the United States owned by the Borrower or any Subsidiary which is capable of producing crude oil, condensate, natural gas, natural gas liquids or other similar hydrocarbon substances in paying quantities, the net book value of which property interest or interests exceeds 2% of Consolidated Net Tangible Assets, except any such property interest or interests that in the opinion of the Board of Directors of the Borrower is not of material importance to the business conducted by the Borrower and its Subsidiaries, taken as a whole.


 


“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one 


 


 




  





 


 





  






14


 


minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such reserve percentages shall include those imposed pursuant to such Regulation D.  Euro-Dollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.


 


“Subsequent Borrowings” has the meaning specified in Section 2.17.


 


“Subsidiary” means, as to any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person. Unless otherwise specified, “Subsidiary” means a Subsidiary of the Borrower.


 


“Swingline Lender” means JPMCB, in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Liabilities” means, with respect to any Lender at any time, such Lender’s Percentage of the aggregate principal amount of all Swingline Loans outstanding at such time.


 


“Swingline Loan” has the meaning specified in Section 2.03(a).


 


“Syndication Agent” means The Royal Bank of Scotland plc, in its capacity as syndication agent in connection with the credit facility provided under this Agreement.


 


“Taxes” means any present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.


 


“Termination Date” means April 5, 2017, or such later date to which the Termination Date may be extended pursuant to Section 2.18, or if any such date is not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.


 


“Total Outstanding Amount” means, at any time, the sum of (i) the aggregate outstanding principal amount of the Loans at such time and (ii) the aggregate Letter of Credit Liabilities of all Lenders at such time, determined after giving effect, if one or more Loans are being made at such time, to any substantially concurrent application of the proceeds thereof to repay one or more other Loans.


 


“Type” refers to the determination whether a Loan is a Base Rate Loan or a Euro-Dollar Loan.


 


 




  





 


 





  






15


 


“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.


 


“U.S. Tax Certificate” has the meaning specified in Section 8.05(f)(ii)(D).


 


“UBS Securities” has the meaning set forth in the preamble hereto.


 


“Voting Power” has the meaning set forth in Section 2.16(a).


 


“Voting Stock” has the meaning set forth in Section 2.16(a).


 


“Withholding Agent” means the Borrower and the Administrative Agent.


 


“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.


 


SECTION 1.02. Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including intellectual property, cash, securities, accounts and contract rights, (f) with respect to the determination of any period of time, the word “from” means “from and including” and the word “to” means “to but excluding” and (g) reference to any law, rule or regulation means such as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time.


 


SECTION 1.03. Accounting Terms and Determinations.  Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with generally accepted accounting principles in the United States of America as in effect from time to time, applied on a basis consistent (except for changes concurred in by the Borrower’s independent public accountants) with the most recent audited consolidated financial statements of the Borrower delivered to the Administrative Agent; provided that if the Borrower, by notice to the Administrative Agent, shall request an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Required 


 




  





 


 





  






16


 


Lenders, by notice from the Administrative Agent to the Borrower, shall request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith in a manner satisfactory to the Borrower and the Required Lenders.  Notwithstanding any other provision contained herein, (a) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein, and (b) GAAP will be deemed for all purposes hereof to treat leases that would have been classified as operating leases in accordance with generally accepted accounting principles in the United States of America as in effect on December 31, 2011, in a manner consistent with the treatment of such leases under generally accepted accounting principles in the United States of America as in effect on December 31, 2011, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.


 


SECTION 1.04. Classification of Borrowings.  For purposes of this Agreement, Borrowings may be classified and referred to by the Types of Loans comprising such Borrowings (e.g., a Euro-Dollar Borrowing is a Borrowing comprised of Euro-Dollar Loans and a Base Rate Revolving Borrowing is a Revolving Borrowing comprised of Base Rate Loans).


 


ARTICLE 2                      


 







 


The Credits


 


SECTION 2.01. Commitments to Lend.  Each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Revolving Loans to the Borrower from time to time during the Revolving Credit Period in dollars; provided that, immediately after each such Loan is made:


 


(i) such Lender’s Outstanding Amount shall not exceed its Commitment; and


 


(ii) the Total Outstanding Amount shall not exceed the aggregate amount of the Commitments.


 


Each Borrowing under this Section shall be in an aggregate principal amount of $10,000,000 or any larger integral multiple of $5,000,000 (except that any such Borrowing may be in the aggregate amount available within the limitations in the foregoing proviso) and shall be made from the several Lenders ratably in proportion to their respective Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.


 


SECTION 2.02. Notice of Revolving Borrowing.  To request a Revolving Borrowing, the Borrower shall deliver a notice (a “Notice of Revolving Borrowing”) to the 


 




  





 


 





  






17


 


Administrative Agent by telephone or fax (and, in the case of telephonic notice, promptly confirmed by hand delivery or fax) (y) in the case of a Base Rate Revolving Borrowing, not later than 1:00 P.M. (New York City time) on the date of such Base Rate Revolving Borrowing and (z) in the case of a Eurodollar Revolving Borrowing, not later than 1:00 P.M. (New York City time) on the third Euro-Dollar Business Day before such Euro-Dollar Revolving Borrowing, specifying:


 


(a) the date of such Revolving Borrowing, which shall be a Domestic Business Day in the case of a Base Rate Revolving Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Revolving Borrowing;


 


(b) the aggregate amount of such Revolving Borrowing;


 


(c) whether the Loans comprising such Revolving Borrowing are to bear interest initially at the Base Rate or a Euro-Dollar Rate; and


 


(d) in the case of a Euro-Dollar Revolving Borrowing, the duration of the initial Interest Period applicable thereto, subject to the provisions of the definition of Interest Period.


 


SECTION 2.03.   Swingline Loans.  (a)  Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make loans to the Borrower (each such loan, a “Swingline Loan”) from time to time during the Revolving Credit Period in dollars, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $100,000,000 or (ii) the Total Outstanding Amount exceeding the aggregate amount of the Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan.  Each Swingline Loan shall be in an aggregate principal amount that is an integral multiple of $1,000,000.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.


 


(b) To request a Swingline Loan, the Borrower shall deliver a notice (a “Notice of Swingline Borrowing”) to the Administrative Agent by telephone or fax (and, in the case of telephonic notice, promptly confirmed by hand delivery or telecopy), not later than 2:00 P.M. (New York City time), on the day of a proposed Swingline Loan.  Each such notice shall be irrevocable and shall specify the requested date (which shall be a Domestic Business Day) and amount of the requested Swingline Loan and whether such Swingline Loan is to be a Base Rate Loan or a Money Market Rate Loan.  The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of any amounts paid by any Issuing Bank upon any drawing under any Letter of Credit as provided in Section 2.04(c), by remittance to such Issuing Bank) by 3:00 P.M. (New York City time), on the requested date of such Swingline Loan.


 


(c) The Swingline Lender may, by written notice given to the Administrative Agent not later than 10:00 A.M. (New York City time), on any Domestic Business Day, require 


 


 




  





 


 





  






18


 


the Lenders to acquire participations on such Domestic Business Day in all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.  Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Percentage of such Swingline Loan or Loans.  Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Percentage of such Swingline Loan or Loans.  Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders.  The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided, that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.


 


SECTION 2.04. Letters of Credit.  (a)  Commitment to Issue Letters of Credit.  Subject to the terms and conditions hereof (and to the terms and conditions of any separate agreement between the Borrower and any Issuing Bank limiting the types of Letters of Credit to be issued by such Issuing Bank), each Issuing Bank agrees to issue Letters of Credit in dollars from time to time before the Letter of Credit Termination Date upon the request of the Borrower; provided that, immediately after each Letter of Credit is issued, (i) the Total Outstanding Amount shall not exceed the aggregate amount of the Commitments, (ii) the aggregate Letter of Credit Liabilities attributable to Letters of Credit issued by such Issuing Bank will not exceed the Letter of Credit Commitment of such Issuing Bank and (iii) the aggregate amount of the Letter of Credit Liabilities shall not exceed $500,000,000. Upon the date of issuance by an Issuing Bank of a Letter of Credit, the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, a participation in such Letter of Credit and the related Letter of Credit Liabilities in the proportion its Commitment bears to the aggregate Commitments.


 


 




  





 


 





  






19


 


(b) Method for Issuance; Terms; Extensions.  (i)  To request the issuance of a Letter of Credit by any Issuing Bank (or the renewal or extension of an outstanding Letter of Credit issued by any Issuing Bank), the Borrower shall give such Issuing Bank notice at least three Domestic Business Days (or such other period as such Issuing Bank and the Borrower may agree) prior to the requested date of issuance (or, in the case of renewal or extension, prior to the Issuing Bank’s deadline for notice of nonextension) specifying the date such Letter of Credit is to be issued, renewed or extended and describing the terms of such Letter of Credit (such notice, including any such notice given in connection with the extension of a Letter of Credit, a “Notice of Issuance”). Upon receipt of a Notice of Issuance, the applicable Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Lender of the contents thereof and of the amount of such Lender’s participation in such Letter of Credit.


 


(ii) The obligation of the applicable Issuing Bank to issue each Letter of Credit shall, in addition to the conditions precedent set forth in Section 3.02, be subject to the conditions precedent that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to such Issuing Bank and that the Borrower shall have executed and delivered such other customary instruments and agreements (which may include a letter of credit application) relating to such Letter of Credit as such Issuing Bank shall have reasonably requested. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. The Borrower shall also pay to each Issuing Bank for its own account issuance, drawing, amendment, settlement and extension charges, if any, in the amounts and at the times as agreed between the Borrower and such Issuing Bank.


 


(iii) The extension or renewal of any Letter of Credit shall be deemed to be an issuance of such Letter of Credit, and if any Letter of Credit contains a provision pursuant to which it is deemed to be extended unless notice of termination is given by the Issuing Bank, the Issuing Bank shall timely give such notice of termination unless it has theretofore timely received a Notice of Issuance and the other conditions to issuance of a Letter of Credit have also theretofore been met with respect to such extension. Each Letter of Credit shall expire at or before the close of business on the date that is one year after such Letter of Credit is issued (or, in the case of any renewal or extension thereof, one year after such renewal or extension); provided that (i) a Letter of Credit may contain a provision pursuant to which it is deemed to be extended on an annual basis unless notice of termination is given by the Issuing Bank and (ii) in no event will a Letter of Credit expire (including pursuant to a renewal or extension thereof) on a date later than the Letter of Credit Termination Date.


 


(c) Payments; Reimbursement Obligations.  (i)  Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable  Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall promptly notify the Borrower and each other Lender as to the amount to be paid as a result of such demand or drawing and the date such payment is to be made by the Issuing Bank (the


 




  





 


 





  




20


 


 “Payment Date”). The Borrower shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank for any amounts paid by the Issuing Bank upon any drawing under any Letter of Credit, without presentment, demand, protest or other formalities of any kind. Such reimbursement shall be made not later than 2:00 P.M. (New York City time) on the Payment Date, if the Borrower shall have received notice of its obligation to make such payment prior to 10:00 A.M. (New York City time) on the Payment Date, or, if such notice has not been received by the Borrower prior to such time on the Payment Date, then not later than 2:00 P.M. (New York City time) on (A) the Domestic Business Day that the Borrower receives such notice, if such notice is received prior to 10:00 A.M. (New York City time) on the day of receipt, or (B) the Domestic Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; provided that if and to the extent any such reimbursement is not made by the Borrower in accordance with this clause (i) or clause (ii) below on the Payment Date, then (irrespective of when notice thereof is received by the Borrower), such reimbursement obligation shall bear interest, payable on demand, for each day from and including the Payment Date to but excluding the date such reimbursement obligation is paid in full at a rate per annum equal to the rate applicable to Base Rate Loans for such day.




 


(ii) If the Commitments are in effect on any Payment Date, all such amounts paid by the applicable Issuing Bank on such Payment Date and remaining unpaid by the Borrower after the date and time required by Section 2.04(c)(i) (a “Reimbursement Obligation”) shall, if and to the extent that the amount of such Reimbursement Obligation would be permitted as a Borrowing of Loans pursuant to Section 3.02, and unless the Borrower otherwise instructs the Administrative Agent by not less than one Domestic Business Day’s prior notice, convert automatically to Base Rate Loans on the date such Reimbursement Obligation arises. The Administrative Agent shall, on behalf of the Borrower (which hereby irrevocably directs the Administrative Agent so to act on its behalf), give notice no later than 12:00 Noon (New York City time) on such date requesting each Lender to make, and each Lender hereby agrees to make, a Base Rate Loan, in an amount equal to such Lender’s Percentage of the Reimbursement Obligation to which such notice relates. Each Lender shall make such Loan available to the Administrative Agent at its address referred to in Section 9.01 in immediately available funds, not later than 2:00 P.M. (New York City time), on the date specified in such notice. The Administrative Agent shall pay the proceeds of such Loans to the applicable Issuing Bank, which shall immediately apply such proceeds to repay the Reimbursement Obligation.


 


(iii) To the extent the Reimbursement Obligation is not refunded by a Lender pursuant to clause (ii) above, such Lender will pay to the Administrative Agent, for the account of the applicable Issuing Bank, immediately upon such Issuing Bank’s demand at any time during the period commencing after such Reimbursement Obligation arises until reimbursement thereof in full by the Borrower, an amount equal to such Lender’s Percentage of such Reimbursement Obligation, together with interest on such amount for each day from the date of the Issuing Bank’s demand for such payment (or, if such demand is made after 1:00 P.M. (New York City time) on such date, from the next succeeding Domestic Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for the first three 


 


 




  





 


 





  






21


 


Domestic Business Days after the date of such demand and thereafter at a rate per annum equal to the Base Rate for each additional day. The Issuing Bank receives such payment as agent for and for the account of each Lender and will pay to each Lender ratably all amounts received from the Borrower for application in payment of its Reimbursement Obligations in respect of any Letter of Credit, but only to the extent such Lender has made payment to the Issuing Bank in respect of such Letter of Credit pursuant hereto; provided that in the event such payment received by the Issuing Bank is required to be returned, such Lender will return to the Issuing Bank any portion thereof previously distributed to it by the Issuing Bank.


 


(d) Obligations Absolute.  The obligations of the Borrower and each Lender under subsection (c) above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including the following circumstances:


 


(i) any lack of validity or enforceability of this Agreement or any Letter of Credit or any document related hereto or thereto;


 


(ii) any amendment or waiver of or any consent to departure from all or any of the provisions of this Agreement or any Letter of Credit or any document related hereto or thereto, provided by any party affected thereby;


 


(iii) the use which may be made of the Letter of Credit by, or any acts or omissions of, a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting);


 


(iv) the existence of any claim, set-off, defense or other rights that the Borrower may have at any time against a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting), any Lender (including the Issuing Bank) or any other Person, whether in connection with this Agreement or the Letter of Credit or any document related hereto or thereto or any unrelated transaction;


 


(v) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;


 


(vi) payment under a Letter of Credit against presentation to the Issuing Bank of documents that do not comply with the terms of such Letter of Credit;


 


(vii) any termination of the Commitments prior to, on or after the Payment Date for any Letter of Credit, whether at the scheduled termination thereof, by operation of Section 6.01 or otherwise; or


 


(viii) any other act or omission to act or delay of any kind by any Lender (including the Issuing Bank), the Administrative Agent or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this subsection (viii), constitute a legal or equitable discharge of or defense to the Borrower’s or the Lender’s obligations hereunder;


 


 




  





 


 





  






22


 


provided, that this Section 2.04(d) shall not limit the rights of the Borrower under Section 2.04(e)(ii).


 


(e) Indemnification; Expenses.  (i)  The Borrower hereby indemnifies and holds harmless each Lender (including each Issuing Bank) and the Administrative Agent from and against any and all claims, damages, losses, liabilities, costs or expenses (other than Taxes) which it may reasonably incur in connection with a Letter of Credit issued pursuant to this Section 2.04; provided that the Borrower shall not be required to indemnify any Lender (including any Issuing Bank) or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent finally determined by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of such Person or by such Person’s material breach of the express terms of this Agreement.


 


(ii) None of the Lenders (including any Issuing Bank) or the Administrative Agent or any of their officers or directors or employees or agents shall be liable or responsible by reason of or in connection with the execution and delivery or transfer of or payment or failure to pay under any Letter of Credit, including any of the circumstances enumerated in subsection (d) above; provided that, notwithstanding Section 2.04(d), the Borrower shall have a claim for direct (but not indirect, consequential or punitive) damages suffered by it, to the extent finally determined by a court of competent jurisdiction to have been caused by (x) the Issuing Bank’s gross negligence or willful misconduct in determining whether documents presented under any Letter of Credit complied with the terms of such Letter of Credit or (y) the Issuing Bank’s failure to pay under any Letter of Credit after the presentation to it of documents strictly complying with the terms and conditions of the Letter of Credit. The parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.


 


(iii) Nothing in this subsection (e) is intended to limit the obligations of the Borrower under any other provision of this Agreement. To the extent the Borrower does not indemnify an Issuing Bank as required by this subsection, the Lenders agree to do so ratably in accordance with their Commitments.


 


(f) Stop Issuance Notice.  If the Required Lenders reasonably determine at any time that the conditions set forth in Section 3.02 would not be satisfied in respect of the issuance of a Letter of Credit at such time, then the Required Lenders may request that the Administrative Agent issue a “Stop Issuance Notice”, and the Administrative Agent shall issue such notice to each Issuing Bank. Such Stop Issuance Notice shall be withdrawn upon a determination by the Required Lenders that the circumstances giving rise thereto no longer exist. No Letter of Credit shall be issued while a Stop Issuance Notice is in effect. The Required Lenders may request issuance of a Stop Issuance Notice only if there is a reasonable basis therefor, and shall consider reasonably and in good faith a request from the Borrower for withdrawal of the same on the basis that the conditions in Section 3.02 are satisfied, provided 


 


 




  





 


 





  




23


 


that the Administrative Agent and the Issuing Banks may and shall conclusively rely upon any Stop Issuance Notice while it remains in effect.




 


(g) Termination of an Issuing Bank.  The Borrower may terminate the status of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent.  Any such termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th Domestic Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Letter of Credit Liabilities attributable to Letters of Credit issued by such Issuing Bank (or its affiliates) shall have been reduced to zero or cash collateralized (in an amount equal to 100% of such Letter of Credit Liabilities) in a manner approved in writing by such Issuing Bank, or other arrangements with respect to such Letter of Credit Liabilities approved in writing by such Issuing Bank shall have been made.  At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.10(b).  Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit.


 


(h) Issuing Bank Reports to the Administrative Agent.  Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be reasonably requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each day on which such Issuing Bank makes any payment under a Letter of Credit, the date and amount of such payment, (iv) on any Business Day on which the Borrower fails to reimburse any amount required to be reimbursed to such Issuing Bank on such day in respect of a drawing under a Letter of Credit, the date of such failure and the amount due but not paid and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.


 


SECTION 2.05. Notice to Lenders; Funding of Loans.  (a)  Promptly after receiving a Notice of Revolving Borrowing, the Administrative Agent shall notify each Lender of the contents thereof and of such Lender’s share of such Revolving Borrowing and such Notice of Revolving Borrowing shall not thereafter be revocable by the Borrower.


 


(b) Before the later of 12:00 Noon (New York City time) or three hours after the receipt of a Borrowing Request on the date of each Revolving Borrowing, each Lender participating therein shall make available its share of such Borrowing, in Federal or other funds immediately available in New York City, to the Administrative Agent at its address specified in 


 




  





 


 





  




24


 


or pursuant to Section 9.01. Unless the Administrative Agent determines that any applicable condition specified in Article 3 has not been satisfied, the Administrative Agent will make the funds so received from the Lenders available to the Borrower at the Administrative Agent’s aforesaid address.




 


(c) Unless the Administrative Agent shall have received notice from a Lender before 12:00 Noon (New York City time) on the date of any Revolving Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of any such Borrowing, the Administrative Agent may assume that such Lender has made such share available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.05(b) and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such share available to the Administrative Agent, such Lender and, if such Lender shall not have done so within five Domestic Business Days of demand therefor by the Administrative Agent, the Borrower, each agrees to pay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) if such amount is repaid by the Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the interest rate applicable to such Borrowing pursuant to Section 2.08 and (ii) if such amount is repaid by such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, the Borrower shall not be required to repay such amount and the amount so repaid by such Lender shall constitute such Lender’s Revolving Loan included in such Borrowing for purposes of this Agreement. Nothing in this subsection (c) shall relieve any Lender of its obligation to make Loans in accordance with the terms and conditions of this Agreement or relieve any Lender from responsibility for default by it in such obligation.


 


SECTION 2.06. Registry; Notes.  (a)  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Revolving Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.


 


(b) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Revolving Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.


 


(c) The entries made in the accounts maintained pursuant to paragraph (a) or (b) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.


 


(d) Any Lender may request that Loans made by it be evidenced by a promissory note.  In such event, the Borrower shall prepare, execute and deliver to such Lender a 


 


 




  





 


 





  




25


 


promissory note payable to such Lender and its registered assigns and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.06(b)) be represented by one or more promissory notes in such form payable to the payee named therein and its registered assigns.




 


SECTION 2.07. Maturity of Loans.    (a)  Each Revolving Loan shall mature, and the principal amount thereof shall be due and payable (together with interest accrued thereon), on the Termination Date.


 


(b) Each Swingline Loan shall mature, and the principal amount thereof shall be due and payable (together with interest accrued thereon), on the earlier of the Termination Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Domestic Business Days after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans that were outstanding on the date such Borrowing was requested.


 


SECTION 2.08. Interest Rates.  (a)  Each Base Rate Loan (including each Base Rate Swingline Loan) shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made to but excluding the date it becomes due, at a rate per annum equal to the sum of the Base Rate Margin for such day plus the Base Rate for such day.


 


(b) Each Money Market Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made to but excluding the date it becomes due, at a rate per annum equal to the Money Market Rate for such day.


 


(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for each day during each Interest Period applicable thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such day plus the Adjusted London Interbank Offered Rate applicable to such Interest Period.


 


(d) Interest on each Base Rate Revolving Loan shall be payable quarterly in arrears on each Quarterly Payment Date and on the Termination Date.  Interest on each Swingline  Loan shall be payable in arrears on the date on which such Loan becomes due and payable.  Interest on each Euro-Dollar Loan shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof and, with respect to the principal amount of any Euro-Dollar Loan that is prepaid or converted to a Base Rate Loan, on the date of such prepayment or conversion.


 


(e) Any overdue principal of and interest on any Loan shall bear interest, payable on demand, for each day from and including the date payment thereof was due to but excluding the date of actual payment, at a rate per annum equal to the sum of 2% plus the interest rate applicable to Base Rate Loans for such day.


 


(f) The Administrative Agent shall determine each interest rate applicable to the Loans hereunder in accordance with the terms hereof. The Administrative Agent shall promptly notify the Borrower and the participating Lenders of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error.


 


 




  





 


 





  






26


 


SECTION 2.09. Method of Electing Interest Rates.  (a)  The Loans included in each Revolving Borrowing shall bear interest initially at the type of rate specified by the Borrower in the applicable Notice of Revolving Borrowing. Thereafter, the Borrower may from time to time elect to change or continue the type of interest rate borne by the Loans included in such Borrowing (subject to Section 2.09(d) and the provisions of Article 8) as follows:


 


(i) if such Loans are Base Rate Loans, the Borrower may elect to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day; and


 


(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to convert such Loans to Base Rate Loans as of any Domestic Business Day, or may elect to continue such Loans as Euro-Dollar Loans, as of the end of any Interest Period applicable thereto, for an additional Interest Period, subject to Section 2.14 if any such conversion is effective on any day other than the last day of an Interest Period applicable to such Loans.


 


Each such election shall be made by delivering a notice (a “Notice of Interest Rate Election”) to the Administrative Agent by telephone or fax (and, in the case of telephonic notice, promptly confirmed by hand delivery or fax), not later than the time that a Notice of Revolving Borrowing would be required under Section 2.02 if the Borrower were requesting a Revolving Borrowing consisting of Loans of the Type resulting from such election to be made on the effective date of such election. A Notice of Interest Rate Election may, if it so specifies, apply to only a portion of the aggregate principal amount of the relevant Borrowing; provided that (i) such portion is allocated ratably among the Loans comprising such Borrowing and (ii) the portion to which such Notice applies, and the remaining portion to which it does not apply, are each at least $10,000,000 (unless such portion is comprised of Base Rate Loans). If no such notice is timely received before the end of an Interest Period for any Borrowing of Euro-Dollar Loans, the Borrower shall be deemed to have elected that the Loans included in such Borrowing be converted to Base Rate Loans at the end of such Interest Period.


 


(b) Each Notice of Interest Rate Election shall specify:


 


(i) the Borrowing (or portion thereof) to which such notice applies;


 


(ii) the date on which the conversion or continuation selected in such notice is to be effective, which shall comply with clause (i) or (ii) of Section 2.09(a), as applicable;


 


(iii) if the Loans comprising such Group are to be converted, the new Type of Loans and, if the Loans resulting from such conversion are to be Euro-Dollar Loans, the duration of the next succeeding Interest Period applicable thereto; and


 


(iv) if such Loans are to be continued as Euro-Dollar Loans for an additional Interest Period, the duration of such additional Interest Period.


 


Each Interest Period specified in a Notice of Interest Rate Election shall comply with the provisions of the definition of Interest Period.


 


 




  





 


 





  






27


 


(c) Promptly after receiving a Notice of Interest Rate Election from the Borrower pursuant to Section 2.09, the Administrative Agent shall notify each Lender of the contents thereof and such notice shall not thereafter be revocable by the Borrower.


 


(d) The Borrower shall not be entitled to elect to convert any Loans to, or continue any Loans for an additional Interest Period as, Euro-Dollar Loans if (i) the aggregate principal amount of any Euro-Dollar Loans created or continued as a result of such election would be less than $10,000,000 or (ii) an Event of Default shall have occurred and be continuing when the Borrower delivers notice of such election to the Administrative Agent and the Administrative Agent or the Required Lenders shall have notified the Borrower that Euro-Dollar Loans will not be available while such Event of Default continues.


 


SECTION 2.10. Fees.  (a)  Commitment Fee.  The Borrower shall pay to the Administrative Agent, for the account of the Lenders ratably in proportion to their Commitments, a commitment fee calculated for each day at the Commitment Fee Rate for such day (determined in accordance with the Pricing Schedule) on the aggregate unused amount of the Commitments on such day.  For purposes of computing commitment fees, a Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and Letter of Credit Liabilities of such Lender and participations in outstanding Swingline Loans that have been funded by such Lender (but unfunded participations in Swingline Loans shall be disregarded for such purpose).  Such commitment fee shall accrue for each day from and including the Effective Date to but excluding the day on which the Commitments are reduced to zero.


 


(b) Letter of Credit Fees.  The Borrower shall pay (i) to the Administrative Agent for the account of the Lenders ratably a letter of credit fee accruing daily on the aggregate undrawn amount of all outstanding Letters of Credit at a rate per annum equal to the Euro-Dollar Margin for such day and (ii) to each Issuing Bank for its own account, a letter of credit fronting fee accruing daily on the aggregate amount then available for drawing under all Letters of Credit issued by such Issuing Bank at the rate per annum mutually agreed between the Borrower and such Issuing Bank from time to time.


 


(c) Payments.  Fees accrued for the account of the Lenders under this Section shall be payable quarterly in arrears on each Quarterly Payment Date and on the day on which the Commitments terminate in their entirety (and, if later, on the day on which the Credit Exposures are reduced to zero).


 


SECTION 2.11. Termination or Reduction of Commitments.  (a)  The Borrower may, upon at least three Domestic Business Days’ notice to the Administrative Agent, (i) terminate the Commitments at any time or (ii) ratably reduce from time to time by an aggregate amount of $25,000,000 or any larger integral multiple of $1,000,000, the aggregate amount of the Commitments; provided that the Borrower shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.12, the Total Outstanding Amount would exceed the aggregate amount of the Commitments as a result thereof.  For the avoidance of doubt, any notice of termination of the Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities or the closing of one or more securities offerings, in which case such notice may be 


 




  





 


 





  




28


 


revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied.  Promptly after receiving a notice pursuant to this subsection, the Administrative Agent shall notify each Lender of the contents thereof.




 


(b) Unless previously terminated, the Commitments shall terminate in their entirety on the Termination Date.


 


SECTION 2.12. Optional Prepayments.  (a)  Subject in the case of Euro-Dollar Loans to Section 2.14, the Borrower may (i) upon notice to the Administrative Agent on or prior to the date of prepayment, prepay any Base Rate Loans or (ii) upon at least three Euro-Dollar Business Days’ notice to the Administrative Agent, prepay any Euro-Dollar Loans, in each case in whole at any time, or from time to time in part in amounts that would be permitted in the case of the making of a Revolving Borrowing comprised of Loans of the same Type or a Swingline Loan, as applicable. Each such optional prepayment shall be applied to prepay ratably the Loans of the several Lenders included in such Borrowing.  Prepayments shall be accompanied by interest to the extent required by Section 2.08.


 


(b) Promptly after receiving a notice of prepayment pursuant to this Section, the Administrative Agent shall notify each Lender of the contents thereof and of such Lender’s ratable share of such prepayment, and such notice shall not thereafter be revocable by the Borrower; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.11, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.11.


 


SECTION 2.13. General Provisions as to Payments.  (a)  The Borrower shall make each payment of principal of and interest on the Loans and of fees hereunder not later than 12:00 Noon (New York City time) on the date when due, in Federal or other funds immediately available in New York City, without reduction by reason of any set-off, counterclaim or deduction of any kind (except as provided in Section 8.05).  All such payments shall be made to the Administrative Agent at its address specified in or pursuant to Section 9.01, except that payments to be made directly to an Issuing Bank or the Swingline Lender as expressly provided herein shall be made directly to such Issuing Bank or the Swingline Lender, as applicable, and payments pursuant to Sections 2.14, 8.03, 8.05 and 9.03 shall be made directly to the Persons entitled thereto.  The Administrative Agent will distribute each such payment received by the Administrative Agent for the account of any other Person to the appropriate recipient promptly following receipt thereof. Whenever any payment of principal of, or interest on, the Base Rate Loans or of fees shall be due on a day which is not a Domestic Business Day, the date for payment thereof shall be extended to the next succeeding Domestic Business Day. Whenever any payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case the date for payment thereof shall be the next preceding Euro-Dollar Business Day.  If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time.


 


 




  





 


 





  






29


 


(b) Unless the Borrower notifies the Administrative Agent before the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance on such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent that such payment shall not have been so made by the Borrower, each Lender shall repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate.


 


SECTION 2.14. Funding Losses.  If the Borrower makes any payment of principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is converted to a different type of Loan (whether such payment or conversion is pursuant to Article 2, 6 or 8 or otherwise) on any day other than the last day of the Interest Period applicable thereto, or if the Borrower fails (other than as a result of the failure of a Lender to fund a Loan required to be funded hereunder) to borrow, prepay, convert or continue any Euro-Dollar Loan after notice has been given to any Lender in accordance with Section 2.05, 2.09 or 2.12, the Borrower shall reimburse each Lender within 30 days after demand for any resulting loss or expense incurred by it, including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin for the period after such payment or conversion or failure to borrow, prepay, convert or continue; provided that such Lender shall have delivered to the Borrower a certificate as to the amount of such loss or expense, including in reasonable detail a description of the basis for such compensation and a calculation of such amount, which certificate shall be conclusive in the absence of manifest error.


 


SECTION 2.15. Computation of Interest and Fees.  Interest based on the Prime Rate hereunder shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the first day but excluding the last day). All other interest and fees shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day).


 


SECTION 2.16. Change of Control.  If a Change of Control shall occur, the Borrower will, within ten days after the occurrence thereof, give the Administrative Agent notice thereof, and the Administrative Agent shall promptly notify each Lender thereof.  Such notice shall describe in reasonable detail the facts and circumstances giving rise thereto and the date of such Change of Control and each Lender may, by notice to the Borrower and the Administrative Agent given not later than fifty days after the date of such Change of Control, terminate its Commitment and declare its Loans (together with accrued interest thereon) and any other amounts payable hereunder for its account to be due and payable, in which case its Commitment shall terminate, and such Loans and other amounts shall become due and payable, in each case on the sixtieth day after the date of such Change of Control (or if such day is not a Domestic Business Day, the next succeeding Domestic Business Day), without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.  In the event that, after giving effect to any termination of Commitments and repayment of Loans under this Section 2.16, the Total Outstanding Amount shall exceed the aggregate Commitments remaining in effect, the Borrower shall make additional prepayments of Loans or cash collateralize, in a 


 




  





 


 





  




 


30


manner approved in writing by the Administrative Agent and the Issuing Banks, an amount of the Letter of Credit Liabilities equal to such excess.




 


For purposes of this Section, the following terms have the following meanings:


 


A “Change of Control” shall occur if (i) any “person” or “group” of persons shall have acquired “beneficial ownership” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder), of shares of Voting Stock representing 35% or more of the Voting Power of the Borrower, (ii) during any period of twenty-five consecutive months, commencing before or after the date of this Agreement, individuals who at the beginning of such twenty-five month period were members of the board of directors of the Borrower (together with any replacement or additional directors whose election was recommended by incumbent management of the Borrower or whose election, nomination or appointment to the board of directors of the Borrower was approved by a majority of directors then in office) cease to constitute a majority of the board of directors of the Borrower, or (iii) any Person or group of related Persons shall acquire all or substantially all of the assets of the Borrower; provided, that a Change of Control shall not be deemed to have occurred pursuant to clause (iii) above if the Borrower shall have merged or consolidated with or transferred all or substantially all of its assets to another corporation in compliance with the provisions of Section 5.02 and the surviving or successor or transferee corporation is no more leveraged than was the Borrower immediately prior to such event. For purposes of this definition, the term “leveraged” when used with respect to any corporation shall mean the percentage represented by the total assets of that corporation divided by its stockholders’ equity, in each case determined and as would be shown in a consolidated balance sheet of such corporation prepared in accordance with generally accepted accounting principles in the United States of America.


 


“Voting Power” as applied to the stock of any corporation means the total voting power represented by all outstanding Voting Stock of such corporation.


 


“Voting Stock” as applied to the stock of any corporation means stock of any class or classes (however designated) having ordinary voting power for the election of the directors of such corporation, other than stock having such power only by reason of the happening of a contingency.


 


SECTION 2.17. Optional Increase in Commitments.  The Borrower may from time to time, by written notice to the Administrative Agent, executed by the Borrower and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Lender”), which may include any Lender (it being understood that no Lender shall have any obligation to become an Increasing Lender), cause the Commitments of the Increasing Lenders to be increased (or cause Commitments to be extended by the Increasing Lenders, as the case may be) in an amount for each Increasing Lender set forth in such notice; provided that (i) the amount of any such increase in the aggregate Commitments shall be not less than $25,000,000, (ii) the aggregate amount of increases in Commitments made pursuant to this Section shall not exceed $1,000,000,000 and (iii) each Increasing Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and each Issuing Bank 


 


 




  





 


 





  




31


 


(which approval shall not be unreasonably withheld, conditioned or delayed) and shall execute all such documentation as the Administrative Agent and the Borrower shall specify to evidence the Commitment of such Increasing Lender and its status as a Lender hereunder.  Such notice shall set forth the date (the “Increase Effective Date”) on which such increase is requested to become effective (which shall not be less than five Domestic Business Days or more than 45 days after the date of such notice).  On the Increase Effective Date, (A) the aggregate principal amount of the Revolving Loans outstanding (the “Initial Loans”) immediately prior to giving effect to the commitment increase on the Increase Effective Date shall be deemed to be repaid, (B) after the effectiveness of the commitment increase, the Lenders shall be deemed to have made new Revolving Loans (the “Subsequent Borrowings”) of the types and in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and, in the case of Eurodollar Revolving Loans, for the Interest Periods equal to the remaining portions of the Interest Periods in effect prior to such deemed repayment, (C) each Lender shall pay to the Administrative Agent in same day funds an amount equal to the difference, if positive, between (x) such Lender’s Percentage (calculated after giving effect to the commitment increase) of the Subsequent Borrowings and (y) such Lender’s Percentage (calculated without giving effect to the commitment increase) of the Initial Loans, (D) after the Administrative Agent receives the funds specified in clause (C) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the difference, if positive, between (1) such Lender’s Percentage (calculated without giving effect to the commitment increase) of the Initial Loans and (2) such Lender’s Percentage (calculated after giving effect to the commitment increase) of the amount of the Subsequent Borrowings, (E) each Lender (including each Increasing Lender) shall be deemed to hold its Percentage of each Subsequent Borrowing (each calculated after giving effect to the commitment increase) and (F) the Borrower shall pay each Lender (other than any Increasing Lender that was not a Lender before giving effect to the Commitment increase) any and all accrued but unpaid interest on the Initial Loans.  The deemed payments made pursuant to clause (A) above in respect of each Eurodollar Revolving Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.14 if the Increase Effective Date occurs other than on the last day of the Interest Period relating thereto (it being agreed that Lenders will be entitled to break-funding compensation only with respect to the net amounts by which their Eurodollar Revolving Loans shall have been reduced as a result of the transactions provided for in the immediately preceding sentence).  Notwithstanding the foregoing, no increase in the Commitments (or in any Commitment of any Lender) or addition of an Increasing Lender shall become effective under this Section unless (x) on the date of such increase, the conditions set forth in Section 3.02(b) and (c) shall be satisfied (with all references in such paragraphs to a Credit Event being deemed to be references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a financial officer of the Borrower, and (y) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered pursuant to Section 3.01(b) and (d) as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase.




 


SECTION 2.18. Extension Option.  The Borrower may, by written notice to the Administrative Agent (which shall promptly deliver a copy to each of the Lenders) not less than 30 days and not more than 90 days prior to any anniversary of the Effective Date (but on not more than two occasions during the term of this Agreement), request that the Lenders extend the Termination Date for an additional period of one year.  Each Lender shall, by notice to the 


 




  





 


 





  




32


 


Borrower and the Administrative Agent given not later than the 20th day after the date of the Administrative Agent’s receipt of the Borrower’s notice, advise the Borrower whether or not it agrees to the requested extension (each Lender agreeing to a requested extension being called a “Consenting Lender” and each Lender declining to agree to a requested extension being called a “Declining Lender”).  Any Lender that has not so advised the Borrower and the Administrative Agent by such day shall be deemed to have declined to agree to such extension and shall be a Declining Lender.  If Lenders constituting the Required Lenders shall have agreed to a Termination Date extension request, then the Termination Date shall, as to the Consenting Lenders, be extended to the first anniversary of the Termination Date theretofore in effect (the Termination Date in effect prior to such extension being called the “Existing Termination Date”).  The decision of any Lender to agree or withhold agreement to any extension request shall be at the sole discretion of such Lender.  The Commitment of any Declining Lender shall terminate on the Existing Termination Date.  The principal amount of any outstanding Loans made by Declining Lenders, together with any accrued interest thereon and any accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder, shall be due and payable on the Existing Termination Date, and on the Existing Termination Date the Borrower shall also make such other prepayments of the Loans as shall be required in order that, after giving effect to the termination of the Commitments of, and all payments to, Declining Lenders pursuant to this sentence, the Total Outstanding Amount shall not exceed the aggregate Commitments.  Notwithstanding the foregoing provisions of this paragraph, the Borrower shall have the right, pursuant to Sections 8.06(b) (and subject to the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender, which consent shall not be unreasonably withheld, conditioned or delayed), at any time prior to the Existing Termination Date, to replace a Declining Lender with a Lender or other financial institution that will agree to a Termination Date extension request, and any such replacement Lender shall for all purposes constitute a Consenting Lender.  Notwithstanding the foregoing, no extension of the Termination Date pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 3.01(d) as to the corporate power and authority of the Borrower to effect such extension and (ii) the Administrative Agent shall have received a certificate executed by a financial officer of the Borrower, dated as of the anniversary of the Effective Date that immediately follows the date on which the Borrower delivers the applicable Termination Date extension request, stating that (A) as of such date, no Default exists and (B) the representations and warranties of the Borrower contained in Article 4 of this Agreement are true in all material respects on and as of such date (except to the extent any such representations or warranties are limited to an earlier date, in which case such representations and warranties shall be true in all material respects as of such earlier date).




 


SECTION 2.19. Defaulting Lenders.  Notwithstanding any provision herein to the contrary, if any Lender becomes a Defaulting Lender, then the provisions set forth in the following paragraphs (a) through (f) shall apply for so long as such Lender is a Defaulting Lender:


 


(a) commitment fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.10(a);


 


(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders (or each Lender) or the Required Lenders have 


 


 




  





 


 




33


 


taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.05); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification providing for an increase in such Defaulting Lender’s Commitment, providing for an extension of such Defaulting Lender’s Commitment (other than in determining whether the Required Lenders have consented to the extension of the Termination Date under Section 2.18) or requiring the consent of each Lender affected thereby (including pursuant to Sections 9.05(a)(ii) and (iii)) if such Defaulting Lender is an affected Lender;




 


(c) if any Swingline Liabilities or Letter of Credit Liabilities exist at the time such Lender becomes a Defaulting Lender, then the following paragraphs (i) through (v) shall apply:


 


(i) all or any part of the Swingline Liabilities and Letter of Credit Liabilities of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders in accordance with their respective Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the non-Defaulting Lenders’ respective Percentages), but only to the extent that (A) the sum of all non-Defaulting Lenders’ Outstanding Amounts plus such Defaulting Lender’s Swingline Liabilities and Letter of Credit Liabilities does not exceed the total of all non-Defaulting Lenders’ Commitments, and (B) after giving effect to any such reallocation, no non-Defaulting Lender’s Outstanding Amount shall exceed such non-Defaulting Lender’s Commitment;


 


(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within three Business Days following the Borrower’s receipt of written notice from the Administrative Agent, (A) first, prepay such Defaulting Lender’s Swingline Liabilities and (B) second, cash collateralize, for the benefit of the applicable Issuing Banks only, the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Liabilities remaining after giving effect to any partial reallocation pursuant to clause (i) above in a manner approved in writing by the Administrative Agent for so long as such Letter of Credit Liabilities are outstanding;


 


(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Liabilities pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such portion of such Defaulting Lender’s Letter of Credit Liabilities during the period such Letter of Credit Liabilities are cash collateralized;


 


(iv) if all or any portion of such Defaulting Lender’s Letter of Credit Liabilities is reallocated pursuant to clause (i) above, then all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.10(b) with respect to such Defaulting Lender’s reallocated Letter of Credit Liabilities shall be payable to the non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ Percentages after giving effect to such reallocation; and


 


 




  





 


 





  






34


 


(v) if all or any portion of such Defaulting Lender’s Letter of Credit Liabilities is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.10(b) with respect to such Defaulting Lender’s unreallocated Letter of Credit Liabilities shall be payable to the Issuing Banks, ratably based on the portion of such Letter of Credit Liabilities attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such Letter of Credit Liabilities are reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;


 


(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Liabilities will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.19(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein);


 


(e) in the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Liabilities and Letter of Credit Liabilities of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Lender shall purchase at par such of the Revolving Loans and other funded credit exposures of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and funded exposures in accordance with its Percentage; and


 


(f) the rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.19 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Borrower, the Administrative Agent, each Lender, each Issuing Bank or the Swingline Lender may at any time have against, or with respect to, such Defaulting Lender.


 


ARTICLE 3                      


 







 


Conditions


 


SECTION 3.01. Effectiveness.  The Commitments shall become effective only when all the following conditions have been satisfied (or waived in accordance with Section 9.05):


 


(a) the Administrative Agent shall have received, from each party listed on the signature pages hereof, either a counterpart hereof signed by such party or facsimile or other written confirmation satisfactory to the Administrative Agent confirming that such party has signed a counterpart hereof;


 




  





 


 





  






35


 


(b) the Administrative Agent shall have received an opinion of (i) Baker Botts L.L.P., counsel for the Borrower, substantially in the form of Exhibit B-1 hereto and (ii) the General Counsel of the Borrower (or such other counsel for the Borrower as may be acceptable to the Agent), substantially in the form of Exhibit B-2 hereto;


 


(c) the Borrower shall have paid to the Administrative Agent for its own account and the accounts of the Lenders the fees required to be paid on or before the Effective Date in the amounts heretofore mutually agreed;


 


(d) the Administrative Agent shall have received all documents the Administrative Agent may reasonably request relating to the existence of the Borrower, the corporate authority for and the authorization of this Agreement, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent;


 


(e) the Administrative Agent shall have received a certificate of a financial officer of the Borrower confirming that, as of the Effective Date, the representations and warranties of the Borrower contained in Article 4 of this Agreement are true in all material respects (except to the extent that (i) any such representations or warranties are limited to an earlier date, in which case such representations and warranties are true in all material respects as of such earlier date or (ii) any such representations or warranties are qualified by a materiality standard, in which case such representations and warranties are true in all respects) and no Default exists; and


 


(f) the Administrative Agent shall have received evidence satisfactory to it that the principal of all loans and all interest, fees and other amounts outstanding, accrued or otherwise owing to the agents, issuing banks and lenders under the Existing Credit Agreement shall have been paid in full, that all commitments under the Existing Credit Agreement shall have been terminated and that all letters of credit issued under the Existing Credit Agreement have expired or been terminated;


 


provided that the Commitments shall not become effective unless all of the foregoing conditions are satisfied not later than April 30, 2012.  The Administrative Agent shall notify the Borrower and the Lenders of the occurrence of the Effective Date, and such notice shall be conclusive and binding on all parties hereto.


 


SECTION 3.02. Borrowings and Issuances of Letters of Credit.  The obligation of any Lender to make a Loan on the occasion of any Borrowing and the obligation of an Issuing Bank to issue (or renew or extend the term of) any Letter of Credit (each a “Credit Event”) is subject to the satisfaction of the following conditions:


 


(a) receipt by the Administrative Agent of notice of such Credit Event as required hereunder;


 


(b) the fact that, immediately before and immediately after such Credit Event, no Default shall exist; and


 


(c) the fact that the representations and warranties of the Borrower contained in Article 4 of this Agreement shall be true in all material respects on and as of the date 


 


 




  





 


 





  






36


 


of such Credit Event (except to the extent that (i) any such representations or warranties are limited to an earlier date, in which case such representations and warranties shall be true in all material respects as of such earlier date or (ii) any such representations or warranties are qualified by a materiality standard, in which case such representations and warranties shall be true in all respects).


 


Each Credit Event shall be deemed to be a representation and warranty by the Borrower on the date of such Credit Event as to the satisfaction of the conditions specified in the foregoing clauses 3.02(b) and 3.02(c).


 


SECTION 3.03. Existing Credit Agreement.  The Lenders that are parties to the Existing Credit Agreement  hereby waive any requirement of notice of termination of the commitments pursuant to the Existing Credit Agreement and of prepayment of loans thereunder, provided that any such prepayment of loans shall be subject to Section 2.13 of the Existing Credit Agreement.


 


ARTICLE 4                      


 







 


Representations and Warranties


 


The Borrower represents and warrants that:


 


SECTION 4.01. Corporate Existence and Power.  The Borrower (a) is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, (b) has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and (c) except where the failure to be so qualified or in good standing, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.


 


SECTION 4.02. Corporate and Governmental Authorization; Non-contravention.  The execution, delivery and performance by the Borrower of this Agreement (a) are within the Borrower’s corporate powers, (b) have been duly authorized by all necessary corporate action, (c) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect (except for any reports required to be filed by the Borrower with the SEC pursuant to the Exchange Act), (d) do not violate in any material respect any law or regulation or any order of any Governmental Authority, in each case, applicable to or binding upon the Borrower, (e) do not contravene or constitute a default under any indenture, agreement or other instrument binding upon the Borrower, except to the extent that a Material Adverse Effect would not reasonably be expected to result therefrom, (f) will not result in the creation or imposition of any Mortgage prohibited hereunder on any asset of the Borrower or any of its Subsidiaries and (g) do not violate the certificate of incorporation or by-laws of the Borrower.


 


SECTION 4.03. Binding Effect.  This Agreement constitutes a valid and binding agreement of the Borrower and any promissory notes executed and delivered in accordance with this Agreement will constitute valid and binding obligations of the Borrower.


 


 




  





 


 





  






37


 


SECTION 4.04. Financial Information.  (a)  The consolidated balance sheet of the Borrower as of December 31, 2011 and the related consolidated statements of income and cash flows for the fiscal year then ended, reported on by PricewaterhouseCoopers LLP, and included in the Borrower’s 2011 Form 10-K, fairly present in all material respects, in conformity with GAAP, the consolidated financial position of the Borrower as of such date and its consolidated results of operations and cash flows for such fiscal year.


 


(b) As of the Effective Date, there has been, since December 31, 2011, no Material Adverse Change.


 


SECTION 4.05. Litigation.  As of the Effective Date, except as set forth in the Borrower’s 2011 Form 10-K, there is no action, suit, arbitration or other proceeding, inquiry or investigation, at law or in equity, or before or by any court, public board or body, arbitrator or arbitral body, pending against the Borrower or of which the Borrower has otherwise received official notice or which to the knowledge of the Borrower is threatened against the Borrower, wherein there is a reasonable possibility of an unfavorable decision, ruling or finding that would reasonably be expected to result in a Material Adverse Effect.


 


SECTION 4.06. Environmental Matters.  The Borrower does not presently anticipate that remediation costs and penalties associated with environmental laws, to the extent not previously provided for, will result in a Material Adverse Effect.


 


SECTION 4.07. Taxes.  The Borrower has filed all United States Federal income tax returns and all other material tax returns that were required to have been filed by it and has paid all  taxes due pursuant to such returns or pursuant to any assessment received by it, except (a)  any such taxes being diligently contested in good faith and by appropriate proceedings or (b) to the extent that the failure to pay such taxes would not reasonably be expected to result in a Material Adverse Effect.  Adequate reserves have been provided on the books of the Borrower in respect of all taxes or other governmental charges in accordance with GAAP, and no tax liabilities in excess of the amount so provided are anticipated that would reasonably be expected to result in a Material Adverse Effect.


 


SECTION 4.08. Compliance with Laws.  The Borrower and Marathon Oil Company are in compliance with all applicable laws, rules and regulations, other than such laws, rules or regulations (i) the validity or applicability of which the Borrower or Marathon Oil Company is contesting in good faith or (ii) the failure to comply with which cannot reasonably be expected to have consequences that would reasonably be expected to result in a Material Adverse Effect.


 


SECTION 4.09. ERISA.  No ERISA Event has occurred or is reasonably expected to occur that would reasonably be expected to result in a Material Adverse Effect.


 


SECTION 4.10. Marathon. Marathon Oil Company is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted.


 


 




  





 


 





  






38


 


SECTION 4.11. Use of Proceeds.  The proceeds of the Loans made under this Agreement will be used by the Borrower for general corporate purposes. None of such proceeds will be used in violation of any applicable law or regulation including Regulation U.  Immediately following the application of the proceeds of any Loan for any purpose that would result in such Loan constituting a “purpose credit” within the meaning of Regulation U, margin stock (as defined in Regulation U) will represent less than 25% of the value of the assets subject to any limitation on sale or pledge hereunder.


 


SECTION 4.12. Investment Company Status.  The Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.


 


ARTICLE 5                      


 







 


Covenants


 


The Borrower agrees that, so long as any Lender has any Credit Exposure hereunder:


 


SECTION 5.01. Information.  The Borrower will deliver to the Administrative Agent for each of the Lenders:


 


(a) as soon as available and in any event within 75 days after the end of each fiscal year of the Borrower (or such shorter period as may be required by the SEC), a consolidated balance sheet of the Borrower as of the end of such fiscal year and the related consolidated statements of income and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing;


 


(b) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Borrower (or such shorter period as may be required by the SEC), a consolidated balance sheet of the Borrower as of the end of such quarter and the related consolidated statements of income and cash flows for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Borrower’s previous fiscal year;


 


(c) simultaneously with the delivery of each set of financial statements referred to in clauses (a) and (b) above, a certificate of a financial officer of the Borrower stating whether there exists on the date of such certificate any Default and, if any Default then exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;


 


(d) forthwith upon the occurrence of any Default, a certificate of an officer of the Borrower setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;


 




  





 


 





  






39


 


(e) promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed;


 


(f) promptly upon the filing thereof, copies of all annual, quarterly or other reports which the Borrower shall have filed with the SEC; and


 


(g) from time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries and affiliates as the Administrative Agent, at the request of any Lender, may reasonably request.


 


Information required to be delivered pursuant to Section 5.01(a), 5.01(b), 5.01(e) or 5.01(f) above shall be deemed to have been delivered to the Administrative Agent on the date that such information has been posted on the Borrower’s website on the Internet (which website is located as of the Effective Date at http://www.marathonoil.com) or on the SEC website accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm (or such successor webpage of the SEC thereto); provided that the Borrower shall deliver paper copies of the information referred to in Section 5.01(a), 5.01(b), 5.01(e) or 5.01(f) to the Administrative Agent for any Lender which requests such delivery.


 


SECTION 5.02. Consolidations and Mergers.  The Borrower shall not consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its assets as an entirety to any Person, unless:


 


(i) either (x) the Borrower shall be the corporation surviving such merger or (y) the corporation formed by such consolidation or into which Borrower is merged or the Person which acquires by conveyance, transfer or lease all or substantially all of the assets of the Borrower as an entirety shall be a corporation organized and existing under the laws of the United States of America or any state or the District of Columbia and shall execute and deliver to each Lender an agreement, in form and substance satisfactory to each Lender, containing an assumption by such successor corporation of the due and punctual performance and observance of each covenant and condition of this Agreement to be performed or observed by the Borrower;


 


(ii) in the case of a consolidation or merger in which the Borrower is not the surviving corporation or any conveyance, transfer or lease of all or substantially all of the assets of the Borrower as an entirety, the successor corporation formed by such consolidation or into which the Borrower is merged or to which such conveyance, transfer or lease is made shall have a Consolidated Shareholders’ Equity that is not less than the Consolidated Shareholders’ Equity of the Borrower immediately prior to such consolidation, merger, conveyance, transfer or lease; and


 


(iii) immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing.


 


Upon any consolidation or merger in which the Borrower is not the surviving corporation or any conveyance, transfer or lease of all or substantially all of the assets of the Borrower as an entirety in accordance with this Section, the successor corporation formed by such consolidation or into which the Borrower is merged or to which such conveyance, transfer 


 




  





 


 





  




40


 


or lease is made shall, subject to the last sentence of this paragraph, succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such successor corporation had been named as the Borrower herein. No such conveyance, transfer or lease of all or substantially all of the assets of the Borrower as an entirety shall have the effect of releasing the Borrower or any successor corporation which shall theretofore have become such in the manner prescribed in this Section from any liability hereunder.




 


SECTION 5.03. Negative Pledge.  If the Borrower or any Subsidiary of the Borrower shall mortgage, pledge, encumber, or subject to a lien (hereinafter to “Mortgage” or a “Mortgage”) as security for any indebtedness for money borrowed any Specified Oil and Gas Property, the Borrower will secure or will cause such Subsidiary to secure the Borrower’s obligations hereunder equally and ratably with all indebtedness secured by the Mortgage then being given and with any other indebtedness of the Borrower or such Subsidiary then entitled thereto; provided, however, this covenant shall not apply in the case of:


 


(i) any Mortgage existing on the date of this Agreement (whether or not such Mortgage includes an after-acquired property provision);


 


(ii) any Mortgage, including a purchase money Mortgage, incurred in connection with the acquisition of any property (for purposes hereof the creation of any Mortgage within 180 days after the acquisition or completion of construction of such property shall be deemed to be incurred in connection with the acquisition of such property), the assumption of any Mortgage previously existing on any acquired property or any Mortgage existing on the property of any Person when such Person becomes a Subsidiary of the Borrower;


 


(iii) any Mortgage on such property in favor of the United States of America, any state, or any agency, department, political subdivision or other instrumentality of either, to secure partial, progress or advance payments to the Borrower or any Subsidiary of the Borrower pursuant to the provisions of any contract or any statute;


 


(iv) any Mortgage on such property in favor of the United States of America, any state, or any agency, department, political subdivision or other instrumentality of either, to secure borrowings by the Borrower or any Subsidiary of the Borrower for the purchase or construction of the property mortgaged;


 


(v) any Mortgage in connection with a sale or other transfer of (i) oil or gas in place for a period of time or in an amount such that the purchaser will realize therefrom a specified amount of money or specified amount of minerals or (ii) any interest in property of the character commonly referred to as an “oil payment” or “production payment”;


 


(vi) any Mortgage on any property arising in connection with or to secure all or any part of the cost of the repair, construction, improvement, alteration, exploration, development or drilling of such property or any portion thereof;


 


(vii) any Mortgage on any pipeline, gathering system, pumping or compressor station, pipeline storage facility, other pipeline facility, drilling equipment, drilling 


 


 




  





 


 





  






41


 


platform, drilling barge, any movable railway, marine or automotive equipment, gas plant, office building, storage tank, or warehouse facility, any of which is located on a Specified Oil and Gas Property;


 


(viii) any Mortgage on any equipment or other personal property used in connection with a Specified Oil and Gas Property;


 


(ix) any Mortgage on a Specified Oil and Gas Property arising in connection with the sale of accounts receivable resulting from the sale of oil or gas at the wellhead; or


 


(x) any renewal of or substitution for any Mortgage permitted under the preceding clauses.


 


Notwithstanding the foregoing restriction contained in this Section 5.03, the Borrower may, and may permit its Subsidiaries to incur liens or grant Mortgages on Specified Oil and Gas Properties as security for any indebtedness for money borrowed so long as the net book value of the Specified Oil and Gas Properties so encumbered, together with all property subject to sale and leaseback transactions entered into in reliance on the exception provided in clause (ii) of Section 5.04, does not at the time such lien or Mortgage is granted exceed 15% of Consolidated Net Tangible Assets.


 


SECTION 5.04. Sale and Leaseback.  The Borrower will not, nor will it permit any Subsidiary of the Borrower to, sell or transfer any Specified Oil and Gas Property, with the intention of taking back a lease of such property; provided, however, this covenant shall not apply if:


 


(i) the sale is to a Subsidiary of the Borrower (or to the Borrower in the case of a Subsidiary);


 


(ii) the lease is for a period of not more than three years by the end of which it is intended that the use of such property by the lessee will be discontinued;


 


(iii) the Borrower or a Subsidiary of the Borrower could, in accordance with Section 5.03, Mortgage such property without equally and ratably securing the Borrower’s obligations hereunder;


 


(iv) the transfer is incident to or necessary to effect any operating, farm out, farm in, unitization, acreage exchange, acreage contributions, bottom hole or dry hole arrangements or pooling agreement or any other agreement of the same general nature relating to the acquisition, exploration, maintenance, development and operation of oil or gas properties in the ordinary course of business or as required by regulatory agencies having jurisdiction over the property; or


 


(v) (A) the Borrower promptly informs the Administrative Agent of such sale, (B) the net proceeds of such sale are at least equal to the fair value (as determined by resolution adopted by the Board of Directors of the Borrower) of such property and (C) the Borrower shall, and in any such case the Borrower covenants that it will, within 


 




  





 


 





  






42


 


180 days after such sale, apply an amount equal to the net proceeds of such sale to the retirement of debt of the Borrower, or of a Subsidiary of the Borrower in the case of property of such Subsidiary, maturing by its terms more than one year after the date on which it was originally incurred (herein called “funded debt”); provided that the amount to be applied to the retirement of funded debt of the Borrower or of a Subsidiary of the Borrower shall be reduced by the amount equal to the amount below if, within 75 days after such sale, the Borrower shall deliver to the Administrative Agent an officer’s certificate (1) stating that on a specified date after such sale the Borrower or a Subsidiary of the Borrower, as the case may be, voluntarily retired a specified principal amount of funded debt, (2) stating that such retirement was not effected by payment at maturity or pursuant to any applicable mandatory sinking fund or prepayment provision (other than provisions requiring retirement of any funded debt of the Borrower or a Subsidiary of the Borrower, as the case may be, under the circumstances referred to in this Section 5.04) and (3) stating the then optional redemption or prepayment price applicable to funded debt so retired or, if there is no such price applicable, the amount applied by the Borrower or a Subsidiary of the Borrower, as the case may be, to the retirement of such funded debt. The Borrower shall deliver to the Administrative Agent a certified copy of the resolution of the Board of Directors of the Borrower referred to in paragraph (v)(B) above and an officer’s certificate setting forth all material facts under this Section 5.04. The term retirement of such funded debt shall include the in-substance defeasance of such funded debt in accordance with then applicable accounting rules.


 


SECTION 5.05. Maximum Consolidated Leverage Ratio.  The Borrower shall not permit the ratio of Consolidated Total Indebtedness to Consolidated Capitalization as of the last day of any fiscal quarter of the Borrower to be greater than 0.65 to 1.00.


 


ARTICLE 6                      


 







 


Defaults


 


SECTION 6.01. Events of Default.  If one or more of the following events (“Events of Default”) shall have occurred and be continuing:


 


(a) the Borrower shall fail to pay when due any principal of any Loan or any Reimbursement Obligation or shall fail to pay within five Domestic Business Days after the due date thereof any interest or fees payable hereunder;


 


(b) the Borrower shall fail to observe or perform any covenant contained in Section 5.01(d), 5.02 or 5.05;


 


(c) the Borrower shall fail to observe or perform any covenant or agreement contained in Section 5.03 or 5.04  for five Domestic Business Days after written notice thereof has been given to the Borrower by the Administrative Agent at the request of any Lender;


 


(d) the Borrower shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those covered by clauses (a), (b) or (c) above) for  30


 


 




  





 


 





  




43


 


days after written notice thereof has been given to the Borrower by the Administrative Agent at the request of any Lender;




 


(e) any representation, warranty, certification or statement made by the Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made or deemed made;


 


(f) the Borrower shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall take any corporate action to authorize any of the foregoing;


 


(g) an involuntary case or other proceeding shall be commenced against the Borrower in any court of competent jurisdiction seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief approving or ordering any of the foregoing shall be entered by such court against the Borrower under the federal bankruptcy laws as now or hereafter in effect;


 


(h) the Borrower shall fail generally to pay its debts as they become due, or


 


(i) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect;


 


then, and in every such event, the Administrative Agent shall (i) if requested by Lenders having more than 50% in aggregate amount of the Commitments, by notice to the Borrower terminate the Commitments and they shall thereupon terminate, and (ii) if requested by Lenders holding more than 50% in aggregate principal amount of the Loans, by notice to the Borrower declare the Loans (together with accrued interest thereon) and any other amounts payable hereunder to be, and the Loans and such amounts shall thereupon become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided that in the case of any of the Events of Default specified in paragraph (f) or (g) above, without any notice to the Borrower or any other act by the Administrative Agent or the Lenders, the Commitments shall thereupon terminate and the Loans (together with accrued interest thereon) and any other amounts payable hereunder shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.


 




  





 


 





  






44


 


SECTION 6.02. Notice of Default.  The Administrative Agent shall give notice to the Borrower under Section 6.01(c) or (d) promptly upon being requested to do so by any Lender and shall thereupon notify all the Lenders thereof.


 


SECTION 6.03. Cash Cover.  The Borrower agrees, in addition to the provisions of Section 6.01 hereof, that upon the occurrence and during the continuance of any Event of Default, it shall, if requested by the Administrative Agent upon the instruction of the Lenders having more than 50% of the Letter of Credit Liabilities, pay to the Administrative Agent an amount in immediately available funds (which funds shall be held as collateral pursuant to arrangements satisfactory to the Administrative Agent) equal to the aggregate amount available for drawing under all Letters of Credit outstanding at such time, provided that, upon the occurrence of any Event of Default specified in Section 6.01(f) or 6.01(g) with respect to the Borrower, the Borrower shall pay such amount forthwith without any notice or demand or any other act by the Administrative Agent or the Lenders.  Any such funds held as collateral by the Administrative Agent shall be held for the satisfaction of the reimbursement obligations of the Borrower for the aggregate Letter of Credit Liabilities at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders having more than 50% of the Letter of Credit Liabilities), be applied to satisfy other obligations of the Borrower under this Agreement.  If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Domestic Business Days after all Events of Default have been cured or waived.


 


ARTICLE 7                      


 







 


The Administrative Agent


 


SECTION 7.01. Appointment and Authorization.  Each Lender irrevocably appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.


 


SECTION 7.02. Administrative Agent and Affiliates.  The bank serving as the Administrative Agent shall have the same rights and powers under this Agreement in its capacity as a Lender as any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent.  Such bank and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Subsidiary or affiliate of the Borrower as if it were not the Administrative Agent hereunder.


 


SECTION 7.03. Action by Administrative Agent.  The obligations of the Administrative Agent hereunder are only those expressly set forth herein. Without limiting the generality of the foregoing, the Administrative Agent shall not be required to take any action with respect to any Default, except as expressly provided in Article 6.


 


SECTION 7.04. Consultation with Experts.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or 


 




  





 


 





  




45


 


omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.




 


SECTION 7.05. Liability of Administrative Agent.  None of the Administrative Agent, its affiliates or its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required Lenders (or such different number of Lenders as any provision hereof expressly requires for such consent or request) or (ii) in the absence of its own gross negligence or willful misconduct or a material breach by the Administrative Agent of the express terms of this Agreement, as determined by a final judgment of a court of competent jurisdiction; provided that the provisions of this sentence are for the sole benefit of the Administrative Agent and shall not release any Lender from liability it would otherwise have to the Borrower.  None of the Administrative Agent, its affiliates or its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement or any borrowing or any issuance of a Letter of Credit hereunder; (ii) the performance or observance of any of the covenants or agreements of the Borrower; (iii) the satisfaction of any condition specified in Article 3 except receipt of items required to be delivered to the Administrative Agent; or (iv) the validity, effectiveness or genuineness of this Agreement or any other instrument or writing furnished in connection herewith.  The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, facsimile or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.


 


SECTION 7.06. Indemnification.  The Lenders severally agree, ratably in proportion to their Credit Exposures, to indemnify the Administrative Agent and each Issuing Bank, their respective affiliates and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such indemnitees’ gross negligence or willful misconduct or a material breach by the Administrative Agent of the express terms of this Agreement, as determined by a final judgment of a court of competent jurisdiction) that such indemnitees may suffer or incur in connection with this Agreement or any Letter of Credit or any action taken or omitted by such indemnitees hereunder or thereunder.


 


SECTION 7.07. Credit Decision.  Each Lender acknowledges that it has, independently and without reliance on the Administrative Agent or any other Lender, 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 also acknowledges that it will, independently and without reliance on the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement.


 




  





 


 





  






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SECTION 7.08. Successor Administrative Agent.  The Administrative Agent may resign at any time by giving notice thereof to the Lenders and the Borrower. Upon any such resignation, the Borrower shall have the right to appoint a successor Administrative Agent from among the Lenders, subject to the approval of the Required Lenders, which shall not be unreasonably withheld. If no successor Administrative Agent shall have been so appointed by the Borrower and approved by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized or licensed under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $100,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent resigns as Administrative Agent hereunder, the provisions of this Article shall inure to its benefit as to actions taken or omitted to be taken by it while it was Administrative Agent.


 


SECTION 7.09. Administrative Agent’s Fee.  The Borrower shall pay to the Administrative Agent for its own account fees in the amounts and at the times previously agreed upon by the Borrower and the Administrative Agent.


 


SECTION 7.10. Other Agents.  None of the Documentation Agents and the Syndication Agent, in their capacities as such, shall have any duties or obligations of any kind under this Agreement.


 


ARTICLE 8                      


 







 


Change in Circumstances


 


SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.  If on or before the first day of any Interest Period for any Euro-Dollar Borrowing:


 


(a) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted London Interbank Offered Rate or the London Interbank Offered Rate, as applicable, for such Interest Period, or


 


(b) Lenders having at least 50% in aggregate amount of the Commitments advise the Administrative Agent that the London Interbank Offered Rate for such Interest Period as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Lenders of funding their Euro-Dollar Loans for such Interest Period,


 


the Administrative Agent shall forthwith give notice thereof to the Borrower and the Lenders, whereupon until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such suspension no longer exist, (i) the obligations of the Lenders to make Euro-Dollar Loans, or to continue or convert outstanding Loans as or into Euro-Dollar 


 




  





 


 





  






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Loans, shall be suspended and (ii) each outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on the last day of the then current Interest Period applicable thereto.  Unless the Borrower notifies the Administrative Agent at least two Domestic Business Days before the date of any affected Borrowing for which a Notice of Revolving Borrowing has previously been given that it elects not to borrow on such date, such Borrowing shall instead be made as a Base Rate Borrowing.


 


SECTION 8.02. Illegality.  (a)  If, on or after the date hereof, any Change in Law shall make it unlawful or impossible for any Lender (or its applicable lending office) to make, maintain or fund its Euro-Dollar Loans and such Lender shall so notify the Administrative Agent, the Administrative Agent shall forthwith give notice thereof to the other Lenders and the Borrower, whereupon until such Lender notifies the Borrower and the Administrative Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make Euro-Dollar Loans, or to convert outstanding Loans into Euro-Dollar Loans or continue outstanding Loans as Euro-Dollar Loans, shall be suspended.  Before giving any notice to the Administrative Agent pursuant to this Section, such Lender shall designate a different lending office if such designation will avoid the need for giving such notice and will not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.


 


(b) If such notice is given, each Euro-Dollar Loan of such Lender then outstanding shall be converted to a Base Rate Loan either (a) on the last day of the then current Interest Period applicable to such Euro-Dollar Loan if such Lender may lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan to such day or (b) immediately if such Lender shall determine that it may not lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan to such day. Interest and principal on any such Base Rate Loan shall be payable on the same dates as, and on a pro rata basis with, the interest and principal payable on the related Euro-Dollar Loans of the other Lenders.


 


SECTION 8.03. Increased Cost and Reduced Return.  (a)  If any Change in Law shall:


 


(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted London Interbank Offered Rate) or any Issuing Bank;


 


(ii) impose on any Lender or any Issuing Bank or the London interbank market any other condition (other than with respect to Taxes) affecting this Agreement or Euro-Dollar Loans made by such Lender or any Letter of Credit or participation therein; or


 


(iii) subject any Recipient to any Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto (other than (A) Indemnified Taxes, (B) Other Connection Taxes (x) imposed on (or measured by) gross or net income (however denominated), profits or revenue (including value-added or similar Taxes) or (y) that are franchise Taxes 


 




  





 


 





  






48


 


or branch profits Taxes and (C) Excluded Taxes described in paragraphs (a) through (f) of the definition of Excluded Taxes);


 


and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Euro-Dollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then subject to paragraphs (c) and (d) of this Section, the Borrower will pay to such Recipient such additional amount or amounts as will compensate such Recipient for such additional costs incurred or reduction suffered.


 


(b) If any Lender or any Issuing Bank determines in good faith that any Change in Law regarding capital or liquidity requirements has the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time, subject to paragraphs (c) and (d) of this Section, the Borrower will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered; provided, that such Lender or such Issuing Bank is generally seeking, or intends generally to seek, compensation from similarly situated borrowers under similar credit facilities (to the extent such Lender or Issuing Bank has the right under such similar credit facilities to do so) with respect to such Change in Law regarding capital or liquidity requirements.


 


(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section, including in reasonable detail a description of the basis for such claim for compensation and an explanation of how such amount or amounts were determined, shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.


 


(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided, that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower in writing of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor; provided further, that if the Change in Law giving rise to such 


 




  





 


 





  




49


 


increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.




 


SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans.  If (i) the obligation of any Lender to make, or to continue or convert outstanding Loans as or to, Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Lender has demanded compensation under Section 8.03 with respect to its Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business Days’ prior notice to such Lender through the Administrative Agent, have elected that the provisions of this Section shall apply to the Lender demanding such compensation, then, unless and until such Lender notifies the Borrower that the circumstances giving rise to such suspension or demand for compensation no longer exist, all Loans which would otherwise be made by such Lender as (or continued as or converted to) Euro-Dollar Loans shall instead be Base Rate Loans on which interest and principal shall be payable contemporaneously with the related Euro-Dollar Loans of the other Lenders. If such Lender notifies the Borrower that the circumstances giving rise to such suspension or demand for compensation no longer exist, the principal amount of each such Base Rate Loan shall, subject to Section 8.02, be converted into a Euro-Dollar Loan on the first day of the next succeeding Interest Period applicable to the related Euro-Dollar Loans of the other Lenders.


 


SECTION 8.05. Taxes.  (a)  Withholding of Taxes; Gross-Up.  Each payment by the Borrower hereunder shall be made without withholding for any Taxes, unless such withholding is required by any law.  If any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so required to withhold Taxes from any such payment, then such Withholding Agent may so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable law.  If such Taxes are Indemnified Taxes, then the amount payable by the Borrower shall be increased as necessary so that, net of such withholding (including such withholding for Indemnified Taxes applicable to additional amounts payable under this Section 8.05(a)), the applicable Recipient receives the amount it would have received had no such withholding for Indemnified Taxes been made.


 


(b) Payment of Other Taxes by the Borrower.  The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.


 


(c) Evidence of Payments.  As soon as practicable after any payment of Indemnified Taxes by the Borrower to a Governmental Authority pursuant to this Section 8.05, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.


 


(d) Indemnification by the Borrower.  The Borrower shall indemnify each Recipient for any Indemnified Taxes that are paid or payable (without duplication) by such Recipient in connection with this Agreement (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 8.05(d)) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that the Borrower shall not be required to indemnify a Recipient pursuant to this Section 8.05(d) for any 


 




  





 


 





  






50


 


Indemnified Taxes unless such Recipient notifies the Borrower of the indemnification claim for such Indemnified Taxes no later than 180 days after the date on which such Recipient has made payment of such Indemnified Taxes.  The indemnity under this Section 8.05(d) shall be paid within 20 days after the Recipient delivers to the Borrower a certificate stating the amount of any Indemnified Taxes so paid or payable by such Recipient and describing the basis for the indemnification claim (including how such amounts were determined).  Such certificate shall be conclusive of the amount so paid or payable absent manifest error.  Such Recipient shall deliver a copy of such certificate to the Administrative Agent.


 


(e) Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent for (i) any Taxes (but, in the case of any Indemnified Taxes, only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so) attributable to such Lender and (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.06(g) relating to the maintenance of a Participant Register, in each case that are paid or payable by the Administrative Agent in connection with this Agreement and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  The indemnity under this Section 8.05(e) shall be paid within 10 days after the Administrative Agent delivers to the applicable Lender a certificate stating the amount of Taxes so paid or payable by the Administrative Agent.  Such certificate shall be conclusive of the amount so paid or payable absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 8.05(e) to the extent such amount shall not have been paid as provided herein.


 


(f) Status of Lenders.  (i)  Any Lender (which, solely for purposes of Section 8.05(f) and Section 8.05(g), shall include the Administrative Agent) that is entitled to an exemption from, or reduction of, withholding Tax with respect to any payments under this Agreement shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding.  In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 8.05(f)(ii)(A) through (E)  and Section 8.05(g) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  Upon the reasonable request of the Borrower or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 8.05(f) or Section 8.05(g).  If any form or certification previously delivered pursuant to this Section 8.05(f) or Section 8.05(g) expires or becomes obsolete or 


 




  





 


 





  




 


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inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or inaccuracy) notify the Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.




 


(ii) Without limiting the generality of the foregoing, any Lender shall, if it is legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such number of copies reasonably requested by the Borrower and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto (and from time to time therafter upon the reasonable request of the Borrower or the Administrative Agent), duly completed and executed originals of whichever of the following is applicable:


 


(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;


 


(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under this Agreement, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;


 


(C) IRS Form W-8ECI;


 


(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2) a certificate substantially in the form of Exhibit C (a “U.S. Tax Certificate”) to the effect that such Lender is neither (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code or (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;


 


(E) in the case of a Non-U.S. Lender that is not the beneficial owner of payments made under this Agreement (including a partnership or a participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D), (E) and (F) of this paragraph (f)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership and one or more of its direct or indirect partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or


 


(F) any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. Federal withholding Tax together with such supplementary documentation necessary to enable the Borrower or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.


 




  





 


 





  






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(g) FATCA.  If a payment made to a Lender hereunder would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment.  Solely for purposes of this Section 8.05(g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.


 


(h) Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 8.05 (including by payment of additional amounts pursuant to this Section 8.05), it shall, within 45 days after receiving such refund, pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid to such indemnifying party pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place such indemnified party in a less favorable net after-Tax position than it would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph (h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person.


 


(i) Issuing Bank.  For purposes of this Section 8.05, the term “Lender” includes any Issuing Bank.


 


SECTION 8.06. Substitution of Lender.  (a)  Designation of a Different Lending Office.  If any Lender requests compensation under Section 8.03, or the Borrower is or will be required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 8.05, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8.03 or 8.05, as the case may be, in the future, and (ii) would not subject such Lender 


 




  





 


 





  




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to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.




 


(b) If (i) the obligation of any Lender to make or to convert or continue outstanding Loans as or into Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii) any Lender has demanded compensation under Section 8.03 or the Borrower is or will be required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 8.05, (iii) any Lender has become a Defaulting Lender or a Declining Lender or (iv) any Lender refuses to consent to any proposed amendment, modification, waiver or consent with respect to any provision hereof that requires the unanimous approval of all Lenders, or the approval of each of the Lenders affected thereby (in each case in accordance with Section 9.05), and the consent of the Required Lenders shall have been obtained with respect to such amendment, modification, waiver or consent, then the Borrower shall have the right, upon notice to such Lender and the Administrative Agent, to designate a substitute financial institution or financial institutions (which may be one or more of the Lenders) to purchase for cash, pursuant to an Assignment and Assumption Agreement, the outstanding Revolving Loans and funded participations in Letter of Credit drawings and Swingline Loans of such Lender and assume the Commitment of such Lender, without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the principal amount of all of such Lender’s outstanding Revolving Loans and funded participations in Letter of Credit drawings and Swingline Loans plus any accrued but unpaid interest thereon and accrued but unpaid fees for the account of such Lender hereunder plus such amount, if any, as would be payable pursuant to Section 2.14 if the outstanding Revolving Loans of such Lender were prepaid in their entirety on the date of consummation of such assignment provided that the Borrower shall have received the prior written consent of the Administrative Agent with respect to any assignee that is not already a Lender hereunder (and if a Commitment is being assigned, each Issuing Bank), which consent shall not unreasonably be withheld, conditioned or delayed.


 


SECTION 8.07. Notice Mandatory.  The Administrative Agent or the affected Lender, as the case may be, shall promptly give notice to the Borrower when circumstances which gave rise to a suspension of the obligations of the Lenders or a Lender to make or maintain Euro-Dollar Loans pursuant to Section 8.01 or 8.02, or to a demand for compensation under Section 8.03 or 8.05, no longer exist.


 


ARTICLE 9                      


 







 


Miscellaneous


 


SECTION 9.01. Notices.  (a)  Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) of this Section), 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 fax, as follows:


 




  





 


 





  






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(i) if to the Borrower, to it at 5555 San Felipe Street, Houston, TX  77056, Attention of Treasurer (Fax No. (713) 296-4519);


 


(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 1111 Fannin Street, Floor 10, Houston, TX 77002-6925, Attention of Leslie Hill (Fax No. (713) 427-6307), with a copy to JPMorgan Chase Bank, N.A., 712 Main Street, 12th Floor North, Houston, TX 77002, Attention of Marshall Trenckmann (Fax No. (713) 216-8870);


 


(iii) if to any Issuing Bank, to it at its address (or fax number) most recently specified by it in a notice delivered to the Administrative Agent and the Borrower (or, in the absence of any such notice, to the address (or fax number) set forth in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or is an Affiliate thereof);


 


(a) if to the Swingline Lender, to it at 712 Main Street, 12th Floor North, Houston, TX 77002, Attention of Marshall Trenckmann (Fax No. (713) 216-8870); and


 


(b) if to any other Lender, to it at its address (or fax number) set forth in its Administrative Questionnaire.


 


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 fax shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient); and notices delivered through electronic communications to the extent provided in paragraph (b) of this Section shall be effective as provided in such paragraph.


 


(b) Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communications (including email and Internet and intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices under Article II to any Lender or Issuing Bank if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  Any notices or other communications to the Administrative Agent or the Borrower may be delivered or furnished by electronic communications pursuant to procedures approved by the recipient thereof prior thereto; provided that approval of such procedures may be limited or rescinded by any such Person by notice to each other such Person.


 


(c) Any party hereto may change its address or fax number for notices and other communications hereunder by notice to the other parties hereto.


 


SECTION 9.02. No Waivers.  No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right, power or privilege hereunder or under any Letter of Credit shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.


 




  





 


 





  






55


 


SECTION 9.03. Expenses; Indemnification.  (a)  The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses of the Administrative Agent, including fees and disbursements of counsel for the Administrative Agent, in connection with the preparation of this Agreement, any waiver or consent hereunder or any amendment hereof or any Default or alleged Default hereunder and (ii) if an Event of Default occurs, all reasonable and documented (with itemized invoices) out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender, including (without duplication) the fees and disbursements of outside counsel, in connection with such Event of Default and collection, or any bankruptcy, insolvency, reorganization or other enforcement proceedings resulting therefrom.


 


(b) The Borrower agrees to indemnify the Administrative Agent, each Issuing Bank, each Lender, their respective affiliates and the respective directors, officers, agents and employees of the foregoing (each an “Indemnitee”) and hold each Indemnitee harmless from and against any and all liabilities, losses, damages, costs and expenses of any kind, including reasonable fees and disbursements of counsel, which may be incurred by such Indemnitee in connection with any investigative, administrative or judicial proceeding (whether or not such Indemnitee shall be designated a party thereto) brought or threatened relating to or arising out of this Agreement or any actual or proposed use of proceeds of Loans or Letters of Credit hereunder; provided that (i) no Indemnitee shall have the right to be indemnified hereunder for its own gross negligence or willful misconduct or for its material breach of the express terms of this Agreement, in each case as determined by final judgment of a court of competent jurisdiction; (ii) the Borrower shall not, in connection with any such proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate law firm at any one time for the Indemnitees (which shall be selected by the Administrative Agent after consultation with the Borrower); provided, that in the case of a conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict, the Borrower shall be responsible for the reasonable fees and expenses of one firm of counsel for each such affected Indemnitee; (iii) each Indemnitee shall consult with the Borrower from time to time at the request of the Borrower regarding the conduct of the defense in any such proceeding; and (iv) the Borrower shall not be obligated to pay an amount of any settlement entered into without its consent (which shall not be unreasonably withheld.


 


(c) To the extent permitted by applicable law, no party hereto shall assert, and each party hereto hereby waives, any claim against any other party hereto, 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 or any agreement or instrument contemplated hereby, any Loan or Letter of Credit or the use of proceeds thereof; provided, that nothing in this paragraph shall limit the indemnification obligations of the Borrower under Section 9.03(b) with respect to any special, indirect, consequential or punitive damages that may be awarded against any Indemnitee in favor of any third party.  The Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for any damages from the use by unintended recipients of information obtained by electronic means; provided that the foregoing shall not apply to the extent such damages are found by a final judgment of a court of competent jurisdiction to have arisen from the willful misconduct or gross negligence of such Indemnitee or the material breach by such Indemnitee of its agreements in Section 9.13.


 




  





 


 





  






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SECTION 9.04. Sharing.  Each Lender agrees that if it shall, by exercising any right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest then due with respect to the Loans and Letter of Credit Liabilities held by it which is greater than the proportion received by any other Lender in respect of the aggregate amount of principal and interest then due with respect to the Loans and Letter of Credit Liabilities held by such other Lender, the Lender receiving such proportionately greater payment shall purchase such participations in the Loans and Letter of Credit Liabilities held by the other Lenders, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the Loans and Letter of Credit Liabilities held by the Lenders shall be shared by the Lenders pro rata; provided that nothing in this Section shall impair the right of any Lender to exercise any right of set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than its indebtedness hereunder.


 


SECTION 9.05. Amendments and Waivers.  Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Borrower and the Required Lenders (and, if the rights or duties of any Issuing Bank or the Administrative Agent are affected thereby, by such Issuing Bank or the Administrative Agent, as applicable); provided that (subject to Section 2.19 with respect to any Defaulting Lender) no such amendment or waiver shall:


 


(a) unless signed by each affected Lender, (i) increase the Commitment of any Lender, (ii) reduce the principal of or interest on any Loan or the amount to be reimbursed in respect of any Letter of Credit or any interest thereon or any fees hereunder or (iii) postpone the date fixed for any payment of principal of or interest on any Loan or for reimbursement in respect of any Letter of Credit or any fees hereunder or for the termination of any Commitment or (except as expressly provided in Section 2.04) the expiry date of any Letter of Credit; or


 


(b) unless signed by all Lenders, (i) change the percentage of the Credit Exposures which shall be required for the Lenders or any of them to take any action under this Section or any other provision of this Agreement, (ii) change clause 9.05(a) or this clause 9.05(b) or (iii) change the pro rata distribution of payments to Lenders under this Agreement.


 


For avoidance of doubt, the operation of Section 2.17 or Section 2.18 in accordance with its terms is not an amendment subject to this Section 9.05.


 


SECTION 9.06. Successors and Assigns.  (a)  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 (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.


 




  





 


 





  






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(b) Any Lender may 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 at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment (determined as of the date the Assignment and Assumption Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consent (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, (iii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption Agreement, together with a processing and recordation fee of $3,500, (iv) the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and (v) the assignee, if it shall not be a Lender, shall be required to execute and deliver the applicable forms to the extent required under Section 8.05(f) for any Lender, and no assignment shall be effective in connection herewith unless and until such forms are so delivered.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party hereto 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 (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 (and subject to the obligations) of Section 8.03, 8.05 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 paragraph (d) of this Section.


 


(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the State of Delaware or New York a copy of each Assignment and Assumption Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount (and stated interest) of the Loans 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 the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender (as to its own interest hereunder), at any reasonable time and from time to time upon reasonable prior notice.


 


(d) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (other than to the 


 




  





 


 





  




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Borrower or any of its affiliates) (each a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment, Loans, Swingline Liabilities and/or Letter of Credit Liabilities 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 Borrower, the Administrative Agent and the other Lenders 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, modification or waiver described in clause (i), (ii) or (iii) of Section 9.05(a) that affects such Participant. Subject to paragraph (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 8.03 and 8.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section (thereby becoming a Lender).  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.04 as though it were a Lender, provided such Participant agrees to be subject to Section 9.04 as though it were a Lender.  The Borrower shall be notified promptly by the applicable Lender of each participation sold by such Lender to a Participant pursuant to this paragraph.




 


(e) A Participant shall not be entitled to receive any greater payment under Section 8.03 or Section 8.05 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 the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 8.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 8.05 (including Section 8.05(f) and 8.05(g)) and be subject to Section 8.06 as though it were a Lender.


 


(f) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement 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 of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g) Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any rights and/or obligations under this Agreement (including all or a portion of its Commitment, Loans and/or Letter of Credit Liabilities or its other obligations under this Agreement) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loans and/or Letter of Credit Liabilities or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the 


 




  





 


 





  




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Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.




 


SECTION 9.07. Survival.  All covenants, agreements, representations and warranties made by the Borrower herein shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or been terminated.  The provisions of Sections 2.14, 8.03, 8.05 and 9.03 and Article 7 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the termination of the Commitments.


 


SECTION 9.08. Governing Law; Submission to Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Each party hereto hereby submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State court sitting in New York County for purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. Each party hereto irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.


 


SECTION 9.09. Counterparts; Integration.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.


 


SECTION 9.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


SECTION 9.11. USA Patriot Act.  Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with said Act.


 




  





 


 





  






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SECTION 9.12. No Fiduciary Relationship.  The Borrower, on behalf of itself and its affiliates, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Borrower and its affiliates, on the one hand, and the Administrative Agent, the Lenders, the Issuing Banks and their affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Administrative Agent, the Lenders, the Issuing Banks or their affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.  The Administrative Agent, the Lenders, the Issuing Banks and their affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of the Borrower and its affiliates, and none of the Administrative Agent, the Lenders, the Issuing Banks or their affiliates has any obligation to disclose any of such interests to the Borrower or any of its affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it or any of its affiliates may have against the Administrative Agent, the Lenders, the Issuing Banks and their affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.


 


SECTION 9.13. Confidentiality.  Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (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), (b) upon the request or demand of any regulatory authority (including any self-regulatory authority) having jurisdiction over such Administrative Agent, Issuing Bank or Lender, as applicable, or its affiliates (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority (or any request by any governmental bank regulatory authority), (i) promptly notify the Borrower in advance of such disclosure, to the extent permitted by law, and (ii) so furnish only that portion of such information which the applicable Person is legally required to disclose), (c) to the extent required by any legal, judicial, administrative proceeding or other process or otherwise as required by applicable law or regulations (in which case such Administrative Agent, Issuing Bank or Lender, as applicable, shall (i) promptly notify the Borrower in advance of such disclosure, to the extent permitted by law, and (ii) so furnish only that portion of such information which the applicable Person is legally required to disclose), (d) to any other party to this Agreement, (e) to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans (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), (f) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (g) subject to an agreement containing provisions no less restrictive than those of this Section, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (h) with the consent of the Borrower or (i) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower or any of its Affiliates.  For the 


 




  





 


 





  




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purposes of this Section, “Information” means all information received from the Borrower or any of its Subsidiaries relating to the Borrower or any of its Affiliates or their business, other than any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any of its Subsidiaries.  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 9.14. Non-Public Information.   Each Lender acknowledges that all information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to or in connection with, or in the course of administering, this Agreement will be syndicate-level information, which may contain MNPI.  Each Lender represents to the Borrower and the Administrative Agent that (i) it has developed compliance procedures regarding the use of MNPI and that it will handle MNPI in accordance with such procedures and applicable law, including Federal, state and foreign securities laws, and (ii) it has identified in its Administrative Questionnaire a credit contact who may receive information that may contain MNPI in accordance with its compliance procedures and applicable law, including Federal, state and foreign securities laws.


 







 






 


  





  


 





  








IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.


 


 



	
  

	
MARATHON OIL CORPORATION,







 


 



	
  

	
by:_/s/ Michael K. Stewart__________







 



	
  

	
Name: Michael K. Stewart







 



	
  

	
Title:   Vice President, Finance and Accounting, Controller and Treasurer







 







[Signature Page to the Credit Agreement]







 




  





  


 





  








 


JPMORGAN CHASE BANK, N.A., as a Lender, as an Issuing Bank and as Administrative Agent,


 


 



	
  

	
By:_/s/ Marshall Trenckmann_____







 


 



	
  

	
Name: Marshall Trenckmann







 


 



	
  

	
Title:   Vice President







 







[Signature Page to the Credit Agreement]







 




  





  











  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
THE ROYAL BANK OF SCOTLAND PLC







 



	
  

	
By: /s/ Matthew Main____________







 



	
  

	
Name: Matthew Main







 



	
  

	
Title: Authorised Signatory












[Signature Page to the Credit Agreement]




 




  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Citibank, N.A.,







 


 



	
  

	
By:___/s/ Shannon Sweeney____







 



	
  

	
Name: Shannon Sweeney







 



	
  

	
Title: Vice President












[Signature Page to the Credit Agreement]







 




  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Morgan Stanley Bank, N.A.







 


 



	
  

	
By:__/s/ Lisa Kopff___________







 



	
  

	
Name: Lisa Kopff







 



	
  

	
Title: Authorized Signatory












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
UBS LOAN FINANCE LLC,







 


 



	
  

	
By:_/s/ Mary E. Evans____________







 



	
  

	
Name: Mary E. Evans







 



	
  

	
Title: Associate Director







 



	
  

	
For any institution requiring a second signature line:







 


 



	
  

	
By: /s/ Joselin Fernandes__________







 


 



	
  

	
Name: Joselin Fernandes







 


 



	
  

	
Title: Associate Director







 







[Signature Page to the Credit Agreement]









  





  


 





  








 







LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
DNB Bank ASA Grand Cayman Branch







 


 



	
  

	
By:_/s/ Andrea Ozbolt___________







 



	
  

	
Name: Andrea Ozbolt







 



	
  

	
Title: Vice President







 



	
  

	
For any institution requiring a second signature line:







 


 



	
  

	
By: /s/ Kjell Tore Egge__________







 


 



	
  

	
Name: Kjell Tore Egge







 


 



	
  

	
Title: Senior Vice President







 







[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
HSBC BANK USA, NATIONAL ASSOCIATION,







 


 



	
  

	
By:_/s/ Robert Wainwright___________







 



	
  

	
Name: Robert Wainwright







 



	
  

	
Title: Vice President












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Royal Bank of Canada,







 


 



	
  

	
By:_/s/ Jay Sartain_____________







 



	
  

	
Name: Jay Sartain







 



	
  

	
Title: Authorized Signatory












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
The Bank of Nova Scotia,







 


 



	
  

	
By:_/s/ Mark Sparrow____________







 



	
  

	
Name: Mark Sparrow







 



	
  

	
Title: Director












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
The Bank of Tokyo-Mitsubishi UFJ, Ltd.







 


 



	
  

	
By:_/s/ Andrew Oram____________







 



	
  

	
Name: Andrew Oram







 



	
  

	
Title: Managing Director







 












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
U.S. Bank National Association,







 


 



	
  

	
By:_/s/ John Prigge____________







 



	
  

	
Name: John Prigge







 



	
  

	
Title: Vice President












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Lloyds TSB Bank plc,







 


 



	
  

	
By:_/s/ Karen Weich____________







 



	
  

	
Name: Karen Weich







 



	
  

	
Title: Vice President W011







 



	
  

	
For any institution requiring a second signature line:







 


 



	
  

	
By: /s/ Candi Obrentz__________







 


 



	
  

	
Name: Candi Obrentz







 


 



	
  

	
Title: Vice President O013







 







[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Mizuho Corporate Bank, Ltd.







 


 



	
  

	
By:_/s/ Leon Mo____________







 



	
  

	
Name: Leon Mo







 



	
  

	
Title: Authorized Signatory












[Signature Page to the Credit Agreement]




  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
PNC Bank, National Association







 


 



	
  

	
By:_/s/ Thomas E. Redmond_________







 



	
  

	
Name: Thomas E. Redmond







 



	
  

	
Title: Senior Vice President












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Societe Generale,







 


 



	
  

	
By:_/s/ Anson Williams_____________







 



	
  

	
Name: Anson Williams







 



	
  

	
Title: Director












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Sumitomo Mitsui Banking Corporation,







 


 



	
  

	
By:_/s/ Masakazu Hasegawa_________







 



	
  

	
Name: Masakazu Hasegawa







 



	
  

	
Title: Managing Director







 












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Comerica Bank







 


 



	
  

	
By:_/s/ Jeff Treadway____________







 



	
  

	
Name: Jeff Treadway







 



	
  

	
Title: Vice President












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Deutsche Bank AG New York Branch,







 


 



	
  

	
By:_/s/ Ming K. Chu_____________







 



	
  

	
Name: Ming K. Chu







 



	
  

	
Title: Vice President







 



	
  

	
By: /s/ Virginia Cosenza__________







 


 



	
  

	
Name: Virginia Cosenza







 


 



	
  

	
Title: Vice President







 







[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Fifth Third Bank







 


 



	
  

	
By:_/s/ Christopher C. Motley________







 



	
  

	
Name: Christopher C. Motley







 



	
  

	
Title: Senior Vice President












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Goldman Sachs Bank USA,







 


 



	
  

	
By:_/s/ Mark Walton____________







 



	
  

	
Name: Mark Walton







 



	
  

	
Title: Authorized Signatory












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
Standard Chartered Bank,







 


 



	
  

	
By:_/s/ James Hughes____________







 



	
  

	
Name: James Hughes







 



	
  

	
Title: Director












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
The Bank of New York Mellon,







 


 



	
  

	
By:_/s/ Hussam S. Alsahlani______







 



	
  

	
Name: Hussam S. Alsahlani







 



	
  

	
Title: Vice President












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
Name of Institution:







 


 



	
  

	
The Northern Trust Company,







 


 



	
  

	
By:_/s/ Keith L. Burson____________







 



	
  

	
Name: Keith L. Burson







 



	
  

	
Title: Vice President












[Signature Page to the Credit Agreement]









  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 


AMEGY BANK NATIONAL ASSOCIATION,


 


 



	
  

	
By:_/s/ Charles W. Patterson________







 



	
  

	
Name: Charles W. Patterson







 



	
  

	
Title: Senior Vice President












[Signature Page to the Credit Agreement]




  





  


 





  








LENDER SIGNATURE PAGE TO THE


MARATHON OIL CORPORATION


CREDIT AGREEMENT


DATED AS OF APRIL 5, 2012


 


 



	
  

	
CHANG HWA COMMERCIAL BANK, LTD., LOS ANGELES BRANCH,







 


 



	
  

	
By:_/s/ Frank Fang____________







 



	
  

	
Name: Frank Fang







 



	
  

	
Title: AVP & Manager







 







 







 







 







 







 







 


 







 







 







 


 






















[Signature Page to the Credit Agreement]









  





  


 





  



PRICING SCHEDULE




















Each of “Commitment Fee Rate”, “Euro-Dollar Margin” and “Base Rate Margin” means, for any day, the rate per annum set forth in the table below (expressed in basis points per annum) in the column under such term and in the row corresponding to the Pricing Level applicable on such date:








	  	
Applicable Ratings


(Moody’s/S&P)

	
Commitment Fee


 

	
Euro-Dollar Margin

	
Base Rate Margin


	
Pricing Level 1

	
A2/A or higher

	
10.0

	
87.5

	
0.0


	
Pricing Level 2

	
A3/A-

	
12.5

	
112.5

	
12.5


	
Pricing Level 3

	
Baa1/BBB+

	
17.5

	
125.0

	
25.0


	
Pricing Level 4

	
Baa2/BBB

	
20.0

	
137.5

	
37.5


	
Pricing Level 5

	
Baa3/BBB- or lower

	
25.0

	
162.5

	
62.5












The applicable Pricing Level will be based on the Applicable Ratings (as defined below) from Moody’s and S&P.  For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect an Applicable Rating (other than by reason of the circumstances referred to in the next succeeding paragraph), then the applicable Pricing Level will be based on the single available Applicable Rating, (ii) if the Applicable Ratings established or deemed to have been established by Moody’s and S&P shall fall within different levels, the applicable Pricing Level shall be based on the higher of the two Applicable Ratings unless one of the two ratings is two or more levels lower than the other, in which case the applicable Pricing Level shall be determined by reference to the level one rating lower than the higher of the two Applicable Ratings, and (iii) if the Applicable Ratings established by Moody’s and S&P shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative Agent and the Lenders.  Each change in the applicable Pricing Level resulting from a change in the Applicable Ratings shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.







If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the 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 and, pending the effectiveness of any such amendment, the Commitment Fee Rate, the Euro-Dollar Margin, and the Base Rate Margin shall be determined by reference to the rating most recently in effect from such rating agency prior to such change or cessation.







For any day when no Applicable Rating is in effect, the Commitment Fee Rate, the Euro-Dollar Margin, and the Base Rate Margin shall be the rates set forth opposite Pricing Level 5.


 

 


“Applicable Rating” shall mean, for each of Moody’s and S&P, (i) the rating assigned by such rating agency to the Borrower’s senior, unsecured long-term indebtedness for borrowed money that is not subject to any credit enhancement, or (ii) if such rating agency shall not have in effect a rating referred to in the preceding clause (i), then the rating assigned by such rating agency to the Loans, or (iii) if such rating agency shall not have in effect a rating referred to in either of the preceding clauses (i) or (ii), the “company” or “corporate credit” rating assigned by such rating agency to the Borrower.





















 


  





  


 





  



COMMITMENT SCHEDULE
















	

 


 


Lender



	

 


 


Commitment




	
JPMorgan Chase Bank, N.A.

	
$190,000,000


	
The Royal Bank of Scotland plc

	
$190,000,000


	
Citibank, N.A.

	
$190,000,000


	
Morgan Stanley Bank, N.A.

	
$190,000,000


	
UBS Loan Finance LLC

	
$190,000,000


	
DNB Bank ASA

	
$135,000,000


	
HSBC Bank USA, NA

	
$135,000,000


	
Royal Bank of Canada

	
$135,000,000


	
The Bank of Nova Scotia

	
$135,000,000


	
The Bank of Tokyo-Mitsubishi UFJ, Ltd.

	
$135,000,000


	
US Bank NA

	
$135,000,000


	
Lloyds Bank TSB plc

	
 $75,000,000


	
Mizuho Corporate Bank, Ltd.

	
 $75,000,000


	
PNC Bank, NA

	
 $75,000,000


	
Societe Generale

	
 $75,000,000


	
Sumitomo Mitsui Banking Corporation

	
 $75,000,000


	
Comerica Bank

	
 $45,000,000


	
Deutsche Bank AG

	
 $45,000,000


	
Fifth Third Bank

	
 $45,000,000


	
Goldman Sachs Bank USA

	
 $45,000,000


	
Standard Chartered Bank

	
 $45,000,000


	
The Bank of New York Mellon

	
 $45,000,000


	
The Northern Trust Company

	
 $45,000,000


	
Amegy Bank NA

	
 $30,000,000


	
Chang Hwa Commercial Bank, Ltd.

	
 $20,000,000


	  	  
	
Total

	
$2,500,000,000





















 


  





  


 





  



EXHIBIT A










[FORM OF]



 


ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor (as defined below) and the Assignee (as defined below).  Capitalized terms used but not otherwise defined herein have the meanings specified in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.


 


For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (a) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the facility identified below and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other rights of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (a) above (the rights and obligations sold and assigned pursuant to clauses (a) and (b) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.


 



	
  

	
1.

	
Assignor: ________________________________________ (the "Assignor")







 



	
  

	
2.

	
Assignee: ________________________________________________ (the "Assignee") 

[and is a Lender/an Affiliate/an Approved Fund of [identify Lender]1]









 


 



	
  

	
3.

	
Borrower:  Marathon Oil Corporation (the “Borrower”)







 



	
  

	
4.

	
Administrative Agent: JPMorgan Chase Bank, N.A. the “Administrative Agent”)







 



	
  

	
5.

	
Credit Agreement:  Credit Agreement dated as of April 5, 2012, among the Borrower, the Royal Bank of Scotland plc, as syndication agent, Citibank, N.A., Morgan Stanley Senior Funding Inc. and UBS Securities LLC, as documentation agents, and the Administrative Agent.







 



	
  

	
6.

	
Assigned Interest:2







 



	
Facility Assigned

	
Aggregate Amount of Commitments/ Loans for all Lenders

	
Amount of Commitments/ Loans Assigned

	
Percentage Assigned of Commitments/ Loans3


	
Revolving Facility

	
$

	
$

	
%












Effective Date:                                , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR].


 


The Assignee, if not already a Lender, agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable law, including Federal, state and foreign securities laws.


 











  

1     Select as applicable.


 





2     Must comply with the minimum assignment amounts set forth in Section 9.06(b) of the Credit Agreement, to the extent such minimum assignment amounts are applicable.


 





3     Set forth, to at least nine decimals, as a percentage of the Commitment/Loans of all Lenders.
















  





  


 





  








The terms set forth in this Assignment and Assumption are hereby agreed to:


 



	 	  [NAME OF ASSIGNOR], as Assignor,
	 	 
	  

by

	
  


_____________________________________


	  	
Name:


	  	
Title:


















	 	  [NAME OF ASSIGNEE], as Assignee,
	 	 
	  

by

	
  


_____________________________________


	  	
Name:


	  	
Title:
























  





  


 





  








[Consented to and]4 Accepted:








	
JPMORGAN CHASE BANK, N.A., as Administrative Agent,


	
 


	  by	 ____________________________________________ 
	  	
Name:           


	  	
Title:







 


[Consented to:]5


 







 








	
[SWINGLINE LENDER]


	
 


	  by	 _____________________________________________
	  	
Name:


	  	
Title:







 


Consented to:


 







 








	
[NAME OF ISSUING BANK]


	
 


	
by

	_____________________________________________           
	  	
Name:


	  	
Title:







 



	
[NAME OF ISSUING BANK]


	
 


	
by

	_____________________________________________           
	  	
Name:


	  	
Title:











	
[NAME OF ISSUING BANK]


	
 


	
by

	_____________________________________________           
	  	
Name:


	  	
Title:







 



	
[NAME OF ISSUING BANK]


	
 


	
by

	_____________________________________________           
	  	
Name:


	  	
Title:











	
[NAME OF ISSUING BANK]


	
 


	
by

	_____________________________________________           
	  	
Name:


	  	
Title:







 







 


 


[Consented to:]6


 



	
[MARATHON OIL CORPORATION]


	
 


	
by

	_____________________________________________           
	  	
Name:


	  	
Title:










 







 














  

4 To be included only if the consent of the Administrative Agent is required pursuant to the terms of the Credit Agreement.


 





5 To be included only if the consent of the Swingline Lender and Issuing Banks is required pursuant to the terms of the Credit Agreement.


 





6     To be included only if the consent of the Borrower is required pursuant to the terms of the Credit Agreement.


 
















  





  


 





  



ANNEX 1










STANDARD TERMS AND CONDITIONS FOR


 


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and Warranties.


 


1.1  Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated herein; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, (iii) the financial condition of the Borrower or (iv) the performance or observance by the Borrower of any of its obligations under the Credit Agreement.


 


1.2.  Assignee.  The Assignee (a) represents and warrants that (i) it is an Eligible Assignee, (ii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (iii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iv) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (v) it has received and/or has had the opportunity to review a copy of the Credit Agreement to the extent it has in its sole discretion deemed necessary, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof (or, prior to the delivery of any such financial statements, the financial statements referred to in Section 4.04(a) thereof) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, independently and without reliance on the Assignor, the Administrative Agent or any Lender, and (vi) if it is a Non-U.S. Lender, attached to this Assignment and Assumption is any documentation required to be delivered by it pursuant to Section 8.05 of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Assignor, the Administrative Agent or any Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, (ii) it hereby appoints and authorizes the Administrative Agent to take such action and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent, respectively, by the terms thereof, together with such powers as are reasonably incidental thereto, and (iii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.


 


2.  Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to or on or after the Effective Date.  The Assignor and the Assignee shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves.


 


3.  General Provisions.  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.





 


  





  


 





  



EXHIBIT B-1












[FORM OF]


 


OPINION OF INTERNAL COUNSEL OF THE BORROWER





 


April 5, 2012







JPMorgan Chase Bank, N.A..


  as Administrative Agent


Loan and Agency Services Group


1111 Fannin Street, Floor 10


Houston, TX 77002-6925







The Lenders party to the Credit Agreement referred to below as of the date hereof







RE:           Marathon Oil Corporation


 


Ladies and Gentlemen:


 


This opinion is being delivered pursuant to Section 3.01(b)(ii) of the Credit Agreement dated as of April 5, 2012 (the “Credit Agreement”) by and among Marathon Oil Corporation, a Delaware corporation (the “Borrower”), the Lenders party thereto as listed on the signature pages thereof, The Royal Bank of Scotland plc, as Syndication Agent, Citibank, N.A., Morgan Stanley Senior Funding, Inc. and UBS Securities LLC, as Documentation Agents, and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed to them in the Credit Agreement.


 


As Assistant General Counsel, Corporate & Finance, and Assistant Secretary of the Borrower, I have examined, or caused to be examined, originals or copies, certified or otherwise identified to my satisfaction, of each of the documents identified on Exhibit A attached hereto (each a “Loan Document”, and collectively, the “Loan Documents”) and such other documents, corporate records, certificates of public officials and other instruments and have conducted such other investigations of fact and law as I have deemed necessary or advisable for purposes of this opinion.


 


Based upon the foregoing and subject to the assumptions, limitations and qualifications hereinafter stated, I am of the opinion that:


 


1.               The Borrower is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to conduct its business as now conducted.


 


2.               The execution, delivery and performance by the Borrower of the Loan Documents are (i) within the Borrower’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect (except for any reports required to be filed by the Borrower with the SEC pursuant to the Exchange Act), (iv) do not violate in any material respect any law or regulation or any order of any Governmental Authority, in each case, applicable to or binding upon the Borrower, (v) do not contravene or constitute a default under any indenture, agreement or other instrument binding upon the Borrower, except to the extent that a Material Adverse Effect would not reasonably be expected to result therefrom, (vi) will not result in the creation or imposition of any Mortgage on any asset of the Borrower or any of its Subsidiaries and (vii) do not violate the certificate of incorporation or bylaws, as amended or restated to the date hereof, of the Borrower.


 


3.               Except as set forth in the Borrower’s 2011 Form 10-K, there is no action, suit, arbitration or other proceeding, inquiry or investigation, at law or in equity, or before or by any court, public board or body, arbitrator or arbitral body, pending against the Borrower or of which the Borrower has otherwise received official notice or which to my knowledge is threatened against the Borrower, wherein there is a reasonable possibility of an unfavorable decision, ruling or finding that would reasonably be expected to result in a Material Adverse Effect.


 


The opinions set forth above are subject to the following additional assumptions, limitations and qualifications:


 


(A)           In the examination of all agreements and other instruments and documents in connection with the opinions expressed herein, I have assumed, without independent investigation, except to the extent expressly provided in the opinions, (i) the due execution and delivery on behalf of the parties (other than the Borrower) thereto of the Loan Documents, (ii) the genuineness of all signatures (other than signatures of officers and agents of the Borrower), (iii) the authenticity of all documents submitted to me as originals and the conformity to authentic original documents of all copies submitted to me as certified, conformed or photostatic copies and (iv) that each Loan Document constitutes a valid, binding and enforceable obligation of each party thereto. In connection with the opinions expressed herein, I have relied upon the representations and warranties in the Loan Documents, certificates of officers and other representatives of the Borrower and certificates of public officials with respect to the accuracy of the factual matters contained therein or covered thereby.


 


(B)           The opinions set forth above that are stated “to my knowledge” are based upon reasonable inquiries of an officer or representative of the Borrower, but are given without any other independent investigation.


 


(C)           I have not been called upon to, and accordingly do not, express any opinion as to (i) the effect of any state or federal securities laws or regulations insofar as they are applicable to or otherwise affect any party to any Loan Document, the transactions contemplated by the Loan Documents, or the exercise of any rights or remedies of any party to the Loan Documents or (ii) various state and federal laws and regulations applicable to banks, insurance companies or other institutions that extend credit or the business or lending transactions of the Administrative Agent, the Lenders or any assignee or participant of any such Person which may relate to the Loan Documents or the transactions contemplated thereby.


 


I am a member of the State Bars of Texas and Ohio. The opinions set forth herein are based upon and limited to the laws of the State of Texas, the federal laws of the United States of America and the Delaware General Corporation Law (without consideration of any judicial or administrative interpretations of the Delaware General Corporation Law).


 


This opinion letter is furnished to you solely for your benefit in connection with the transactions consummated on the date hereof pursuant to the Loan Documents.  This opinion letter and the opinions expressed herein may not be used for any other purpose or relied upon by any Person, and may not be furnished or quoted to any other Person, without, in each instance, my prior written consent.  At your request, I hereby consent to reliance hereon by any future Lender under the Credit Agreement that becomes a party thereto (a) pursuant to an assignment that is made and consented to in accordance with the express provisions of Section 9.06 of the Credit Agreement or (b) pursuant to an increase in the Commitments effected in accordance with Section 2.17 of the Credit Agreement, in each case on the condition and understanding that (i) this opinion letter speaks only as of the date hereof, (ii) I have no responsibility or obligation to update this opinion letter, to consider its applicability or correctness to other than its addressees, or to take into account changes in law, facts or any other developments of which I may later become aware, and (iii) any such reliance by any such Person that becomes a Lender must be actual and reasonable under the circumstances existing at the time of its becoming a Lender, including any changes in law, or any other developments known to or reasonably knowable by such Person at such time. This opinion letter speaks as of its date, and I undertake no (and hereby disclaim any) obligation or responsibility to update or supplement this opinion letter in response to subsequent changes in law or future events affecting any of the transactions contemplated by any Loan Document.


 



 



	 	 Very truly yours,
	 	 
	 	 Richard J. Kolencik
	 	 Assistant General Counsel,
	 	 Corporate & Finance, and Assistant
	 	 Secretary





 




 







 


 


 













  





  


  





  










Exhibit A


 


Loan Documents


 



	
1.

	
Credit Agreement.







 



	
2.

	
Promissory Note dated April 5, 2012 made by the Borrower in favor of PNC Bank, N.A.







 








  





  


  





  



















  





  











  




	  





EXHIBIT B-2


[FORM OF]







OPINION OF BAKER BOTTS L.L.P., COUNSEL FOR THE BORROWER















April 5, 2012


 


JPMorgan Chase Bank, N.A..


  as Administrative Agent


Loan and Agency Services Group


1111 Fannin Street, Floor 10


Houston, TX 77002-6925







The Lenders party to the Credit Agreement referred to below as of the date hereof







RE:           Marathon Oil Corporation







 


Ladies and Gentlemen:


 


This opinion is being delivered to you pursuant to Section 3.01(b)(i) of the Credit Agreement dated as of April 5, 2012 (the “Credit Agreement”) by and among Marathon Oil Corporation, a Delaware corporation (the “Borrower”), the Lenders party thereto as listed on the signature pages thereof, The Royal Bank of Scotland plc, as Syndication Agent, Citibank, N.A., Morgan Stanley Senior Funding, Inc. and UBS Securities LLC, as Documentation Agents, and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not defined herein have the meanings given to them in the Credit Agreement.


 


We have acted as special counsel, in connection with the transactions provided for in the Credit Agreement, for the Borrower.


 


In connection with this opinion letter, we have examined executed counterparts of the documents identified on Exhibit A hereto (each a “Loan Document,” and collectively, the “Loan Documents”).  In addition, we have examined certificates of representatives of the Borrower and other documents as the basis for our opinions hereinafter set forth.


 


On the basis of the foregoing, and subject to the assumptions, qualifications and limitations set forth below, we are of the opinion that each Loan Document constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.


 


The foregoing opinion is subject to the following assumptions, qualifications and limitations:


 








  





  


  





  











 



	 JPMorgan Chase Bank, N.A.                                                                      	 2	 April 5, 2012





 






A. In rendering our opinion, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies, which assumptions we have not independently verified.  We have relied on certificates of officers of the Borrower with respect to the accuracy of the factual matters contained in those certificates.  In addition, we have assumed that (i) the Loan Documents have been duly executed and delivered by each party thereto, (ii) the Loan Documents constitute valid, binding and enforceable obligations of each party thereto (other than the Borrower) and (iii) the laws of any jurisdiction other than the laws that are the subject of this opinion letter do not affect the terms of the Loan Documents.


 


B. Our opinion is subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer or conveyance, moratorium, conservatorship and similar laws affecting creditors’ rights and remedies generally, (ii) general principles of equity (whether considered in a proceeding in equity or at law) including, without limitation, the possible unavailability of specific performance, injunctive relief or any other equitable remedy, and (iii) principles of materiality and reasonableness and implied covenants of good faith and fair dealing.


 


C. We express no opinion with respect to the validity or enforceability of the following provisions to the extent that they are contained in the Loan Documents:  (i) provisions regarding indemnities or exculpation from liability to the extent prohibited by federal or state laws and the public policies underlying those laws or that might require indemnification or contribution for, or exculpation from liability on account of, negligence, willful misconduct, unlawful acts, fraud or illegality of an indemnified or exculpated party; (ii) provisions purporting to waive, subordinate or not give effect to rights to notice, demands, legal defenses or other rights or benefits that cannot be waived or subordinated, or are rendered ineffective, under applicable law; (iii) provisions relating to powers of attorney, severability or any right of set-off that purports to be more extensive than the right of set-off available under applicable law; (iv) provisions relating to service of process or provisions restricting access to courts or purporting to affect the jurisdiction or venue of courts; (v) provisions providing that decisions by a party are conclusive or may be made in its sole discretion; (vi) provisions purporting to permit cumulative remedies to the extent not permitted under applicable law; or (vii) requirements that all amendments, waivers and terminations be in writing.


 


D. In rendering our opinion, we have assumed that (i) the Borrower is a corporation validly existing and in good standing under the laws of the State of 


 




 





 











 





	 JPMorgan Chase Bank, N.A.                                                                      	3	 April 5, 2012





 


Delaware, (ii) the Borrower has the requisite corporate power and authority to execute and deliver the Loan Documents and to perform its obligations thereunder and (iii) the execution and delivery of each Loan Document by the Borrower and the performance by the Borrower of its obligations thereunder have been duly authorized by all requisite corporate action on the part of the Borrower.




 


This opinion letter is limited to the laws of the State of New York and the federal laws of the United States of America as in effect on the date hereof, and no opinion is expressed herein as to the laws of any other jurisdiction.  This opinion letter is furnished to you solely for your benefit in connection with the transactions consummated on the date hereof pursuant to the Loan Documents.  This opinion letter and the opinions expressed herein may not be used for any other purpose or relied upon by any Person, and may not be furnished or quoted to any other Person, without, in each instance, our prior written consent.  At your request, we hereby consent to reliance hereon by any future Lender under the Credit Agreement that becomes a party thereto (a) pursuant to an assignment that is made and consented to in accordance with the express provisions of Section 9.06 of the Credit Agreement or (b) pursuant to an increase in the Commitments effected in accordance with Section 2.17 of the Credit Agreement, in each case on the condition and understanding that (i) this opinion letter speaks only as of the date hereof, (ii) we have no responsibility or obligation to update this opinion letter, to consider its applicability or correctness to other than its addressees, or to take into account changes in law, facts or any other developments of which we may later become aware, and (iii) any such reliance by any such Person that becomes a Lender must be actual and reasonable under the circumstances existing at the time of its becoming a Lender, including any changes in law, or any other developments known to or reasonably knowable by such Person at such time. This opinion letter speaks as of its date, and we undertake no (and hereby disclaim any) obligation or responsibility to update or supplement this opinion letter in response to subsequent changes in law or future events affecting any of the transactions contemplated by any Loan Document.


 


Very truly yours,


 


 


 





  


  





  


  





  



 










[Logo of Baker Botts LLP]







Exhibit A


 


Loan Documents


 



	
1.

	
Credit Agreement.







 



	
2.

	
Promissory Note dated April 5, 2012 made by the Borrower in favor of PNC Bank, N.A.







 


















  





  


  





  



EXHIBIT C












[FORM OF]


 


U.S. TAX CERTIFICATE


 


(For Non-U.S. Lenders That For U.S. Federal Income Tax Purposes Are Not (i) Partnerships or (ii) Disregarded Entities Whose Tax Owner is a Partnership)







Reference is hereby made to the Credit Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of April [ ], 2012, among Marathon Oil Corporation (the “Borrower”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents party thereto.


 


Pursuant to the provisions of Section 8.05 of the Credit Agreement, the undersigned Lender (and, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, the undersigned Lender on behalf of its tax owner for U.S. federal income tax purposes (“Tax Owner”)) hereby certifies that (i) the undersigned Lender is the sole record owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) the undersigned Lender (or, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, its Tax Owner) is the sole beneficial owner of such Loan(s) (as well as any note(s) evidencing such Loan(s)), and (iii) the undersigned Lender (and, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, its Tax Owner) (A) is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (B) is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (C) is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned Lender for itself (or, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, for its Tax Owner) has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 



 



	 	 [NAME OF LENDER]
	 	 
	 	 By:______________________________________
	 	 Name:
	 	 Title:
	 	 
	 	 Date: ________ __, 20[  ]







 







 








  


  





  


  





  










[FORM OF]


 


U.S. TAX CERTIFICATE


 


(For Non-U.S. Participants That For U.S. Federal Income Tax Purposes Are Not (i) Partnerships or (ii) Disregarded Entities Whose Tax Owner is a Partnership)







Reference is hereby made to the Credit Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of April [ ], 2012, among Marathon Oil Corporation (the “Borrower”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents party thereto.


 


Pursuant to the provisions of Section 8.05 of the Credit Agreement, the undersigned Participant (and, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, the undersigned Participant on behalf of its tax owner for U.S. federal income tax purposes (“Tax Owner”)) hereby certifies that (i) the undersigned Participant is the sole record owner of the participation in respect of which it is providing this certificate, (ii) the undersigned Participant (or, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, its Tax Owner) is the sole beneficial owner of such participation, and (iii) the undersigned Participant (and, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, its Tax Owner) (A) is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (B) is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (C) is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned Participant for itself (or, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, for its Tax Owner) has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


 




	 	 [NAME OF LENDER]
	 	 
	 	 By:______________________________________
	 	 Name:
	 	 Title:
	 	 
	 	 Date: ________ __, 20[  ]





















  





  


  





  










[FORM OF]


 


U.S. TAX CERTIFICATE


 


(For Non-U.S. Participants That For U.S. Federal Income Tax Purposes Are (i) Partnerships or (ii) Disregarded Entities Whose Tax Owner is a Partnership)







Reference is hereby made to the Credit Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of April [ ], 2012, among Marathon Oil Corporation (the “Borrower”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents party thereto.


 


Pursuant to the provisions of Section 8.05 of the Credit Agreement, the undersigned Participant (and, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, the undersigned Participant on behalf of its tax owner for U.S. federal income tax purposes (“Tax Owner”)) hereby certifies that (i) the undersigned Participant is the sole record owner of the participation in respect of which it is providing this certificate, (ii) the undersigned Participant’s (or, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, its Tax Owner’s) direct or indirect partners/members are the sole beneficial owners of such participation, (iii) neither the undersigned Participant, its Tax Owner (if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes) nor any of its (or, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, its Tax Owner’s) direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of the undersigned Participant’s direct or indirect partners/members (and, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, none of its Tax Owner’s direct or indirect partners/members) is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of the undersigned Participant’s direct or indirect partners/members (and, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, none of its Tax Owner’s direct or indirect partners/members) is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned Participant for itself (or, if the undersigned Participant is a disregarded entity for U.S. federal income tax purposes, for its Tax Owner) has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its (or its Tax Owner’s) direct or indirect partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 








  


  





  


  





  










Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.



 



	 	 [NAME OF LENDER]
	 	 
	 	 By:______________________________________
	 	 Name:
	 	 Title:
	 	 
	 	 Date: ________ __, 20[  ]







 







 








  


  





  


  





  










[FORM OF]


 


U.S. TAX CERTIFICATE


 


(For Non-U.S. Lenders That For U.S. Federal Income Tax Purposes Are (i) Partnerships or (ii) Disregarded Entities Whose Tax Owner is a Partnership)







Reference is hereby made to the Credit Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of April [ ], 2012, among Marathon Oil Corporation (the “Borrower”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents party thereto.


 


Pursuant to the provisions of Section 8.05 of the Credit Agreement, the undersigned Lender (and, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, the undersigned Lender on behalf of its tax owner for U.S. federal income tax purposes (“Tax Owner”)) hereby certifies that (i) the undersigned Lender is the sole record owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) the undersigned Lender’s (or, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, its Tax Owner’s) direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any note(s) evidencing such Loan(s)), (iii) neither the undersigned Lender, its Tax Owner (if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes) nor any of the undersigned Lender’s (or, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, its Tax Owner’s) direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of the undersigned Lender’s direct or indirect partners/members (and, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, none of its Tax Owner’s direct or indirect partners/members) is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of the undersigned Lender’s direct or indirect partners/members (and, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, none of its Tax Owner’s direct or indirect partners/members) is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned Lender for itself (or, if the undersigned Lender is a disregarded entity for U.S. federal income tax purposes, for its Tax Owner) has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its (or its Tax Owner’s) direct or indirect partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


 








  


  





  


  





  










Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.



 



	 	 [NAME OF LENDER]
	 	 
	 	 By:______________________________________
	 	 Name:
	 	 Title:
	 	 
	 	 Date: ________ __, 20[  ]







 








  





  


 





  



EXHIBIT D










[FORM OF]







PROMISSORY NOTE


 


$[           ]                                                                                                 New York, New York


 


                                     [●], 201[●]







FOR VALUE RECEIVED, the undersigned, MARATHON OIL CORPORATION (the “Borrower”), hereby promises to pay to [     ] (the “Lender”) or its registered assigns, at the office of JPMorgan Chase Bank, N.A. (the “Administrative Agent”) at 383 Madison Avenue, New York, New York 10179, on the Termination Date  (as defined in the Credit Agreement dated as of April 5, 2012 (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Lenders party thereto, The Royal Bank of Scotland plc, as Syndication Agent, Citibank, N.A., Morgan Stanley Senior Funding, Inc. and UBS Securities LLC, as Documentation Agents, and the Administrative Agent), in lawful money of the United States of America in immediately available funds, (A) the lesser of (i) the principal amount of [           ] dollars ($[           ]) and (ii) the aggregate unpaid principal amount of all Loans made by the Lender to the Borrower pursuant to the Credit Agreement and (B) interest on the unpaid principal amount of each such Loan from the date such Loan is made until the principal amount thereof is paid in full, at the rate or rates per annum and payable on the dates provided in the Credit Agreement.  Capitalized terms used but not defined herein have the meanings assigned to them in the Credit Agreement.


 


The Borrower promises to pay interest, on demand, on any overdue principal and, to the extent permitted by law, overdue interest, in each case, from and including the date such payment was due to, but excluding, the date of actual payment at the rate or rates provided in the Credit Agreement.


 


The Borrower hereby waives diligence, presentment, demand, protest and notice of non-payment.  In case an Event of Default shall occur and be continuing, the principal and accrued interest on this promissory note (this “Promissory Note”) may become or be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.  The nonexercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.


 


All borrowings evidenced by this Promissory Note and all payments and prepayments of the principal hereof and interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, however, that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Borrower under this Promissory Note.


 


This Promissory Note is one of the promissory notes referred to in Section 2.06(d) of the Credit Agreement and is entitled to the benefits of the Credit Agreement.  The Credit Agreement, among other things, contains provisions for the acceleration of the maturity hereof upon the happening of certain events, for optional and mandatory prepayment of the principal hereof prior to the maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement, all upon the terms and conditions therein specified.


 














  





  


 





  








THIS PROMISSORY NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.


 



	
 


	 
	 	
 MARATHON OIL CORPORATION,


 


	  

by:

	
 


__________________________________________________


	  	
Name:


	  	
Title:


 












[Signature Page to the Promissory Note]









  





  


 





  








Schedule A to Promissory Note


 


LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS








	
Date

	
Amount of Base Rate Loans

	
Amount Converted to Base Rate Loans

	
Amount of Principal of Base Rate Loans Repaid

	
Amount of Base Rate Loans Converted to Euro-Dollar Loans

	
Unpaid Principal Balance of Base Rate Loans

	
Notation Made By


	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  
	  	  	  	  	  	  	  




















 




  





  


 





  








Schedule B to Promissory Note


 


LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURO-DOLLAR LOANS


 








	
Date

	
Amount of Euro-Dollar Loans

	
Amount Converted to Euro-Dollar Loans

	
Interest Period and Adjusted London Interbank Offered Rate with Respect Thereto

	
Amount of Principal of Euro-Dollar Loans Repaid

	
Amount of Euro-Dollar Loans Converted to Base Rate Loans

	
Unpaid Principal Balance of Euro-Dollar Loans

	
Notation Made By