exv4wxay





Exhibit 4(a)





 





U.S.$2,500,000,000 REVOLVING TERM CREDIT FACILITY




 





CREDIT AGREEMENT




BETWEEN




POTASH CORPORATION OF SASKATCHEWAN INC.

as Borrower




AND




THE BANK OF NOVA SCOTIA,

BANK OF MONTREAL,

ROYAL BANK OF CANADA,

EXPORT DEVELOPMENT CANADA,

CANADIAN IMPERIAL BANK OF COMMERCE,

RABOBANK NEDERLAND, CANADIAN BRANCH,

THE TORONTO-DOMINION BANK,

GOLDMAN SACHS LENDING PARTNERS LLC,

MORGAN STANLEY BANK, N.A.,

UBS LOAN FINANCE LLC,

BANK OF AMERICA, N.A., CANADA BRANCH,

HSBC BANK CANADA,

BANK OF TOKYO-MITSUBISHI UFJ (CANADA)

and such other persons as become parties hereto

as Lenders




AND




THE BANK OF NOVA SCOTIA

as Agent of the Lenders




MADE AS OF DECEMBER 11, 2009




 





THE BANK OF NOVA SCOTIA

as Administrative Agent, Sole Lead Arranger and Bookrunner




ROYAL BANK OF CANADA and BANK OF MONTREAL

as Co-Syndication Agents




 












 



 




TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE 1 INTERPRETATION
	 	 	2	 
	1.1 Definitions
	 	 	2	 
	1.2 Headings; Articles and Sections
	 	 	20	 
	1.3 Number; persons; including; successors
	 	 	21	 
	1.4 Accounting Principles
	 	 	21	 
	1.5 References to Agreements and Enactments
	 	 	21	 
	1.6 Per Annum Calculations
	 	 	21	 
	1.7 Schedules
	 	 	22	 
	ARTICLE 2 THE CREDIT FACILITY
	 	 	22	 
	2.1 The Credit Facility
	 	 	22	 
	2.2 Types of Availments
	 	 	22	 
	2.3 Purpose
	 	 	22	 
	2.4 Availability and Nature of the Credit Facility
	 	 	22	 
	2.5 Minimum Drawdowns
	 	 	23	 
	2.6 Libor Loan Availability
	 	 	23	 
	2.7 Notice Periods for Drawdowns, Conversions and Rollovers
	 	 	23	 
	2.8 Conversion Option
	 	 	23	 
	2.9 Libor Loan Rollovers; Selection of Libor Interest Periods
	 	 	24	 
	2.10 Rollovers and Conversions not Repayments
	 	 	24	 
	2.11 Agent’s Obligations with Respect to Canadian Prime Rate
Loans, U.S. Base Rate Loans and Libor Loans
	 	 	24	 
	2.12 Lenders’ and Agent’s Obligations with Respect to Canadian Prime Rate Loans, U.S. Base Rate
Loans and Libor Loans
	 	 	24	 
	2.13 Irrevocability
	 	 	25	 
	2.14 Optional Cancellation or Reduction of the Credit Facility
	 	 	25	 
	2.15 Optional Repayment; Additional Repayment Terms
	 	 	25	 
	2.16 Mandatory Repayment of Credit Facility
	 	 	26	 
	2.17 Currency Excess
	 	 	26	 
	2.18 Permitted Increase in Credit Facility
	 	 	27	 
	2.19 Hostile Acquisitions
	 	 	28	 
	2.20 Extension of Maturity Date
	 	 	29	 
	2.21 Replacement of Lenders
	 	 	30	 
	2.22 Swingline Loans
	 	 	31	 
	ARTICLE 3 CONDITIONS PRECEDENT TO DRAWDOWNS
	 	 	33	 
	3.1 Conditions for Drawdowns
	 	 	33	 
	3.2 Additional Conditions
	 	 	33	 
	3.3 Waiver
	 	 	33	 
	ARTICLE 4 EVIDENCE OF DRAWDOWNS
	 	 	34	 
	4.1 Account of Record
	 	 	34	 
	ARTICLE 5 PAYMENTS OF INTEREST AND FEES
	 	 	34	 
	5.1 Interest on Canadian Prime Rate Loans
	 	 	34	 
	5.2 Interest on U.S. Base Rate Loans
	 	 	34	 
	5.3 Interest on Libor Loans
	 	 	34	 
	5.4 Interest Act (Canada)
	 	 	35	 
	5.5 Nominal Rates; No Deemed Reinvestment
	 	 	35	 












 



- ii -


	 	 	 	 	 
	5.6 Standby Fees
	 	 	35	 
	5.7 Agent’s Fees
	 	 	35	 
	5.8 Interest on Overdue Amounts
	 	 	36	 
	5.9 Waiver
	 	 	36	 
	5.10 Maximum Rate Permitted by Law
	 	 	36	 
	ARTICLE 6 BANKERS’ ACCEPTANCES
	 	 	36	 
	6.1 Bankers’ Acceptances
	 	 	36	 
	6.2 Acceptance Fees
	 	 	36	 
	6.3 Form and Execution of Bankers’ Acceptances
	 	 	36	 
	6.4 Power of Attorney; Provision of Bankers’ Acceptances to Lenders
	 	 	37	 
	6.5 Mechanics of Issuance
	 	 	39	 
	6.6 Rollover, Conversion or Payment on Maturity
	 	 	39	 
	6.7 Restriction on Rollovers and Conversions
	 	 	40	 
	6.8 Rollovers
	 	 	40	 
	6.9 Conversion into Bankers’ Acceptances
	 	 	40	 
	6.10 Conversion from Bankers’ Acceptances
	 	 	40	 
	6.11 BA Equivalent Advances
	 	 	40	 
	6.12 Termination of Bankers’ Acceptances
	 	 	41	 
	ARTICLE 7 PLACE AND APPLICATION OF PAYMENTS
	 	 	41	 
	7.1 Place of Payment of Principal, Interest and Fees; Payments to Agent
	 	 	41	 
	7.2 Designated Accounts of the Lenders
	 	 	41	 
	7.3 Funds
	 	 	41	 
	7.4 Application of Payments
	 	 	42	 
	7.5 Payments Clear of Taxes
	 	 	42	 
	7.6 Set Off
	 	 	43	 
	7.7 Margin Changes; Adjustments for Margin Changes; Notice of Rating Changes
	 	 	43	 
	ARTICLE 8 REPRESENTATIONS AND WARRANTIES
	 	 	44	 
	8.1 Representations and Warranties
	 	 	44	 
	8.2 Deemed Repetition
	 	 	47	 
	8.3 Effective Time of Repetition
	 	 	47	 
	8.4 Nature of Representations and Warranties
	 	 	47	 
	ARTICLE 9 GENERAL COVENANTS
	 	 	47	 
	9.1 Affirmative Covenants of the Borrower
	 	 	47	 
	9.2 Negative Covenants of the Borrower
	 	 	50	 
	9.3 Agent May Perform Covenants
	 	 	51	 
	ARTICLE 10 EVENTS OF DEFAULT AND ACCELERATION
	 	 	52	 
	10.1 Events of Default
	 	 	52	 
	10.2 Acceleration
	 	 	54	 
	10.3 Conversion on Default
	 	 	54	 
	10.4 Remedies Cumulative and Waivers
	 	 	54	 
	10.5 Termination of Lenders’ Obligations
	 	 	55	 
	ARTICLE 11 CHANGE OF CIRCUMSTANCES
	 	 	55	 
	11.1 Market Disruption Respecting Libor Loans
	 	 	55	 
	11.2 Market Disruption Respecting Bankers’ Acceptances
	 	 	56	 
	11.3 Change in Law
	 	 	56	 
	11.4 Prepayment of Portion
	 	 	58	 
	11.5 Illegality
	 	 	58	 












 



- iii -


	 	 	 	 	 
	ARTICLE 12 COSTS, EXPENSES AND INDEMNIFICATION
	 	 	59	 
	12.1 Costs and Expenses
	 	 	59	 
	12.2 General Indemnity
	 	 	59	 
	12.3 Judgment Currency
	 	 	60	 
	12.4 Limits on Liability of Indemnified Parties
	 	 	61	 
	ARTICLE 13 THE AGENT AND ADMINISTRATION OF THE CREDIT FACILITY
	 	 	61	 
	13.1 Authorization and Action
	 	 	61	 
	13.2 Procedure for Making Loans
	 	 	61	 
	13.3 Remittance of Payments
	 	 	62	 
	13.4 Redistribution of Payment
	 	 	62	 
	13.5 Duties and Obligations
	 	 	64	 
	13.6 Prompt Notice to the Lenders
	 	 	65	 
	13.7 Agent’s and Lenders’ Authorities
	 	 	65	 
	13.8 Lender Credit Decision
	 	 	65	 
	13.9 Indemnification of Agent
	 	 	65	 
	13.10 Successor Agent
	 	 	66	 
	13.11 Taking and Enforcement of Remedies
	 	 	66	 
	13.12 Reliance Upon Agent
	 	 	67	 
	13.13 No Liability of Agent
	 	 	67	 
	13.14 The Agent, Swingline Lenders and Defaulting Lenders
	 	 	67	 
	13.15 Article for Benefit of Agent and Lenders
	 	 	69	 
	ARTICLE 14 GENERAL
	 	 	69	 
	14.1 Exchange and Confidentiality of Information
	 	 	69	 
	14.2 Nature of Obligation under this Agreement; Defaulting Lenders
	 	 	70	 
	14.3 Notices
	 	 	71	 
	14.4 Governing Law
	 	 	72	 
	14.5 Benefit of the Agreement
	 	 	72	 
	14.6 Assignment
	 	 	72	 
	14.7 Participations
	 	 	72	 
	14.8 Severability
	 	 	73	 
	14.9 Whole Agreement
	 	 	73	 
	14.10 Amendments and Waivers
	 	 	73	 
	14.11 Further Assurances
	 	 	74	 
	14.12 Attornment
	 	 	74	 
	14.13 Waiver of Jury Trial
	 	 	74	 
	14.14 Time of the Essence
	 	 	74	 
	14.15 Credit Agreement Governs
	 	 	74	 
	14.16 Patriot Act Notice/Know Your Customer Laws
	 	 	74	 
	14.17 No Fiduciary Duty
	 	 	75	 
	14.18 Counterparts
	 	 	75	 













 



 




CREDIT AGREEMENT




     THIS AGREEMENT is made as of December 11, 2009



B E T W E E N:





POTASH CORPORATION OF SASKATCHEWAN INC., a corporation subsisting
under the laws of Canada, (hereinafter referred to as the “Borrower”),



OF THE FIRST PART,




- and -





THE BANK OF NOVA SCOTIA, BANK OF MONTREAL, ROYAL BANK OF CANADA,
EXPORT DEVELOPMENT CANADA, CANADIAN IMPERIAL BANK OF COMMERCE,
RABOBANK NEDERLAND, CANADIAN BRANCH, THE TORONTO-DOMINION BANK,
GOLDMAN SACHS LENDING PARTNERS LLC, MORGAN STANLEY BANK, N.A., UBS
LOAN FINANCE LLC, BANK OF AMERICA, N.A., CANADA BRANCH, HSBC BANK
CANADA and BANK OF TOKYO-MITSUBISHI UFJ (CANADA), together with such
other persons as become parties hereto, as lenders (hereinafter
sometimes collectively referred to as the “Lenders” and sometimes
individually referred to as a “Lender”),



OF THE SECOND PART,




- and -





THE BANK OF NOVA SCOTIA, a Canadian chartered bank, as agent of the
Lenders hereunder (hereinafter referred to as the “Agent”),



OF THE THIRD PART.




          WHEREAS the Borrower has requested the Lenders to provide the Credit Facility to the Borrower
on the terms and conditions herein set forth;




          AND WHEREAS the Lenders have agreed to provide the Credit Facility to the Borrower on the
terms and conditions herein set forth;




          AND WHEREAS the Lenders wish the Agent to act on their behalf with regard to certain matters
associated with the Credit Facility;




          NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants and agreements
herein contained and other good and valuable consideration, the receipt and sufficiency of which
are hereby conclusively acknowledged by each of the parties hereto, the parties hereto covenant and
agree as follows:










 



- 2 -




ARTICLE 1

INTERPRETATION




1.1 Definitions




          In this Agreement, unless something in the subject matter or context is inconsistent
therewith:



“Additional Commitments” has the meaning set out in Section 2.18.



“Additional Compensation” has the meaning set out in Section 11.3(1).



“Advance” means an advance of funds made by the Lenders or by any one or more of them to the
Borrower (including by way of a Swingline Loan under the Credit Facility), but does not include any
Conversion or Rollover.



“Affected Loan” has the meaning set out in Section 11.4.



“Affiliate” means any person which, directly or indirectly, controls, is controlled by or is under
common control with another person; and, for the purposes of this definition, “control” (including,
with correlative meanings, the terms “controlled by” or “under common control with”) means the
power to direct or cause the direction of the management and policies of any person, whether
through the ownership of shares or other economic interests, the holding of voting rights or
contractual rights or otherwise.



“Agency Fee Agreement” means the Agency Fee Agreement dated as of the date hereof between the
Borrower and the Agent respecting the payment of certain fees and other amounts to the Agent for
its own account.



“Agent’s Accounts” means the following accounts maintained by the Agent to which payments and
transfers under this Agreement are to be effected:





	 	(a)	 	for Canadian Dollars:
	 
	 	 	 	The Bank of Nova Scotia

Wholesale Banking Operations

720 King Street West, 3rd Floor

Toronto, ON M5V 2T3

SWIFT: NOSCCATT

Cdn.$ Account No.: 52712-23902-64

ATTN: WBO, Loan Administration and Agency Services

REF: Potash Corporation of Saskatchewan Inc.; and
	 
	 	(b)	 	for United States Dollars:
	 
	 	 	 	The Bank of Nova Scotia New York Agency

1 Liberty Plaza, Floors 22-26

New York, N.Y. 10006

FED FUNDS ABA #02600253-2

SWIFT: NOSCUS33

FOR CREDIT: BNS Wholesale Banking Operations, Toronto, Ontario

U.S.$ Account No.: 6027-36

ATTN: WBO, Loan Administration and Agency Services

REF: Potash Corporation of Saskatchewan Inc.,










 



- 3 -






or such other account or accounts as the Agent may from time to time designate by notice to the
Borrower and the Lenders.



“Agreement” means this credit agreement, as the same may be amended, modified, supplemented or
restated from time to time in accordance with the provisions hereof.



“Applicable Laws” or “applicable laws” means, in relation to any person, transaction or event:





	 	(a)	 	all applicable provisions of laws, statutes, rules and regulations from time to
time in effect of any Governmental Authority; and
	 
	 	(b)	 	all Governmental Authorizations to which the person is a party or by which it
or its property is bound or having application to the transaction or event.




“Applicable Pricing Rate”, as regards any Loan or the standby fees payable in accordance with
Section 5.6, means, when and for so long as the Debt Rating of the Borrower is one of the following
or no Debt Rating has been assigned to the Borrower by S&P (as the case may be), the percentage
rate per annum set forth opposite such rating or indication in the column applicable to the type of
Loan in question or such standby fee:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Margin on Canadian	 	Margin on Libor Loans and	 	 
	 	 	Prime Rate Loans and	 	Acceptance Fees for	 	Standby Fee on Credit
	S&P Rating	 	U.S. Base Rate Loans	 	Bankers’ Acceptances	 	Facility
	A or above
	 	0.75% per annum	 	1.75% per annum	 	0.4375% per annum
	A-
	 	1.00% per annum	 	2.00% per annum	 	    0.50% per annum
	BBB+
	 	1.25% per annum	 	2.25% per annum	 	0.5625% per annum
	BBB
	 	1.50% per annum	 	2.50% per annum	 	  0.625% per annum
	BBB-
	 	2.00% per annum	 	3.00% per annum	 	    0.75% per annum
	BB+ or below or if
not rated by S&P
	 	3.50% per annum	 	4.50% per annum	 	  1.125% per annum






provided that:





	 	(a)	 	the above ratings refer to the rating classifications of S&P on the date hereof
and shall be deemed to refer to the then equivalent rating classifications of such
rating agency in the event of any subsequent changes to such classifications;
	 
	 	(b)	 	the above rates per annum applicable to Libor Loans are expressed on the basis
of a year of 360 days and the above rates per annum applicable to other Loans are
expressed on the basis of a year of 365 days;
	 
	 	(c)	 	changes in Applicable Pricing Rate shall be effective in accordance with
Section 7.7; and
	 
	 	(d)	 	the above changes in Applicable Pricing Rate shall apply, as at the effective
dates of such changes, to Libor Loans outstanding on such dates, but only for those
portions of applicable Interest Periods falling within those times during which the
changes in Applicable Pricing Rate are effective, as provided above.










 



- 4 -






“Assigned Interests” has the meaning set out in Section 2.20.



“Assignment Agreement” means an assignment agreement substantially in the form of Schedule B
annexed hereto, with such modifications thereto as may be required from time to time by the Agent,
acting reasonably.



“BA Discount Rate” means:





	 	(a)	 	in relation to a Bankers’ Acceptance accepted by a Schedule I Lender, the CDOR
Rate;
	 
	 	(b)	 	in relation to a Bankers’ Acceptance accepted by a Schedule II Lender or
Schedule III Lender, the lesser of:






	 	(i)	 	the Discount Rate then applicable to bankers’ acceptances having
identical issue and comparable maturity dates as such Bankers’ Acceptances,
accepted by such Schedule II Lender or Schedule III Lender; and
	 
	 	(ii)	 	the CDOR Rate plus 0.20% per annum,






	 	 	 	provided that if both such rates are equal, then the “BA Discount Rate” applicable
thereto shall be the rate specified in (i) above; and
	 
	 	(c)	 	in relation to a BA Equivalent Advance:






	 	(i)	 	made by a Schedule I Lender, the CDOR Rate;
	 
	 	(ii)	 	made by a Schedule II Lender or Schedule III Lender, the rate
determined in accordance with subparagraph (b) of this definition; and
	 
	 	(iii)	 	made by any other Lender, the CDOR Rate plus 0.20% per annum.




“BA Equivalent Advance” means, in relation to a Drawdown of, Conversion into or Rollover of
Bankers’ Acceptances, an Advance in Canadian Dollars made by a Non-Acceptance Lender as part of
such Loan.



“Bankers’ Acceptance” means a draft in Canadian Dollars drawn by the Borrower, accepted by a Lender
and issued for value pursuant to this Agreement.



“Banking Day” means, in respect of a Libor Loan, a day on which banks are open for business in
Calgary, Alberta, Toronto, Ontario, New York, New York and London, England and, for all other
purposes, means a day on which banks are open for business in Calgary, Alberta, Toronto, Ontario
and New York, New York, but does not in any event include a Saturday or a Sunday.



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



“Canadian Prime Rate” means, for any day, the greater of:





	 	(a)	 	the rate of interest per annum established from time to time by the Agent as
the reference rate of interest for the determination of interest rates that the Agent
will charge to customers of varying degrees of creditworthiness in Canada for Canadian
Dollar demand loans in Canada; and
	 
	 	(b)	 	the rate of interest per annum equal to the average annual yield rate for one
month Canadian Dollar bankers’ acceptances (expressed for such purpose as a yearly rate
per annum in accordance with Section 5.4) which rate is shown on the display referred
to as the “CDOR Page” (or any display










 



- 5 -


	 	 	 	substituted therefor) of Reuters Limited (or any successor thereto or Affiliate
thereof) at 10:00 a.m. (Toronto time) on such day or, if such day is not a Banking
Day, on the immediately preceding Banking Day, plus 1.00% per annum,




provided that if both such rates are equal or if such one month bankers’ acceptance rate is
unavailable for any reason on any day of determination, then the “Canadian Prime Rate” shall be the
rate specified in (a) above.



“Canadian Prime Rate Loan” means an Advance in, or Conversion into, Canadian Dollars made by the
Lenders to the Borrower with respect to which the Borrower has specified or a provision hereof
requires that interest is to be calculated by reference to the Canadian Prime Rate.



“Capital” means, at any particular time, the aggregate of:





	 	(a)	 	Debt at such time; and
	 
	 	(b)	 	Equity at such time.




“Cash Equivalents” means (a) securities issued, guaranteed or insured by the government of any
country or any political subdivision thereof; (b) deposits or certificates of deposit issued or
guaranteed by a bank or trust company; or (c) debt securities or commercial paper issued or
guaranteed by a body corporate.



“CDOR Rate” means, on any day on which Bankers’ Acceptances are to be issued pursuant hereto, the
per annum rate of interest which is the rate determined as being the arithmetic average of the
annual yield rates applicable to Canadian Dollar bankers’ acceptances having identical issue and
comparable maturity dates as the Bankers’ Acceptances proposed to be issued by the Borrower
displayed and identified as such on the display referred to as the “CDOR Page” (or any display
substituted therefor) of Reuters Limited (or any successor thereto or Affiliate thereof) as at
approximately 10:00 a.m. (Toronto time) on such day, or if such day is not a Banking Day, then on
the immediately preceding Banking Day (as adjusted by the Agent in good faith after 10:00 a.m.
(Toronto time) to reflect any error in a posted rate or in the posted average annual rate);
provided, however, if such a rate does not appear on such CDOR Page, then the CDOR Rate, on any
day, shall be the Discount Rate quoted by the Agent (determined as of 10:00 a.m. (Toronto time) on
such day) which would be applicable in respect of an issue of bankers’ acceptances in a comparable
amount and with comparable maturity dates to the Bankers’ Acceptances proposed to be issued by the
Borrower on such day, or if such day is not a Banking Day, then on the immediately preceding
Banking Day.



“clearing house” has the meaning set out in Section 6.4.



“Code” means the Internal Revenue Code of the United States, as amended from time to time, and any
successor statute.



“Commitment” means the commitment by each Lender under the Credit Facility to provide the amount of
United States Dollars (or the Equivalent Amount thereof) set forth opposite its name in Schedule A
annexed hereto, subject to any increase in accordance with Section 2.18 and to any reduction in
accordance with the provisions hereof.



“Companies” means the Borrower and the Subsidiaries.



“Compliance Certificate” means a certificate of the Borrower signed on its behalf by a director,
the president, chief executive officer, chief financial officer, vice president-finance or
treasurer of the Borrower, substantially in the form annexed hereto as Schedule C, to be given to
the Agent and the Lenders by the Borrower pursuant hereto.



“Conflicted Lender” has the meaning set out in Section 2.19.










 



- 6 -



“Conversion” means a conversion or deemed conversion of a Loan into another type of Loan pursuant
to the provisions hereof; provided that, subject to Section 2.8 and to Article 6 with respect to
Bankers’ Acceptances, the conversion of a Loan denominated in one currency to a Loan denominated in
another currency shall be effected by repayment of the Loan or portion thereof being converted in
the currency in which it was denominated and readvance to the Borrower of the Loan into which such
conversion was made.



“Conversion Date” means the date specified by the Borrower as being the date on which the Borrower
has elected to convert, or this Agreement requires the Conversion of, one type of Loan into another
type of Loan and which shall be a Banking Day.



“Conversion Notice” means a notice substantially in the form annexed hereto as Schedule D to be
given to the Agent by the Borrower pursuant hereto.



“Credit Facility” means the credit facility in the maximum principal amount of U.S. $2,500,000,000
or the Equivalent Amount in Canadian Dollars to be made available to the Borrower by the Lenders in
accordance with the provisions hereof, subject to any increase in accordance with Section 2.18 and
to any reduction in accordance with the provisions hereof.



“Currency Excess” has the meaning set out in Section 2.17.



“Currency Excess Deficiency” has the meaning set out in Section 2.17.



“DBNA” has the meaning set out in Section 6.4.



“Debt” means, at any particular time, the aggregate of (without duplication):





	 	(a)	 	the aggregate of the amounts which would, in accordance with GAAP, be
classified on the consolidated balance sheet of the Borrower at such time as
indebtedness for borrowed money of the Borrower and as capital leases of the Borrower
(but specifically excluding Subordinated Debt); and
	 
	 	(b)	 	the aggregate indebtedness for borrowed money of entities other than the
Companies to the extent guaranteed by any of the Companies at such time.




“Debt Rating” means the debt rating that has been most recently announced by S&P for the Credit
Facility or, if the Credit Facility is not rated, the corporate credit rating or issuer rating by
S&P of the Borrower or the successor thereto, as the case may be.



“Default” means any event or condition which, with the giving of notice, lapse of time or upon a
declaration or determination being made (or any combination thereof), would constitute an Event of
Default.



“Defaulting Lender” means any Lender:





	 	(a)	 	that has failed to fund any payment or its portion of any Loans required to be
made by it hereunder or to purchase any participation required to be purchased by it
hereunder and under the other Documents;
	 
	 	(b)	 	that has notified the Borrower, the Agent or any Lender (verbally or in
writing) that it does not intend to or is unable to comply with any of its funding
obligations under this Agreement or has made a public statement to that effect or to
the effect that it does not intend to or is unable to fund advances generally under
credit arrangements to which it is a party;










 



- 7 -


	 	(c)	 	that has failed, within 3 Banking Days after written request by the Agent or
the Borrower, to confirm in writing to the Agent and the Borrower that it will comply
with the terms of this Agreement relating to its obligations to fund prospective Loans;
	 
	 	(d)	 	that has otherwise failed to pay over to the Agent or any other Lender any
other amount required to be paid by it hereunder within 3 Banking Days of the date when
due, unless the subject of a good faith dispute;
	 
	 	(e)	 	in respect of which a Lender Insolvency Event or a Lender Distress Event has
occurred in respect of such Lender or its Lender Parent; or
	 
	 	(f)	 	with respect to which the Agent has concluded, acting reasonably, and has
advised the Lenders in writing, that it is of the view that it is more likely than not
that such Lender shall become a Defaulting Lender pursuant to subparagraphs (a) to (e),
inclusive, of this definition.




“Defeased Loan Transaction” means a transaction where loans are made to a given Company (“X”) and X
or another Company either:





	 	(a)	 	pledges to the holder of such loans, cash or Cash Equivalents in an amount not
less than 90% of the aggregate principal amount of such loans, as collateral security
for the repayment thereof; or
	 
	 	(b)	 	deposits with the holder of such loans, cash or Cash Equivalents in an amount
not less than 90% of the aggregate principal amount of such loans, which deposits are
required to be maintained with such holder while such loans remain outstanding.




“Discount Proceeds” means the net cash proceeds to the Borrower from the sale of a Bankers’
Acceptance pursuant hereto or, in the case of BA Equivalent Advances, the amount of a BA Equivalent
Advance at the applicable BA Discount Rate, in any case, before deduction or payment of the fees to
be paid to the Lenders under Section 6.2.



“Discount Rate” means, with respect to the issuance of a bankers’ acceptance, the discount rate per
annum, calculated on the basis of a year of 365 days, (rounded upwards, if necessary, to the
nearest whole multiple of 1/100th of one percent) which is equal to the discount exacted
by a purchaser taking initial delivery of such bankers’ acceptance, calculated as a rate per annum
and as if the issuer thereof received the discount proceeds in respect of such bankers’ acceptance
on its date of issuance and had repaid the respective face amount of such bankers’ acceptance on
the maturity date thereof.



“Dissenting Lender” has the meaning set out in Section 2.21.



“Documents” means this Agreement, the Agency Fee Agreement and all certificates, notices,
instruments and other documents delivered or to be delivered to the Agent or the Lenders, or both,
in relation to the Credit Facility pursuant hereto or thereto and, when used in relation to any
person, the term “Documents” shall mean and refer to the Documents executed and delivered by such
person.



“Drawdown” means:





	 	(a)	 	an Advance of a Canadian Prime Rate Loan, U.S. Base Rate Loan or Libor Loan; or
	 
	 	(b)	 	the issue of Bankers’ Acceptances (or the making of a BA Equivalent Advance in
lieu thereof) other than as a result of Conversions or Rollovers.










 



- 8 -






“Drawdown Date” means the date on which a Drawdown is made by the Borrower pursuant to the
provisions hereof and which shall be a Banking Day.



“Drawdown Notice” means a notice substantially in the form annexed hereto as Schedule E to be given
to the Agent by the Borrower pursuant hereto.



“EBITDA” means, for any particular period, Net Income of the Borrower for such period plus, to the
extent deducted in the determination of Net Income of the Borrower for such period, the aggregate
of (without duplication):





	 	(a)	 	Interest Expense of the Borrower for such period;
	 
	 	(b)	 	consolidated income tax expense (both current and deferred) of the Borrower
(including, without limitation, those reported on the consolidated income statement of
the Borrower as “provincial mining and other taxes”) for such period;
	 
	 	(c)	 	consolidated depreciation, amortization and other non-cash expenses of the
Borrower for such period; and
	 
	 	(d)	 	unrealized losses in respect of Hedging Instruments of the Borrower and its
Subsidiaries for such period,




less, to the extent included in Net Income for such period, unrealized gains in respect of Hedging
Instruments of the Borrower and its Subsidiaries for such period.



“EDGAR Database” means the Electronic Data Gathering, Analysis, and Retrieval system database of
the U.S. Securities and Exchange Commission.



“Environmental Laws” means all applicable federal, state, provincial or local statutes, laws,
ordinances, codes, rules, regulations, consent decrees and administrative orders having the force
of law and relating to public health or the protection of the environment.



“Equity” means, at any particular time, the aggregate of (a) the amount which would, in accordance
with GAAP, be classified upon the consolidated balance sheet of the Borrower at such time as
shareholders’ equity and (b) the amount of Subordinated Debt at such time.



“Equivalent Amount” means, on any day, the equivalent amount in Canadian Dollars or United States
Dollars, as the case may be, after giving effect to a conversion of a specified amount of United
States Dollars to Canadian Dollars or of Canadian Dollars to United States Dollars, as the case may
be, at the noon rate of exchange for Canadian interbank transactions established by the Bank of
Canada for the day in question, or, if such rate is for any reason unavailable, at the spot rate
quoted for wholesale transactions involving the applicable currency by the Agent at approximately
noon (Toronto time) on that day in accordance with its normal practice.



“ERISA” means the Employee Retirement Income Security Act of 1974 of the United States, as amended
from time to time, and any successor statute.



“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control
with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 4 14(m) and
(o) of the Code for purposes of provisions relating to Section 4l2 of the Code).



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a








 



- 9 -


substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal (as defined in Section 4203 and 4205 of ERISA) by the Borrower or any ERISA Affiliate
from a Multiemployer Plan or the receipt by the Borrower or any ERISA Affiliate of notification
that a Multiemployer Plan is in reorganization pursuant to Section 4241 of ERISA or that a
Multiemployer Plan intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan; (e) an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any ERISA Affiliate.



“Existing Credit Agreement” means the amended and restated credit agreement made as of May 29, 2008
and amended and restated as of January 21, 2009 between the Borrower, certain of the Lenders and
the Agent, as amended by the first amending agreement made as of March 5, 2009.



“Event of Default” has the meaning set out in Section 10.1.



“Extending Lender” has the meaning set out in Section 2.20.



“Extension Request” has the meaning set out in Section 2.20.



“Federal Funds Rate” means, for any day, the rate of interest per annum equal to (a) the weighted
average (rounded upwards, if necessary, to the next 1/100th of one percent per annum) of
the annual rates of interest on overnight Federal funds transactions with members of the Federal
Reserve Board of the United States of America (or any successor thereof) arranged by Federal funds
brokers on such day, as published on the next succeeding Banking Day by the Federal Reserve Bank of
New York (or any successor thereto) or, (b) if such day is not a Banking Day, such weighted average
for the immediately preceding Banking Day for which the same is published or, (c) if such rate is
not so published for any day that is a Banking Day, the average (rounded upwards, if necessary, to
the next 1/100th of one percent per annum) of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of recognized standing selected
by the Agent.



“Federal Reserve Board” or “Federal” means the Board of Governors of the Federal Reserve System of
the United States of America or any successor thereof.



“Financial Statements” means the audited consolidated financial statements of the Borrower for the
fiscal year ended on December 31, 2008.



“Fiscal Quarter” means any of the three-month periods ending on the last day of March, June,
September and December in each year.



“Fiscal Year” means any of the twelve-month periods ending on the last day of December in each
year.



“GAAP” means generally accepted accounting principles allowed by the Canadian Securities
Administrators to be used by registrants in Canada from time to time.



“Governmental Authority” means any federal, provincial, state, regional, municipal or local
government or any department, agency, board, tribunal or authority thereof or other political
subdivision thereof, any entity or person exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, government or the operation thereof and any
non-governmental regulating authority to the extent that the rules, regulations and orders of such
body have the force of law.










 



- 10 -



“Governmental Authorization” means an authorization, order, permit, approval, grant, license,
consent, right, franchise, privilege, certificate, judgment, writ, injunction, award,
determination, direction, decree or demand or the like issued or granted by law or by rule or
regulation of any Governmental Authority.



“Hazardous Materials” means any pollutant or contaminant or hazardous or toxic chemical, material
or substance within the meaning of any applicable federal, state, provincial or local law,
regulation, ordinance or requirement (including consent decrees and administrative orders) relating
to or imposing liability or standards of conduct concerning any hazardous or toxic waste, substance
or material or concerning the environment or public health, all as in effect on the applicable
date.



“Hedging Instrument” means:





	 	(a)	 	any agreement for the making or taking of delivery of any commodity, any
commodity swap agreement, floor, cap or collar agreement or commodity future or option
or other similar agreements or arrangements, or any combination thereof, entered into
by the Borrower or a Subsidiary where the subject matter of the same is any commodity
or the price, value or amount payable thereunder is dependent or based upon the price
of any commodity or fluctuations in the price of any commodity, but shall not include
any agreement for the physical purchase or sale of commodities by the Borrower or a
Subsidiary entered into in the ordinary course of business unless either (i) such
agreement is with a bank, investment bank, securities dealer, insurance company, trust
company, pension fund, institutional investor or any other financial institution or any
Affiliate of any of the foregoing, or (ii) such agreement is entered into for hedging
purposes or otherwise for the purpose of eliminating or reducing the financial risk or
exposure of the Borrower or a Subsidiary to fluctuations in the prices of a commodity
(and, for certainty, any such agreement referred to in (a)(i) or (a)(ii) of this
definition shall constitute a “Hedging Instrument” for all purposes hereof);
	 
	 	(b)	 	any currency swap agreement, cross currency agreement, forward agreement,
floor, cap or collar agreement, futures or options, insurance or other similar
agreement or arrangement, or any combination thereof, entered into by the Borrower or a
Subsidiary where the subject matter of the same is currency exchange rates or the
price, value or amount payable thereunder is dependent or based upon currency exchange
rates or fluctuations in currency exchange rates as in effect from time to time; or
	 
	 	(c)	 	any interest swap agreement, forward rate agreement, floor, cap or collar
agreement, futures or options, insurance or other similar agreement or arrangement, or
any combination thereof, entered into by the Borrower or a Subsidiary where the subject
matter of the same is interest rates or the price, value or amount payable thereunder
is dependent or based upon the interest rates or fluctuations in interest rates in
effect from time to time (but, for certainty, shall exclude conventional floating rate
debt).




“Hostile Acquisition” means an acquisition of securities of a person (the “Target”) pursuant to a
take-over bid, as defined in the Securities Act (Ontario), or in any other applicable securities or
corporate legislation, where the board of directors, trustees or similar body of the Target whose
securities are the subject matter of the take-over bid has neither approved such take-over bid nor
recommended to the security holders of the Target that they tender or sell their securities
pursuant to such take-over bid.



“IFRS” means International Financial Reporting Standards including International Accounting
Standards and Interpretations together with their accompanying documents which are set by the
International Accounting Standards Board, the independent standard-setting body of the
International Accounting Standards Committee








 



- 11 -


Foundation (the “IASC Foundation”), and the International Financial Reporting Interpretations
Committee, the interpretative body of the IASC Foundation.



“Indemnified Parties” means, collectively, the Agent and the Lenders, including a receiver,
receiver manager or similar person appointed under applicable law, and their respective
shareholders, Affiliates, officers, directors, employees and agents, and “Indemnified Party” means
any one of the foregoing.



“Information” has the meaning set out in Section 14.1.



“Interest Expense” of any particular person means, for any particular period, the amount which
would, in accordance with GAAP, be classified on the consolidated income statement of such person
for such period as gross interest expenses.



“Interest Payment Date” means:





	 	(a)	 	with respect to each Canadian Prime Rate Loan and U.S. Base Rate Loan, the last
Banking Day of each calendar month; and
	 
	 	(b)	 	with respect to each Libor Loan, the last day of each applicable Interest
Period and, if any Interest Period is longer than 3 months, the last Banking Day of
each 3 month period during such Interest Period,




provided that, in any case, the Maturity Date or, if applicable, any earlier date on which the
Credit Facility is fully cancelled or permanently reduced in full, shall be an Interest Payment
Date with respect to all Loans then outstanding under the Credit Facility.



“Interest Period” means:





	 	(a)	 	with respect to each Canadian Prime Rate Loan and U.S. Base Rate Loan, the
period commencing on the applicable Drawdown Date or Conversion Date, as the case may
be, and terminating on the date selected by the Borrower hereunder for the Conversion
of such Loan into another type of Loan or for the repayment of such Loan;
	 
	 	(b)	 	with respect to each Bankers’ Acceptance, the period selected by the Borrower
hereunder and being of 1, 2, 3 or 6 months’ duration, subject to market availability,
(or, subject to the agreement of the Lenders, a longer or shorter period) commencing on
the Drawdown Date, Rollover Date or Conversion Date of such Loan; and
	 
	 	(c)	 	with respect to each Libor Loan, the period selected by the Borrower and being
of 1, 2, 3 or 6 months’ duration (or, subject to the agreement of the Lenders, a longer
or shorter period) commencing on the applicable Drawdown Date, Rollover Date or
Conversion Date, as the case may be,




provided that in any case: (i) the last day of each Interest Period shall be also the first day of
the next Interest Period whether with respect to the same or another Loan; (ii) the last day of
each Interest Period shall be a Banking Day and if the last day of an Interest Period selected by
the Borrower is not a Banking Day the Borrower shall be deemed to have selected an Interest Period
the last day of which is the Banking Day next following the last day of the Interest Period
selected unless such next following Banking Day falls in the next calendar month in which event the
Borrower shall be deemed to have selected an Interest Period the last day of which is the Banking
Day next preceding the last day of the Interest Period selected by the Borrower; and (iii) the last
day of all Interest Periods for Loans outstanding under the Credit Facility shall expire on or
prior to the Maturity Date.










 



- 12 -



“IRS” means the Internal Revenue Service, a bureau of the United States Department of the Treasury.



“Judgment Conversion Date” has the meaning set out in Section 12.3.



“Judgment Currency” has the meaning set out in Section 12.3.



“Lender BA Suspension Notice” has the meaning set out in Section 11.2.



“Lender Distress Event” means, in respect of a given Lender, such Lender or its Lender Parent (a)
is subject to a forced liquidation, merger, sale or other change of control supported in whole or
in part by guarantees or other support (including the nationalization or assumption of ownership or
operating control by the Government of the United States, Canada or any other Governmental
Authority) or (b) is otherwise adjudicated as, or determined to be, insolvent or bankrupt, in each
case, by any Governmental Authority having regulatory authority over such Lender or Lender Parent
or their respective assets; provided that, for certainty, a Lender Distress Event shall not have
occurred solely by virtue of the ownership or acquisition of any equity interest in such Lender or
its Lender Parent by any Governmental Authority.



“Lender Insolvency Event” means, in respect of a given Lender, such Lender or its Lender Parent:





	 	(a)	 	is dissolved (other than pursuant to a consolidation, amalgamation or merger);
	 
	 	(b)	 	becomes insolvent, is deemed insolvent by applicable law or is unable to pay
its debts or fails or admits in writing its inability generally to pay its debts as
they become due;
	 
	 	(c)	 	makes a general assignment, arrangement or composition with or for the benefit
of its creditors;
	 
	 	(d)	 	(i) institutes, or has instituted against it by a regulator, supervisor or any
similar Governmental Authority with primary insolvency, rehabilitative or regulatory
jurisdiction over it in the jurisdiction of its incorporation or organization or the
jurisdiction of its head or home office, (A) a proceeding pursuant to which such
Governmental Authority takes control of such Lender’s or Lender Parent’s assets, (B) a
proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any
bankruptcy, insolvency or winding-up law or other similar law affecting creditors’
rights, or (C) a petition is presented for its winding-up or liquidation by it or such
regulator, supervisor or similar Governmental Authority; or (ii) has instituted against
it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy, insolvency or winding-up law or other similar law affecting
creditors’ rights, or a petition is presented for its winding-up or liquidation, and
such proceeding or petition is instituted or presented by a person or entity not
described in clause (i) above and either (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of an order for its
winding-up or liquidation or (B) is not dismissed, discharged, stayed or restrained in
each case within 15 days of the institution or presentation thereof;
	 
	 	(e)	 	has a resolution passed for its winding-up, official management or liquidation
(other than pursuant to a consolidation, amalgamation or merger);
	 
	 	(f)	 	seeks or becomes subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar official for it
or for all or a substantial portion of all of its assets;
	 
	 	(g)	 	has a secured party take possession of all or a substantial portion of all of
its assets or has a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all










 



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	 	 	 	or substantially all its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained, in each case, within
15 days thereafter;
	 
	 	(h)	 	causes or is subject to any event with respect to it which, under the
applicable law of any jurisdiction, has an analogous effect to any of the events
specified in subparagraphs (a) to (g) above, inclusive; or
	 
	 	(i)	 	takes any action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the foregoing.




“Lender Libor Suspension Notice” has the meaning set out in Section 11.1.



“Lender Parent” means any person that directly or indirectly controls a Lender and, for the
purposes of this definition, “control” shall have the same meaning as set forth in the definition
of “Affiliate” contained herein.



“Lenders’ Counsel” means the firm of McCarthy Tétrault LLP or such other firm of legal counsel as
the Agent may from time to time designate.



“Libor Loan” means an Advance in, or Conversion into, United States Dollars made by the Lenders to
the Borrower with respect to which the Borrower has specified that interest is to be calculated by
reference to the Libor Rate, and each Rollover in respect thereof.



“Libor Rate” means, for each Interest Period applicable to a Libor Loan, the rate of interest per
annum, expressed on the basis of a year of 360 days (as determined by the Agent):





	 	(a)	 	applicable to United States Dollars and appearing on the display referred to as
“LIBOR01 Page” (or any display substituted therefor) of Reuters Limited (or any
successor thereto or Affiliate thereof) as of 11:00 a.m. (London, England time) on the
second Banking Day prior to the first day of such Interest Period; or
	 
	 	(b)	 	if such rate does not appear on such Reuters display, or if such display or
rate is not available for any reason, the rate per annum at which United States Dollars
are offered by the principal lending office in London, England of the Agent (or of its
Affiliates if it does not maintain such an office) in the London interbank market at
approximately 11:00 a.m. (London, England time) on the second Banking Day prior to the
first day of such Interest Period,




in each case in an amount similar to such Libor Loan and for a period comparable to such Interest
Period.



“Lien” means any deed of trust, mortgage, charge, hypothec, assignment, pledge, lien, vendor’s
privilege or other security interest or encumbrance of whatever kind or nature, regardless of form
and whether consensual or arising by law (statutory or otherwise), that secures the payment of any
indebtedness or liability or the observance or performance of any obligation.



“Loan” means a Canadian Prime Rate Loan, U.S. Base Rate Loan, Libor Loan, Bankers’ Acceptance or BA
Equivalent Advance outstanding hereunder.



“Long Term Debt” means, at any particular time, that portion of Debt at such time which would not,
in accordance with GAAP, be considered to be current liabilities at such time.



“Majority of the Lenders” means those Lenders the Commitments of which are, in the aggregate, at
least
662/3% of the Commitments of all Lenders hereunder.










 



- 14 -



“Margin Stock” has the meaning set out in Section 8.1(n).



“Material Adverse Change” means any change of circumstances or any event which would have a
Material Adverse Effect.



“Material Adverse Effect” means an adverse effect on the financial condition, business, assets,
properties or prospects of the Borrower on a consolidated basis which, individually or as part of a
series of adverse effects, would have a material adverse effect on the ability of the Borrower to
perform any of its payment obligations hereunder.



“Material Subsidiary” means any Subsidiary whose book value of assets (exclusive of (a) equity
interests of any Subsidiary of such Subsidiary and (b) intercompany receivables owed to such
Subsidiary by an Affiliate of such Subsidiary) is greater than 20% of the book value of the assets
of the Borrower on a consolidated basis or whose gross sales are greater than 20% of the gross
sales of the Borrower on a consolidated basis; on the date hereof, PCS Sales (USA), Inc. is a
Material Subsidiary.



“Maturity Date” means, in respect of Obligations outstanding to a given Lender, December 11, 2012
or such later date to which the same may be extended from time to time with respect to a given
Lender in accordance with Section 2.20.



“Multiemployer Plan” means a multiemployer plan, within the meaning of Section 4001 (a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes, is making, or is obligated to make
contributions or, during the preceding three calendar years, has made, or been obligated to make,
contributions.



“Net Income” of a particular person means, for any particular period, the amount which would, in
accordance with GAAP, be classified on the consolidated income statement of such person for such
period as the net income after all unusual and extraordinary items other than any gains or losses
on the disposition of property, plant and equipment and any non-cash write-downs of assets.



“Non-Acceptance Lender” means:





	 	(a)	 	a Lender which does not accept bankers’ acceptances in the ordinary course of
business; or
	 
	 	(b)	 	a Lender who, by notice in writing to the Agent and the Borrower, elects
thereafter to make BA Equivalent Advances in lieu of accepting Bankers’ Acceptances.




“Non-Conflicted Lender” has the meaning set out in Section 2.19.



“Non-Extending Lender” has the meaning set out in Section 2.20.



“Notice of Non-Extension” has the meaning set out in Section 2.20.



“Obligations” means, at any time and from time to time, all of the obligations, indebtedness and
liabilities (present or future, absolute or contingent, matured or not) of the Borrower to the
Lenders or the Agent under, pursuant or relating to the Documents or the Credit Facility and
whether the same are from time to time reduced and thereafter increased or entirely extinguished
and thereafter incurred again and including all principal, interest, fees, legal and other costs,
charges, expenses and other amounts payable by the Borrower under this Agreement.



“Officer’s Certificate” means a certificate or notice (other than a Compliance Certificate) signed
by any one of the directors, the president, chief executive officer, chief financial officer, a
vice-president, treasurer, assistant treasurer, controller, secretary or assistant secretary of the
Borrower; provided, however, that Drawdown Notices, Conversion Notices, Rollover Notices and
Repayment Notices shall be executed on behalf of the Borrower by any








 



- 15 -


one of the foregoing persons and such other persons as may from time to time be designated by
written notice from the Borrower to the Agent.



“Outstanding BAs Collateral” has the meaning set out in Section 2.15(3).



“Outstanding Principal” means, at any time, the aggregate of (a) the Equivalent Amount in United
States Dollars of the principal of all outstanding Canadian Prime Rate Loans (b) the principal
amount of all outstanding U.S. Base Rate Loans and Libor Loans, and (c) the Equivalent Amount in
United States Dollars of the amounts payable at maturity of all outstanding Bankers’ Acceptances
and BA Equivalent Advances.



“Patriot Act” has the meaning set out in Section 14.16.



“PBGC” means Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to any
of its principal functions under ERISA.



“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of
ERISA, other than a Multiemployer Plan, which the Borrower sponsors, maintains, or to which it
makes, is making, or is obligated to make contributions, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.



“Permitted Liens” means any one or more of the following with respect to the assets of the
Companies:





	 	(a)	 	inchoate or statutory Liens for taxes, assessments and other governmental
charges or levies which are not delinquent (taking into account any relevant grace
periods) or the validity of which are currently being contested in good faith by
appropriate proceedings and in respect of which there shall have been set aside a
reserve (segregated to the extent required by GAAP) in an amount which is adequate
therefor;
	 
	 	(b)	 	inchoate or statutory Liens of contractors, subcontractors, mechanics, workers,
suppliers, materialmen, carriers and others in respect of construction, maintenance,
repair or operation of assets of the Companies, provided that such Liens are related to
obligations not due or delinquent (taking into account any applicable grace or cure
periods), are not registered as encumbrances against title to any assets of the
Companies and adequate holdbacks are being maintained as required by applicable
legislation or such Liens are being contested in good faith by appropriate proceedings
and in respect of which there shall have been set aside a reserve (segregated to the
extent required by GAAP) in an amount which is adequate with respect thereto and
provided further that such Liens do not in the aggregate materially detract from the
value of the assets of the Companies encumbered thereby or materially interfere with
the use thereof in the operation of the business of the Companies;
	 
	 	(c)	 	easements, rights-of-way, servitudes, restrictions and similar rights in real
property comprised in the assets of the companies or interests therein granted or
reserved to other persons, provided that such rights do not in the aggregate materially
detract from the value of the assets of the Companies subject thereto or materially
interfere with the use thereof in the operation of the business of the Companies;
	 
	 	(d)	 	title defects or irregularities which are of a minor nature and which do not in
the aggregate materially detract from the value of the assets of the Companies
encumbered thereby or materially interfere with the use thereof in the operation of the
business of the Companies;
	 
	 	(e)	 	Liens incidental to the conduct of the business or the ownership of the assets
of the Companies (other than those described in clauses (f) and (g) of this definition)
which were not incurred in










 



- 16 -


	 	 	 	connection with the borrowing of money or the obtaining of advances or credit
(including, without limitation, unpaid purchase price), and which do not in the
aggregate materially detract from the value of the assets of the Companies encumbered
thereby or materially interfere with the use thereof in the operation of the business
of the Companies;
	 
	 	(f)	 	Liens securing appeal bonds and other similar Liens arising in connection with
court proceedings (including, without limitation, surety bonds, security for costs of
litigation where required by law and letters of credit) or any other instruments
serving a similar purpose;
	 
	 	(g)	 	attachments, judgments and other similar Liens arising in connection with court
proceedings; provided, however, that such Liens are in existence for less than 30 days
after the entry therefor or the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively contested in good
faith and by appropriate proceedings;
	 
	 	(h)	 	the reservations, limitations, provisos and conditions, if any (i) expressed in
any original grant from the Crown of any real property or any interest therein or in
any comparable grant in jurisdictions other than Canada or (ii) expressed pursuant to
the Land Titles Act (Saskatchewan);
	 
	 	(i)	 	Liens, charges or other security interests given to a public utility or any
municipality or governmental or other public authority when required by such utility or
other authority in connection with the operation of the business or the ownership of
the assets of the Companies, provided that such Liens do not in the aggregate reduce
the value of the assets of the Companies or materially interfere with the use thereof
in the operation of the business of the Companies;
	 
	 	(j)	 	servicing agreements, development agreements, site plan agreements, and other
agreements with governmental or public authorities pertaining to the use or development
of any of the assets of the Companies, provided same are complied with including,
without limitation, any obligations to deliver letters of credit and other security as
required;
	 
	 	(k)	 	applicable municipal and other governmental restrictions, including municipal
by-laws and regulations, affecting the use of land or the nature of any structures
which may be erected thereon, provided such restrictions have been complied with;
	 
	 	(l)	 	Purchase Money Obligations arising in the ordinary course of business, provided
that such Lien is limited to the property so acquired and is created, issued or assumed
substantially concurrently with the acquisition of such property;
	 
	 	(m)	 	Liens securing industrial revenue bonds issued by the Companies;
	 
	 	(n)	 	the right reserved to or vested in any Governmental Authority by any statutory
provision, or by the terms of any lease, licence, franchise, grant or permit of any of
the Companies, to terminate any such lease, licence, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance thereof;
	 
	 	(o)	 	any amounts payable and obligations owing to any person in respect of royalty
interests held by such person on the production of minerals by the Companies;
	 
	 	(p)	 	the interests of lessors pursuant to all leases, including the capital leases
under which a Company is the lessee;
	 
	 	(q)	 	Liens securing the indebtedness of companies which become Subsidiaries after
the date hereof, which Liens and indebtedness are outstanding on the date the relevant
company became a






 











 





- 17 -





	 	 	 	Subsidiary, provided that such indebtedness does not at any time exceed
U.S.$75,000,000 (or the Equivalent Amount thereof in Canadian Dollars or the
equivalent thereof in any other currency) in the aggregate;
	 
	 	(r)	 	any deemed security interest in accounts arising as a result of the
securitization thereof by the transfer thereof to a securitized asset pool;
	 
	 	(s)	 	the extension, renewal or refinancing of any Permitted Lien, provided that the
amount so secured does not exceed the original amount secured immediately prior to such
extension, renewal or refinancing;
	 
	 	(t)	 	Liens granted to the Agent and the Lenders to secure the indebtedness
hereunder; and
	 
	 	(u)	 	Liens against cash or Cash Equivalents, provided that such cash or Cash
Equivalents have been provided as collateral security for the obligations of one or
more of the Companies under a Defeased Loan Transaction (including, for certainty, the
obligations of a Company under a guarantee provided in connection therewith).




“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) covered by ERISA, other
than a Multiemployer Plan, which the Borrower or any of its subsidiaries sponsors or maintains or
to which the Borrower or any of its subsidiaries makes, is making or is obligated to make
contributions and includes any Pension Plan.



“Property” means all of the property owned, operated or used by the Companies.



“Purchase Money Obligations” means any Lien created, issued or assumed by the Companies to secure
indebtedness assumed as part of, or issued or incurred to pay or provide funds to pay, all or a
part of the purchase price of any property (other than the securities of any Subsidiary or of any
person which becomes a Subsidiary upon such purchase).



“Power of Attorney” means a power of attorney provided by the Borrower to a Lender with respect to
Bankers’ Acceptances in accordance with and pursuant to Section 6.4 hereof.



“Rateable Portion”, as regards any Lender, with regard to any amount of money, means (subject to
Section 6.5 in respect of the rounding of allocations of Bankers’ Acceptances and subject to, and
after giving effect to, the provisions of Sections 2.19, 2.22, 13.14 and 14.2) in respect of the
Credit Facility and Drawdowns, Conversion, Rollovers and Loans and other amounts payable
thereunder, the product obtained by multiplying that amount by the quotient obtained by dividing
(a) that Lender’s Commitment by (b) the aggregate of all of the Lenders’ Commitments; provided
that, for certainty, with respect to a given Lender and the payment of all Obligations owing to
such Lender (i) on the Maturity Date applicable to such Lender or (ii) pursuant to Section 2.20 or
2.21, the amount of such payment shall be deemed to be such Lender’s Rateable Portion thereof.



“Rateable Swingline Portion”, as regards any Swingline Lender, with regard to any amount of money,
means in respect of Drawdowns and other amounts payable in respect of Swingline Loans, the product
obtained by multiplying that amount by the quotient obtained by dividing (a) that Swingline
Lender’s Swingline Sub-Commitment by (b) the aggregate of all of the Swingline Lenders’ Swingline
Sub-Commitments.



“Register” has the same meaning as set out in Section 14.6.



“Repayment Notice” means a notice substantially in the form annexed hereto as Schedule F to be
given to the Agent by the Borrower pursuant hereto.










 



- 18 -



“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations
thereunder, other than any such event for which the thirty (30) day notice requirement under ERISA
has been waived in regulations issued by the PBGC.



“Requested Lenders” has the meaning set out in Section 2.20.



“Rollover” means:





	 	(a)	 	with respect to any Libor Loan, the continuation of all or a portion of such
Loan (subject to the provisions hereof) for an additional Interest Period subsequent to
the initial or any subsequent Interest Period applicable thereto; and
	 
	 	(b)	 	with respect to Bankers’ Acceptances, the issuance of new Bankers’ Acceptances
or the making of new BA Equivalent Advances (subject to the provisions hereof) in
respect of all or any portion of Bankers’ Acceptances (or BA Equivalent Advances made
in lieu thereof) maturing at the end of the Interest Period applicable thereto, all in
accordance with Article 6 hereof.




“Rollover Date” means the date of commencement of a new Interest Period applicable to a Loan and
which date shall be a Banking Day.



“Rollover Notice” means a notice substantially in the form annexed hereto as Schedule G to be given
to the Agent by the Borrower pursuant hereto.



“S&P” means the Standard & Poor’s Ratings Group (a division of The McGraw — Hill Companies, Inc.)
and any successors thereto.



“Schedule I Lender” means a Lender which is a Canadian chartered bank listed on Schedule I to the
Bank Act (Canada).



“Schedule II Lender” means a Lender which is a Canadian chartered bank listed on Schedule II to the
Bank Act (Canada).



“Schedule III Lender” means a Lender which is an authorized foreign bank listed on Schedule III to
the Bank Act (Canada).



“Subordinated Debt” means, at any particular time, unsecured indebtedness of the Borrower (for
greater certainty, excluding the Subsidiaries) which would otherwise be Debt but which is
subordinated in writing, on terms satisfactory to the Majority of the Lenders acting reasonably
(including, without limitation, subordination and postponement of principal repayments and
restrictions on rights to accelerate and commence proceedings), to the indebtedness of the Borrower
to the Agent and the Lenders hereunder.



“Subsidiary” means with respect to any person (“X”):





	 	(a)	 	any corporation of which at least a majority of the outstanding shares having
by the terms thereof ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time shares of any other
class or classes of such corporation might have voting power by reason of the happening
of any contingency, unless the contingency has occurred and then only for as long as it
continues) is at the time directly, indirectly or beneficially owned or controlled by X
or one or more of its Subsidiaries, or X and one or more of its Subsidiaries;
	 
	 	(b)	 	any partnership of which, at the time, X, or one or more of its Subsidiaries,
or X and one or more of its Subsidiaries: (i) directly, indirectly or beneficially own
or control more than 50% of the










 



- 19 -


	 	 	 	income, capital, beneficial or ownership interests (however designated) thereof; and
(ii) is a general partner, in the case of limited partnerships, or is a partner or
has authority to bind the partnership, in all other cases; or






	 	(c)	 	any other person of which at least a majority of the income, capital,
beneficial or ownership interests (however designated) are at the time directly,
indirectly or beneficially owned or controlled by X, or one or more of its
Subsidiaries, or X and one or more of its Subsidiaries;




provided that, unless otherwise expressly provided or the context otherwise requires, references
herein to “Subsidiary” or “Subsidiaries” shall be and shall be deemed to be references to
Subsidiaries of the Borrower.



“Successor” has the meaning set out in Section 9.2(b).



“Successor Agent” has the meaning set out in Section 13.10.



“Swingline Exposure” has the meaning set out in Section 13.14(5).



“Swingline Lenders” means, collectively, The Bank of Nova Scotia, Royal Bank of Canada, Bank of
Montreal, Canadian Imperial Bank of Commerce and The Toronto-Dominion Bank and such other Lender or
Lenders which have (a) agreed in writing with the Borrower to act as a Swingline Lender hereunder
and to provide Swingline Loans in accordance herewith and (b) which have advised the Agent in
writing of such agreement, provided that, for certainty, if a person ceases to be a Lender
hereunder, then such person shall thereupon cease to be a Swingline Lender without further action.



“Swingline Loan” has the meaning set out in Section 2.22(1).



“Swingline Sub-Commitment” means that portion of a Swingline Lender’s Commitment which such
Swingline Lender has agreed to make available for Swingline Loans as set forth opposite such
Swingline Lender’s name on Schedule A annexed hereto as such Lender’s Swingline Sub-Commitment and
as such amount may hereafter be decreased, cancelled, extended or terminated from time to time
pursuant to this Agreement.



“Syndicated Drawdown” means a Drawdown other than by way of a Swingline Loan.



“Syndicated Loans” means a Loan other than a Swingline Loan.



“Tangible Net Worth” means, at any particular time, Equity at such time less the aggregate of the
amounts which would, in accordance with GAAP, be classified on the consolidated balance sheet of
the Borrower at such time as intangible assets, including, without limitation, goodwill and
deferred expenses.



“Taxes” means all taxes, levies, imposts, stamp taxes, duties, fees, deductions, withholdings,
charges, compulsory loans or restrictions or conditions resulting in a charge which are imposed,
levied, collected, withheld or assessed by any country or political subdivision or taxing authority
thereof now or at any time in the future, together with interest thereon and penalties, charges or
other amounts with respect thereto, if any “Tax” and “Taxation” shall be construed accordingly.



“Total Assets” means, at any particular time, the amount which would, in accordance with GAAP, be
classified on the consolidated balance sheet of the Borrower at such time as total assets.



“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section
4001(a)(16) of ERISA over the current value of that Pension Plan’s assets, determined, as of the
beginning of the most recent plan year for which such liabilities have been determined, in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code as specified in the applicable actuarial valuation.










 



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



“U.S. Base Rate” means, for any day, the greatest of:





	 	(a)	 	the rate of interest per annum established from time to time by the Agent as
the reference rate of interest for the determination of interest rates that the Agent
will charge to customers of varying degrees of creditworthiness in Canada for United
States Dollar demand loans in Canada;
	 
	 	(b)	 	the rate of interest per annum for such day or, if such day is not a Banking
Day, on the immediately preceding Banking Day, equal to the sum of the Federal Funds
Rate (expressed for such purpose as a yearly rate per annum in accordance with
Section 5.4), plus 1.00% per annum; and
	 
	 	(c)	 	the Libor Rate for a period of 1 month on such day (or in respect of any day
that is not a Banking Day, such Libor Rate in effect on the immediately preceding
Banking Day) plus 1.00% per annum,




provided that if all such rates are equal or if such Federal Funds Rate and such Libor Rate are
unavailable for any reason on the date of determination, then the “U.S. Base Rate” shall be the
rate specified in (a) above.



“U.S. Base Rate Loan” means an Advance in, or Conversion into, United States Dollars made by the
Lenders to the Borrower with respect to which the Borrower has specified or a provision hereof
requires that interest is to be calculated by reference to the U.S. Base Rate.



“Wholly-Owned Subsidiary” means, with respect to any person (“X”):





	 	(a)	 	a corporation, all of the issued and outstanding shares in the capital of which
are held by:






	 	(i)	 	X;
	 
	 	(ii)	 	X and/or one or more corporations, all of the issued and
outstanding shares in the capital of which are held by X; or
	 
	 	(iii)	 	two or more corporations, all of the issued and outstanding
shares in the capital of which are held by X;






	 	(b)	 	a corporation which is a Wholly-Owned Subsidiary of a corporation that is a
Wholly-Owned Subsidiary of X;
	 
	 	(c)	 	a partnership, all of the partners of which are X and/or Wholly-Owned
Subsidiaries of X; or
	 
	 	(d)	 	any person of which all of the income, capital, beneficial and ownership
interests (however designated) are held and controlled by X and/or Wholly-Owned
Subsidiaries of X,




provided that, unless otherwise expressly provided or the context otherwise requires, references
herein to “Wholly-Owned Subsidiary” or “Wholly-Owned Subsidiaries” shall be and shall be deemed to
be references to Wholly-Owned Subsidiaries of the Borrower.




1.2 Headings; Articles and Sections




          The division of this Agreement into Articles and Sections and the insertion of headings are
for convenience of reference only and shall not affect the construction or interpretation of this
Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and include any
agreement supplemental hereto. Unless something in the










 



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subject matter or context is inconsistent therewith, references herein to Articles and
Sections are to Articles and Sections of this Agreement.




1.3 Number; persons; including; successors




          Words importing the singular number only shall include the plural and vice versa, words
importing the masculine gender shall include the feminine and neuter genders and vice versa, words
importing persons shall include individuals, partnerships, associations, trusts, unincorporated
organizations and corporations and vice versa and words and terms denoting inclusiveness (such as
“include” or “includes” or “including”), whether or not so stated, are not limited by their context
or by the words or phrases which precede or succeed them. References herein to any person shall,
unless the context otherwise requires, include such person’s successors and permitted assigns.




1.4 Accounting Principles




     (1) Where the character or amount of any asset or liability or item of revenue or expense or
amount of equity is required to be determined, or any consolidation or other accounting computation
is required to be made for the purpose of this Agreement or any other Document, such determination
or calculation shall, to the extent applicable and except as otherwise specified herein or as
otherwise agreed in writing by the parties hereto, be made in accordance with GAAP applied on a
consistent basis.



     (2) If the Borrower, the Agent or the Lenders determine at any time that any amount required
to be determined hereunder would be materially different if such amount were determined in
accordance with:




	 	(b)	 	GAAP applied by the Borrower in respect of its financial statements on the date
hereof (“Old GAAP”), rather than
	 
	 	(c)	 	GAAP subsequently in effect in Canada and applied by the Borrower in respect of
its financial statements (including the adoption of IFRS on or before January 1, 2011)
and utilized for purposes of determining such amount,




then (i) written notice of such determination shall be delivered by the Borrower to the Agent, in
the case of a determination by the Borrower, or by the Agent to the Borrower, in the case of a
determination by the Agent or the Lenders and (ii) in the next Compliance Certificate to be
delivered by the Borrower following such notice, the Borrower shall calculate and report the
financial covenants in Sections 9.1(e), (f) and (g) under both Old GAAP and GAAP subsequently in
effect and so applied by the Borrower.




1.5 References to Agreements and Enactments




          Reference herein to any agreement, instrument, licence or other document shall be deemed to
include reference to such agreement, instrument, licence or other document as the same may from
time to time be amended, modified, supplemented or restated in accordance with the provisions of
this Agreement if and to the extent such provisions are applicable; and reference herein to any
enactment shall be deemed to include reference to such enactment as re-enacted, amended or extended
from time to time and to any successor enactment.




1.6 Per Annum Calculations




          Unless otherwise stated, wherever in this Agreement reference is made to a rate “per annum” or
a similar expression is used, such rate shall be calculated on the basis of calendar year of 365
days.










 



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1.7 Schedules




          The following are the Schedules annexed hereto and incorporated by reference and deemed to be
part hereof:




	 	 	 	 	 
	Schedule A

	 	-
	 	Lenders and Commitments
	Schedule B

	 	-
	 	Assignment Agreement
	Schedule C

	 	-
	 	Compliance Certificate
	Schedule D

	 	-
	 	Conversion Notice
	Schedule E

	 	-
	 	Drawdown Notice
	Schedule F

	 	-
	 	Repayment Notice
	Schedule G

	 	-
	 	Rollover Notice
	Schedule H

	 	-
	 	Opinion of Stikeman Elliott LLP
	Schedule I

	 	-
	 	Subsidiaries
	Schedule J

	 	-
	 	Partnerships, Joint Ventures and Syndicates.






ARTICLE 2

THE CREDIT FACILITY




2.1 The Credit Facility




          Subject to the terms and conditions hereof, each of the Lenders shall make available to the
Borrower such Lender’s Rateable Portion of the Credit Facility. Subject to Section 2.17, the
Outstanding Principal under the Credit Facility shall not exceed the maximum principal amount of
the Credit Facility.




2.2 Types of Availments




          The Borrower may, in Canadian Dollars, make Drawdowns, Conversions and Rollovers under the
Credit Facility of Canadian Prime Rate Loans and Bankers’ Acceptances and may, in United States
Dollars, make Drawdowns, Conversions and Rollovers under the Credit Facility of U.S. Base Rate
Loans and Libor Loans. The Borrower shall have the option, subject to the terms and conditions
hereof, to determine which types of Loans shall be drawn down and in which combinations or
proportions.




2.3 Purpose




          The Credit Facility is being made available for the general corporate purposes of the Borrower.




2.4 Availability and Nature of the Credit Facility




     (1) Subject to the terms and conditions hereof, the Borrower may make Drawdowns under the
Credit Facility in respect of the Commitments of a given Lender prior to, and only prior to, the
Maturity Date applicable to such Lender.



     (2) Prior to the Maturity Date applicable to a Lender, the Credit Facility shall be a
revolving credit facility: that is, the Borrower may increase or decrease Loans under the Credit
Facility by making Drawdowns, repayments and further Drawdowns.



     (3) Notwithstanding any other provision hereof to the contrary, in no event shall a Lender be
required to fund, participate in, or otherwise provide any portion of a Loan after the Maturity
Date applicable to such Lender (whether by way of Drawdown, Rollover, Conversion or otherwise); in
particular, and in addition to and without limiting the foregoing, in no event shall a Lender be
required to fund, participate in, or otherwise provide any portion of a Loan which has a maturity
or expiry date, or which has an Interest Period which will expire, after the









 



- 23 -



Maturity Date applicable to such Lender. In no event shall the Borrower request, or be
entitled to obtain, a Loan which has a maturity or expiry date, or which has an Interest Period
which will expire, after the earliest Maturity Date then applicable to a Lender.



2.5 Minimum Drawdowns




          Each Drawdown under the Credit Facility of the following types of Loans shall be in the
following amounts indicated:





	 	(a)	 	Canadian Prime Rate Loans in minimum principal amounts of Cdn.$1,000,000;
	 
	 	(b)	 	Bankers’ Acceptances in minimum aggregate amounts of Cdn.$10,000,000 at
maturity and Drawdowns in excess thereof in integral multiples of Cdn.$1,000,000;
	 
	 	(c)	 	U.S. Base Rate Loans in minimum principal amounts of U.S.$1,000,000; and
	 
	 	(d)	 	Libor Loans in minimum principal amounts of U.S.$10,000,000 and Drawdowns in
excess thereof in integral multiples of U.S.$1,000,000.





2.6 Libor Loan Availability




          Drawdowns of, Conversions into and Rollovers of requested Libor Loans may only be made upon
the Agent’s prior favourable determination with respect to the matters referred to in Section 11.1.




2.7 Notice Periods for Drawdowns, Conversions and Rollovers




          Subject to the provisions hereof, the Borrower may make a Drawdown, Conversion or Rollover
under the Credit Facility by delivering a Drawdown Notice, Conversion Notice or Rollover Notice, as
the case may be (executed in accordance with the definition of Officer’s Certificate), with respect
to a specified type of Loan to the Agent not later than:





	 	(a)	 	11:00 a.m. (Toronto time) three Banking Days prior to the proposed Drawdown
Date, Conversion Date or Rollover Date, as the case may be, for the Drawdown of,
Conversion into or the Rollover of Libor Loans;
	 
	 	(b)	 	11:00 a.m. (Toronto time) two Banking Days prior to the proposed Drawdown Date,
Conversion Date or Rollover Date, as the case may be, for the Drawdown of, Conversion
into or Rollover of Bankers’ Acceptances; and
	 
	 	(c)	 	for Drawdowns of or Conversions into Canadian Prime Rate Loans and/or U.S. Base
Rate Loans 11:00 a.m. (Toronto time) one Banking Day prior to the proposed Drawdown
Date or Conversion Date, as the case may be.





2.8 Conversion Option




          Subject to the provisions of this Agreement, the Borrower may convert the whole or any part of
any type of Loan under the Credit Facility into any other type of Loan under the Credit Facility by
giving the Agent a Conversion Notice in accordance herewith; provided that:





	 	(a)	 	Conversions of Libor Loans and Bankers’ Acceptances may only be made on the
last day of the Interest Period applicable thereto;










 



- 24 -








	 	(b)	 	the Borrower may not convert a portion only or the whole of an outstanding Loan
unless both the unconverted portion and converted portion of such Loan are equal to or
exceed, in the relevant currency of each such portion, the minimum amounts required for
Drawdowns of Loans of the same type as that portion (as set forth in Section 2.5);
	 
	 	(c)	 	in respect of Conversions of a Loan denominated in one currency to a Loan
denominated in another currency, the Borrower shall at the time of the Conversion repay
the Loan or portion thereof being converted in the currency in which it was
denominated; and
	 
	 	(d)	 	a Conversion shall not result in an increase in Outstanding Principal;
increases in Outstanding Principal may only be effected by Drawdowns made in accordance
herewith.





2.9 Libor Loan Rollovers; Selection of Libor Interest Periods




          At or before 11:00 a.m. (Toronto time) three Banking Days prior to the expiration of each
Interest Period of each Libor Loan, the Borrower shall, unless it has delivered a Conversion Notice
pursuant to Section 2.8 and/or a Repayment Notice pursuant to Section 2.15 (together with a
Rollover Notice if a portion only is to be converted or repaid; provided that a portion of a Libor
Loan may be continued only if the portion which is to remain outstanding is equal to or exceeds the
minimum amount required hereunder for Drawdowns of Libor Loans) with respect to the aggregate
amount of such Loan, deliver a Rollover Notice to the Agent selecting the next Interest Period
applicable to the Libor Loan, which new Interest Period shall commence on and include the last day
of such prior Interest Period. If the Borrower fails to deliver a Rollover Notice to the Agent as
provided in this Section, the Borrower shall be deemed to have given a Conversion Notice to the
Agent electing to convert the entire amount of the maturing Libor Loan into a U.S. Base Rate Loan.




2.10 Rollovers and Conversions not Repayments




          Any amount converted shall be a Loan of the type converted to upon such Conversion taking
place, and any amount rolled over shall continue to be the same type of Loan under the Credit
Facility as before the Rollover, but such Conversion or Rollover (to the extent of the amount
converted or rolled over) shall not of itself (notwithstanding the repayment referred to in the
definition of Conversion) constitute a repayment or a fresh utilization of any part of the amount
available under the Credit Facility.





	2.11	 	Agent’s Obligations with Respect to Canadian Prime Rate Loans, U.S. Base Rate Loans and
Libor Loans





          Upon receipt of a Drawdown Notice, Rollover Notice or Conversion Notice with respect to a
Canadian Prime Rate Loan, U.S. Base Rate Loan or Libor Loan, the Agent shall forthwith notify the
Lenders of the requested type of Loan, the proposed Drawdown Date, Rollover Date or Conversion
Date, each Lender’s Rateable Portion of such Loan and, if applicable, the account of the Agent to
which each Lender’s Rateable Portion is to be credited.





	2.12	 	Lenders’ and Agent’s Obligations with Respect to Canadian Prime Rate Loans, U.S. Base
Rate Loans and Libor Loans





          Each Lender shall, for same day value on the Drawdown Date specified by the Borrower in a
Drawdown Notice with respect to a Canadian Prime Rate Loan, a U.S. Base Rate Loan or a Libor Loan,
credit the Agent’s Account with such Lender’s Rateable Portion of each such requested Loan and for
same day value on the same date the Agent shall pay to the Borrower the full amount of the amounts
so credited in accordance with any payment instructions set forth in the applicable Drawdown
Notice.










 



- 25 -




2.13 Irrevocability




          A Drawdown Notice, Rollover Notice, Conversion Notice or Repayment Notice given by the
Borrower hereunder shall be irrevocable and, subject to any options the Lenders may have hereunder
in regard thereto and the Borrower’s rights hereunder in regard thereto, shall oblige the Borrower
to take the action contemplated on the date specified therein.




2.14 Optional Cancellation or Reduction of the Credit Facility




          The Borrower may, at any time, upon giving at least 3 Banking Days prior written notice to the
Agent, cancel in full or, from time to time, permanently reduce in part the unutilized portion of
the Credit Facility; provided, however, that any such reduction shall be in a minimum amount of
U.S.$10,000,000 and reductions in excess thereof shall be in integral multiples of U.S.$1,000,000.
If the Credit Facility is so reduced, the Commitment of each of the Lenders thereunder shall be
reduced pro rata in the same proportion that the amount of the reduction in the Credit Facility
bears to the amount of the Credit Facility in effect immediately prior to such reduction. Further,
each cancellation or reduction of the Commitment of any Swingline Lender shall automatically reduce
the Swingline Sub-Commitment of such Swingline Lender by a corresponding proportion.




2.15 Optional Repayment; Additional Repayment Terms




     (1) The Borrower may at any time and from time to time repay, without penalty, to the Agent
for the account of the Lenders the whole or any part of any Loan owing by it together with accrued
interest thereon to the date of such repayment provided that:




	 	(a)	 	the Borrower shall give a Repayment Notice (executed in accordance with the
definition of Officer’s Certificate) to the Agent not later than:






	 	(i)	 	11:00 a.m. (Toronto time) three Banking Days prior to the date of
the proposed repayment, for Libor Loans;
	 
	 	(ii)	 	11:00 a.m. (Toronto time) two Banking Days prior to the date of
the proposed repayment, for Bankers’ Acceptances; and
	 
	 	(iii)	 	11:00 a.m. (Toronto time) one Banking Day prior to the date of
the proposed repayment, for Canadian Prime Rate Loans and U.S. Base Rate Loans;






	 	(b)	 	repayments pursuant to this Section 2.15 may only be made on a Banking Day;
	 
	 	(c)	 	subject to the following provisions of this Section 2.15, each such repayment
may only be made on the last day of the applicable Interest Period with regard to a
Libor Loan that is being repaid;
	 
	 	(d)	 	a Bankers’ Acceptance may only be repaid on its maturity unless collateralized
in accordance with Section 2.15(3);
	 
	 	(e)	 	each such repayment shall be in a minimum amount of the lesser of: (i) the
minimum amount required pursuant to Section 2.5 for Drawdowns of the type of Loan
proposed to be repaid and (ii) the Outstanding Principal of all Loans outstanding under
the Credit Facility immediately prior to such repayment; any repayment in excess of
such amount shall be in integral multiples of the amounts required pursuant to Section
2.5 for multiples in excess of the minimum amounts of Drawdowns; and











 



- 26 -



	 	(f)	 	the Borrower may not repay a portion only of an outstanding Loan unless the
unpaid portion is equal to or exceeds, in the relevant currency, the minimum amount
required pursuant to Section 2.5 for Drawdowns of the type of Loan proposed to be
repaid.





     (2) If any Libor Loan is repaid on other than the last day of the applicable Interest Period,
the Borrower shall, within three Banking Days after notice is given by the Agent, pay to the Agent
for the account of the Lenders all costs, losses, premiums and expenses incurred by the Lenders by
reason of the liquidation or re-deployment of deposits or other funds or for any other reason
whatsoever resulting from the repayment of such Loan or any part thereof on other than the last day
of the applicable Interest Period. Any Lender, upon becoming entitled to be paid such costs,
losses, premiums and expenses, shall deliver to the Borrower and the Agent a certificate of the
Lender certifying as to such amounts and, in the absence of manifest error, such certificate shall
be conclusive and binding for all purposes.



     (3) With respect to any repayment of unmatured Bankers’ Acceptances pursuant to Section 2.15
(1)(d) or otherwise hereunder, the Borrower shall provide for the funding in full of the unmatured
Bankers’ Acceptances to be repaid by paying to and depositing with the Agent cash collateral for
each such unmatured Bankers’ Acceptances equal to the face amount payable at maturity thereof. The
Agent shall hold such cash collateral in an interest bearing cash collateral account at rates
prevailing at the time of deposit for similar accounts with the Agent; such cash collateral, such
cash collateral account, any accounts receivable, claims, instruments or securities evidencing or
relating to the foregoing, and any proceeds of any of the foregoing (collectively, the “Outstanding
BAs Collateral”) shall be assigned to the Agent as security for the obligations of the Borrower in
relation to such Bankers’ Acceptances and the Lien of the Agent created in such Outstanding BAs
Collateral shall rank in priority to all other Liens and adverse claims against such Outstanding
BAs Collateral. Such Outstanding BAs Collateral shall be applied to satisfy the obligations of the
Borrower for such Bankers’ Acceptances as they mature and the Agent is hereby irrevocably directed
by the Borrower to apply any such Outstanding BAs Collateral to such maturing Bankers’ Acceptances.
The Outstanding BAs Collateral created herein shall not be released to the Borrower without the
consent of the Lenders; however, interest on such deposited amounts shall be for the account of the
Borrower and may be withdrawn by the Borrower so long as no Default or Event of Default is then
continuing. If, after maturity of the Bankers’ Acceptances for which such Outstanding BAs
Collateral is held and application by the Agent of the Outstanding BAs Collateral to satisfy the
obligations of the Borrower hereunder with respect to the Bankers’ Acceptances being repaid, any
interest or other proceeds of the Outstanding BAs Collateral remains, such interest or other
proceeds shall be promptly paid and transferred by the Agent to the Borrower so long as no Default
or Event of Default is then continuing.



2.16 Mandatory Repayment of Credit Facility




          Subject to Section 10.2, the Borrower shall repay or pay, as the case may be, to the Agent, on
behalf of the Lenders, all Loans and other Obligations outstanding under the Credit Facility on or
before the Maturity Date.




2.17 Currency Excess




     (1) If the Agent shall determine that the aggregate Outstanding Principal of the outstanding
Loans under the Credit Facility exceeds the maximum principal amount of the Credit Facility in
United States Dollars (the amount of such excess is herein called the “Currency Excess”), then,
upon written request by the Agent (which request shall detail the applicable Currency Excess), the
Borrower shall repay an amount of Canadian Prime Rate Loans or U.S. Base Rate Loans under the
Credit Facility within (a) if the Currency Excess exceeds 3.0% of the amount of the Credit
Facility, 5 Banking Days, and (b) in all other cases, 20 Banking Days after receipt of such
request, such that, except as otherwise contemplated in Section 2.17(2), the amount or the
Equivalent Amount in United States Dollars of such repayments is, in the aggregate, at least equal
to the Currency Excess.









 



- 27 -


     (2) If, in respect of any Currency Excess, the repayments made by the Borrower have not
completely removed such Currency Excess (the remainder thereof being herein called the “Currency
Excess Deficiency”), the Borrower shall within the aforementioned 5 or 20 Banking Days, as the case
may be, after receipt of the aforementioned request of the Agent, place an amount equal to the
Currency Excess Deficiency on deposit with the Agent in an interest-bearing account with interest
at rates prevailing at the time of deposit for the account of the Borrower, to be assigned to the
Agent on behalf of the Lenders by instrument satisfactory to the Agent and to be applied to
maturing Bankers’ Acceptances or Libor Loans (converted if necessary at the exchange rate for
determining the Equivalent Amount on the date of such application). The Agent is hereby
irrevocably directed by the Borrower to apply any such sums on deposit to maturing Loans as
provided in the preceding sentence. In lieu of providing funds for the Currency Excess Deficiency,
as provided in the preceding provisions of this Section, the Borrower may within the said period of
5 or 20 Banking Days, as the case may be, provide to the Agent an irrevocable standby letter of
credit in an amount equal to the Currency Excess Deficiency and for a term which expires not sooner
than 10 Banking Days after the date of maturity of the relevant Bankers’ Acceptances or Libor
Loans, as the case may be; such letter of credit shall be issued by a financial institution, and
shall be on terms and conditions, acceptable to the Agent in its sole discretion. The Agent is
hereby authorized and directed to draw upon such letter of credit and apply the proceeds of the
same to Bankers’ Acceptances or Libor Loans as they mature. Upon the Currency Excess being
eliminated as aforesaid or by virtue of subsequent changes in the exchange rate for determining the
Equivalent Amount, then, provided no Default or Event of Default is then continuing, such funds on
deposit, together with interest thereon, or such letters of credit shall be returned to the
Borrower, in the case of funds on deposit, or shall be cancelled or reduced in amount, in the case
of letters of credit.



2.18 Permitted Increase in Credit Facility




          The Borrower may, at any time and from time to time, increase the Commitments (the “Additional
Commitments”) available hereunder and the maximum principal amount of the Credit Facility by adding
additional financial institutions as Lenders hereunder or by increasing the Commitments of existing
Lenders with (in the latter case) the consent of such increasing Lenders, or any combination
thereof. The right to increase the maximum principal amount of the Credit Facility as aforesaid
shall be subject to the following (for each such increase):





	 	(a)	 	no Default or Event of Default shall have occurred and be continuing and the
Borrower shall have delivered to the Agent a certificate of an officer of the Borrower
confirming the same and confirming (i) its corporate authorization to make such
increase, (ii) the truth and accuracy in all material respects of its representations
and warranties contained in Section 8.1 hereof as of such date, other than any such
representations and warranties which expressly speak as of an earlier date, (iii) that
no consents, approvals or authorizations are required for such increase (except as have
been unconditionally obtained and are in full force and effect, unamended), each as at
the effective date of such increase and (iv) the Borrower’s compliance with Section
2.18(f) below;
	 
	 	(b)	 	the Borrower shall have delivered to the Agent an opinion of its legal counsel
in form and substance as may be required by the Agent, acting reasonably (and such
opinion shall, inter alia, opine as to the corporate authorization of the Borrower to
effect such increase);
	 
	 	(c)	 	after giving effect to any such increase, the maximum principal amount of the
Credit Facility shall not exceed U.S. $3,000,000,000;
	 
	 	(d)	 	the Agent and each Swingline Lender shall have consented to any additional
financial institution becoming a Lender, such consents not to be unreasonably withheld,
conditioned or delayed;
	 
	 	(e)	 	the Borrower and the increasing existing Lender or Lenders or the financial
institution or financial institutions being added, as the case may be, shall execute
and deliver such documentation as is










 



- 28 -


	 	 	 	required by the Agent, acting reasonably, to effect the increase in question
(including the partial assignment of Loans or purchase of participations from Lenders
to the extent necessary to ensure that, after giving effect to such increase, each
Lender holds its Rateable Portion of each outstanding Loan under the Credit Facility)
and, if applicable, to add any such new financial institution as a Lender under the
Documents; and






	 	(f)	 	if an Additional Commitment is to be added on or before the first anniversary
of the date hereof and the existing Lender or other financial institution providing
such Additional Commitment is paid or to be paid (directly or indirectly, including to
any Affiliate thereof) upfront fees or other compensation in respect of the provision
of its Additional Commitment which, in effect, results or will result in payment of
fees or other compensation at a higher percentage than has been previously paid to any
other Lender for the provision of its Commitment hereunder, then the Borrower shall pay
to each Lender which received lower percentage compensation for the provision of its
Commitment such additional fees as are necessary to ensure that each such Lender
receives the same percentage amount of compensation for its Commitment as is paid or to
be paid for the Additional Commitment.





2.19 Hostile Acquisitions




     (1) In the event the Borrower wishes to utilize the proceeds of one or more Loans under the
Credit Facility to, or to provide funds to any Subsidiary to, finance a Hostile Acquisition, then
the following steps shall be followed:




	 	(a)	 	at least five (5) Banking Days prior to the delivery to the Agent of any
Drawdown Notice pursuant to Section 2.7 requesting one or more Loans under the Credit
Facility intended to be used to finance such Hostile Acquisition, the Borrower shall
notify the Agent and shall provide the Agent with particulars of such Hostile
Acquisition, including particulars in sufficient detail to enable each Lender to
determine whether it has a conflict of interest if the proceeds of Loans from such
Lender are used by the Borrower to finance such Hostile Acquisition;
	 
	 	(b)	 	promptly after receipt of such notice and particulars from the Borrower, the
Agent shall (i) notify an appropriate officer of each Lender and provide such
particulars to such officer and (ii) confirm receipt (other than by way of an automated
response) of such notice and particulars by each such officer;
	 
	 	(c)	 	within three (3) Banking Days of such confirmation by the Agent of each such
appropriate officer being so advised, each Lender shall notify the Agent of such
Lender’s determination as to whether (i) such a conflict of interest exists or (ii) the
funding of such Hostile Acquisition would contravene an internal policy of general
application of such Lender (each such determination to be made by each such Lender in
the exercise of its sole discretion, having regard to such considerations as it deems
appropriate); provided that in the event such Lender does not so notify the Agent
within such three (3) Banking Day period, such Lender shall be deemed to have notified
the Agent that it has no such conflict of interest or contravention; and
	 
	 	(d)	 	the Agent shall promptly notify the Borrower of each such Lender’s
determination,




and, in the event that any Lender has such a conflict of interest or the funding would contravene
such a policy (each, a “Conflicted Lender”), then upon such Conflicted Lender so notifying the
Agent, the Conflicted Lender shall have no obligation to provide Loans to finance such Hostile
Acquisition, notwithstanding any other provision of this Agreement to the contrary; provided,
however, that each other Lender (each, a “Non-Conflicted Lender”) which has, or is deemed to have,
no such conflict of interest or contravention shall have an obligation, up to the








 



- 29 -


amount of its Commitment, to provide Loans to finance such Hostile Acquisition, and the Loans to
finance such Hostile Acquisition shall be provided by each Non-Conflicted Lender in accordance with
the ratio, determined prior to the provision of any Loans to finance such Hostile Acquisition, that
the Commitment of such Non-Conflicted Lender under the Credit Facility bears to the aggregate
Commitments of all Non-Conflicted Lenders under the Credit Facility.




     (2) If Loans are used to finance a Hostile Acquisition and there are Conflicted Lenders,
subsequent Loans under the Credit Facility shall be funded firstly by Conflicted Lenders, up to the
amount of their Commitments, and subsequent repayments under the Credit Facility shall be applied
firstly to Non-Conflicted Lenders, in each case, until such time as the proportion that the amount
of each Lender’s Outstanding Principal under the Credit Facility bears to the amount of the total
Outstanding Principal of all Lenders is equal to such proportion which would have been in effect
but for the application of this Section 2.19.



2.20 Extension of Maturity Date




     (1) In this Section:




	 	(a)	 	“Extension Request” means a written request by the Borrower to the Requested
Lenders to extend the Maturity Date applicable to such Lenders by one year, which
request shall include an Officer’s Certificate of the Borrower certifying that no
Default or Event of Default has occurred and is continuing; and
	 
	 	(b)	 	“Requested Lenders” means those Lenders which are not then Non-Extending
Lenders.





     (2) The Borrower may, once in each calendar year, request the Requested Lenders to extend the
Maturity Date applicable to such Lenders by one year by delivering to the Agent an executed
Extension Request; provided that, such request may not be made more than 90 days or less than 45
days before the anniversary of the date hereof in each calendar year.



     (3) Upon receipt from the Borrower of an executed Extension Request, the Agent shall promptly
deliver to each Requested Lender a copy of such request, and each Requested Lender shall, within 30
days after receipt of the Extension Request by the Agent, provide to the Agent and the Borrower
either (a) written notice that such Requested Lender (each, an “Extending Lender”) agrees, subject
to Section 2.20(4) below, to the extension of the current Maturity Date applicable to it by one
year or (b) written notice (each, a “Notice of Non-Extension”) that such Requested Lender (each, a
“Non-Extending Lender”) does not agree to such requested extension; provided that, if any Requested
Lender shall fail to so notify the Agent and the Borrower, then such Requested Lender shall be
deemed to have delivered a Notice of Non-Extension and shall be deemed to be a Non-Extending
Lender. The determination of each Lender whether or not to extend the Maturity Date applicable to
it shall be made by each individual Lender in its sole discretion.



     (4) If the Extending Lenders have at least 50% of the aggregate Commitments under the Credit
Facility, the Maturity Date shall be extended by one year for each of the Extending Lenders. If
the Extending Lenders do not have at least 50% of the aggregate Commitments under the Credit
Facility, the Maturity Date shall not be extended for any of the Requested Lenders. For certainty,
the Maturity Date for a Non-Extending Lender shall not be extended, regardless of whether or not
the Maturity Date is extended for the Extending Lenders as aforesaid.



     (5) This Section shall apply from time to time to facilitate successive extensions and
requests for extension of the Maturity Date. If, as of the anniversary of the date hereof in the
calendar year in which an Extension Request has been delivered, a Default or Event of Default
exists, the Maturity Date shall not be extended, notwithstanding any other provision hereof to the
contrary, for an Extending Lender unless (a) such Extending









 



- 30 -



Lender has waived such Default or Event of Default in writing and (b) Extending Lenders having
at least 50% of the aggregate Commitments under the Credit Facility have waived such Default or
Event of Default in writing.



     (6) With respect to each Non-Extending Lender:




	 	(a)	 	the Borrower may require each Non-Extending Lender to assign all of its rights,
benefits and interests under the Documents, its Commitment and its Rateable Portion of
all Loans and other Obligations outstanding under the Credit Facility (collectively,
the “Assigned Interests”) to (i) any Extending Lenders which have agreed to increase
their Commitments under the Credit Facility and purchase Assigned Interests, and (ii)
to the extent the Assigned Interests are not transferred to Extending Lenders,
financial institutions selected by the Borrower and consented to by the Agent and each
Swingline Lender, such consents not be unreasonably withheld, conditioned or delayed.
Such assignments shall be effective upon execution of assignment documentation
satisfactory to the relevant Non-Extending Lender, the assignee, the Borrower and the
Agent (each acting reasonably), upon payment to the relevant Non-Extending Lender (in
immediately available funds) by the relevant assignee of an amount equal to its
Rateable Portion of all Obligations being assigned and all accrued but unpaid interest
and fees hereunder in respect of those portions of the Loans and Commitments being
assigned, upon payment by the relevant assignee to the Agent (for the Agent’s own
account) of the transfer fee contemplated in Section 14.6, and upon provision
satisfactory to the relevant Non-Extending Lender (acting reasonably) being made for
(i) payment at maturity of outstanding Bankers’ Acceptances accepted by it and (ii) any
costs, losses, premiums or expenses incurred by such Non-Extending Lender by reason of
the liquidation or re-deployment of deposits or other funds in respect of Libor Loans
outstanding hereunder. Upon such assignment and transfer, the Non-Extending Lender in
question shall have no further right, interest, benefit or obligation in respect of the
Credit Facility and the assignee thereof shall succeed to the position of such Lender
as if the same was an original party hereto in the place and stead of such
Non-Extending Lender and shall be deemed to be an Extending Lender; for such purpose,
to the extent that the assignee is not already a party hereto, the assignee shall
execute and deliver an Assignment Agreement and such other documentation as may be
reasonably required by the Agent and the Borrower to confirm its agreement to be bound
by the provisions hereof and to give effect to the foregoing; and
	 
	 	(b)	 	to the extent that any Non-Extending Lender has not assigned its rights and
interests to an Extending Lender or other financial institution as provided in
subparagraph (a) above, the Borrower may, provided that no Default or Event of Default
has occurred and is continuing but otherwise notwithstanding any other provision
hereof, repay the Non-Extending Lender’s Rateable Portion of all Loans outstanding
under the Credit Facility, together with all accrued but unpaid interest and fees
thereon with respect to its Commitment, without making corresponding repayment to the
Extending Lenders, upon which the Borrower shall cancel such Non-Extending Lender’s
Commitment; upon completion of the foregoing, such Non-Extending Lender shall have no
further right, interest, benefit or obligation in respect of the Credit Facility and
the Credit Facility shall be reduced by the amount of such Lender’s cancelled
Commitment.





2.21 Replacement of Lenders




               In addition to and not in limitation of or derogation from Section 2.20(6), the Borrower shall
have the right, at its option, to (a) replace (by causing a Lender to assign its rights and
interests under the Credit Facility to additional financial institutions or to existing Lenders
which have agreed to increase their Commitments) or (b) provided that no Default or Event of
Default has occurred and is continuing, repay the Obligations outstanding and cancel the
Commitments of (without corresponding repayment to or cancellation of the Commitments of other
Lenders) or (c) do any combination thereof with respect to: (i) those Lenders which have not agreed
to a consent









 



- 31 -

under, waiver of or proposed amendment to the provisions of the Documents (each, a “Dissenting
Lender”) requested by the Borrower, (ii) those Conflicted Lenders which have notified the Borrower
that they have a conflict of interest in respect of a Hostile Acquisition pursuant to Section 2.19,
(iii) those Lenders which have notified the Borrower and the Agent of an entitlement to receive
Additional Compensation under Section 11.3, (iv) those Lenders which, pursuant to Section 11.5,
have declared their obligations under this Agreement in respect of any Loan to be terminated, and
(v) any Defaulting Lender, and, for such purposes, the provisions of Section 2.20(6) shall apply
thereto, mutatis mutandis; provided that, notwithstanding the foregoing:





	 	(a)	 	the Borrower shall not be entitled to replace or repay a Dissenting Lender
unless, after doing so, the requested consent, waiver or amendment would be approved in
accordance with the Documents; and
	 
	 	(b)	 	the addition of new financial institutions as Lenders shall require the consent
of the Agent and each Swingline Lender, such consents not to be unreasonably withheld,
conditioned or delayed.





2.22 Swingline Loans




     (1) Notwithstanding Section 2.7, but subject to the following provisions of this Section, the
Borrower shall be entitled to utilize a portion of each Swingline Lender’s Commitment to obtain
Canadian Prime Rate Loans and U.S. Base Rate Loans under the Credit Facility provided solely by the
Swingline Lenders (each, a “Swingline Loan”) notwithstanding the definition of Canadian Prime Rate
Loan or U.S. Base Rate Loan. The Borrower may make Drawdowns and repayments of Swingline Loans by
delivering a Drawdown Notice or Repayment Notice, as applicable, (in each case, indicating in such
notice that such notice relates to a Swingline Loan) to the Agent not later than the following
times on the proposed Drawdown Date or date of repayment:




	 	(a)	 	noon (Toronto time) for Drawdowns or repayments which, in the aggregate on such
date, are equal to or less than U.S.$50,000,000 (or the Equivalent Amount thereof); and
	 
	 	(b)	 	11 a.m. (Toronto time) in all other cases.




For certainty, the requirements of Sections 2.5 and 2.15(1)(e) and (f) shall not apply to Swingline
Loans with respect to the amounts of Drawdowns or repayments thereof.




     (2) Except as otherwise specifically provided herein or unless the context otherwise requires,
(a) all references to Canadian Prime Rate Loans and U.S. Base Rate Loans shall include Swingline
Loans of the same currency and (b) the provisions hereof applicable to Canadian Prime Rate Loans
and U.S. Base Rate Loans shall apply to Swingline Loans of the same currency, mutatis mutandis,
provided that references to “Rateable Portions” shall be deemed to be to “Rateable Swingline
Portions” and references to “Lenders” shall be deemed to be to “Swingline Lenders”.



     (3) Swingline Loans shall be made by the Swingline Lenders based on each Swingline Lender’s
Rateable Swingline Portion thereof, without assignment to or participation by the other Lenders
(except as provided in this Section). All interest payments and principal repayments of or in
respect of Swingline Loans shall be solely for the account of the Swingline Lenders and shall be
paid by the Borrower to the Agent for the account of the Swingline Lenders. Subject to Section
2.22(7), and to Article 13 and Section 12.1, all costs and expenses relating to a Swingline Loan
shall be solely for the account of the Swingline Lenders.



     (4) The maximum aggregate Outstanding Principal of the Swingline Loans owing to a given
Swingline Lender shall be the lesser of:




	 	(a)	 	such Swingline Lender’s Swingline Sub-Commitment; and










 



- 32 -








	 	(b)	 	such Swingline Lender’s Commitment less each Swingline Lender’s Rateable
Portion of all outstanding Syndicated Loans.





     (5) If the Borrower shall request a Syndicated Drawdown and any Swingline Lender’s Rateable
Portion of such Drawdown would cause such Swingline Lender’s Rateable Portion of all Syndicated
Loans together with the Swingline Loans then owing to such Swingline Lender to exceed such
Swingline Lender’s Commitment, then the Borrower shall be deemed to have given a Drawdown Notice in
respect of the requested Syndicated Drawdown irrevocably directing the Agent to apply the proceeds
of such Syndicated Drawdown to the repayment of such Swingline Loans to the extent of such excess
and the Agent shall make such repayments to such Swingline Lender on behalf of the Borrower on the
requested date of such Syndicated Drawdown.



     (6) The Borrower shall repay each Swingline Loan (together with all accrued and unpaid
interest thereon) within 10 days after the Drawdown Date on which such Swingline Loan is advanced.



     (7) Notwithstanding anything to the contrary herein contained or to any contrary provisions of
applicable laws, (a) if an Event of Default occurs or (b) if any Swingline Lender so requires, and
there are then outstanding any Swingline Loans, then, effective on the day of notice to that effect
to the Agent and the other Lenders from such Swingline Lender, the Borrower shall be deemed to have
requested, and hereby requests, a Drawdown of an amount of Syndicated Loans, by way of Canadian
Prime Rate Loans and U.S. Base Rate Loans (as applicable), sufficient to repay such Swingline Loans
and accrued and unpaid interest in respect thereof, and on the Banking Day immediately following
receipt of such notice, the other Lenders shall disburse to the Agent, who shall remit to the
Swingline Lenders, their Rateable Portions of such amounts and such amounts shall thereupon be
deemed to have been advanced by the Lenders to the Borrower and to constitute Syndicated Loans by
way of Canadian Prime Rate Loans or U.S. Base Rate Loans, as the case may be. If a Lender does not
disburse to the Agent for the account of the Swingline Lenders their Rateable Portions of any
amount under this Section then: (i) such Lender shall purchase participations from the Swingline
Lenders in such Syndicated Loans (without recourse to the Swingline Lenders) for an amount or
otherwise effect transactions to achieve the financial results contemplated by this Section, and
(ii) for the purpose only of any distributions or payments to the Lenders (and not, for greater
certainty, for the purposes of any obligations of the Lenders), including any distribution or
payment with respect to the Borrower in the event of any enforcement or realization proceedings or
any bankruptcy, winding-up, liquidation, arrangement, compromise or composition, the Commitment of
such Lender shall be deemed to be nil and the Commitments of the Swingline Lenders shall be
increased by their Rateable Swingline Portions of the Commitment of such Lender until the amounts
owed by the Borrower under the Credit Facility are outstanding to each Lender in accordance with
its Rateable Portion determined without regard to this sentence. If any amount disbursed by a
Lender under this Section and deemed to have been advanced to the Borrower must be repaid by a
Swingline Lender or by the relevant Lender to the Borrower, then no reduction of the Swingline
Loans as contemplated above shall be deemed to have occurred, but the Lenders shall purchase
participations in the Swingline Loans (without recourse to the Swingline Lenders) for an amount or
otherwise effect transactions to achieve the financial results contemplated by this Section.



     (8) For certainty, it is hereby acknowledged and agreed that the Lenders shall be obligated to
advance their Rateable Portion of the Drawdown contemplated by Section 2.22(7), to disburse their
Rateable Portion of the Syndicated Loans referenced therein and to purchase participations
contemplated by such Section irrespective of:




	 	(a)	 	whether a Default or Event of Default is then continuing or whether any other
condition in Article 3 is met; and
	 
	 	(b)	 	whether or not the Borrower has, in fact, actually requested such Drawdown (by
delivery of a Drawdown Notice or otherwise).










 



- 33 -







ARTICLE 3

CONDITIONS PRECEDENT TO DRAWDOWNS




3.1 Conditions for Drawdowns




          For each Drawdown hereunder the following conditions shall be satisfied as conditions
precedent to the making of such Drawdown:





	 	(a)	 	the Agent shall have received a proper and timely Drawdown Notice from the
Borrower requesting the Drawdown;
	 
	 	(b)	 	the representations and warranties set forth in Section 8.1 shall be true and
accurate in all material respects on and as of the date of the requested Drawdown other
than any such representations and warranties which expressly speak as of an earlier
date;
	 
	 	(c)	 	no Default or Event of Default shall have occurred and be continuing nor shall
any Default or Event of Default result from or exist immediately after the requested
Drawdown; and
	 
	 	(d)	 	after giving effect to the proposed Drawdown, the Outstanding Principal of all
Loans outstanding under the Credit Facility shall not exceed the maximum principal
amount of the Credit Facility.





3.2 Additional Conditions




          This Agreement shall be effective upon the following conditions being satisfied:





	 	(a)	 	all fees and expenses previously agreed in writing between the Borrower and
each of the Lenders shall be paid by the Borrower to the Lenders;
	 
	 	(b)	 	the fees then due and payable under the Agency Fee Agreement shall have been
paid by the Borrower to the Agent;
	 
	 	(c)	 	the Borrower shall have delivered to the Agent a current certificate of
compliance in respect of its jurisdiction of incorporation and certified copies of its
articles, by-laws and the resolutions authorizing the Documents and transactions
hereunder and an Officer’s Certificate as to the incumbency of the officers of the
Borrower signing the Documents;
	 
	 	(d)	 	the Documents shall have been fully executed and delivered, each in form and
substance satisfactory to the Lenders and Lenders’ Counsel (each acting reasonably);
	 
	 	(e)	 	the Agent and the Lenders shall have received (i) a legal opinion from Stikeman
Elliott LLP in the form attached hereto as Schedule H and (ii) a legal opinion from
Lenders’ Counsel in form and substance satisfactory to the Lenders; and
	 
	 	(f)	 	the Credit Facility (as defined in the Existing Credit Agreement) shall have
been cancelled and evidence of the foregoing satisfactory to the Agent and the Lenders,
each acting reasonably, shall have been received by the Agent and the Lenders.





3.3 Waiver




          The conditions set forth in Sections 3.1 and 3.2 are inserted for the sole benefit of the
Lenders and the Agent and may be waived by all of the Lenders, in whole or in part (with or without
terms or conditions)










 



- 34 -



without prejudicing the right of the Lenders or Agent at any time to assert such waived
conditions in respect of any subsequent Drawdown.




ARTICLE 4

EVIDENCE OF DRAWDOWNS




4.1 Account of Record




          The Agent shall open and maintain books of account evidencing all Loans and all other amounts
owing by the Borrower to the Lenders hereunder. The Agent shall enter in the foregoing accounts
details of all amounts from time to time owing, paid or repaid by the Borrower hereunder. The
information entered in the foregoing accounts shall constitute prima facie evidence of the
obligations of the Borrower to the Lenders hereunder with respect to all Loans and all other
amounts owing by the Borrower to the Lenders hereunder. After a request by the Borrower, the Agent
shall promptly advise the Borrower of such entries made in the Agent’s books of account.




ARTICLE 5

PAYMENTS OF INTEREST AND FEES




5.1 Interest on Canadian Prime Rate Loans




          The Borrower shall pay interest on each Canadian Prime Rate Loan owing by it during each
Interest Period applicable thereto in Canadian Dollars at a rate per annum equal to the Canadian
Prime Rate in effect from time to time during such Interest Period plus the Applicable Pricing
Rate. Each determination by the Agent of the Canadian Prime Rate applicable from time to time
during an Interest Period shall be prima facie evidence thereof. Such interest shall accrue daily
and shall be payable in arrears on each Interest Payment Date for such Loan for the period from and
including the Drawdown Date or the preceding Conversion Date or Interest Payment Date, as the case
may be, for such Loan to and including the day preceding such Interest Payment Date and shall be
calculated on the principal amount of the Canadian Prime Rate Loan outstanding during such period
and on the basis of the actual number of days elapsed in a year of 365 days. Changes in the
Canadian Prime Rate shall cause an immediate adjustment of the interest rate applicable to such
Loans without the necessity of any notice to the Borrower.




5.2 Interest on U.S. Base Rate Loans




          The Borrower shall pay interest on each U.S. Base Rate Loan owing by it during each Interest
Period applicable thereto in United States Dollars at a rate per annum equal to the U.S. Base Rate
in effect from time to time during such Interest Period plus the Applicable Pricing Rate. Each
determination by the Agent of the U.S. Base Rate applicable from time to time during an Interest
Period shall be prima facie evidence thereof. Such interest, shall accrue daily and be payable in
arrears on each Interest Payment Date for such Loan for the period from and including the Drawdown
Date or the preceding Conversion Date or Interest Payment Date, as the case may be, for such Loan
to and including the day preceding such Interest Payment Date and shall be calculated on the
principal amount of the U.S. Base Rate Loan outstanding during such period and on the basis of the
actual number of days elapsed in a year of 365 days. Changes in the U.S. Base Rate shall cause an
immediate adjustment of the interest rate applicable to such Loans without the necessity of any
notice to the Borrower.




5.3 Interest on Libor Loans




          The Borrower shall pay interest on each Libor Loan owing by it during each Interest Period
applicable thereto in United States Dollars at a rate per annum, calculated on the basis of a 360
day year, equal to the Libor Rate with respect to such Interest Period plus the Applicable Pricing
Rate. Each determination by the










 



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Agent of the Libor Rate applicable to an Interest Period shall be prima facie evidence
thereof. Such interest shall accrue daily and shall be payable in arrears on each Interest Payment
Date for such Loan for the period from and including the Drawdown Date or the preceding Rollover
Date, Conversion Date or Interest Payment Date, as the case may be, for such Loan to and including
the day preceding such Interest Payment Date and shall be calculated on the principal amount of the
Libor Loan outstanding during such period and on the basis of the actual number of days elapsed
divided by 360.




5.4 Interest Act (Canada)




     (1) Whenever a rate of interest hereunder is calculated on the basis of a year (the “deemed
year”) which contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest shall be expressed as a yearly rate for purposes of the Interest
Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year
of calculation and dividing it by the number of days in the deemed year.



     (2) Whenever a rate of interest or other rate per annum hereunder is expressed or calculated
on the basis of a year of 360 days, such rate of interest or other rate shall be expressed as a
rate per annum, calculated on the basis of a 365-day year, by multiplying such rate of interest or
other rate by 365 and dividing it by 360.



5.5 Nominal Rates; No Deemed Reinvestment




          The principle of deemed reinvestment of interest shall not apply to any interest calculation
under this Agreement; all interest payments to be made hereunder shall be paid without allowance or
deduction for deemed reinvestment or otherwise, before and after maturity, default and judgment.
The rates of interest specified in this Agreement are intended to be nominal rates and not
effective rates. Interest calculated hereunder shall be calculated using the nominal rate method
and not the effective rate method of calculation.




5.6 Standby Fees




     (1) The Borrower shall pay to the Agent for the account of the Lenders a standby fee in United
States Dollars in respect of the Credit Facility calculated at a rate per annum equal to the
Applicable Pricing Rate on the amount, if any, by which the amount of the Outstanding Principal
under the Credit Facility for each day in the period of determination is less than the maximum
principal amount of the Credit Facility on such day. Fees determined in accordance with this
Section shall accrue daily from and after the date hereof and be payable by the Borrower
(a) quarterly in arrears, (b) on cancellation in full of the Credit Facility, and (c) on the
Maturity Date.



     (2) As of: (a) January 1, April 1, July 1 and October 1 in each year, (b) the date of any
cancellation in full of the Credit Facility, and (c) the Maturity Date, the Agent shall determine
the standby fees under this Section in respect of the Credit Facility for the period from and
including the date hereof or the date of the immediately preceding determination, as the case may
be, to but excluding that date of determination and shall deliver to the Borrower a written request
for payment of the standby fees so determined, as detailed therein. The Borrower shall pay to the
Agent for the account of the Lenders the standby fees referred to above within 5 Banking Days after
receipt of each such written request.



5.7 Agent’s Fees




          The Borrower shall (from time to time) pay to the Agent, for its own account, the annual
agency fee and other amounts set forth in the Agency Fee Agreement by the payment dates set forth
therein.










 



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5.8 Interest on Overdue Amounts




          Notwithstanding any other provision hereof, in the event that any amount due hereunder
(including, without limitation, any interest payment) is not paid when due (whether by acceleration
or otherwise), the Borrower shall pay interest on such unpaid amount (including, without
limitation, interest on interest), if and to the fullest extent permitted by applicable law, from
the date that such amount is due until the date that such amount is paid in full (but excluding the
date of such payment if the payment is received for value at the required place of payment on the
date of such payment), and such interest shall accrue daily, be calculated and compounded monthly
and be payable on demand, after as well as before maturity, default and judgment, at a rate per
annum that is equal to (a) in respect of amounts due in Canadian Dollars, the rate of interest then
payable on Canadian Prime Rate Loans plus 2.0% per annum or (b) in respect of amounts due in United
States Dollars, the rate of interest then payable on U.S. Base Rate Loans plus 2.0% per annum.




5.9 Waiver




          To the extent permitted by applicable law, the covenant of the Borrower to pay interest at the
rates provided herein shall not merge in any judgment relating to any obligation of the Borrower to
the Lenders or the Agent and any provision of the Interest Act (Canada) or Judgment Interest Act
(Alberta) which restricts any rate of interest set forth herein shall be inapplicable to this
Agreement and is hereby waived by the Borrower.




5.10 Maximum Rate Permitted by Law




          No interest or fee to be paid hereunder shall be paid at a rate exceeding the maximum rate
permitted by applicable law. In the event that such interest or fee exceeds such maximum rate,
such interest or fees shall be reduced or refunded, as the case may be, so as to be payable at the
highest rate recoverable under applicable law.




ARTICLE 6

BANKERS’ ACCEPTANCES




6.1 Bankers’ Acceptances




          The Borrower may give the Agent notice that Bankers’ Acceptances will be required under the
Credit Facility pursuant to a Drawdown, Rollover or Conversion.




6.2 Acceptance Fees




          Upon the acceptance by a Lender of a Bankers’ Acceptance, the Borrower shall pay to the Agent
for the account of such Lender an acceptance fee in Canadian Dollars equal to the Applicable
Pricing Rate calculated on the principal amount at maturity of such Bankers’ Acceptance and for the
period of time from and including the date of acceptance to but excluding the maturity date of such
Bankers’ Acceptance and calculated on the basis of the number of days elapsed in a year of 365
days.




6.3 Form and Execution of Bankers’ Acceptances




          The following provisions shall apply to each Bankers’ Acceptance hereunder:





	 	(a)	 	the face amount at maturity of each draft drawn by the Borrower to be accepted
as a Bankers’ Acceptance shall be Cdn.$100,000 and integral multiples thereof;
	 
	 	(b)	 	the term to maturity of each draft drawn by the Borrower to be accepted as a
Bankers’ Acceptance shall, subject to market availability as determined by all of the
Lenders, be 1, 2, 3 or 6 months (or










 



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	 	 	 	such other longer or shorter term as agreed by the Lenders), as selected by the
Borrower in the relevant Drawdown Notice, Rollover Notice or Conversion Notice, and
each Bankers’ Acceptance shall be payable and mature on the last day of the Interest
Period selected by the Borrower for such Bankers’ Acceptance (which, for certainty,
pursuant to the definition of “Interest Period” shall be on or prior to the Maturity
Date);






	 	(c)	 	each draft drawn by the Borrower and presented for acceptance by a Lender shall
be drawn on the standard form of such Lender in effect at the time; provided, however,
that the Agent may require the Lenders to use a generic form of Bankers’ Acceptance, in
a form satisfactory to each Lender, acting reasonably, provided by the Agent for such
purpose in place of the Lenders’ own forms;
	 
	 	(d)	 	subject to Section 6.3(e) below, Bankers’ Acceptances shall be signed by duly
authorized officers of the Borrower or, in the alternative, the signatures of such
officers may be mechanically reproduced in facsimile thereon and Bankers’ Acceptances
bearing such facsimile signatures shall be binding on the Borrower as if they had been
manually executed and delivered by such officers on behalf of the Borrower;
notwithstanding that any person whose manual or facsimile signature appears on any
Bankers’ Acceptance may no longer be an authorized signatory for the Borrower on the
date of issuance of a Bankers’ Acceptance, such signature shall nevertheless be valid
and sufficient for all purposes as if such authority had remained in force at the time
of such issuance and any such Bankers’ Acceptance shall be binding on the Borrower; and
	 
	 	(e)	 	in lieu of signing Bankers’ Acceptances in accordance with Section 6.3(d)
above, the Borrower may provide a Power of Attorney to a Lender; for so long as a Power
of Attorney is in force with respect to a given Lender, such Lender shall execute and
deliver Bankers’ Acceptances on behalf of the Borrower in accordance with the
provisions thereof and, for certainty, all references herein to drafts drawn by the
Borrower, Bankers’ Acceptances executed by the Borrower or similar expressions shall be
deemed to include Bankers’ Acceptances executed in accordance with a Power of Attorney,
unless the context otherwise requires.





6.4 Power of Attorney; Provision of Bankers’ Acceptances to Lenders




     (1) Unless revoked with respect to a given Lender in accordance herewith, the Borrower hereby
appoints each Lender, acting by any authorized signatory of the Lender in question, the attorney of
the Borrower:




	 	(a)	 	to sign for and on behalf and in the name of the Borrower as drawer, drafts in
such Lender’s standard form which are depository bills as defined in the Depository
Bills and Notes Act (Canada) (the “DBNA”), payable to a “clearing house” (as defined in
the DBNA) including CDS Clearing and Depository Services Inc., or its nominee, CDS &
Co. (the “clearing house”);
	 
	 	(b)	 	for drafts which are not depository bills, to sign for and on behalf and in the
name of the Borrower as drawer and to endorse on its behalf, Bankers’ Acceptances drawn
on the Lender payable to the order of the undersigned or payable to the order of such
Lender;
	 
	 	(c)	 	to fill in the amount, date and maturity date of such Bankers’ Acceptances; and
	 
	 	(d)	 	to deposit and/or deliver such Bankers’ Acceptances which have been accepted by
such Lender,




provided that such acts in each case are to be undertaken by the Lender in question strictly in
accordance with instructions given to such Lender by the Borrower as provided in this Section 6.4.
For certainty, signatures of any authorized signatory of a Lender may be mechanically reproduced in
facsimile on Bankers’ Acceptances in








 



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accordance herewith and such facsimile signatures shall be binding and effective as if they had
been manually executed by such authorized signatory of such Lender.




          Instructions from the Borrower to a Lender relating to the execution, completion, endorsement,
deposit and/or delivery by that Lender on behalf of the Borrower of Bankers’ Acceptances which the
Borrower wishes to submit to the Lender for acceptance by the Lender shall be communicated by the
Borrower in writing to the Agent by delivery to the Agent of Drawdown Notices, Conversion Notices
and Rollover Notices, as the case may be, in accordance with this Agreement which, in turn, shall
be communicated by the Agent, on behalf of the Borrower, to the Lender.




          The communication in writing by the Borrower, or on behalf of the Borrower by the Agent, to
the Lender of the instructions set out in the Drawdown Notices, Conversion Notices and Rollover
Notices referred to above shall constitute (a) the authorization and instruction of the Borrower to
the Lender to sign for and on behalf and in the name of the Borrower as drawer the requested
Bankers’ Acceptances and to complete and/or endorse Bankers’ Acceptances in accordance with such
information as set out above and (b) the request of the Borrower to the Lender to accept such
Bankers’ Acceptances and deposit the same with the clearing house or deliver the same, as the case
may be, in each case in accordance with this Agreement and such instructions. The Borrower
acknowledges that a Lender shall not be obligated to accept any such Bankers’ Acceptances except in
accordance with the provisions of this Agreement.




          A Lender shall be and it is hereby authorized to act on behalf of the Borrower upon and in
compliance with instructions communicated to that Lender as provided herein if the Lender
reasonably believes such instructions to be genuine. If a Lender accepts Bankers’ Acceptances
pursuant to any such instructions, that Lender shall confirm particulars of such instructions and
advise the Agent that it has complied therewith by notice in writing addressed to the Agent and
served personally or sent by facsimile transmission or other electronic transmission in accordance
with the provisions hereof. A Lender’s actions in compliance with such instructions, confirmed and
advised to the Agent by such notice, shall be conclusively deemed to have been in accordance with
the instructions of the Borrower.




          This Power of Attorney may be revoked by the Borrower with respect to any particular Lender at
any time upon not less than 5 Banking Days’ prior written notice served upon the Lender in question
and the Agent, provided that no such revocation shall reduce, limit or otherwise affect the
obligations of the Borrower in respect of any Bankers’ Acceptance executed, completed, endorsed,
deposited and/or delivered in accordance herewith prior to the time at which such revocation
becomes effective.




     (2) Unless the Borrower has provided Powers of Attorney to the Lenders, to facilitate
Drawdowns, Rollovers or Conversions of Bankers’ Acceptances, the Borrower shall, upon execution of
this Agreement and thereafter from time to time as required by all Lenders, provide to the Agent
for delivery to each Lender drafts drawn in blank by the Borrower (pre-endorsed and otherwise in
fully negotiable form, if applicable) in quantities sufficient for each Lender to fulfil its
obligations hereunder. Any such pre-signed drafts which are delivered by the Borrower to the Agent
or a Lender shall be held in safekeeping by the Agent or such Lender, as the case may be, with the
same degree of care as if they were the Agent’s or such Lender’s property, and shall only be dealt
with by the Lenders and the Agent in accordance herewith. No Lender shall be responsible or liable
for its failure to make its share of any Drawdown, Rollover or Conversion of Bankers’ Acceptances
required hereunder if the cause of such failure is, in whole or in part, due to the failure of the
Borrower to provide such pre-signed drafts to the Agent (for delivery to such Lender) on a timely
basis.



     (3) By 12:00 noon (Toronto time) on the applicable Drawdown Date, Conversion Date or Rollover
Date, the Borrower shall (a) either deliver to each Lender in Toronto, or, if previously delivered,
be deemed to have authorized each Lender to complete and accept, or (b) where the Borrower has
previously executed and delivered a Power of Attorney to the Lender, be deemed to have authorized
each such Lender to sign on behalf of the









 



- 39 -



Borrower, complete and accept, drafts drawn by the Borrower on such Lender in a principal
amount at maturity equal to such Lender’s share of the Bankers’ Acceptances specified by the
Borrower in the relevant Drawdown Notice, Conversion Notice or Rollover Notice, as the case may be,
as notified to the Lenders by the Agent.



6.5 Mechanics of Issuance




     (1) Upon receipt by the Agent of a Drawdown Notice, Conversion Notice or Rollover Notice from
the Borrower requesting the issuance of Bankers’ Acceptances, the Agent shall promptly notify the
Lenders thereof and advise each Lender of the aggregate face amount of Bankers’ Acceptances to be
accepted by such Lenders, the date of issue and the Interest Period for such Loan; the
apportionment among the Lenders of the face amounts of Bankers’ Acceptances to be accepted by each
Lender shall be determined by the Agent by reference and in proportion to the respective Commitment
of each Lender, provided that, when such apportionment cannot be evenly made, the Agent shall round
allocations amongst such Lenders consistent with the Agent’s normal money market practices.



     (2) On each Drawdown Date, Rollover Date or Conversion Date involving the issuance of Bankers’
Acceptances:




	 	(a)	 	before 11:00 a.m. (Toronto time) on such date, the Agent shall determine the
CDOR Rate in respect of an issue of bankers’ acceptances in a comparable amount and
with comparable maturity to the Bankers’ Acceptances proposed to be issued on such
date;
	 
	 	(b)	 	on or about 11:00 a.m. (Toronto time) on such date, the Agent shall advise each
Lender of the applicable BA Discount Rate;
	 
	 	(c)	 	each Lender shall complete and accept, in accordance with the Drawdown Notice,
Conversion Notice or Rollover Notice delivered by the Borrower and advised by the Agent
in connection with such issue, its share of the Bankers’ Acceptances to be issued on
such date and shall purchase such Bankers’ Acceptances for its own account at a
purchase price which reflects the BA Discount Rate applicable to such issue; and
	 
	 	(d)	 	in the case of a Drawdown, each Lender shall, for same day value on the
Drawdown Date, remit the Discount Proceeds or advance the BA Equivalent Advance, as the
case may be, payable by such Lender (net of the acceptance fee payable to such Lender
pursuant to Section 6.2) to the Agent for the account of the Borrower; the Agent shall
make such funds available to the Borrower for same day value on such date.





     (3) Each Lender may at any time and from time to time hold, sell, rediscount or otherwise
dispose of any or all Bankers’ Acceptances accepted and purchased by it for its own account.



6.6 Rollover, Conversion or Payment on Maturity




          In anticipation of the maturity of Bankers’ Acceptances, the Borrower shall, subject to and in
accordance with the requirements hereof, do one or a combination of the following with respect to
the aggregate face amount at maturity of all such maturing Bankers’ Acceptances:





	 	(a)	 	(i) deliver to the Agent a Rollover Notice that the Borrower intends to draw
and present for acceptance on the maturity date new Bankers’ Acceptances in an
aggregate face amount up to the aggregate amount of the maturing Bankers’ Acceptances
and (ii) on the maturity date pay to the Agent for the account of the Lenders an
additional amount equal to the difference between the aggregate face amount of the
maturing Bankers’ Acceptances and the Discount Proceeds of such new Bankers’
Acceptances;










 



- 40 -








	 	(b)	 	(i) deliver to the Agent a Conversion Notice requesting a Conversion of the
maturing Bankers’ Acceptances to another type of Loan under the Credit Facility and
(ii) on the maturity date pay to the Agent for the account of the Lenders an amount
equal to the difference, if any, between the aggregate face amount of the maturing
Bankers’ Acceptances and the amount of the Loans into which Conversion is requested; or
	 
	 	(c)	 	on the maturity date of the maturing Bankers’ Acceptances, pay to the Agent for
the account of the Lenders an amount equal to the aggregate face amount of such
Bankers’ Acceptances.




If the Borrower fails to so notify the Agent or make such payments on maturity, the Agent shall
effect a Conversion into a Canadian Prime Rate Loan of the entire amount of such maturing Bankers’
Acceptances as if a Conversion Notice had been given by the Borrower to the Agent to that effect.




6.7 Restriction on Rollovers and Conversions




          Subject to the other provisions hereof, Conversions and Rollovers of Bankers’ Acceptances may
only occur on the maturity date thereof.




6.8 Rollovers




          In order to satisfy the continuing liability of the Borrower to a Lender for the face amounts
of maturing Bankers’ Acceptances accepted by such Lender, the Lender shall receive and retain for
its own account the Discount Proceeds of new Bankers’ Acceptances issued on a Rollover, and the
Borrower shall on the maturity date of the Bankers’ Acceptances being rolled over pay to the Agent
for the account of the Lenders an amount equal to the difference between the face amounts of the
maturing Bankers’ Acceptances and the Discount Proceeds from the new Bankers’ Acceptances together
with the acceptance fees to which the Lenders are entitled pursuant to Section 6.2.




6.9 Conversion into Bankers’ Acceptances




          In respect of Conversions into Bankers’ Acceptances, in order to satisfy the continuing
liability of the Borrower to the Lenders for the amount of the converted Loan, each Lender shall
receive and retain for its own account the Discount Proceeds of the Bankers’ Acceptances issued
upon such Conversion, and the Borrower shall on the Conversion Date pay to the Agent for the
account of the Lenders an amount equal to the difference between the principal amount of the
converted Loan and the aggregate Discount Proceeds from the Bankers’ Acceptances issued on such
Conversion, together with the acceptance fees to which the Lenders are entitled pursuant to
Section 6.2.




6.10 Conversion from Bankers’ Acceptances




          In order to satisfy the continuing liability of the Borrower to the Lenders for an amount
equal to the aggregate face amount of the maturing Bankers’ Acceptances converted to another type
of Loan, the Agent shall record the obligations of the Borrower to the Lenders in respect of those
maturing Bankers’ Acceptances as Loans of the type into which such continuing liability has been
converted.




6.11 BA Equivalent Advances




          Notwithstanding the foregoing provisions of this Article, a Non-Acceptance Lender shall, in
lieu of accepting Bankers’ Acceptances, make a BA Equivalent Advance. The amount of each BA
Equivalent Advance shall be equal to the Discount Proceeds which would be realized from a
hypothetical sale of those Bankers’ Acceptances which, but for this Section, such Lender would
otherwise be required to accept as part of such a Drawdown of, Conversion into or Rollover of
Bankers’ Acceptances. To determine the amount of such Discount





 











 





- 41 -



Proceeds, the hypothetical sale shall be deemed to take place at the applicable BA Discount
Rate for such Loan. Any BA Equivalent Advance shall be made on the relevant Drawdown Date,
Rollover Date or Conversion Date as the case may be and shall remain outstanding for the term of
the relevant Bankers’ Acceptances. Concurrent with the making of a BA Equivalent Advance, a
Non-Acceptance Lender shall be entitled to deduct therefrom an amount equal to the acceptance fee
which, but for this Section, such Lender would otherwise be entitled to receive as part of such
Loan. Subject to Section 6.6, upon the maturity date for such Bankers’ Acceptances, the Borrower
shall pay to each Non-Acceptance Lender an amount equal to the face amount at maturity of the
Bankers’ Acceptances which, but for this Section, such Lender would otherwise be required to accept
as part of such a Drawdown of, Conversion into or Rollover of Bankers’ Acceptances as repayment of
the amount of its BA Equivalent Advance plus payment of the interest accrued and payable thereon to
such maturity date.




          All references herein to “Loans” and “Bankers’ Acceptances” shall, unless otherwise expressly
provided herein or unless the context otherwise requires, be deemed to include BA Equivalent
Advances made by a Non-Acceptance Lender as part of a Drawdown of, Conversion into or Rollover of
Bankers’ Acceptances.




6.12 Termination of Bankers’ Acceptances




          If at any time a Lender ceases to accept bankers’ acceptances in the ordinary course of its
business, such Lender shall be deemed to be a Non-Acceptance Lender and shall make BA Equivalent
Advances in lieu of accepting Bankers’ Acceptances under this Agreement.




ARTICLE 7

PLACE AND APPLICATION OF PAYMENTS




7.1 Place of Payment of Principal, Interest and Fees; Payments to Agent




          All payments of principal, interest, fees and other amounts to be made by the Borrower to the
Agent and the Lenders pursuant to this Agreement shall be made to the Agent (for, as applicable,
the account of the Lenders or its own account) in the currency in which the Loan is outstanding for
value on the day such amount is due, and if such day is not a Banking Day on the Banking Day next
following, by deposit or transfer thereof to the applicable Agent’s Account or at such other place
as the Borrower and the Agent may from time to time agree. Notwithstanding anything to the
contrary expressed or implied in this Agreement, the receipt by the Agent in accordance with this
Agreement of any payment made by the Borrower for the account of any of the Lenders shall, insofar
as the Borrower’s obligations to the relevant Lenders are concerned, be deemed also to be receipt
by such Lenders and the Borrower shall have no liability in respect of any failure or delay on the
part of the Agent in disbursing and/or accounting to the relevant Lenders in regard thereto.




7.2 Designated Accounts of the Lenders




          All payments of principal, interest, fees or other amounts to be made by the Agent to the
Lenders pursuant to this Agreement shall be made for value on the day required hereunder, provided
the Agent receives funds from the Borrower for value on such day, and if such funds are not so
received from the Borrower or if such day is not a Banking Day, on the Banking Day next following,
by deposit or transfer thereof at the time specified herein to the account of each Lender
designated by such Lender to the Agent for such purpose or to such other place or account as the
Lenders may from time to time notify the Agent.




7.3 Funds




          Each amount advanced, disbursed or paid hereunder shall be advanced, disbursed or paid, as the
case may be, in such form of funds as may from time to time be customarily used in Calgary,
Alberta, Toronto, Ontario and New York, New York in the settlement of banking transactions similar
to the banking transactions










 



 - 42 - 

required to give effect to the provisions of this Agreement on the day such advance,
disbursement or payment is to be made (for certainty, each such amount advanced, disbursed or paid
hereunder shall be advanced, disbursed or paid, as the case may be, in immediately available funds
to the extent possible in the relevant jurisdiction).




7.4 Application of Payments




          Except as otherwise agreed in writing by all of the Lenders, if any Event of Default shall
occur and be continuing, all payments made by the Borrower to the Agent and the Lenders shall be
applied in the following order:





	 	(a)	 	to amounts due hereunder as fees other than acceptance fees for Bankers’
Acceptances;
	 
	 	(b)	 	to amounts due hereunder as costs and expenses;
	 
	 	(c)	 	to amounts due hereunder as default interest;
	 
	 	(d)	 	to amounts due hereunder as interest or acceptance fees for Bankers’
Acceptances; and
	 
	 	(e)	 	to amounts due hereunder as principal (including reimbursement obligations in
respect of Bankers’ Acceptances).





7.5 Payments Clear of Taxes




     (1) Any and all payments by the Borrower to the Agent or the Lenders hereunder shall be made
free and clear of, and without deduction or withholding for or on account of, any and all present
or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or
assessed by any Governmental Authority imposed on the Agent or the Lenders, or by or on behalf of
the foregoing, excluding Taxes imposed with respect to such payments by such Governmental Authority
if such Taxes are imposed on or measured by reference to or in respect of the overall net income or
capital of a Lender. In addition, the Borrower agrees to pay any present or future stamp,
transfer, registration, excise, issues, documentary or other taxes, charges or similar levies which
arise from any payment made under this Agreement or the Loans or in respect of the execution,
delivery or registration or the compliance with this Agreement or the other Documents contemplated
hereunder. The Borrower shall indemnify and hold harmless the Agent and the Lenders for the full
amount of all of the foregoing Taxes or other amounts paid or payable by the Agent or the Lenders
and any liability (including penalties, interest, additions to tax and reasonable out-of-pocket
expenses) resulting therefrom or with respect thereto which arise from any payment made under or
pursuant to this Agreement or the Loans or in respect of the execution, delivery or registration
of, or compliance with, this Agreement or the other Documents.



     (2) If the Borrower shall be required by law to deduct or withhold any amount from any payment
or other amount required to be paid to the Agent or the Lenders hereunder, or if any liability
therefor shall be imposed or shall arise from or in respect of any sum payable hereunder, then the
sum payable to the Agent or the Lenders hereunder shall be increased as may be necessary so that
after making all required deductions, withholdings, and additional income tax payments attributable
thereto (including deductions, withholdings or income tax payable for additional sums payable under
this provision) the Agent or the Lenders, as the case may be, receive an amount equal to the amount
they would have received had no such deductions or withholdings been made or if such additional
taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or
withheld for such liabilities to the relevant taxation authority or other authority in accordance
with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its
own account or (if the liability is imposed on the Agent or the Lenders) on behalf of and in the
name of the Agent or the Lenders, as the case may be. If the liability is imposed on the Agent or
the Lenders, the Borrower shall deliver to the Agent or the Lenders evidence









 



 - 43 - 



satisfactory to the Agent or the Lenders, acting reasonably, of the payment to the relevant
taxation authority or other authority of the full amount deducted or withheld.



7.6 Set Off




     (1) In addition to any rights now or hereafter granted under applicable law and not by way of
limitation of any such rights, upon the occurrence of an Event of Default which remains unremedied
(whether or not the Loans have been accelerated hereunder), the Agent and each Lender shall have
the right (and are hereby authorized by the Borrower) at any time and from time to time to combine
all or any of the Borrower’s accounts with the Agent or the Lender, as the case may be, and to set
off and to appropriate and to apply any and all deposits (general or special, term or demand)
including, but not limited to, indebtedness evidenced by certificates of deposit whether matured or
unmatured, and any other indebtedness at any time held by the Borrower or owing by such Lender or
the Agent, as the case may be, to or for the credit or account of the Borrower against and towards
the satisfaction of any Obligations owing by the Borrower, and may do so notwithstanding that the
balances of such accounts and the liabilities are expressed in different currencies, and the Agent
and each Lender are hereby authorized to effect any necessary currency conversions at the noon spot
rate of exchange announced by the Bank of Canada on the Banking Day before the day of conversion.



     (2) The Agent or the applicable Lender, as the case may be, shall notify the Borrower of any
such set-off from the Borrower’s accounts within a reasonable period of time thereafter, although
the Agent or the Lender, as the case may be, shall not be liable to the Borrower for its failure to
so notify.



7.7 Margin Changes; Adjustments for Margin Changes; Notice of Rating Changes





	 	(1)	 	Changes in Applicable Pricing Rates shall be effective:
	 
	 	(a)	 	on the Banking Day immediately following any change in the relevant Debt Rating
(or when the Borrower ceases to have a Debt Rating, if applicable) which results in a
change in the Applicable Pricing Rate in accordance with the definition thereof; and
	 
	 	(b)	 	without the necessity of notice to the Borrower.
	 
	 	(2)	 	For any Loans outstanding as of the effective date of a change in an Applicable Pricing
Rate:
	 
	 	(a)	 	in the case of increases in such rates per annum, the Borrower shall pay to the
Agent for the account of the Lenders such additional interest or fees, as the case may
be, as may be required to give effect to the relevant increases in the interest or fees
payable on or in respect of such Loans from and as of the effective date of the
relevant increase in rates; and
	 
	 	(b)	 	in the case of decreases in such rates per annum, the Borrower shall receive a
credit against subsequent interest payable on Loans or fees payable pursuant to
Section 6.2, as the case may be, to the extent necessary to give effect to the relevant
decreases in the interest or fees payable on or in respect of such Loans from and as of
the effective date of the relevant decrease in rates.





     (3) The additional payments required by Section 7.7(2)(a) shall be made on the last Banking
Day of the calendar month immediately following the calendar month in which the changes in
Applicable Pricing Rates are effective. The adjustments required by Section 7.7(2)(b) shall be
accounted for in successive interest and fee payments by the Borrower until the amount of the
credit therein contemplated has been fully applied; provided that, upon satisfaction in full of all
Obligations and cancellation of the Credit Facility in accordance herewith, the Lenders shall pay
to the Borrower an amount equal to any such credit which remains outstanding.









 



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     (4) The Borrower hereby covenants and agrees to give notice to the Agent of any change in the
Debt Rating or if the Borrower ceases to have a Debt Rating, promptly upon becoming aware of such
change. For certainty, the change in Applicable Pricing Rate shall, subject to Section 7.7(1)(a),
be effective from the date of the change in the Debt Rating regardless of the date notice thereof
is given by the Borrower to the Agent.



ARTICLE 8

REPRESENTATIONS AND WARRANTIES




8.1 Representations and Warranties




          The Borrower represents and warrants as follows to the Agent and to each of the Lenders and
acknowledges and confirms that the Agent and each of the Lenders is relying upon such
representations and warranties:





	 	(a)	 	Status and Power.
	 
	 	 	 	The Borrower is a corporation duly incorporated and organized and validly subsisting
in good standing under the laws of Canada. Each of the Material Subsidiaries which
is a corporation is a corporation duly incorporated and organized and validly
subsisting in good standing under the laws of its jurisdiction of incorporation, and
each other Material Subsidiary is validly existing under the laws of its jurisdiction
of organization or formation, in each case, as set forth in Schedule I. The Borrower
and each of the Material Subsidiaries is duly qualified, registered or licensed in
all jurisdictions where such qualification, registration or licensing is required,
except where the failure to be so qualified would not have and would not reasonably
be expected to have a Material Adverse Effect. The Borrower and each of the Material
Subsidiaries has all requisite capacity, power and authority to own, hold under
licence or lease its properties necessary for the conduct of its business and to
carry on its business, in each case, as currently conducted. The Borrower has all
requisite corporate capacity, power and authority to enter into and carry out the
transactions contemplated by this Agreement.
	 
	 	(b)	 	Authorization and Enforcement.
	 
	 	 	 	All necessary action, corporate or otherwise, has been taken to authorize the
execution, delivery and performance by the Borrower of this Agreement. The Borrower
has duly executed and delivered this Agreement. This Agreement is a legal, valid and
binding obligation of the Borrower enforceable against the Borrower by the Agent and
the Lenders in accordance with its terms, subject to the qualifications contained in
the opinion of the Borrower’s counsel delivered pursuant to Section 3.2(d)(i).
	 
	 	(c)	 	Compliance with Other Instruments.
	 
	 	 	 	The execution, delivery and performance by the Borrower of this Agreement and the
consummation of the transactions contemplated herein do not conflict with, result in
any breach or violation of, or constitute a default under the terms, conditions or
provisions of the charter or constating documents or by-laws of, or any unanimous
shareholder agreement relating to, the Borrower or of any law, regulation, judgment,
decree or order binding on or applicable to the Borrower or to which its property is
subject or of any material agreement, lease, licence, permit or other instrument to
which the Borrower is a party or is otherwise bound or by which the Borrower benefits
or to which its property is subject and do not require the consent or approval of any
Governmental Authority or any other party of which the failure to have received or
obtained would have or would reasonably be expected to have a Material Adverse
Effect.










 



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	 	(d)	 	Financial Statements.
	 
	 	 	 	The Financial Statements were prepared in accordance with GAAP and no Material
Adverse Change has occurred since December 31, 2008 to the date hereof. The balance
sheets contained in the Financial Statements fairly present the consolidated
financial condition of the Borrower as at the respective dates thereof and the
statements of income contained in the Financial Statements fairly present the
consolidated results of operations of the Borrower during the respective fiscal
periods covered thereby.
	 
	 	(e)	 	Litigation.
	 
	 	 	 	There are no actions, suits, inquiries, claims or proceedings (whether or not
purportedly on behalf of any of the Companies) which have been commenced against or
affecting any of the Companies before any court or other Governmental Authority
except those which have not had or could not reasonably be expected to have a
Material Adverse Effect.
	 
	 	(f)	 	Outstanding Defaults.
	 
	 	 	 	No event has occurred which constitutes or which, with the giving of notice, lapse of
time or both, would constitute a default under or in respect of any agreement,
undertaking or instrument to which any of the Companies is a party or to which its
property or assets may be subject, except where such default has not had or could not
reasonably be expected to have a Material Adverse Effect.
	 
	 	(g)	 	No Default or Event of Default.
	 
	 	 	 	No Default or Event of Default has occurred and is continuing or would reasonably be
expected to occur immediately following any Drawdown hereunder.
	 
	 	(h)	 	ERISA Compliance.






	 	(i)	 	Except as has not had or could not reasonably be expected to have
a Material Adverse Effect, (A) each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law, (B) each Plan which is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto or an application for such a letter will be made on or before
the end of the applicable remedial amendment period and nothing has occurred
which would prevent, or cause the loss of, such qualification, (C) the Borrower
and each ERISA Affiliate has made by their due date all required contributions
to any Plan subject to Section 412 of the Code and to any Multiemployer Plan,
and no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect to any
Plan.
	 
	 	(ii)	 	There are no pending or threatened claims, actions or lawsuits,
or action by any Governmental Authority, with respect to any Plan except those
which have not resulted or could not reasonably be expected to result in a
Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan except those
which have not resulted or could not reasonably be expected to result in a
Material Adverse Effect.
	 
	 	(iii)	 	Except as has not had or could not reasonably be expected to
have a Material Adverse Effect, (A) no ERISA Event has occurred or is reasonably
expected to occur; (B) no










 



 - 46 - 


	 	 	 	Pension Plan has any Unfunded Pension Liability; (C) neither the Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (D) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could
reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.






	 	(i)	 	Environmental Compliance.






	 	(i)	 	The Property (including underlying groundwater) has, since the
date of its acquisition by the applicable Company, been owned, operated and used
in compliance with all Environmental Laws except where such failure could not
reasonably be expected to have a Material Adverse Effect.
	 
	 	(ii)	 	There are no actions or proceedings which have been commenced in
connection with an alleged violation of any Environmental Law by any Company
except those which could not reasonably be expected to have a Material Adverse
Effect.
	 
	 	(iii)	 	There have been no releases of Hazardous Materials at, on or
under the Property in violation of Environmental Law except where such releases
could not reasonably be expected to have a Material Adverse Effect.
	 
	 	(iv)	 	Each of the Companies has been issued and is in compliance with
all permits, certificates, approvals, licences and other authorizations required
under any Environmental Laws to own its properties and assets and to carry on
its businesses except where such non-issuance or noncompliance could not
reasonably be expected to have a Material Adverse Effect.






	 	(j)	 	Corporate Name.
	 
	 	 	 	As at the date hereof, the corporate name of the Borrower as it appears in its
articles of continuation is Potash Corporation of Saskatchewan Inc.
	 
	 	(k)	 	Inter-Corporate Relationships.
	 
	 	 	 	As at the date hereof, the share ownership of each of the Subsidiaries is as set
forth in Schedule I.
	 
	 	(l)	 	Subsidiaries and Partnerships.
	 
	 	 	 	As at the date hereof, all of the Subsidiaries and the jurisdiction of incorporation
of each of the Subsidiaries is as set forth in Schedule I. As at the date hereof,
none of the Companies is, directly or indirectly, a member of or participant in any
partnership, joint venture or syndicate other than as described in Schedule J.
	 
	 	(m)	 	Investment Company Act.
	 
	 	 	 	None of the Companies is an “investment company”, or a company “controlled” by an
“investment company”, as defined in or within the meaning of, or subject to
regulation under, the Investment Company Act of 1940.











 



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	 	(n)	 	Margin Regulations.
	 
	 	 	 	None of the Companies is engaged in, or has as one of its important activities, the
business of extending credit for the purpose of purchasing or carrying any “margin
security” or “margin stock” as defined in Regulations U or X of the Federal Reserve
Board (herein called “Margin Stock”). None of the Companies has taken or will take
any action which might cause this Agreement to violate Regulation U or X or any other
regulation of the Federal Reserve Board with respect to Margin Stock, in each case as
now in effect or as the same may hereafter be in effect. No proceeds of any Loan
made hereunder shall be used for a purpose which violates, or would be inconsistent
with, Regulation U or X of the Federal Reserve Board. None of the Companies holds
any Margin Stock.





8.2 Deemed Repetition




          On the date of delivery by the Borrower of a Drawdown Notice to the Agent, and again on the
date of any Drawdown made by the Borrower pursuant thereto:





	 	(a)	 	the Borrower shall be deemed to represent and warrant that each of the
representations and warranties contained in Section 8.1 are true and correct in all
material respects on such date, other than any such representations and warranties
which expressly speak as of an earlier date; and
	 
	 	(b)	 	the Borrower shall be deemed to have represented to the Agent and the Lenders
that, except as has otherwise been notified to the Agent in writing and has been waived
in accordance herewith, no event has occurred and remains outstanding which would
constitute a Default or an Event of Default nor will any such event exist immediately
after or occur as a result of the aforementioned Drawdown.





8.3 Effective Time of Repetition




          All representations and warranties, when repeated or deemed to be repeated hereunder, shall be
construed with reference to the facts and circumstances existing at the time of repetition, unless
they are stated herein to be made as at the date hereof.




8.4 Nature of Representations and Warranties




          The representations and warranties set out in this Agreement or deemed to be made pursuant
hereto shall survive the execution and delivery of this Agreement and the making of each Drawdown,
notwithstanding any investigations or examinations which may be made by the Agent, the Lenders or
Lenders’ Counsel. Such representations and warranties shall survive until this Agreement has been
terminated, provided that the representations and warranties relating to environmental matters
shall survive the termination of this Agreement.




ARTICLE 9

GENERAL COVENANTS




9.1 Affirmative Covenants of the Borrower




          So long as any Obligation is outstanding or the Credit Facility is available hereunder, the
Borrower covenants and agrees with each of the Lenders and the Agent that, unless (subject to
Section 14.10) the Majority of the Lenders otherwise consent in writing:










 



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	 	(a)	 	Financial Reporting.
	 
	 	 	 	The Borrower shall furnish the Agent with the following documents, statements and
reports:






	 	(i)	 	within 120 days after the end of each Fiscal Year, a copy of the
audited consolidated financial statements of the Borrower with respect thereto
and the auditors’ report thereon;
	 
	 	(ii)	 	within 120 days after the end of each Fiscal Year, if and to the
extent any changes have occurred therein, an updated Schedule I, an updated
Schedule J and an updated list of the Material Subsidiaries, each certified by a
senior officer of the Borrower to be true and correct as of the date thereof;
	 
	 	(iii)	 	within 60 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, a copy of the unaudited consolidated financial
statements of the Borrower with respect thereto;
	 
	 	(iv)	 	within 120 days after the end of each Fiscal Year and within 60
days after the end of each Fiscal Quarter, a duly executed and completed
Compliance Certificate, evidencing compliance with the terms of this Agreement;
and
	 
	 	(v)	 	at the request of the Agent, such additional information,
reports, certificates, financial or operating reports or statements or other
matters affecting the business, affairs, current or historical financial
condition, property or assets of the Borrower or any of its Material
Subsidiaries, as the Agent on the instructions of the Majority of the Lenders
may, from time to time, reasonably require,






	 	 	 	provided that, with respect to clauses (i) and (iii) above, the requirements thereof
shall be deemed satisfied upon the Borrower giving to the Agent notice of the filing
with the U.S. Securities and Exchange Commission of its Form 10-K or Form 10-Q, as
applicable, which includes such information, within the time period prescribed in
such clauses, subject to the Agent having access thereto; provided further that the
Agent shall be deemed to have access to such reports if and so long as the same are
posted on the EDGAR Database.






	 	(b)	 	Corporate Existence.
	 
	 	 	 	Except as expressly permitted in Section 9.2(b), the Borrower shall, and shall cause
each of the Material Subsidiaries to, maintain its corporate existence in good
standing and shall, and shall cause each of the Subsidiaries to, qualify and remain
duly qualified to carry on business and own property in each jurisdiction in which
such qualification is necessary to the extent that a failure to so qualify could
reasonably be expected to have a Material Adverse Effect.
	 
	 	(c)	 	Conduct of Business.
	 
	 	 	 	The Borrower shall, and shall cause each of the Subsidiaries to, comply with all
Applicable Laws and conduct its business in such a manner so as to comply in all
respects with Applicable Laws, so as to observe and perform all its obligations under
leases, licences and agreements necessary for the proper conduct of its business and
so as to preserve and protect its property and assets and the earnings, income and
profits therefrom (including, without limitation, Environmental Laws and laws
relating to the discharge, spill, disposal or emission of Hazardous Materials), in
each case, other than where noncompliance, non-observance or non-performance could
not reasonably be expected to have a Material Adverse Effect. The Borrower shall,
and shall cause each of the Subsidiaries to, obtain and maintain all material
licenses, certificates of approval, consents,










 



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	 	 	 	registrations, permits, government approvals, franchises, authorizations and other
rights necessary for the operation of its business to the extent that a failure to do
so could reasonably be expected to have a Material Adverse Effect.






	 	(d)	 	Use of Proceeds.
	 
	 	 	 	The Borrower shall use all of the proceeds of the Drawdowns for the purposes
permitted by Section 2.3.
	 
	 	(e)	 	Long Term Debt to EBITDA.
	 
	 	 	 	The Borrower shall maintain or cause to be maintained the ratio of Long Term Debt as
at the last day of each Fiscal Quarter to EBITDA for the four consecutive Fiscal
Quarters ending on such day in a ratio of less than or equal to 3.5 to 1.
	 
	 	(f)	 	Debt to Capital.
	 
	 	 	 	The Borrower shall at all times maintain or cause to be maintained the ratio of Debt
to Capital in a ratio of less than or equal to 0.60 to 1.
	 
	 	(g)	 	Tangible Net Worth.
	 
	 	 	 	The Borrower shall at all times maintain or cause to be maintained Tangible Net Worth
in an amount greater than or equal to U.S.$1,250,000,000.
	 
	 	(h)	 	Insurance.
	 
	 	 	 	The Borrower shall, and shall cause each of the Material Subsidiaries to, maintain
insurance with respect to its properties and business against loss or damage of the
kind customarily insured against by companies engaged in the same or similar
business, of such types and in such amounts as are customarily carried under such
circumstances by such other companies.
	 
	 	(i)	 	Taxes.
	 
	 	 	 	The Borrower shall, and shall cause each of the Material Subsidiaries to, file all
material tax returns and tax reports required by law to be filed by it and pay all
material taxes, rates, government fees and dues levied, assessed or imposed upon it
and upon its property or assets or any part thereof, as and when the same become due
and payable (save and except when and so long as the validity of any such taxes,
rates, fees, dues, levies, assessments or imposts is being contested in good faith by
appropriate proceedings and adequate reserves are being maintained in accordance with
GAAP), and the Borrower shall deliver to the Agent, when requested, written evidence
of such filings and payments.
	 
	 	(j)	 	Books and Records.
	 
	 	 	 	The Borrower shall, and shall cause each of the Material Subsidiaries to, keep proper
books of account and records covering all its business and affairs on a current
basis, make full, true and correct entries in all material respects of their
transactions in such books, set aside on their books from their earnings all such
proper reserves as required by GAAP and permit representatives of the Agent to
inspect such books of account, records and documents and to make copies therefrom
during reasonable business hours and upon reasonable notice and to discuss the
affairs, finances and accounts of the Companies with the officers of the Companies
and their auditors during










 



 - 50 - 


	 	 	 	reasonable business hours and upon reasonable notice; provided, however, that absent
an Event of Default which is then continuing, all but one such inspection in any 12
month period shall be at the Agent’s expense.






	 	(k)	 	Environmental Matters.
	 
	 	 	 	The Borrower shall, as soon as practicable and in any event within 30 days, notify
the Agent and provide copies upon receipt of all written claims, complaints, notices
or inquiries from a Governmental Authority relating to the condition of the
facilities and properties of the Companies or compliance with Environmental Laws,
which claims, complaints, notices or inquiries relate to matters which would have, or
may reasonably be expected to have, a Material Adverse Effect, and shall, and shall
cause each of the Subsidiaries to, proceed diligently to resolve any such claims,
complaints, notices or inquiries relating to compliance with Environmental Laws and
provide such information and certifications which the Agent may reasonably request
from time to time to evidence compliance with this provision.
	 
	 	(l)	 	Notice of Default or Event of Default.
	 
	 	 	 	Upon the occurrence of a Default or an Event of Default, the Borrower shall promptly
deliver to the Agent a notice specifying the nature and date of occurrence of such
Default or Event of Default and the action which the Borrower proposes to take with
respect thereto.
	 
	 	(m)	 	Ranking of Obligations.
	 
	 	 	 	The Borrower shall at all times ensure that the Obligations rank at least pari passu
with the most senior unsecured, unsubordinated Debt of the Borrower.





9.2 Negative Covenants of the Borrower




          So long as any Obligation is outstanding or the Credit Facility is available hereunder, the
Borrower covenants and agrees with each of the Lenders and the Agent that, unless (subject to
Section 14.10) the Majority of the Lenders otherwise consent in writing:





	 	(a)	 	Encumbrances.
	 
	 	 	 	The Borrower shall not, and shall not suffer or permit any of the Subsidiaries to,
enter into or grant, create, assume or suffer to exist any Lien affecting any of its
property, assets or undertaking, save and except only for the Permitted Liens.
	 
	 	(b)	 	Corporate Existence.
	 
	 	 	 	The Borrower shall not change its jurisdiction of continuation or incorporation. The
Borrower shall not, and shall not suffer or permit any of the Material Subsidiaries
to, take part in any amalgamation, merger, winding-up, dissolution, capital or
corporate reorganization or similar proceeding or arrangement, except that: (i) any
of them may amalgamate or merge with any Subsidiary which is a direct or indirect
Wholly-Owned Subsidiary of the Borrower, (ii) any Material Subsidiary may wind up
into any other Subsidiary or the Borrower if it is a direct Wholly-Owned Subsidiary
of the entity or entities into which it is winding up, (iii) any of them may transfer
any or all of its assets to any Subsidiary which is a direct or indirect Wholly-Owned
Subsidiary of the Borrower, and (iv) the Borrower or any Material Subsidiary may
merge or amalgamate with any other person (other than as contemplated in subclauses
(i) through (iii),










 



 - 51 - 


	 	 	 	inclusive, of this Section 9.2(b) above) so long as the Borrower or such Material
Subsidiary is the surviving entity of such merger or amalgamation; provided that:






	 	(A)	 	in each case, no Default and no Event of Default
shall have occurred and be continuing, or will occur as a result of such
transaction, or shall exist immediately after the consummation of such
transaction; and
	 
	 	(B)	 	in each case, where the transaction involves the
Borrower, the Borrower, surviving entity or other successor thereto
(each, a “Successor”) shall have executed and delivered or caused to be
executed and delivered to the Agent such instruments and shall have done
or caused to be done such things as, in the reasonable opinion of
Lenders’ Counsel, are necessary or advisable to establish that upon the
consummation of such transaction: (I) the Successor will have assumed
all the covenants and obligations of the Borrower under this Agreement
and the other Documents and (II) this Agreement and the other Documents,
as the case may be, will be valid and binding obligations of the
Successor, entitling the Lenders and the Agent, as against the Successor,
to exercise all their respective rights under this Agreement and the
other Documents to the same extent that the Lenders and the Agent were
entitled to exercise such rights against the Borrower prior to such
transaction.






	 	(c)	 	Change in Operations.
	 
	 	 	 	The Borrower shall not materially change the nature or conduct of its consolidated
operations as carried on as at the date hereof.
	 
	 	(d)	 	Disposition of Assets.
	 
	 	 	 	During any Fiscal Year, the aggregate net book value of the assets disposed of by the
Companies (including any disposition by reason of an expropriation of such assets but
excluding any disposition of inventory in the ordinary course of business, any
disposition of obsolete, unusable or redundant assets or any disposition to the
Borrower or any Subsidiary) shall not exceed 25% of Total Assets as at the last day
of the immediately preceding Fiscal Year. Notwithstanding the foregoing but for
greater certainty, the disposition of assets as a result of the securitization of
assets shall only be included in the foregoing calculation if the assets are
transferred to create a securitized asset pool or to increase the overall size of a
securitized asset pool but not if the assets are transferred to replenish a depleting
securitized asset pool.
	 
	 	(e)	 	Debt of Subsidiaries.
	 
	 	 	 	Debt of Subsidiaries shall not at any time exceed U.S.$650,000,000 in the aggregate.





9.3 Agent May Perform Covenants




          If the Borrower fails to perform any covenants on its part herein contained, subject to any
consents or notice or cure periods required by Section 10.1, the Agent may give notice to the
Borrower of such failure and if such covenant remains unperformed, the Agent may, in its discretion
but need not, perform any such covenant capable of being performed by the Agent and if the covenant
requires the payment or expenditure of money, the Agent may, upon having received approval of all
Lenders, make such payments or expenditure and all sums so expended shall be forthwith payable by
the Borrower to the Agent on behalf of the Lenders and shall bear interest at the applicable
interest rate provided in Section 5.8 for amounts due in Canadian Dollars or United States Dollars,










 



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as the case may be. No such performance, payment or expenditure by the Agent shall be deemed
to relieve the Borrower of any default hereunder or under the other Documents.




ARTICLE 10

EVENTS OF DEFAULT AND ACCELERATION




10.1 Events of Default




          The occurrence of any one or more of the following events (each such event being herein
referred to as an “Event of Default”) shall constitute a default under this Agreement:





	 	(a)	 	a breach of Section 2.16;
	 
	 	(b)	 	the non-payment of any amount due hereunder (other than the repayment pursuant
to Section 2.16) within five Banking Days after notice of non-payment has been given to
the Borrower by the Agent;
	 
	 	(c)	 	the commencement by the Borrower or a Material Subsidiary of proceedings for
its dissolution, liquidation or winding up or for the suspension of its operations
except as permitted under Section 9.2(b);
	 
	 	(d)	 	the commencement by any person (other than the Companies) of proceedings for
the dissolution, liquidation or winding-up of, or for the suspension of the operations
of, the Borrower or a Material Subsidiary unless such proceedings are dismissed or
stayed within 20 Banking Days of the commencement thereof;
	 
	 	(e)	 	the Borrower or any Material Subsidiary:






	 	(i)	 	admits its inability to pay its debts generally as they become
due or fails to pay its debts generally as they become due;
	 
	 	(ii)	 	files an assignment or petition in bankruptcy or a petition to
take advantage of any insolvency statute;
	 
	 	(iii)	 	makes an assignment for the benefit of its creditors;
	 
	 	(iv)	 	consents to the appointment of a receiver, trustee, sequestrator
or other custodian of the whole or any part of its assets;
	 
	 	(v)	 	files a petition, notice or answer seeking a reorganization,
proposal, arrangement, adjustment or composition under applicable bankruptcy
laws or any other applicable law or statute; or
	 
	 	(vi)	 	is adjudged by a court having jurisdiction a bankrupt or
insolvent, or a decree or order of a court having jurisdiction is entered for
the appointment of a receiver, liquidator, trustee or assignee in bankruptcy
with such decree or order remaining in force and undischarged or unstayed for a
period of 30 days;






	 	(f)	 	any representation, warranty or written certification made by any of the
Companies in any Document or in any other document, agreement or instrument delivered
pursuant hereto or referred to herein proves to have been incorrect in any material
respect when made or furnished except to










 



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	 	 	 	the extent that the circumstances giving rise to this Event of Default are cured
within 10 Banking Days of the occurrence thereof;






	 	(g)	 	a writ, execution, attachment or similar process is issued or levied against
all or any portion of the property or assets of the Borrower or any Material Subsidiary
in connection with any judgment against the Borrower or any Material Subsidiary in an
amount exceeding Cdn.$40,000,000 or the Equivalent Amount thereof in United States
Dollars or the equivalent thereof in any other currency and such writ, execution,
attachment or similar process is not released, bonded, satisfied, discharged, vacated
or stayed within thirty days after its entry, commencement or levy;
	 
	 	(h)	 	the breach or failure of due observance or performance by the Borrower of any
of Sections 9.1(e), (f) or (g) or 9.2(d);
	 
	 	(i)	 	the breach or failure of due observance or performance by the Borrower of any
covenant or provision of this Agreement other than those heretofore or hereafter dealt
with in this Section 10.1, or the breach or failure of due observance or performance by
any of the Companies of any covenant or provision of any other Document (including,
without limitation, the Agency Fee Agreement), which is not remedied within 10 Banking
Days after written notice to do so has been given by the Agent to the Borrower;
	 
	 	(j)	 	one or more encumbrancers, lienors or landlords take possession of property or
assets of the Borrower or any Material Subsidiary in respect of a claim in excess of
Cdn.$40,000,000 or the Equivalent Amount thereof in United States Dollars or the
equivalent thereof in any other currency or attempt to enforce their security or other
remedies against any part of the property or assets of the Borrower or any Material
Subsidiary in respect of a claim in excess of Cdn.$40,000,000 or the Equivalent Amount
thereof in United States Dollars or the equivalent thereof in any other currency and
such possession or enforcement is not released, bonded, satisfied, discharged, vacated
or stayed within thirty days after its entry, commencement or levy;
	 
	 	(k)	 	an event of default (after the expiry of all applicable grace periods) under
any one or more agreements, indentures or instruments under which the Borrower or any
Material Subsidiary has outstanding Debt in excess of Cdn.$40,000,000 or the Equivalent
Amount thereof in United States Dollars or the equivalent thereof in any other currency
shall happen and be continuing without being cured or discharged by repayment, or any
Debt of the Borrower or any Material Subsidiary in excess of Cdn.$40,000,000 or the
Equivalent Amount thereof in United States Dollars or the equivalent thereof in any
other currency which is payable on demand is not paid on demand;
	 
	 	(l)	 	this Agreement is determined by a court of competent jurisdiction not to be
valid and enforceable by the Agent and the Lenders against the Borrower, and this
Agreement has not been replaced by a valid and enforceable document which is prepared
by the Agent and presented to the Borrower and is equivalent in effect and commercial
terms (where possible) to this Agreement (other than its; validity and enforceability)
and is executed and delivered by the Borrower within thirty days following such
presentment;
	 
	 	(m)	 	any ERISA Affiliate shall fail to pay when due an amount or amounts aggregating
in excess of the Equivalent Amount in United States Dollars of Cdn.$40,000,000 (or the
equivalent thereof in any other currency) which it shall have become liable to pay
under Section 4062, 4063 or 4064 of ERISA; or notice of intent to terminate a Plan
shall be filed under Title IV of ERISA by any ERISA Affiliate, any plan administrator
or any combination of the foregoing if such termination would result in a Material
Adverse Effect; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of ERISA)










 



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	 	 	 	in respect of, or to cause a trustee to be appointed to administer any Plan, if such
action by the PBGC would result in a Material Adverse Effect; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of
section 42l9(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more ERISA Affiliates to incur a current annual payment obligation
in excess of the Equivalent Amount in United States Dollars of Cdn.$40,000,000 (or
the equivalent thereof in any other currency); or






	 	(n)	 	any person alone or acting jointly in concert with any other person shall own
more than one-half of the outstanding voting securities of the Borrower.





10.2 Acceleration




          If any Event of Default shall occur and for so long as it is continuing:





	 	(a)	 	the entire principal amount of all Loans then outstanding and all accrued and
unpaid interest thereon,
	 
	 	(b)	 	an amount equal to the aggregate face amount at maturity of all Bankers’
Acceptances issued by the Borrower which are unmatured, and
	 
	 	(c)	 	all other Obligations outstanding hereunder,




shall, at the option of the Agent in accordance with Section 13.11 or upon the request of the
Majority of the Lenders, become immediately due and payable upon written notice to that effect from
the Agent to the Borrower, all without any other notice and without presentment, protest, demand,
notice of dishonour or any other demand whatsoever (all of which are hereby expressly waived by the
Borrower). In such event and if the Borrower does not immediately pay all such amounts upon
receipt of such notice, either the Lenders (in accordance with the proviso in Section 13.11(a)) or
the Agent on their behalf may, in their discretion, exercise any right or recourse and/or proceed
by any action, suit, remedy or proceeding against the Borrower authorized or permitted by law for
the recovery of all the indebtedness and liabilities of the Borrower to the Lenders and proceed to
exercise any and all rights hereunder and under the other Documents and no such remedy for the
enforcement of the rights of the Lenders shall be exclusive of or dependent on any other remedy but
any one or more of such remedies may from time to time be exercised independently or in
combination.




10.3 Conversion on Default




          Upon the occurrence of an Event of Default in respect of the Borrower, the Agent on behalf of
the Lenders may convert, at the Equivalent Amount, if applicable, a U.S. Base Rate Loan or Libor
Loan owing by the Borrower, to a Canadian Prime Rate Loan. Interest shall accrue on each such
Canadian Prime Rate Loan at the rate specified in Section 5.1 with interest on all overdue interest
at the same rate, such interest to be calculated daily and payable on demand.




10.4 Remedies Cumulative and Waivers




          For greater certainty, it is expressly understood and agreed that the rights and remedies of
the Lenders and the Agent hereunder or under any other Document are cumulative and are in addition
to and not in substitution for any rights or remedies provided by law or by equity; and any single
or partial exercise by the Lenders or by the Agent of any right or remedy for a default or breach
of any term, covenant, condition or agreement contained in this Agreement or other Document shall
not be deemed to be a waiver of or to alter, affect or prejudice any other right or remedy or other
rights or remedies to which any one or more of the Lenders and the Agent may be lawfully entitled
for such default or breach. Any waiver by, as applicable, the Majority of the Lenders, the Lenders
or the Agent of the strict observance, performance or compliance with any term, covenant,








 



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condition or other matter contained herein and any indulgence granted, either expressly or by
course of conduct, by, as applicable, the Majority of the Lenders, the Lenders or the Agent shall
be effective only in the specific instance and for the purpose for which it was given and shall be
deemed not to be a waiver of any rights and remedies of the Lenders or the Agent under this
Agreement or any other Document as a result of any other default or breach hereunder or thereunder.




10.5 Termination of Lenders’ Obligations




          The occurrence and continuance of a Default or an Event of Default shall relieve the Lenders
of all obligations to provide any further Drawdowns, Rollovers or Conversions to the Borrower
hereunder; provided that the foregoing shall not prevent the Lenders or the Agent from disbursing
money or effecting any Conversion which, by the terms hereof, they are entitled to effect, or any
Conversion or Rollover requested by the Borrower and acceptable to all of the Lenders and the
Agent.




ARTICLE 11

CHANGE OF CIRCUMSTANCES




11.1 Market Disruption Respecting Libor Loans




          If at any time subsequent to the giving of a Drawdown Notice, Rollover Notice or Conversion
Notice to the Agent by the Borrower with regard to any requested Libor Loan:





	 	(a)	 	the Agent (acting reasonably) determines that by reason of circumstances
affecting the London interbank market, adequate and fair means do not exist for
ascertaining the rate of interest with respect to, or deposits are not available in
sufficient amounts in the ordinary course of business at the rate determined hereunder
to fund, a requested Libor Loan during the ensuing Interest Period selected;
	 
	 	(b)	 	the Agent (acting reasonably) determines that the making or continuing of the
requested Libor Loan by the Lenders has been made impracticable by the occurrence of an
event which materially adversely affects the London interbank market generally; or
	 
	 	(c)	 	the Agent is advised by Lenders holding at least 25% of the Commitments of all
Lenders hereunder by written notice (each, a “Lender Libor Suspension Notice”), such
notice received by the Agent no later than 2:00 p.m. (Toronto time) on the third
Banking Day prior to the date of the requested Drawdown, Rollover or Conversion, as the
case may be, that such Lenders have determined (acting reasonably) that the Libor Rate
will not adequately reflect the cost of funds to such Lenders of United States Dollar
deposits in such market for the relevant Interest Period,




then the Agent shall give notice thereof to the Lenders and the Borrower as soon as possible after
such determination or receipt of such Lender Libor Suspension Notice, as the case may be, and the
Borrower shall, within one Banking Day after receipt of such notice and in replacement of the
Drawdown Notice, Rollover Notice or Conversion Notice, as the case may be, previously given by the
Borrower, give the Agent a Drawdown Notice or a Conversion Notice, as the case may be, which
specifies the Drawdown of any other Loan or the Conversion of the relevant Libor Loan on the last
day of the applicable Interest Period into any other Loan which would not be affected by the notice
from the Agent pursuant to this Section 11.1. In the event the Borrower fails to give, if
applicable, a valid replacement Conversion Notice with respect to the maturing Libor Loans which
were the subject of a Rollover Notice, such maturing Libor Loans shall be converted on the last day
of the applicable Interest Period into U.S. Base Rate Loans as if a Conversion Notice had been
given to the Agent by the Borrower pursuant to the provisions hereof. In the event the Borrower
fails to give, if applicable, a valid replacement Drawdown Notice with respect to a Drawdown
originally requested by way of a Libor Loan, then the Borrower shall be deemed to have








 



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requested a Drawdown by way of a U.S. Base Rate Loan in the amount specified in the original
Drawdown Notice and, on the originally requested Drawdown Date, the Lenders (subject to the other
provisions hereof) shall make available the requested amount by way of a U.S. Base Rate Loan.




11.2 Market Disruption Respecting Bankers’ Acceptances





	 	 	 	If:
	 
	 	(a)	 	the Agent (acting reasonably) makes a determination, which determination shall
be conclusive and binding upon the Borrower, and notifies the Borrower, that there no
longer exists an active market for bankers’ acceptances accepted by the Lenders; or
	 
	 	(b)	 	the Agent is advised by Lenders holding at least 25% of the Commitments of all
Lenders hereunder by written notice (each, a “Lender BA Suspension Notice”) that such
Lenders have determined (acting reasonably) that the BA Discount Rate will not or does
not accurately reflect the cost of funds of such Lenders or the discount rate which
would be applicable to a sale of Bankers’ Acceptances accepted by such Lenders in the
market;





then:





	 	(c)	 	the right of the Borrower to request Bankers’ Acceptances or BA Equivalent
Advances from any Lender shall be suspended until the Agent determines that the
circumstances causing such suspension no longer exist, and so notifies the Borrower and
the Lenders;
	 
	 	(d)	 	any outstanding Drawdown Notice requesting a Loan by way of Bankers’
Acceptances or BA Equivalent Advances shall be deemed to be a Drawdown Notice
requesting a Loan by way of Canadian Prime Rate Loans in the amount specified in the
original Drawdown Notice;
	 
	 	(e)	 	any outstanding Conversion Notice requesting a Conversion of a Loan by way of
U.S. Base Rate Loans or Libor Loans into a Loan by way of Bankers’ Acceptances or BA
Equivalent Advances shall be deemed to be a Conversion Notice requesting a Conversion
of such Loan into a Loan by way of Canadian Prime Rate Loans; and
	 
	 	(f)	 	any outstanding Rollover Notice requesting a Rollover of a Loan by way of
Bankers’ Acceptances or BA Equivalent Advances, shall be deemed to be a Conversion
Notice requesting a Conversion of such Loans into a Loan by way of Canadian Prime Rate
Loans.




The Agent shall promptly notify the Borrower and the Lenders of any suspension of the Borrower’s
right to request the Bankers’ Acceptances or BA Equivalent Advances and of any termination of any
such suspension. A Lender BA Suspension Notice shall be effective upon receipt of the same by the
Agent if received prior to 2:00 p.m. (Toronto time) on a Banking Day and if not, then on the next
following Banking Day, except in connection with a Drawdown Notice, Conversion Notice or Rollover
Notice previously received by the Agent, in which case the applicable Lender BA Suspension Notice
shall only be effective with respect to such previously received Drawdown Notice, Conversion Notice
or Rollover Notice if received by the Agent prior to 2:00 p.m. (Toronto time) two Banking Days
prior to the proposed Drawdown Date, Conversion Date or Rollover Date (as applicable) applicable to
such previously received Drawdown Notice, Conversion Notice or Rollover Notice, as applicable.




11.3 Change in Law




     (1) If the adoption of any applicable law, regulation, treaty or official directive (whether
or not having the force of law) or any change therein or in the interpretation or application
thereof by any court or by any Governmental Authority or any other entity charged with the
interpretation or administration thereof or compliance









 



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by a Lender or its Lender Parent with any request or direction (whether or not having the
force of law) of any such court, Governmental Authority or other entity in each case after the date
hereof:




	 	(a)	 	subjects such Lender or its Lender Parent to, or causes the withdrawal or
termination of a previously granted exemption with respect to, any Taxes (other than
Taxes on such Lender’s or its Lender Parent’s overall income or capital), or changes
the basis of taxation of payments due to such Lender, or increases any existing Taxes
(other than Taxes on such Lender’s or its Lender Parent’s overall income or capital) on
payments of principal, interest or other amounts payable by the Borrower to such Lender
under this Agreement;
	 
	 	(b)	 	imposes, modifies or deems applicable any reserve, liquidity, special deposit,
regulatory or similar requirement against assets or liabilities held by, or deposits in
or for the account of, or loans by such Lender or its Lender Parent, or any acquisition
of funds for loans or commitments to fund loans or obligations in respect of undrawn,
committed lines of credit or in respect of Bankers’ Acceptances accepted by such
Lender;
	 
	 	(c)	 	imposes on such Lender or its Lender Parent or requires there to be maintained
by such Lender or its Lender Parent any capital adequacy or additional capital
requirements (including a requirement which affects such Lender’s or its Lender
Parent’s allocation of capital resources to its obligations) in respect of any Loan or
obligation of such Lender hereunder, or any other condition with respect to this
Agreement; or
	 
	 	(d)	 	directly or indirectly affects the cost to such Lender or its Lender Parent of
making available, funding or maintaining any Loan (other than changes in Taxes on such
Lender’s or its Lender Parent’s overall income) or otherwise imposes on such Lender or
its Lender Parent any other condition or requirement affecting this Agreement or any
Loan or any obligation of such Lender hereunder;




and the result of (a), (b), (c) or (d) above, in the sole determination of such Lender acting in
good faith, is:





	 	(e)	 	to increase the cost to such Lender or its Lender Parent of performing its
obligations hereunder with respect to any Loan;
	 
	 	(f)	 	to reduce any amount received or receivable by such Lender or its Lender Parent
hereunder or its effective return hereunder or on its capital in respect of any Loan or
the Credit Facility;
	 
	 	(g)	 	to reduce the standby fees payable to such Lender pursuant to Section 5.6; or
	 
	 	(h)	 	to cause such Lender or its Lender Parent to make any payment with respect to
or to forego any return on or calculated by reference to, any amount received or
receivable by such Lender hereunder with respect to any Loan or the Credit Facility;




such Lender shall determine that amount of money which shall compensate the Lender or its Lender
Parent for such increase in cost, payments to be made or reduction in income or return or interest
foregone (herein referred to as “Additional Compensation”). Upon a Lender having determined that
it is entitled to Additional Compensation in accordance with the provisions of this Section, such
Lender shall promptly so notify the Borrower and the Agent. The relevant Lender shall provide the
Borrower and the Agent with a photocopy of the relevant law, rule, guideline, regulation, treaty or
official directive (or, if it is impracticable to provide a photocopy, a written summary of the
same) and a certificate of a duly authorized officer of such Lender setting forth the Additional
Compensation and the basis of calculation therefor, which shall be conclusive evidence of such
Additional Compensation in the absence of manifest error. The Borrower shall pay to such Lender
within 10 Banking Days of the giving of such








 



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notice such Lender’s Additional Compensation. Each of the Lenders shall be entitled to be paid
such Additional Compensation from time to time to the extent that the provisions of this Section
are then applicable notwithstanding that any Lender has previously been paid any Additional
Compensation.




     (2) Each Lender agrees that it will not claim Additional Compensation from the Borrower under
Section 11.3(1):




	 	(a)	 	if it is not generally claiming similar compensation from its other customers
in similar circumstances; or
	 
	 	(b)	 	in respect of any period greater than 9 months prior to the delivery of notice
in respect thereof by such Lender, unless the adoption, change or other event or
circumstance giving rise to the claim for Additional Compensation is retroactive or is
retroactive in effect.





11.4 Prepayment of Portion




          In addition to the other rights and options of the Borrower hereunder and notwithstanding any
contrary provisions hereof, if a Lender gives the notice provided for in Section 11.3 with respect
to any Loan (an “Affected Loan”), the Borrower may, upon 2 Banking Days notice to that effect given
to such Lender and the Agent (which notice shall be irrevocable), prepay in full without penalty
such Lender’s Rateable Portion of the Affected Loan outstanding together with accrued and unpaid
interest on the principal amount so prepaid up to the date of such prepayment, such Additional
Compensation as may be applicable to the date of such payment and all costs, losses and expenses
incurred by such Lender by reason of the liquidation or re-deployment of deposits or other funds or
for any other reason whatsoever resulting from the repayment of such Affected Loan or any part
thereof on other than the last day of the applicable Interest Period, and upon such payment being
made that Lender’s obligations to make such Affected Loans to the Borrower under this Agreement
shall terminate.




11.5 Illegality




          If a Lender determines, in good faith, that the adoption of any applicable law, regulation,
treaty or official directive (whether or not having the force of law) or any change therein or in
the interpretation or application thereof by any court or by any Governmental Authority or any
other entity charged with the interpretation or administration thereof or compliance by a Lender or
its Lender Parent with any request or direction (whether or not having the force of law) of any
such court, Governmental Authority or other entity, now or hereafter makes it unlawful or
impossible for any Lender to, or for its Lender Parent to permit such Lender to, make, fund or
maintain a Loan under the Credit Facility or to give effect to its obligations in respect of such a
Loan, such Lender may, by written notice thereof to the Borrower and to the Agent declare its
obligations under this Agreement in respect of such Loan to be terminated whereupon the same shall
forthwith terminate, and the Borrower shall, within the time required by such law (or at the end of
such longer period as such Lender at its discretion has agreed), either effect a Conversion of such
Loan in accordance with the provisions hereof (if such Conversion would resolve the unlawfulness or
impossibility) or prepay the principal of such Loan together with accrued interest, such Additional
Compensation as may be applicable with respect to such Loan to the date of such payment and all
costs, losses and expenses incurred by the Lender by reason of the liquidation or re-deployment of
deposits or other funds or for any other reason whatsoever resulting from the repayment of such
Loan or any part thereof on other than the last day of the applicable Interest Period. If any such
change shall only affect a portion of such Lender’s obligations under this Agreement which is, in
the opinion of such Lender and the Agent, severable from the remainder of this Agreement so that
the remainder of this Agreement may be continued in full force and effect without otherwise
affecting any of the obligations of the Agent, the other Lenders or the Borrower hereunder, such
Lender shall only declare its obligations under that portion so terminated.










 



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ARTICLE 12

COSTS, EXPENSES AND INDEMNIFICATION




12.1 Costs and Expenses




          The Borrower shall pay promptly upon notice from the Agent all reasonable out-of-pocket costs
and expenses of the Lenders and the Agent in connection with the Documents and the establishment of
the Credit Facility, including, without limitation, in connection with preparation, printing,
execution and delivery of this Agreement and the other Documents whether or not any Drawdown has
been made hereunder, and also including the reasonable fees and out-of-pocket costs and expenses of
Lenders’ Counsel with respect thereto and with respect to advising the Agent and the Lenders as to
their rights and responsibilities under this Agreement and the other Documents. Except for
ordinary expenses of the Lenders and the Agent relating to the day-to-day administration of this
Agreement, the Borrower further agrees to pay within 15 days of demand by the Agent all reasonable
out-of-pocket costs and expenses in connection with the preparation or review of waivers, consents
and amendments pertaining to this Agreement, and in connection with the establishment of the
validity and enforceability of this Agreement and the preservation or enforcement of rights of the
Lenders and the Agent under this Agreement and other Documents, including all reasonable
out-of-pocket costs and expenses sustained by the Lenders and the Agent as a result of any failure
by the Borrower to perform or observe any of its obligations hereunder or in connection with any
action, suit or proceeding (whether or not an Indemnified Party (as referred to in Section 12.2 or
Section 12.3) is a party or subject thereto), together with interest thereon from and after such
15th day if such payment is not made by such time.




12.2 General Indemnity




          In addition to any liability of the Borrower to any Lender or the Agent under any other
provision hereof, the Borrower shall indemnify each Indemnified Party and hold each Indemnified
Party harmless against any losses, claims, costs, damages or liabilities (including, without
limitation, any loss of profits or fees anticipated hereunder, any expense or cost incurred in the
liquidation and re-deployment of funds acquired to fund or maintain any portion of a Loan and
reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client
basis) incurred by the same as a result of or in connection with the Credit Facility or the
Documents, including as a result of or in connection with:





	 	(a)	 	any cost or expense incurred by reason of the liquidation or re-deployment in
whole or in part of deposits or other funds required by any Lender to fund or maintain
any Loan as a result of the Borrower’s failure to complete a Drawdown or to make any
payment, repayment or prepayment on the date required hereunder or specified by it in
any notice given hereunder;
	 
	 	(b)	 	subject to permitted or deemed Rollovers and Conversions, the Borrower’s
failure to provide for the payment to the Agent for the account of the Lenders of the
full principal amount of each Bankers’ Acceptance on its maturity date;
	 
	 	(c)	 	the Borrower’s failure to pay any other amount, including without limitation
any interest or fee, due hereunder on its due date after the expiration of any
applicable grace or notice periods (subject, however, to the interest obligations of
the Borrower hereunder for overdue amounts);
	 
	 	(d)	 	the Borrower’s repayment or prepayment of a Libor Loan otherwise than on the
last day of its Interest Period;
	 
	 	(e)	 	the prepayment of any outstanding Bankers’ Acceptance before the maturity date
of such Bankers’ Acceptance;










 



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	 	(f)	 	the Borrower’s failure to give any notice required to be given by it to the
Agent or the Lenders hereunder;
	 
	 	(g)	 	the failure of the Borrower to make any other payment due hereunder;
	 
	 	(h)	 	any inaccuracy or incompleteness of the Borrower’s representations and
warranties contained in Article 8;
	 
	 	(i)	 	any failure of the Borrower to observe or fulfil its obligations under
Article 9;
	 
	 	(j)	 	any failure of the Borrower to observe or fulfil any other Obligation not
specifically referred to above; or
	 
	 	(k)	 	the occurrence of any Default or Event of Default in respect of the Borrower,




provided that this Section 12.2 shall not apply to any losses, claims, costs, damages or
liabilities that arise by reason of: (i) the willful misconduct or gross negligence of such
Indemnified Party; or (ii) the intentional failure of the Lender which is the Indemnified Party (or
with which such Indemnified Party is an Affiliate or otherwise related) to advance funds hereunder
when all conditions precedent to a Drawdown hereunder have been satisfied, in each case, as
determined in a final, non-appealable judgment by a court of competent jurisdiction. The
provisions of this Section shall survive repayment of the Obligations.




12.3 Judgment Currency




     (1) If for the purpose of obtaining or enforcing judgment against the Borrower in any court in
any jurisdiction, it becomes necessary to convert into any other currency (such other currency
being hereinafter in this Section referred to as the “Judgment Currency”) an amount due in Canadian
Dollars or United States Dollars under this Agreement, the conversion shall be made at the rate of
exchange prevailing on the Banking Day immediately preceding:




	 	(a)	 	the date of actual payment of the amount due, in the case of any proceeding in
the courts of any jurisdiction that will give effect to such conversion being made on
such date; or
	 
	 	(b)	 	the date on which the judgment or judicial order is given, in the case of any
proceeding in the courts of any other jurisdiction (the date as of which such
conversion is made pursuant to this Section being hereinafter in this Section referred
to as the “Judgment Conversion Date”).





     (2) If, in the case of any proceeding in the court of any jurisdiction referred to in
Section 12.3(1)(b), there is a change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual payment of the amount due, the Borrower shall pay such
additional amount (if any) as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of payment, will produce
the amount of Canadian Dollars or United States Dollars, as the case may be, which could have been
purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the
rate of exchange prevailing on the Judgment Conversion Date.



     (3) Any amount due from the Borrower under the provisions of Section 12.3(2) shall be due as a
separate debt and shall not be affected by judgment being obtained for any other amounts due under
or in respect of this Agreement.



     (4) The term “rate of exchange” in this Section 12.3 means the noon rate of exchange for
Canadian interbank transactions in Canadian Dollars or United States Dollars, as the case may be,
in the Judgment Currency









 



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published by the Bank of Canada for the day in question, or if such rate is not so published
by the Bank of Canada, such term shall mean the Equivalent Amount of the Judgment Currency.



12.4 Limits on Liability of Indemnified Parties




          No Indemnified Party shall have any liability to the Borrower, any Subsidiary or any person
asserting claims on behalf of, or in right of, the Borrower or any Subsidiary thereof in connection
with or as a result of the Credit Facility, this Agreement or any other Documents or any
transaction contemplated hereby or thereby, except to the extent (and only to the extent) that any
losses, claims, damages, liabilities or expenses incurred by the Borrower, such Subsidiary or other
person are determined by a final non-appealable judgment of a court of competent jurisdiction to
have (a) resulted solely by reason of the gross negligence or wilful misconduct of such Indemnified
Party or (b) in respect only of a Lender, resulted from the intentional failure of such Lender to
advance funds under its Commitment when all conditions precedent to a Drawdown have been satisfied.
In any event, and notwithstanding the foregoing or any other provision hereof or of the other
Documents to the contrary, no Indemnified Party shall be liable for any special, indirect,
consequential or punitive damages in connection with or as a result of the Credit Facility, this
Agreement or any other Document or any transaction contemplated hereby or thereby.




ARTICLE 13

THE AGENT AND ADMINISTRATION OF THE CREDIT FACILITY




13.1 Authorization and Action




     (1) Each Lender hereby irrevocably appoints and authorizes the Agent to be its agent in its
name and on its behalf to exercise such rights or powers granted to the Agent or the Lenders under
this Agreement to the extent specifically provided herein and on the terms hereof, together with
such powers as are reasonably incidental thereto and the Agent hereby accepts such appointment and
authorization. As to any matters not expressly provided for by this Agreement, the Agent shall not
be required to exercise any discretion or take any action, but, subject to Section 14.10, shall be
required to act or to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority of the Lenders and such instructions shall be
binding upon all Lenders; provided, however, that the Agent shall not be required to take any
action which exposes the Agent to liability in such capacity or which could result in the Agent’s
incurring any costs and expenses, without provision being made for indemnity of the Agent by the
Lenders against any loss, liability, cost or expense incurred, or to be incurred or which is
contrary to this Agreement or applicable law.



     (2) The Lenders agree that all decisions as to actions to be or not to be taken, as to
consents or waivers to be given or not to be given, as to determinations to be made and otherwise
in connection with this Agreement and the Documents, shall be made upon the decision of the
Majority of the Lenders except in respect of a decision or determination where it is specifically
provided in this Agreement that “all of the Lenders” or “the Lenders” or words to similar effect,
or the Agent alone, is to be responsible for same. Each of the Lenders shall be bound by and
agrees to abide by and adopt all decisions made as aforesaid and covenants in all communications
with the Borrower to act in concert and to join in the action, consent, waiver, determination or
other matter decided as aforesaid.



13.2 Procedure for Making Loans




     (1) The Agent shall make Loans available to the Borrower as required hereunder by debiting the
account of the Agent to which the Lenders’ Rateable Portions of such Loans have been credited in
accordance with Section 2.12 (or causing such account to be debited) and, in the absence of other
arrangements agreed to by the Agent and the Borrower in writing, by crediting the United States
Dollar or Canadian Dollar account of the Borrower, as applicable, at the Agent or, at the expense
of the Borrower, transferring (or causing to be transferred)









 



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like funds in accordance with the instructions of the Borrower as set forth in the Drawdown
Notice, Rollover Notice or Conversion Notice, as the case may be, in respect of each Loan; provided
that the obligation of the Agent hereunder to effect such a transfer shall be limited to taking
such steps as are commercially reasonable to implement such instructions, which steps once taken
shall constitute conclusive and binding evidence that such funds were advanced hereunder in
accordance with the provisions relating thereto and the Agent shall not be liable for any damages,
claims or costs which may be suffered by the Borrower and occasioned by the failure of such Loan to
reach the designated destination.



     (2) Unless the Agent has been notified by a Lender at least one Banking Day prior to the
Drawdown Date, Rollover Date or Conversion Date, as the case may be, requested by the Borrower that
such Lender will not make available to the Agent its Rateable Portion of such Loan, the Agent may
assume that such Lender has made or will make such portion of the Loan available to the Agent on
the Drawdown Date, Rollover Date or Conversion Date, as the case may be, in accordance with the
provisions hereof and the Agent may, but shall be in no way obligated to, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount. If and to the
extent such Lender shall not have so made its Rateable Portion of a Loan available to the Agent,
such Lender agrees to pay to the Agent forthwith on demand such Lender’s Rateable Portion of the
Loan and all reasonable costs and expenses incurred by the Agent in connection therewith together
with interest thereon (at the rate payable hereunder by the Borrower in respect of such Loan or, in
the case of funds made available in anticipation of a Lender remitting proceeds of a Bankers’
Acceptance, at the rate of interest per annum applicable to Canadian Prime Rate Loans) for each day
from the date such amount is made available to the Borrower until the date such amount is paid to
the Agent; provided, however, that notwithstanding such obligation if such Lender fails to so pay,
the Borrower covenants and agrees that, without prejudice to any rights the Borrower may have
against such Lender, it shall repay such amount to the Agent forthwith after demand therefor by the
Agent. The amount payable to the Agent pursuant hereto shall be set forth in a certificate
delivered by the Agent to such Lender and the Borrower (which certificate shall contain reasonable
details of how the amount payable is calculated) and shall be conclusive and binding evidence
thereof in the absence of manifest error. If such Lender makes the payment to the Agent required
herein, the amount so paid shall constitute such Lender’s Rateable Portion of the Loan for purposes
of this Agreement. The failure of any Lender to make its Rateable Portion of any Loan shall not
relieve any other Lender of its obligation, if any, hereunder to make its Rateable Portion of such
Loan on the Drawdown Date, Rollover Date or Conversion Date, as the case may be; for certainty,
without derogating from the operation of Section 13.14 or Section 14.2, no Lender shall be
responsible for the obligations of any other Lender hereunder.



13.3 Remittance of Payments




          Except for amounts payable to the Agent for its own account, forthwith after receipt of any
repayment pursuant hereto or payment of interest or fees pursuant to Article 5 or payment pursuant
to Article 7, the Agent shall remit to each Lender its Rateable Portion of such payment; provided
that, if the Agent, on the assumption that it will receive on any particular date a payment of
principal, interest or fees hereunder, remits to a Lender its Rateable Portion of such payment and
the Borrower fails to make such payment, each of the Lenders on receipt of such remittance from the
Agent agrees to repay to the Agent forthwith on demand an amount equal to the remittance together
with all reasonable costs and expenses incurred by the Agent in connection therewith and interest
thereon at the rate and calculated in the manner applicable to the Loan in respect of which such
payment is made, or, in the case of a remittance in respect of Bankers’ Acceptances, at the rate of
interest applicable to Canadian Prime Rate Loans for each day from the date such amount is remitted
to the Lenders without prejudice to any right such Lender may have against the Borrower. The exact
amount of the repayment required to be made by the Lenders pursuant hereto shall be as set forth in
a certificate delivered by the Agent to each Lender, which certificate shall be conclusive and
binding for all purposes in the absence of manifest error.




13.4 Redistribution of Payment




          Each Lender agrees that:










 



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	 	(a)	 	if the Lender exercises any security against or right of counter-claim, set off
or banker’s lien or similar right with respect to the property of the Borrower or if
under any applicable bankruptcy, insolvency or other similar law it receives a secured
claim and collateral for which it is, or is entitled to exercise any set-off against, a
debt owed by it to the Borrower, the Lender shall apportion the amount thereof
proportionately between:






	 	(i)	 	such Lender’s Rateable Portion of all outstanding Obligations
owing by the Borrower (including the face amounts at maturity of Bankers’
Acceptances accepted by the Lenders), which amounts shall be applied in
accordance with Section 13.4(b); and
	 
	 	(ii)	 	amounts otherwise owed to such Lender by the Borrower,






provided that (i) any cash collateral account held by such Lender as collateral for a letter
of credit or bankers’ acceptance (other than a Bankers’ Acceptance) issued or accepted by
such Lender on behalf of the Borrower may be applied by such Lender to such amounts owed by
the Borrower to such Lender pursuant to such letter of credit or in respect of any such
bankers’ acceptance without apportionment and (ii)  these provisions do not apply to:




	 	(A)	 	a right or claim which arises or exists in respect
of a loan or other debt in respect of which the relevant Lender holds a
Lien which is a Permitted Encumbrance;
	 
	 	(B)	 	cash collateral provided, or the exercise of rights
of counterclaim, set-off or banker’s lien or similar rights, in respect
of account positioning arrangements for the Borrower and its Subsidiaries
provided by a Lender in the ordinary course of business or in respect of
other cash management services provided by a Lender in the ordinary
course of business;
	 
	 	(C)	 	any reduction in amounts owing to the Borrower or a
Subsidiary upon the termination of Hedging Instruments entered into with
the relevant Lender or its Affiliates; or
	 
	 	(D)	 	any payment to with a Lender is entitled as a
result of any credit default swap, credit derivative or other form of
credit protection obtained by such Lender;






	 	(b)	 	if, in the aforementioned circumstances, the Lender, through the exercise of a
right, or the receipt of a secured claim described in Section 13.4(a) above or
otherwise, receives payment of a proportion of the aggregate amount of Obligations due
to it hereunder which is greater than the proportion received by any other Lender in
respect of the aggregate Obligations due to the Lenders (having regard to the
respective Rateable Portions of the Lenders), the Lender receiving such proportionately
greater payment shall purchase, on a non-recourse basis at par, and make payment for a
participation (which shall be deemed to have been done simultaneously with receipt of
such payment) in the outstanding Loans of the other Lender or Lenders so that their
respective receipts shall be pro rata to their respective Rateable Portions; provided,
however, that if all or part of such proportionately greater payment received by such
purchasing Lender shall be recovered by or on behalf of the Borrower or any trustee,
liquidator, receiver or receiver-manager or person with analogous powers from the
purchasing Lender, such purchase shall be rescinded and the purchase price paid for
such participation shall be returned to the extent of such recovery, but without
interest unless the purchasing Lender is required to pay interest on such amount, in
which case each selling Lender shall reimburse the purchasing Lender pro rata in
relation to the amounts received by it. Such Lender shall exercise its rights in
respect of such secured claim in a manner consistent










 



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	 	 	 	with the rights of the Lenders entitled under this Section to share in the benefits
of any recovery on such secured claims; and






	 	(c)	 	if the Lender does, or is required to do, any act or thing permitted by
Section 13.4(a) or (b) above, it shall promptly provide full particulars thereof to the
Agent.





13.5 Duties and Obligations




          Neither the Agent nor any of its directors, officers, agents or employees (and, for purposes
hereof, the Agent shall be deemed to be contracting as agent and trustee for and on behalf of such
persons) shall be liable to the Lenders for any action taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the Agent:





	 	(a)	 	may assume that there has been no assignment or transfer by any means by the
Lenders of their rights hereunder, unless and until the Agent receives written notice
of the assignment thereof from such Lender and the Agent receives from the assignee an
executed Assignment Agreement providing, inter alia, that such assignee is bound hereby
as it would have been if it had been an original Lender party hereto;
	 
	 	(b)	 	may consult with legal counsel (including receiving the opinions of Borrower’s
counsel and Lenders’ Counsel required hereunder), independent public accountants and
other experts selected by it and shall not be liable for any action taken or omitted to
be taken in good faith by it in accordance with the advice of such counsel, accountants
or experts;
	 
	 	(c)	 	shall incur no liability under or in respect of this Agreement by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
telegram, cable, facsimile transmission, electronic mail or other electronic means of
communication which may generate a written record thereof) believed by it to be genuine
and signed or sent by the proper party or parties or by acting upon any representation
or warranty of the Borrower made or deemed to be made hereunder;
	 
	 	(d)	 	may assume that no Default or Event of Default has occurred and is continuing
unless it has actual knowledge to the contrary;
	 
	 	(e)	 	may rely as to any matters of fact which might reasonably be expected to be
within the knowledge of any person upon a certificate signed by or on behalf of such
person;
	 
	 	(f)	 	shall not be bound to disclose to any other person any information relating to
the Borrower, any of its Subsidiaries or any other person if such disclosure would or
might in its opinion constitute a breach of any applicable law, be in default of the
provisions hereof or be otherwise actionable at the suit of any other person; and
	 
	 	(g)	 	may refrain from exercising any right, power or discretion vested in it which
would or might in its reasonable opinion be contrary to any applicable law or any
directive or otherwise render it liable to any person, and may do anything which is in
its reasonable opinion necessary to comply with such applicable law.




Further, the Agent (i) does not make any warranty or representation to any Lender nor shall it be
responsible to any Lender for the accuracy or completeness of the representations and warranties of
the Borrower herein or the data made available to any of the Lenders in connection with the
negotiation of this Agreement, or for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement; (ii) shall not have any duty to
ascertain or to enquire as to the performance or observance of any of the terms, covenants or








 



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conditions of this Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower or any of its Subsidiaries; and (iii) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any instrument or document furnished pursuant hereto.




13.6 Prompt Notice to the Lenders




          Notwithstanding any other provision herein, the Agent agrees to provide to the Lenders, with
copies where appropriate, all information, notices and reports required to be given to the Agent by
the Borrower, promptly upon receipt of same, excepting therefrom information and notices relating
solely to the role of Agent hereunder.




13.7 Agent’s and Lenders’ Authorities




          With respect to its Commitment and the Drawdowns, Rollovers, Conversions and Loans made by it
as a Lender, the Agent shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent. Subject to the express
provisions hereof relating to the rights and obligations of the Agent and the Lenders in such
capacities, the Agent and each Lender may accept deposits from, lend money to, and generally engage
in any kind of business with the Borrower and its Subsidiaries or any corporation or other entity
owned or controlled by any of them and any person which may do business with any of them without
any duties to account therefor to the Agent or the other Lenders and, in the case of the Agent, all
as if it was not the Agent hereunder.




13.8 Lender Credit Decision




          It is understood and agreed by each Lender that it has itself been, and will continue to be,
solely responsible for making its own independent appraisal of and investigations into the
financial condition, creditworthiness, condition, affairs, status and nature of the Borrower and
its Subsidiaries. Each Lender represents to the Agent that it is engaged in the business of making
and evaluating the risks associated with commercial revolving or term loans, or both, to
corporations similar to the Borrower, that it can bear the economic risks related to the
transaction contemplated hereby, that it has had access to all information deemed necessary by it
in making such decision (provided that this representation shall not impair its rights against the
Borrower) and that it is entering into this Agreement in the ordinary course of its commercial
lending business. Accordingly, each Lender confirms with the Agent that it has not relied, and
will not hereafter rely, on the Agent (i) to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided by the Borrower or any other person under or
in connection with this Agreement or the transactions herein contemplated (whether or not such
information has been or is hereafter distributed to such Lender by the Agent), or (ii) to assess or
keep under review on its behalf the financial condition, creditworthiness, condition, affairs,
status or nature of the Borrower or any of its Subsidiaries. Each Lender acknowledges that a copy
of this Agreement has been made available to it for review and each Lender acknowledges that it is
satisfied with the form and substance of this Agreement. Each Lender hereby covenants and agrees
that, subject to Section 13.4, it will not make any arrangements with the Borrower for the
satisfaction of any Loans or other Obligations without the consent of all the other Lenders.




13.9 Indemnification of Agent




          The Lenders hereby agree to indemnify the Agent (to the extent not reimbursed by the
Borrower), on a pro rata basis in accordance with their respective Commitment as a proportion of
the aggregate of all outstanding Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under or in respect of this Agreement in its capacity as Agent; provided that
no








 



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Lender shall be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs expenses or disbursements resulting from the Agent’s
gross negligence or willful misconduct. If the Borrower subsequently repays all or a portion of
such amounts to the Agent, the Agent shall reimburse the Lenders their pro rata shares (according
to the amounts paid by them in respect thereof) of the amounts received from the Borrower. Without
limiting the generality of the foregoing, each Lender agrees to reimburse the Agent promptly upon
demand for its portion (determined as above) of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preservation of any rights of the Agent or the Lenders
under, or the enforcement of, or legal advice in respect of rights or responsibilities under, this
Agreement, to the extent that the Agent is not reimbursed for such expenses by the Borrower.




13.10 Successor Agent




          The Agent may, as hereinafter provided, resign at any time by giving 45 days’ prior written
notice thereof to the Lenders and the Borrower. Upon any such resignation, the Lenders shall,
after soliciting the view of the Borrower, have the right to appoint another Lender as a successor
agent (the “Successor Agent”) who shall be acceptable to the Borrower, acting reasonably. If no
Successor Agent shall have been so appointed by the Lenders and shall have accepted such
appointment within 30 days after the retiring Agent’s giving of notice of resignation, then the
retiring Agent shall, on behalf of the Lenders, appoint a Successor Agent who shall be a Lender
acceptable to the Borrower, acting reasonably. Upon the acceptance of any appointment as Agent
hereunder by a Successor Agent, such Successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent
shall thereupon be discharged from its further duties and obligations as Agent under this
Agreement. After any retiring Agent’s resignation hereunder as Agent, the provisions of this
Article shall continue to enure to its benefit as to any actions taken or omitted to be taken by it
as Agent or in its capacity as Agent while it was Agent hereunder.




13.11 Taking and Enforcement of Remedies




          Each of the Lenders hereby acknowledges that, to the extent permitted by applicable law, the
remedies provided hereunder to the Lenders are for the benefit of the Lenders collectively and
acting together and not severally and further acknowledges that its rights hereunder are to be
exercised not severally, but collectively by the Agent upon the decision of the Majority of the
Lenders regardless of whether acceleration was made pursuant to Section 10.2. Notwithstanding any
of the provisions contained herein, each of the Lenders hereby covenants and agrees that it shall
not be entitled to individually take any action with respect to the Credit Facility, including,
without limitation, any acceleration under Section 10.2, but that any such action shall be taken
only by the Agent with the prior written agreement or instructions of the Majority of the Lenders;
provided that, notwithstanding the foregoing, if (a) the Agent, having been adequately indemnified
against costs and expenses of so doing by the Lenders, shall fail to carry out any such
instructions of the Majority of the Lenders, any Lender may do so on behalf of all Lenders and
shall, in so doing, be entitled to the benefit of all protections given the Agent hereunder or
elsewhere, and (b) in the absence of instructions from the Majority of the Lenders and where in the
sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may
without notice to or consent of the Lenders or any of them take such action on behalf of the
Lenders as it deems appropriate or desirable in the interests of the Lenders. Each of the Lenders
hereby further covenants and agrees that upon any such written consent being given by the Majority
of the Lenders, or upon a Lender or the Agent taking action as aforesaid, it shall cooperate fully
with the Lender or the Agent to the extent requested by the Lender or the Agent in the collective
realization including, without limitation, and, if applicable, the appointment of a receiver, or
receiver and manager to act for their collective benefit. Each Lender covenants and agrees to do
all acts and things and to make, execute and deliver all agreements and other instruments,
including, without limitation, any instruments necessary to effect any registrations, so as to
fully carry out the intent and purpose of this Section; and each of the Lenders hereby covenants
and agrees that, subject to Section 5.7, Section 13.4 and Section 9.2(a) it has not heretofore and
shall not seek, take, accept or receive any security for any of the obligations and liabilities of
the Borrower hereunder or under any other document, instrument, writing or agreement ancillary
hereto and shall not enter into

















 





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any agreement with any of the parties hereto or thereto relating in any manner whatsoever to the
Credit Facility, unless all of the Lenders shall at the same time obtain the benefit of any such
security or agreement.




          With respect to any enforcement, realization or the taking of any rights or remedies to
enforce the rights of the Lenders hereunder, the Agent shall be a trustee for each Lender, and all
monies received from time to time by the Agent in respect of the foregoing shall be held in trust
and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and
shall be considered for the purposes of such legislation to be held separate and apart from the
other assets of the Agent, and each Lender shall be entitled to their Rateable Portion of such
monies. In its capacity as trustee, the Agent shall be obliged to exercise only the degree of care
it would exercise in the conduct and management of its own business and in accordance with its
usual practice concurrently employed or hereafter instituted for other substantial commercial
loans.




13.12 Reliance Upon Agent




          The Borrower shall be entitled to rely upon any certificate, notice or other document or other
advice, statement or instruction provided to it by the Agent pursuant to this Agreement, and the
Borrower shall generally be entitled to deal with the Agent with respect to matters under this
Agreement which the Agent is authorized to deal with without any obligation whatsoever to satisfy
itself as to the authority of the Agent to act on behalf of the Lenders and without any liability
whatsoever to the Lenders for relying upon any certificate, notice or other document or other
advice, statement or instruction provided to it by the Agent, notwithstanding any lack of authority
of the Agent to provide the same.




13.13 No Liability of Agent




          The Agent shall have no responsibility or liability to the Borrower on account of the failure
of any Lender to perform its obligations hereunder (unless such failure was caused, in whole or in
part, by the Agent’s failure to observe or perform its obligations hereunder), or to any Lender on
account of the failure of the Borrower or any Lender to perform its obligations hereunder.




13.14 The Agent, Swingline Lenders and Defaulting Lenders




     (1) Each Defaulting Lender shall be required to provide to the Agent cash in an amount, as
shall be determined from time to time by the Agent in its discretion, equal to all obligations of
such Defaulting Lender are owing or, in the case of contingent obligations, may become owing to the
Agent, in its capacity as Agent, pursuant to this Agreement, including such Defaulting Lender’s
obligation to pay its Rateable Portion of any indemnification or expense reimbursement amounts not
paid by the Borrower. Such cash shall be held by the Agent in one or more cash collateral
accounts, which accounts shall be in the name of the Agent and shall not be required to be interest
bearing. The Agent shall be entitled to apply the foregoing cash in accordance with Section 13.9.



     (2) In addition to the indemnity and reimbursement obligations noted in Section 13.9, the
Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrower and without
limiting the obligations of the Borrower hereunder) rateably according to their respective Rateable
Portions (and in calculating the Rateable Portion of a Lender, ignoring the Commitments of
Defaulting Lenders) any amount that a Defaulting Lender fails to pay the Agent and which is due and
owing to the Agent pursuant to Section 13.9. Each Defaulting Lender agrees to indemnify each other
Lender for any amounts paid by such Lender and which would otherwise be payable by the Defaulting
Lender.



     (3) The Agent shall be entitled to set off any Defaulting Lender’s Rateable Portion of all
payments received from the Borrower against such Defaulting Lender’s obligations to fund payments
and Loans required to be made by it and to purchase participations required to be purchased by it,
in each case, under this Agreement and the other Documents. To the extent permitted by law, the
Agent shall be entitled to withhold and deposit in one or









 



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more non-interest bearing cash collateral accounts in the name of the Agent all amounts
(whether principal, interest, fees or otherwise) received by the Agent and due to a Defaulting
Lender pursuant to this Agreement, for so long as such Lender is a Defaulting Lender, which amounts
shall be used by the Agent:





	 	(a)	 	first, to reimburse the Agent for any amounts owing to it, in its capacity as
Agent, by the Defaulting Lender pursuant to any Document;






	 	(b)	 	second, pro rata in accordance with their Rateable Swingline Portions, to the
payment of any amounts owing by such Defaulting Lender to the Swingline Lenders
hereunder;






	 	(c)	 	third, to repay on a pro rata basis the incremental portion of any Loans made
by a Lender pursuant to Section 14.2(4) in order to fund a shortfall created by a
Defaulting Lender and, upon receipt of such repayment, each such Lender shall be deemed
to have assigned to the Defaulting Lender such incremental portion of such Loans;






	 	(d)	 	fourth, to cash collateralize all other contingent obligations of such
Defaulting Lender to the Agent, in its capacity as Agent, owing pursuant to this
Agreement in such amount as shall be determined from time to time by the Agent in its
discretion, including such Defaulting Lender’s obligation to pay its Rateable Portion
of any indemnification or expense reimbursement amounts not paid by the Borrower; and






	 	(e)	 	fifth, to fund from time to time the Defaulting Lender’s Rateable Portion of
Loans.





     (4) For greater certainty and in addition to the foregoing, neither the Agent nor any of its
Affiliates nor any of their respective shareholders, officers, directors, employees, agents or
representatives shall be liable to any Lender (including, without limitation, a Defaulting Lender)
for any action taken or omitted to be taken by it in connection with amounts payable by the
Borrower to a Defaulting Lender and received and deposited by the Agent in a cash collateral
account and applied in accordance with the provisions of this Agreement, save and except for the
gross negligence or wilful misconduct of the Agent as determined by a final non-appealable
judgement of a court of competent jurisdiction.



     (5) If any Swingline Loans are outstanding (the aggregate Outstanding Principal of such
Swingline Loans is the “Swingline Exposure”) at the time a Lender becomes a Defaulting Lender then:




	 	(a)	 	such Swingline Exposure shall be reallocated among the non-Defaulting Lenders
for the purposes of Section 2.22(7) in accordance with their respective Rateable
Portions (disregarding any Defaulting Lender’s Commitment) but only to the extent that
the sum of (i) the aggregate Outstanding Principal of all Syndicated Loans made by any
non-Defaulting Lender and outstanding at such time, plus (ii) such non-Defaulting
Lender’s rateable share (after giving effect to the reallocation contemplated herein)
of the Swingline Exposure, does not exceed such non-Defaulting Lender’s Commitment; and






	 	(b)	 	if the reallocation described in Section 13.14(5)(a) above cannot, or can only
partially, be effected, the Borrower shall within one Banking Day following notice by
the Agent or any Swingline Lender prepay all outstanding Swingline Loans.





     (6) So long as any Lender is a Defaulting Lender, a Swingline Lender shall not be required to
fund any Swingline Loan unless it is satisfied that the related exposure will be 100% covered by
the Commitments of the non-Defaulting Lenders in accordance with Section 13.14(5), and
participating interests in any such newly made Swingline Loan shall be allocated among
non-Defaulting Lenders in a manner consistent with Section 13.14(5)(a) (and Defaulting Lenders
shall not participate therein).









 



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13.15 Article for Benefit of Agent and Lenders




          The provisions of this Article 13 which relate to the rights and obligations of the Lenders to
each other or to the rights and obligations between the Agent and the Lenders shall be for the
exclusive benefit of the Agent and the Lenders, and, except to the extent provided in Sections
13.1, 13.2, 13.6, 13.10, 13.11, 13.12, 13.13, 13.14 and this Section 13.15, the Borrower shall not
have any rights or obligations thereunder or be entitled to rely for any purpose upon such
provisions. Any Lender may waive in writing any right or rights which it may have against the
Agent or the other Lenders hereunder without the consent of or notice to the Borrower.




ARTICLE 14

GENERAL




14.1 Exchange and Confidentiality of Information




     (1) The Borrower agrees that the Agent and each Lender may provide any assignee or participant
or any bona fide prospective assignee or participant pursuant to Sections 14.6 or 14.7 with any
information concerning the financial condition of the Borrower and its Subsidiaries provided such
party agrees in writing with the Agent or such Lender for the benefit of the Borrower to be bound
by a like duty of confidentiality to that contained in this Section.



     (2) Each of the Agent and the Lenders acknowledges the confidential nature of the financial,
operational and other information and data provided and to be provided to them by the Borrower
pursuant hereto (the “Information”) and agrees not to disclose the Information provided, however,
that:




	 	(a)	 	the Agent and the Lenders may disclose all or any part of the Information if,
in their reasonable opinion, such disclosure is required: (i) by their respective
auditors, or (ii) in connection with any actual or threatened judicial, administrative
or governmental proceedings (including proceedings initiated under or in respect of
this Agreement or upon the request of its independent auditors or a Governmental
Authority having jurisdiction over it);






	 	(b)	 	the Agent and the Lenders shall incur no liability in respect of any
Information required to be disclosed by any applicable law, or by applicable treaty,
order, policy or directive having the force of law, to the extent of such requirement;






	 	(c)	 	the Agent and each Lender may disclose the Information to any governmental or
regulatory authority (including any self-regulatory agency or authority) having
jurisdiction over it (i) upon the request thereof or (ii) where it considers such
disclosure to be advisable or appropriate, acting reasonably;






	 	(d)	 	the Agent and each Lender may provide any Affiliate thereof with the
Information to the extent reasonably required to be disclosed thereto; provided that
each such Affiliate shall be under a like duty of confidentiality to that contained in
this Section 14.1 and further provided that the Agent or the Lender, as the case may
be, providing the Information shall be responsible for any breach by its Affiliate of
the aforementioned like duty of confidentiality;






	 	(e)	 	the Agent and the Lenders may provide Lenders’ Counsel and their other agents
and professional advisors with any Information; provided that such persons shall be
under a like duty of confidentiality to that contained in this Section 14.1;






	 	(f)	 	the Agent and each of the Lenders shall incur no liability in respect of any
Information: (i) which is or becomes readily available to the public (other than by a
breach hereof) or which has been made readily available to the public by the Borrower
or its Subsidiaries, (ii) which the Agent or the










 



- 70 -


	 	 	 	relevant Lender can show was, prior to receipt thereof from the Borrower, lawfully in
the Agent’s or Lender’s possession and not then subject to any obligation on its part
to the Borrower to maintain confidentiality, or (iii) which the Agent or the relevant
Lender received from a third party who was not, to the knowledge of the Agent or such
Lender, under a duty of confidentiality to the Borrower at the time the information
was so received;






	 	(g)	 	the Agent and the Lenders may disclose the Information to other financial
institutions and other persons in connection with the assignment by a Lender of the
Credit Facility or the granting by a Lender of a participation in the Credit Facility
where such financial institution or other person agrees to be under a like duty of
confidentiality to that contained in this Section; and






	 	(h)	 	the Agent and the Lenders may disclose all or any part of the Information so as
to enable the Agent and the Lenders to initiate any lawsuit against the Borrower or to
defend any lawsuit commenced by the Borrower the issues of which touch on the
Information, but only to the extent such disclosure is necessary to the initiation or
defense of such lawsuit.





14.2 Nature of Obligation under this Agreement; Defaulting Lenders




     (1) The obligations of each Lender and of the Agent under this Agreement are several. The
failure of any Lender to carry out its obligations hereunder shall not relieve the other Lenders,
the Agent or the Borrower of any of their respective obligations hereunder.



     (2) Without derogating from the operation of Section 13.14 and this Section 14.2, neither the
Agent nor any Lender shall be responsible for the obligations of any other Lender hereunder.



     (3) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:




	 	(b)	 	the standby fees payable pursuant to Section 5.6 shall cease to accrue on the
unused portion of the Commitment of such Defaulting Lender;






	 	(c)	 	a Defaulting Lender shall not be included in determining whether, and the
Commitment and the Rateable Portion of the Outstanding Principal of such Defaulting
Lender shall not be included in determining whether, all Lenders or the Majority of the
Lenders have taken or may take any action hereunder (including any consent to any
amendment or waiver pursuant to Section 14.10), provided that any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender that (i)
affects such Defaulting Lender differently than other affected Lenders, (ii) increases
the Commitment or extends the Maturity Date of such Defaulting Lender, (iii) relates to
Section 2.4(3), or (iv) relates to the matters set forth in Sections 14.10(a)(i), (ii),
(iv), (v), (vii) and (ix) shall require the consent of such Defaulting Lender; and






	 	(d)	 	for the avoidance of doubt, the Borrower shall retain and reserve its other
rights and remedies respecting each Defaulting Lender.





     (4) If the Agent has actual knowledge that a Lender is a Defaulting Lender at the time that
the Agent receives a Drawdown Notice or a Conversion Notice that will result in a currency
conversion, then each other Lender shall fund its Rateable Portion of such affected Loan (and, in
calculating such Rateable Portion, the Agent shall ignore the Commitments of each such Defaulting
Lender); provided that, for certainty, no Lender shall be obligated by this Section to make or
provide Loans in excess of its Commitment. If the Agent acquires actual knowledge that a Lender is
a Defaulting Lender at any time after the Agent receives a Drawdown Notice or a Conversion Notice
that will result in a currency conversion, then the Agent shall promptly notify the Borrower that









 



- 71 -

such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such
disclosure). Each Defaulting Lender agrees to indemnify each other Lender for any amounts paid by
such Lender under this Section 14.2(4) and which would otherwise have been paid by the Defaulting
Lender if its Commitment had been included in determining the Rateable Portions of such affected
Loans.




     (5) If any Lender shall cease to be a Defaulting Lender, then, upon becoming aware of the
same, the Agent shall notify the other Lenders and (in accordance with the written direction of the
Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the other
Lenders shall on a rateable basis sell and assign to such Lender, portions of such Loans equal in
total to such Lender’s Rateable Portion thereof without regard to Section 14.2(4).



14.3 Notices




          Any demand, notice or communication to be made or given hereunder shall be in writing and may
be made or given by personal delivery or by facsimile transmission or other electronic means of
communication addressed to the respective parties as follows:




	 	 	 	 	 
	 	 	To the Borrower:
	 
	 	 	Potash Corporation of Saskatchewan Inc.
	 	 	Suite 500, 122 1st Avenue South
	 	 	Saskatoon, Saskatchewan
	 	 	S7K 7G3
	 
	 	 	 	 
	 

	 	Attention:
	 	Chief Financial Officer
	 

	 	Facsimile No.:
	 	(306) 933-8888
	 
	 	 	 	 
	 	 	To the Agent:
	 
	 	 	 	 
	 	 	The Bank of Nova Scotia
	 	 	Wholesale Banking Operations
	 	 	Loan Administration and Agency Services
	 	 	720 King Street West, 3rd Floor
	 	 	Toronto, Ontario
	 	 	M5V 2T3
	 	 	Canada
	 
	 	 	 	 
	 

	 	Attention:
	 	Andrew Yiu or John Hall
	 

	 	Facsimile No.:
	 	(416) 866-5991
	 
	 	 	 	 
	 	 	To each Lender: As set forth in the most recent administrative questionnaire or
other written notification provided to the Agent by such Lender (a copy of which
shall be provided to the Borrower upon request to the Agent),





or to such other address or facsimile number as any party may from time to time notify the others
in accordance with this Section. Any demand, notice or communication made or given by personal
delivery or by facsimile transmission or other electronic means of communication during normal
business hours at the place of receipt on a Banking Day shall be conclusively deemed to have been
made or given at the time of actual delivery or transmittal, as the case may be, on such Banking
Day. Any demand, notice or communication made or given by personal delivery or by facsimile
transmission or other electronic means of communication after normal business hours at








 



- 72 -


the place of receipt or otherwise than on a Banking Day shall be conclusively deemed to have been
made or given at 9:00 a.m. (Toronto time) on the first Banking Day following actual delivery or
transmittal, as the case may be.




14.4 Governing Law




          This Agreement shall be governed by and construed in accordance with the laws of the Province
of Ontario and the laws of Canada applicable therein, without prejudice to or limitation of any
other rights or remedies available under the laws of any jurisdiction where property or assets of
the Borrower may be found.




14.5 Benefit of the Agreement




          This Agreement shall enure to the benefit of and be binding upon the Borrower, the Lenders,
the Agent and their respective successors and permitted assigns.




14.6 Assignment




     (1) Any Lender may, with the prior written consent of each of the Borrower, each Swingline
Lender and the Agent, which consents shall not be unreasonably withheld, conditioned or delayed,
assign an interest in its Commitment, its Rateable Portion of the Loans and its rights under the
Documents; provided that, such consent of the Borrower shall not be required during the continuance
of an Event of Default, further provided that, except during the continuance of an Event of Default
or except with the consent of the Borrower and the Agent, such consents not to be unreasonably
withheld, conditioned or delayed, no Lender shall, without the consent of the Borrower and the
Agent, assign an interest in its Commitment if the effect of the same would be to have a Lender
with a Commitment of less than U.S.$25,000,000 (such amount to be reduced in proportion to any
partial reductions in the Credit Facility), and further provided that, it shall be a precondition
to any such assignment that the contemplated assignee Lender shall have paid to the Agent, for the
Agent’s own account, a transfer fee of U.S.$3,500.00. Upon any such assignment, the assigning
Lender shall have no further obligation hereunder with respect to such interest. Upon any such
assignment, the assigning Lender, the assignee Lender, the Agent and, if applicable, the Borrower
shall execute and deliver an Assignment Agreement. Subject to the provisions of Section 9.2(b),
the Borrower shall not assign its rights or obligations hereunder without the prior written consent
of all of the Lenders.



     (2) Any Lender may at any time grant a Lien in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any Lien to secure obligations to a U.S.
Federal Reserve Bank, and this Section shall apply to any such grant of a Lien; provided,
that no such grant of a Lien shall release a Lender from any of its obligations hereunder or
substitute any holder of such Lien for such Lender as a party hereto.



     (3) The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section
14.3 a copy of each executed Assignment Agreement delivered to it and a register (the “Register”)
for the recordation of the names and addresses of the Lenders and the Commitment of, and the
principal amount of the Loans owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders
shall treat each whose name is recorded in the Register as the owner of the Loans recorded therein
for all purposes of this Agreement. Any assignment of any Loan shall be effective only upon
appropriate entries with respect thereto being made in the Register. The Register shall be
available for inspection by the Borrower and any Lender (with respect to any entry relating to the
Loans of such Lender) at any reasonable time and from time to time upon reasonable prior notice to
the Agent.



14.7 Participations




          Any Lender may, without the consent of the Borrower, grant one or more participations in its
Commitment and its Rateable Portion of any one or more of the Loans to other persons, provided that
the granting









 



- 73 -


of such a participation shall be at the Lender’s own cost and shall not affect the obligations
of such Lender hereunder nor shall it increase the costs to the Borrower hereunder or under any of
the other Documents. No such participant shall by virtue of such participations be party to this
Agreement. The Borrower also agrees that each participant shall be entitled to the benefits of
Section 7.5 and Section 11.3 with respect to its interest in the Commitments and the Loans
outstanding from time to time as if such participant were a Lender; provided that no
participant shall be entitled to receive any greater amount pursuant to either such Section than
the transferor Lender would have been entitled to receive in respect of such amount of the
participation transferred by such transferor Lender to such participant had no such transfer
occurred. For the purposes of this Section 14.7, each Lender from which a participant purchased
the related participation shall act as agent on behalf of such participant to the extent required
so that such participant shall receive the benefit of this Section 14.7.




14.8 Severability




          Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall
not invalidate the remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.




14.9 Whole Agreement




          This Agreement and the other Documents constitute the whole and entire agreement between the
parties hereto regarding the subject matter hereof and thereof and cancel and supersede any prior
agreements, undertakings, declarations, commitments, representations, written or oral, in respect
thereof.




14.10 Amendments and Waivers 




          Any provision of this Agreement and the other Documents may be amended only if the Majority of
the Lenders so agree in writing and, except as otherwise specifically provided herein, may be
waived only if the Majority of the Lenders so agree in writing, but:





	 	(a)	 	an amendment or waiver which changes or relates to (i) the amount or type of
the Loans available hereunder (or decreases in the periods of notice for Drawdowns,
Conversions, Rollovers or voluntary prepayment of Loans) or any Lender’s Commitment,
(ii) decreases in the rates of interest, Bankers’ Acceptance fees or standby fees, or
deferral of the dates of payment of interest, Bankers’ Acceptance fees, standby fees or
mandatory repayments of principal, (iii) Section 2.3, Section 2.4, Section 2.16,
Section 2.17, Section 2.18, Section 2.19, Section 2.20, Section 2.21 or Section 13.4,
(iv) decreases in the amount of or deferral of the dates of payment of other amounts
payable hereunder (other than fees payable for the account of Agent), (v) the
subordination of any of the Obligations, (vi) the definition of “Majority of the
Lenders”, (vii) any provision hereof contemplating or requiring consent, approval or
agreement of “all Lenders”, “the Lenders” or similar expressions or permitting waiver
of conditions or covenants or agreements by “all Lenders”, “the Lenders” or similar
expressions, (viii) the definition of “Event of Default”, or (ix) this Section, shall
require the agreement or waiver of all the Lenders;






	 	(b)	 	an amendment or waiver which changes or relates to the rights and/or
obligations of the Agent shall also require the agreement of the Agent thereto; and






	 	(c)	 	an amendment or waiver which changes or relates to the provisions hereof
relating to Swingline Loans, Swingline Exposure or the Swingline Lenders (in their
capacity as such) shall also require the agreement of all Swingline Lenders thereto.










 



- 74 -






Any such waiver and any consent by the Agent, any Swingline Lender, any Lender, the Majority of the
Lenders or all of the Lenders under any provision of this Agreement must be in writing and may be
given subject to any conditions thought fit by the person giving that waiver or consent. Any
waiver or consent shall be effective only in the instance and for the purpose for which it is
given.




14.11 Further Assurances




          The Borrower, the Lenders and the Agent shall promptly cure any defect by it in the execution
and delivery of this Agreement, the other Documents or any of the agreements provided for hereunder
to which it is a party. The Borrower, at its expense, shall promptly execute and deliver to the
Agent, upon request by the Agent (acting reasonably), all such other and further deeds, agreements,
opinions, certificates, instruments, affidavits, registration materials and other documents
reasonably necessary for the Borrower’s compliance with, or accomplishment of the covenants and
agreements of the Borrower hereunder.




14.12 Attornment




          The parties hereto each hereby attorn and submit to the non-exclusive jurisdiction of the
courts of the Province of Ontario in regard to legal proceedings relating to the Documents. For
the purpose of all such legal proceedings, this Agreement shall be deemed to have been performed in
the Province of Ontario and the courts of the Province of Ontario shall have jurisdiction to
entertain any action arising under this Agreement. Notwithstanding the foregoing, nothing in this
Section shall be construed nor operate to limit the right of any party hereto to commence any
action relating hereto in any other jurisdiction, nor to limit the right of the courts of any other
jurisdiction to take jurisdiction over any action or matter relating hereto.




14.13 Waiver of Jury Trial




          To the extent permitted by Applicable Laws, each of the Borrower, the Agent and the Lenders
hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to the Documents or the
actions of the Agent or any Lender in the negotiation, administration, performance or enforcement
thereof.




14.14  Time of the Essence




          Time shall be of the essence of this Agreement.




14.15  Credit Agreement Governs




          In the event of any conflict or inconsistency between the provisions of this Agreement and the
provisions of the other Documents, the provisions of this Agreement, to the extent of the conflict
or inconsistency, shall govern and prevail.




14.16 Patriot Act Notice/Know Your Customer Laws




          Each Lender that is subject to the Patriot Act (as defined below) and the Agent (for itself
and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001 (the “Patriot
Act”), it is required to obtain, verify and record information that identifies the Borrower and its
Subsidiaries, which information includes the name and address of the Borrower and its Subsidiaries
and other information that will allow such Lender or the Agent, as applicable, to identify the
Borrower and its Subsidiaries in accordance with the Patriot Act. The Borrower shall provide, to
the extent commercially reasonable, such information and take such actions as are reasonably
requested by the Agent or any Lender in order to assist the Agent and the Lenders in maintaining
compliance with the Patriot Act. Further,










 



- 75 -



the Borrower shall promptly provide all information, including supporting documentation and
other evidence, as may be reasonably requested by any Lender or the Agent, or any prospective
assignee or participant of a Lender or the Agent, in order to comply with any applicable “know your
customer” and anti-money laundering rules and regulations, whether now or hereafter in existence.




14.17 No Fiduciary Duty




          The Agent, each Lender and their respective Affiliates (collectively, solely for purposes of
this Section 14.17, the “Lenders”), may have economic interests that conflict with those of the
Borrower, it stockholders and/or its Affiliates. The Borrower agrees that nothing in the Documents
will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other
implied duty between any Lender, on the one hand, and the Borrower, its stockholders or its
Affiliates, on the other hand. The Borrower acknowledges and agrees that (a) the transactions
contemplated by the Documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the
Borrower, on the other hand, and (b) in connection therewith and with the process leading thereto,
(i) no Lender has assumed an advisory or fiduciary responsibility in favour of the Borrower, its
stockholders of its Affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective
of whether any Lender has advised, is currently advising or will advise the Borrower, its
stockholders or its Affiliates on other matters) or any other obligation to the Borrower except the
obligations expressly set forth in the Documents and (ii) each Lender is acting solely as principal
and not as the agent or fiduciary of the Borrower, its management, stockholders, creditors or any
other person. The Borrower acknowledges and agrees that the Borrower has consulted its own legal
and financial advisors to the extent it deemed appropriate and that it is responsible for making
its own independent judgement with respect to such transactions and the process leading thereto.
The Borrower agrees that it will not claim that any Lender has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to the Borrower, in connection with such
transactions or the process leading thereto.




14.18 Counterparts




          This Agreement may be executed in any number of counterparts, each of which shall be deemed to
be an original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart. Delivery of an executed counterpart of a signature page of
this Agreement by facsimile transmission or by sending a scanned copy by electronic mail shall be
effective as delivery of a manually executed counterpart of this Agreement.




[the remainder of this page has been intentionally left blank]











 



 




          IN WITNESS WHEREOF the parties hereto have executed this Agreement.




	 	 	 	 	 
	 	POTASH CORPORATION OF SASKATCHEWAN INC.
	 
	 	 	 	 
	 	By:  	/s/ Wayne Brownlee
 	 
	 	 	Name:  	Wayne Brownlee 	 
	 	 	Title:  	Executive Vice President & Chief Financial Officer 	 
	 
	 	By:  	/s/ Denis Sirois
 	 
	 	 	Name:  	Denis Sirois 	 
	 	 	Title:  	Vice President & Corporate Controller 	 












 



 


	 	 	 	 	 	 	 
	 	 	LENDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jeff Cebryk 	 	 
	 

	 	 	 	Jeff Cebryk	 	 
	 

	 	 	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Stacey Strike 	 	 
	 

	 	 	 	Stacey Strike	 	 
	 

	 	 	 	Director	 	 












 



 


	 	 	 	 	 
	 	BANK OF MONTREAL
	 
	 	 	 	 
	 	By:  	/s/ Sean P. Galloway
 	 
	 	 	Name:  	Sean P. Galloway 	 
	 	 	Title:  	Vice President 	 
	 












 



 


	 	 	 	 	 
	 	ROYAL BANK OF CANADA
	 
	 	 	 	 
	 	By:  	/s/ Stam Fountoulakis
 	 
	 	 	Name:  	Stam Fountoulakis 	 
	 	 	Title:  	Authorized Signatory 	 
	 












 



 


	 	 	 	 	 
	 	EXPORT DEVELOPMENT CANADA
	 
	 	 	 	 
	 	By:  	/s/ Deepak Dave
 	 
	 	 	Name:  	Deepak Dave 	 
	 	 	Title:  	Senior Financing Manager 	 
	 
	 	By:  	/s/ Christiane De Billy
 	 
	 	 	Name:  	Christiane De Billy 	 
	 	 	Title:  	Financing Manager 	 
	 












 



 


	 	 	 	 	 
	 	 	CANADIAN IMPERIAL BANK OF COMMERCE
	 
	 	 	 	 
	 	By:  	/s/ Kevin Charko
 	 
	 	 	Name:  	Kevin Charko 	 
	 	 	Title:  	Director 	 
	 
	 	By:  	/s/ Tim Thomas
 	 
	 	 	Name:  	Tim Thomas 	 
	 	 	Title:  	Managing Director 	 
	 












 



 


	 	 	 	 	 
	 	RABOBANK NEDERLAND, CANADIAN BRANCH
	 
	 	 	 	 
	 	By:  	/s/ Rommel J. Domingo 	 
	 	 	Name:  	Rommel J. Domingo 	 
	 	 	Title:  	Executive Director 	 
	 
	 	By:  	/s/ Andrew Chewpa 	 
	 	 	Name:  	Andrew Chewpa 	 
	 	 	Title:  	Managing Director 	 
	 












 



 


	 	 	 	 	 
	 	THE TORONTO-DOMINION BANK
	 
	 	 	 	 
	 	By:  	/s/ Gouri Yajaman 	 
	 	 	Name:  	Gouri Yajaman 	 
	 	 	Title:  	Vice President 	 
	 
	 	By:  	/s/ Sundeep Dhillon 	 
	 	 	Name:  	Sundeep Dhillon 	 
	 	 	Title:  	Vice President 	 
	 















 



 




	 	 	 	 	 
	 	GOLDMAN SACHS LENDING PARTNERS LLC
	 
	 	 	 	 
	 	By:  	/s/ Mark Walton 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 
	 












 



 


	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A.
	 
	 	 	 	 
	 	By:  	/s/ Ryan Vetsch 	 
	 	 	Name:  	Ryan Vetsch 	 
	 	 	Title:  	Authorized Signatory 	 
	 












 



 


	 	 	 	 	 
	 	UBS LOAN FINANCE LLC
	 
	 	 	 	 
	 	By:  	/s/ Mary E. Evans 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director–Banking Products Services, US 	 
	 
	 	By:  	/s/ Marie A. Haddad 	 
	 	 	Name:  	Marie A. Haddad 	 
	 	 	Title:  	Associate Director–Banking Products Services, US 	 
	 












 



 


	 	 	 	 	 
	 	BANK OF AMERICA, N.A., CANADA BRANCH
	 
	 	 	 	 
	 	By:  	/s/ Medina Sales de Andrade 	 
	 	 	Name:  	Medina Sales de Andrade 	 
	 	 	Title:  	Vice President 	 
	 












 



 


	 	 	 	 	 
	 	HSBC BANK CANADA
	 
	 	 	 	 
	 	By:  	/s/ Greg Gannett 	 
	 	 	Name:  	Greg Gannett 	 
	 	 	Title:  	Director 	 
	 
	 	By:  	/s/ Sarah Wong 	 
	 	 	Name:  	Sarah Wong 	 
	 	 	Title:  	Relationship Manager 	 
	 












 



 


	 	 	 	 	 
	 	BANK OF TOKYO-MITSUBISHI UFJ (CANADA)
	 
	 	 	 	 
	 	By:  	/s/ Davis J. Stewart 	 
	 	 	Name:  	Davis J. Stewart 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	By:  	/s/ H. Maruta 	 
	 	 	Name:  	H. Maruta 	 
	 	 	Title:  	Executive Vice President & General Manager 	 
	 












 



 


	 	 	 	 	 	 	 
	 	 	AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA,
in its capacity as the Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jeff Cebryk 	 	 
	 

	 	 	 	Jeff Cebryk	 	 
	 

	 	 	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Stacey Strike 	 	 
	 

	 	 	 	Stacey Strike	 	 
	 

	 	 	 	Director	 	 













 



 




SCHEDULE A




LENDERS AND COMMITMENTS




	 	 	 	 	 
	Lender	 	Commitment	 	Swingline Sub-Commitment
	The Bank of Nova Scotia
	 	Commitment:	 	Swingline Sub-Commitment:
	 
	 	U.S.$300,000,000	 	U.S.$65,000,000
	 
	 	 	 	 
	Bank of Montreal
	 	Commitment:	 	Swingline Sub-Commitment:
	 
	 	U.S.$300,000,000	 	U.S.$65,000,000
	 
	 	 	 	 
	Royal Bank of Canada
	 	Commitment:	 	Swingline Sub-Commitment:
	 
	 	U.S.$300,000,000	 	U.S.$65,000,000
	 
	 	 	 	 
	Export Development Canada
	 	Commitment:	 	 
	 
	 	U.S.$200,000,000	 	 
	 
	 	 	 	 
	Canadian Imperial Bank of Commerce
	 	Commitment:	 	Swingline Sub-Commitment:
	 
	 	U.S.$200,000,000	 	U.S.$30,000,000
	 
	 	 	 	 
	Rabobank, Nederland, Canadian Branch
	 	Commitment:	 	 
	 
	 	U.S.$200,000,000	 	 
	 
	 	 	 	 
	The Toronto-Dominion Bank
	 	Commitment:	 	Swingline Sub-Commitment:
	 
	 	U.S.$200,000,000	 	U.S.$30,000,000
	 
	 	 	 	 
	Goldman Sachs Lending Partners LLC
	 	Commitment:	 	 
	 
	 	U.S.$150,000,000	 	 
	 
	 	 	 	 
	Morgan Stanley Bank, N.A.
	 	Commitment:	 	 
	 
	 	U.S.$150,000,000	 	 
	 
	 	 	 	 
	UBS Loan Finance LLC
	 	Commitment:	 	 
	 
	 	U.S.$150,000,000	 	 
	 
	 	 	 	 
	Bank of America, N.A., Canada Branch
	 	Commitment:	 	 
	 
	 	U.S.$125,000,000	 	 
	 
	 	 	 	 
	HSBC Bank Canada
	 	Commitment:	 	 
	 
	 	U.S.$125,000,000	 	 
	 
	 	 	 	 
	Bank of Tokyo-Mitsubishi UFJ (Canada)
	 	Commitment:	 	 
	 
	 	U.S.$100,000,000	 	 








 











 





SCHEDULE B




LENDER ASSIGNMENT AGREEMENT




THIS
LENDER ASSIGNMENT AGREEMENT is made as of the • day of •,•




BETWEEN:




          •




          (hereinafter referred to as the “Assignor”),




OF THE FIRST PART,




- and -




          •




          (hereinafter referred to as the “Assignee”),




OF THE SECOND PART,




- and -





THE BANK OF NOVA SCOTIA, a Canadian chartered bank, as
agent of the Lenders (hereinafter referred to as the “Agent”),



OF THE THIRD PART.




          WHEREAS the Assignor is a Lender under the Credit Agreement made as of December 11, 2009
between Potash Corporation of Saskatchewan Inc. (the “Borrower”), the Lenders and the Agent, (as
amended, modified, supplemented or restated from time to time, the “Credit Agreement”);




          AND WHEREAS the Assignor has agreed to assign and transfer to the Assignee certain rights
under the Credit Agreement in compliance with the Credit Agreement, and the Assignee has agreed to
accept such rights and assume certain obligations of the Assignor under the Credit Agreement;




          AND WHEREAS this Agreement is delivered to the Assignee pursuant to Section 14.6 of the Credit
Agreement.




          NOW THEREFORE, in consideration of the premises and other good and valuable consideration (the
receipt and sufficiency of which are hereby conclusively acknowledged), the parties hereby agree as
follows:




 









 








- 2 -





	1.	 	INTERPRETATION






	 	(a)	 	In this Agreement, including the recitals, capitalized terms used herein, and
not otherwise defined herein, shall have the same meanings attributed thereto as set
forth in the Credit Agreement. In addition, the following terms shall have the
following meanings:






	 	(i)	 	“Assigned Commitment” has the meaning set forth in
Section 2 hereof;
	 
	 	(ii)	 	“Assigned Interests” has the meaning set forth in
Section 2 hereof; and
	 
	 	(iii)	 	“Assumed Obligations” has the meaning set forth in
Section 4 hereof.






	 	(b)	 	The division of this Agreement into Articles, Sections, paragraphs and other
subdivisions and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation hereof.
	 
	 	(c)	 	In this Agreement:






	 	(i)	 	the terms “this Agreement”, “hereof”, “herein”, “hereunder” and
similar expressions refer, unless otherwise specified, to this Lender
Assignment Agreement taken as a whole and not to any particular section,
subsection or paragraph;
	 
	 	(ii)	 	words importing the singular number or masculine gender shall
include the plural number or the feminine or neuter genders, and vice versa;
and
	 
	 	(iii)	 	words and terms denoting inclusiveness (such as “include” or
“includes” or “including”), whether or not so stated, are not limited by their
context or by the words or phrases which precede or succeed them.






	 	(d)	 	This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable therein. The
parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of
the Province of Ontario, without prejudice to the rights of the parties to take
proceedings in any other jurisdictions.
	 
	 	(e)	 	If any provision of this Agreement shall be invalid, illegal or unenforceable
in any respect in any jurisdiction, it shall not affect the validity, legality or
enforceability of any such provision in any other jurisdiction or the validity,
legality or enforceability of any other provision of this Agreement.






	2.	 	ASSIGNMENT OF RIGHTS BY ASSIGNOR





          Effective as of the date hereof, the Assignor hereby absolutely assigns and transfers to the
Assignee:




 









 








- 3 -





	 	(a)	 	subject as provided in Section 3(a) hereof, [all OR •% of all] of
the Assignor’s right, title and interest in, to and under each of the outstanding Loans
and other Obligations owing by the Borrower to the Assignor under the Credit Facility,
as more particularly described in Exhibit A attached hereto; and
	 
	 	(b)	 	[all OR •%] of the Assignor’s Commitment, being U.S. $• of
such Commitment (the “Assigned Commitment”);




together with all of the Assignor’s other rights under the Credit Agreement and the other Documents
but only insofar as such other rights relate to (a) and (b) above (collectively, the “Assigned
Interests”).





	3.	 	OUTSTANDING LIBOR LOANS AND ASSIGNOR BAs






	 	(a)	 	The parties hereby acknowledge that, on the date hereof, Libor Loans and
Bankers’ Acceptances accepted by the Assignor and each having terms to maturity ending
on or after the date hereof may be outstanding (collectively, the “Outstanding Libor
Loans and Assignor BAs”). Notwithstanding any provision of the Credit Agreement or
this Agreement, the Assignee shall have no right, title, benefit or interest in or to
any Outstanding Libor Loans and Assignor BAs. The Assignee shall assume no liability
or obligation to the Assignor in respect of such Outstanding Libor Loans and Assignor
BAs, including in respect of the failure of the Borrower to reimburse the Assignor for
any such Bankers’ Acceptances accepted by the Assignor on the maturity thereof or any
fees or other amounts due in respect thereof.
	 
	 	(b)	 	From time to time, as the Outstanding Libor Loans and Assignor BAs mature and
Rollovers and Conversions are made by the Borrower in respect thereof, the Assignee
shall participate in the Loans effecting such Rollovers and Conversions to the full
extent of its Assigned Commitment in its capacity as a Lender.






	4.	 	ASSUMPTION OF OBLIGATIONS BY ASSIGNEE





          The Assignee assumes and covenants and agrees to be responsible for all obligations relating
to the Assigned Interests to the extent such obligations arise or accrue on or after the date
hereof (collectively, the “Assumed Obligations”) and agrees that it will be bound by the Credit
Agreement and the other Documents to the extent of the Assumed Obligations as fully as if it had
been an original party to the Credit Agreement.





	5.	 	CREDIT AGREEMENT REFERENCES; NOTICES






    Effective as of the date hereof:




	 	(a)	 	the Assignee shall be a Lender for all purposes of the Credit Agreement and the
other Documents and all references therein to “Lenders” or “a Lender” shall be deemed
to include the Assignee;




 









 











- 4 -





	 	(b)	 	the Commitment of the Assignee shall be the Assigned Commitment and all
references in the Credit Agreement to “Commitment” of the Assignee shall be deemed to
be to the Assigned Commitment;
	 
	 	(c)	 	any demand, notice or communication to be given to the Assignee in accordance
with section 14.3 of the Credit Agreement shall be made or given to the following
address or facsimile number (until the Assignee otherwise gives notice in accordance
with such section 14.3): •; and
	 
	 	(d)	 	Schedule A to the Credit Agreement shall be deemed to be and is hereby amended
to the extent necessary to give effect to the assignment of the Assigned Commitment
contemplated hereby and to give effect to Sections 5(a), 5(b) and 5(c) hereof.






	6.	 	THE AGENT





          Without in any way limiting the provisions of Section 4 hereof, the Assignee irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto, all in accordance
with the provisions of the Credit Agreement.





	7.	 	NO ENTITLEMENT TO PRIOR INTEREST OR OTHER FEES





          Except as otherwise agreed in writing between the Assignor and the Assignee, notwithstanding
any provision of the Credit Agreement or other Documents or any other provision of this Agreement,
the Assignee shall have no right, title or interest in or to any interest or fees paid or to be
paid to the Assignor under, pursuant to or in respect of:





	 	(a)	 	the fees paid to the Assignor in respect of the establishment of the Credit
Facility;
	 
	 	(b)	 	[the fees payable to the Agent pursuant to section 5.7 of the Credit
Agreement;] or [Note: Section 7(b) to be inserted for any assignment by the Lender
which is also acting as the Agent.]
	 
	 	(c)	 	the Loans, the Credit Facility or the Credit Agreement for any period of time
or in respect of any event or circumstance prior to the date hereof, including, without
limitation, any standby fees pursuant to section 5.6 of the Credit Agreement.






	8.	 	CONSENT OF AGENT





          The Agent hereby consents to the assignment of the Assigned Interests to the Assignee and the
assumption of the Assumed Obligations by the Assignee and agrees to recognize the Assignee as a
Lender under the Credit Agreement as fully as if the Assignee had been an original party to the
Credit Agreement. The Agent agrees that the Assignor shall have no further liability or obligation
in respect of the Assumed Obligations.




 









 








- 5 -





	9.	 	REPRESENTATIONS AND WARRANTIES





          Each of the parties hereby represents and warrants to the other parties as follows:





	 	(a)	 	it is duly incorporated and validly subsisting under the laws of its governing
jurisdiction;
	 
	 	(b)	 	it has all necessary corporate power and authority to enter into this Agreement
and to perform its obligations hereunder and under the Credit Agreement and the other
Documents;
	 
	 	(c)	 	the execution, delivery, observance and performance on its part of this
Agreement has been duly authorized by all necessary corporate and other action and this
Agreement constitutes a legal, valid and binding obligation of such party enforceable
against it in accordance with its terms; and
	 
	 	(d)	 	all Governmental Authorizations, if any, required for the execution, delivery,
observance and performance by it of this Agreement, the Credit Agreement and the other
Documents have been obtained and remain in full force and effect, all conditions have
been duly complied with and no action by, and no notice to or other filing or
registration with any Governmental Authority is required for such execution, delivery,
observance or performance.





                    The Assignor represents and warrants to the Assignee that it has the right to sell to the
Assignee the Assigned Interests and that the same are free and clear of all Liens. The Assignor
also represents and warrants to the Assignee that it has not received written notice of any Default
or Event of Default having occurred under the Credit Agreement which is continuing.




                    The representations and warranties set out in this Agreement shall survive the execution and
delivery of this Agreement and notwithstanding any examinations or investigations which may be made
by the parties or their respective legal counsel.




                    Except as expressly provided herein, the Assignee confirms that this Agreement is entered into
by the Assignee without any representations or warranties by the Assignor or the Agent on any
matter whatsoever, including, without limitation, on the effectiveness, validity, legality,
enforceability, adequacy or completeness of the Credit Agreement or any Document delivered pursuant
thereto or in connection therewith or any of the terms, covenants and conditions therein or on the
financial condition, creditworthiness, condition, affairs, status or nature of the Borrower.





	10.	 	ASSIGNEE CREDIT DECISION





          The Assignee acknowledges to the Assignor and the Agent that the Assignee has itself been, and
will continue to be, solely responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness, condition, affairs, status and
nature of the Borrower and its Subsidiaries, all of the matters and transactions contemplated
herein and in the Credit Agreement and other Documents and all other matters incidental to the
Credit



 









 







- 6 -



Agreement and the other Documents. The Assignee confirms with the Assignor and the Agent that
it does not rely, and it will not hereafter rely, on the Agent or the Assignor:





	 	(a)	 	to check or inquire on its behalf into the adequacy, accuracy or completeness
of any information provided by the Borrower, any Subsidiary or any other person under
or in connection with the Credit Agreement and other Documents or the transactions
therein contemplated (whether or not such information has been or is hereafter
distributed to the Assignee by the Agent); or
	 
	 	(b)	 	to assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the Borrower and its
Subsidiaries.




The Assignee acknowledges that a copy of the Credit Agreement (including a copy of the Schedules)
has been made available to it for review and further acknowledges and agrees that it has received
copies of such other Documents and such other information that it has requested for the purposes of
its investigation and analysis of all matters related to this Agreement, the Credit Agreement, the
other Documents and the transactions contemplated hereby and thereby. The Assignee acknowledges
that it is satisfied with the form and substance of the Credit Agreement and the other Documents.





	11.	 	PAYMENTS





          The Assignor and the Assignee acknowledge and agree that all payments under the Credit
Agreement in respect of the Assigned Interests from and after the date hereof received by the Agent
on or after the date hereof shall be the property of the Assignee and the Agent shall be entitled
to treat the Assignee as solely entitled thereto.





	12.	 	AMENDMENTS AND WAIVERS





          Any amendment or modification or waiver of any right under any provision of this Agreement
shall be in writing (in the case of an amendment or modification, signed by the parties) and any
such waiver shall be effective only for the specific purpose for which given and for the specific
time period, if any, contemplated therein. No failure or delay by any party in exercising any
right, power or privilege under this Agreement shall operate as a waiver thereof and any waiver of
any breach of the provisions of this Agreement shall be without prejudice to any rights with
respect to any other or further breach.





	13.	 	GENERAL PROVISIONS






	 	(a)	 	The parties hereto shall from time to time and at all times do all such further
acts and things and execute and deliver all such documents as are required in order to
fully perform and carry out the terms of this Agreement.
	 
	 	(b)	 	The provisions of this Agreement shall enure to the benefit of and shall be
binding upon the parties hereto and their respective successors and permitted assigns.




 









 











- 7 -





	 	(c)	 	This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one full set of counterparts.





          IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by its duly
authorized representative(s) as of the date first above written.




	 	 	 	 	 	 	 
	 	 	•, as Assignor	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 

•
	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 

•
	 	 
	 
	 	 	 	 	 	 
	 	 	•, as Assignee	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	•	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	•	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NOVA
SCOTIA, in its capacity as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	•	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	•	 	 







 












 





- 8 -




Borrower’s Acknowledgement and Consent to Assignment:



With respect to the foregoing Lender Assignment Agreement, and as of the date thereof, the Borrower
does hereby:





	 	(a)	 	acknowledge and consent to the assignment of the Assigned Interests to the
Assignee and the assumption of the Assumed Obligations by the Assignee;
	 
	 	(b)	 	agree to recognize the Assignee as a Lender under the Credit Agreement as fully
as if the Assignee had been an original party to the Credit Agreement; and
	 
	 	(c)	 	agree that the Assignor shall have no further liability or obligation in
respect of the Assumed Obligations.





	 	 	 	 	 	 	 
	 	 	POTASH CORPORATION OF
SASKATCHEWAN INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 

•
	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:	 	 	 	 
	 

	 	 	 	 

•
	 	 







 









 








SCHEDULE C




COMPLIANCE CERTIFICATE




	 	 	 
	TO:

	 	The 2009 Agent (as defined below)
	 
	 	 
	AND TO:

	 	The 2001 Agent (as defined below)
	 
	 	 
	AND TO:

	 	The Bank of Nova Scotia (“BNS”), as lender under the Bi-Lateral
Agreement (as defined below)
	 
	 	 
	AND TO:

	 	Each of the 2009 Lenders and the 2001 Lenders (each as defined below)







	1.	 	Reference is made to:






	 	(a)	 	the credit agreement made as of December 11, 2009 between Potash Corporation of
Saskatchewan Inc. (the “Borrower”), BNS and the other persons who are or may become
party thereto in their capacity as lenders (collectively, the “2009 Lenders”) and The
Bank of Nova Scotia, as agent of the 2009 Lenders (the “2009 Agent”) and relating to
the establishment of a certain credit facility in favour of the Borrower (as amended,
modified, supplemented or restated from time to time, the “2009 Credit Agreement”);
	 
	 	(b)	 	the credit agreement made as of September 25, 2001 between the Borrower, BNS
and the other persons who are or may become party thereto in their capacity as lenders
(collectively, the “2001 Lenders”) and The Bank of Nova Scotia, as agent of the 2001
Lenders (the “2001 Agent”) and relating to the establishment of a certain credit
facility in favour of the Borrower (as amended, modified, supplemented or restated from
time to time, the “2001 Credit Agreement”); and
	 
	 	(c)	 	the credit agreement made as of June 1, 2001 between the Borrower and BNS and
relating to the establishment of a certain credit facility in favour of the Borrower
(as amended, modified, supplemented or restated from time to time, the “Bi-Lateral
Agreement”).




Capitalized terms used herein, and not otherwise defined herein, shall have the meanings attributed
to such terms in the 2001 Credit Agreement, the 2009 Credit Agreement and the Bi-Lateral Credit
Agreement.





	2.	 	This Compliance Certificate is delivered to the 2009 Agent, the 2001 Agent and BNS pursuant
to Section 9.1(a)(iv) of the 2009 Credit Agreement, Section 11.01(v) of the 2001 Agreement and
11.01(v) of the Bi-Lateral Credit Agreement.
	 
	3.	 	The undersigned, [name], [title] of the Borrower, hereby certifies that, as of the date of
this Compliance Certificate, I have made or caused to be made such investigations as are
necessary or appropriate for the purposes of this Compliance Certificate and:




 









 











- 2 -





	 	(a)	 	as at the end of the [Fiscal Quarter OR Fiscal Year] ending •,
20•, the ratio of Long Term Debt as at the last day of such period to EBITDA for
the four consecutive Fiscal Quarters ending on such day was [•]:1.0;
	 
	 	(b)	 	as at the end of the aforementioned [Fiscal Quarter OR Fiscal Year],
the ratio of Debt to Capital was [•]:1.0;
	 
	 	(c)	 	as at the end of the aforementioned [Fiscal Quarter OR Fiscal Year], the
Tangible Net Worth of the Borrower was U.S. $[•];
	 
	 	(d)	 	as at the end of the aforementioned [Fiscal Quarter OR Fiscal Year], the
aggregate Debt of the Subsidiaries of the Borrower was U.S. $[•]; [and]
	 
	 	(e)	 	[during the Fiscal Year ending •, 20•, the aggregate net book value
of the assets disposed of by the Companies (including any disposition by reason of an
expropriation of such assets but excluding any disposition of inventory in the ordinary
course of business and the disposition of assets as a result of the securitization of
assets shall only be included in the foregoing calculation if the assets are
transferred to create a securitized asset pool or to increase the overall size of a
securitized asset pool but not if the assets are transferred to replenish a depleting
securitized asset pool) was U.S.$ [•] and Total Assets as of the last day of the
immediately preceding Fiscal Year was U.S.$ [•]; and]
[Note: Insert 3(e) only for year end Compliance Certificate.]
	 
	 	(f)	 	to the best of my knowledge, information and belief and after due inquiry, no
Default or Event of Default has occurred and is continuing.





                  I give this Compliance Certificate on behalf of the Borrower and in my capacity as the [title]
of the Borrower, and no personal liability is created against or assumed by me in the giving of
this Certificate.



                  Dated at [•], this [•] day of [•], [•]



	 	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







 











 





SCHEDULE D




CONVERSION NOTICE





	TO: 	 	 The Bank of Nova Scotia, in its capacity as agent of the Lenders (the “Agent”)




DATE:                                                             





	4.	 	This Conversion Notice is delivered to you pursuant to the terms and conditions of the Credit
Agreement made as of December 11, 2009 between Potash Corporation of Saskatchewan Inc., as
Borrower, The Bank of Nova Scotia and the other persons who are or may become party thereto in
their capacity as Lenders and the Agent and relating to the establishment of a certain credit
facility in favour of the Borrower (as amended, modified, supplemented or restated, the
“Credit Agreement”). Unless otherwise expressly defined herein, capitalized terms set forth
in this Conversion Notice shall have the respective meanings set forth in the Credit
Agreement.
	 
	5.	 	The Borrower hereby requests a Conversion as follows:






	 	(a)	 	Conversion Date:




 





	 	(b)	 	Conversion of the following Loans under the Credit Facility:






	 	(i)	 	Type of Loan:




 





	 	(ii)	 	Amount being converted (specify aggregate face amount at maturity in the case of Bankers’ Acceptances):




 





	 	(iii)	 	Interest Period maturity (for Libor Loans and Bankers’ Acceptances):





 



 





INTO the following Loan:




	 	(iv)	 	Type of Loan:




 





	 	(v)	 	Interest Period (specify term of Libor Loans or Bankers’ Acceptances):




 



 




 









 









	 	(c)	 	Payment, delivery or issuance instructions (if any):




 



 




	 	 	 	 	 
	 	 	Yours very truly,
	 
	 	 	 	 
	 	 	POTASH CORPORATION OF SASKATCHEWAN INC.
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







 









 








SCHEDULE E




DRAWDOWN NOTICE





	TO: 	 	 The Bank of Nova Scotia, in its capacity as agent of the Lenders (the “Agent”)




DATE:                                                             





	1.	 	This Drawdown Notice is delivered to you pursuant to the terms and conditions of the Credit
Agreement made as of December 11, 2009 between Potash Corporation of Saskatchewan Inc., as
Borrower, The Bank of Nova Scotia and the other persons who are or may become party thereto in
their capacity as Lenders and the Agent and relating to the establishment of a certain credit
facility in favour of the Borrower (as amended, modified, supplemented or restated, the
“Credit Agreement”). Unless otherwise expressly defined herein, capitalized terms set forth
in this Drawdown Notice shall have the respective meanings set forth in the Credit Agreement.
	 
	2.	 	The Borrower hereby requests a Drawdown as follows:






	 	(a)	 	Drawdown Date:





 




	 	(b)	 	Amount of Drawdown (specify aggregate face amount at maturity in the case of Bankers’
Acceptances):





 




	 	(c)	 	Type of Loan:




 





	 	(d)	 	Interest Period (specify term for Libor Loans and Bankers’ Acceptances):





 




	 	(e)	 	Payment, delivery or issuance instructions (if any):





 



 




	 	 	 	 	 
	 	 	Yours very truly,
	 
	 	 	 	 
	 	 	POTASH CORPORATION OF SASKATCHEWAN INC.
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







 









 








SCHEDULE F




REPAYMENT NOTICE





	TO: 	 	 The Bank of Nova Scotia, in its capacity as agent of the Lenders (the “Agent”)




DATE:                                                             





	1.	 	This Repayment Notice is delivered to you pursuant to the terms and conditions of the Credit
Agreement made as of December 11, 2009 between Potash Corporation of Saskatchewan Inc., as
Borrower, The Bank of Nova Scotia and the other persons who are or may become party thereto in
their capacity as Lenders and the Agent and relating to the establishment of a certain credit
facility in favour of the Borrower (as amended, modified, supplemented or restated, the
“Credit Agreement”). Unless otherwise expressly defined herein, capitalized terms set forth
in this Repayment Notice shall have the respective meanings set forth in the Credit Agreement.
	 
	2.	 	The Borrower hereby gives notice of a repayment as follows:






	 	(a)	 	Date of repayment:




 




	 	(b)	 	Loan(s):




 




	 	(c)	 	Interest Period maturity (specify for Libor Loans and Bankers’ Acceptances):




 




	 	(d)	 	Amount being repaid (specify aggregate face
amount at maturity in the case of Bankers’
Acceptances):




 




	 	(e)	 	Repayment instructions (if any):





 




	 	 	 	 	 
	 	 	Yours very truly,
	 
	 	 	 	 
	 	 	POTASH CORPORATION OF SASKATCHEWAN INC.
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







 









 








SCHEDULE G




ROLLOVER NOTICE





	TO: 	 	 The Bank of Nova Scotia, in its capacity as agent of the Lenders (the “Agent”)




DATE:                                                             





	1.	 	This Rollover Notice is delivered to you pursuant to the terms and conditions of the Credit
Agreement made as of December 11, 2009 between Potash Corporation of Saskatchewan Inc., as
Borrower, The Bank of Nova Scotia and the other persons who are or may become party thereto in
their capacity as Lenders and the Agent and relating to the establishment of a certain credit
facility in favour of the Borrower (as amended, modified, supplemented or restated, the
“Credit Agreement”). Unless otherwise expressly defined herein, capitalized terms set forth
in this Rollover Notice shall have the respective meanings set forth in the Credit Agreement.
	 
	2.	 	The Borrower hereby requests a Rollover as follows:






	 	(a)	 	Rollover Date:





 




	 	(b)	 	Amount of Rollover (specify
aggregate face amount at maturity in
the case of Bankers’ Acceptances):




 




	 	(c)	 	Type of Loan:




 




	 	(d)	 	New Interest Period (specify term of Libor Loans and Bankers’ Acceptances):





 




	 	(e)	 	Payment, delivery or issuance instructions (if any):





 




 




	 	 	 	 	 
	 	 	Yours very truly,
	 
	 	 	 	 
	 	 	POTASH CORPORATION OF SASKATCHEWAN INC.
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	Per:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







 









 





SCHEDULE H




	 	 	 
	 

	 	December 11, 2009
	 
	 	 
	The Bank of Nova Scotia, as Agent of the Lenders

	 	McCarthy Tétrault LLP
	720 King Street West, 3rd Floor

	 	Suite 3300, 421 — 7th Avenue SW
	Toronto, Ontario

	 	Calgary, Alberta
	M5V 2T3
	 	Canada T2P 4K9
		 	 






The Lenders party to the Credit

Agreement on the date hereof




Ladies and Gentlemen:



Re: Potash Corporation of Saskatchewan Inc.




          We have acted as Ontario counsel to Potash Corporation of Saskatchewan Inc. (the “Borrower”)
in connection with a credit agreement made as of December 11, 2009 (the “Credit Agreement”) among
the Borrower, as borrower, The Bank of Nova Scotia, Bank of Montreal, Royal Bank of Canada, Export
Development Canada, Canadian Imperial Bank of Commerce, Rabobank Nederland, Canadian Branch, The
Toronto-Dominion Bank, Goldman Sachs Lending Partners LLC, Morgan Stanley Bank, N.A., UBS Loan
Finance LLC, Bank of America, N.A., Canada Branch, HSBC Bank Canada and Bank of Tokyo-Mitsubishi
UFJ (Canada) (together with such other persons as become parties thereto as lenders (collectively,
the “Lenders”) and The Bank of Nova Scotia, as agent of the Lenders (the “Agent”).




          This opinion is being provided to you pursuant to Section 3.2(e) of the Credit Agreement. We
have participated in the preparation of and examined an executed copy of the Credit Agreement.




          For the purposes of this opinion, we have also examined originals or copies, certified or
otherwise identified to our satisfaction, and relied upon the following documents (collectively,
the “Corporate Documents”):





	 	(a)	 	the articles of continuance of the Borrower;
	 
	 	(b)	 	the by-laws of the Borrower;
	 
	 	(c)	 	certain resolutions of the Borrower’s directors;





 









 






	 	(d)	 	a certificate of compliance provided by governmental authorities of Canada
with respect to the Borrower (the “Certificate of Compliance”); and
	 
	 	(e)	 	a certificate of an officer of the Borrower (the “Officer’s Certificate”).





          Duplicate copies of the Officer’s Certificate are delivered contemporaneously with this
opinion. Copies of the other Corporate Documents, other than the Certificate of Compliance, are
annexed to the Officer’s Certificate. We have relied upon the Corporate Documents without
independent investigation of the matters provided for in them for the purpose of providing our
opinions expressed below. We have not conducted a review of the minute books of the Borrower.




          In examining all documents and in providing our opinions below we have assumed that:





	 	(a)	 	all individuals had the requisite legal capacity;
	 
	 	(b)	 	all signatures are genuine;
	 
	 	(c)	 	all documents submitted to us as originals are complete and authentic and
all photostatic, certified, telecopied, notarial or other copies conform to the
originals;
	 
	 	(d)	 	all facts set forth in the official public records, certificates and
documents supplied by public officials or otherwise conveyed to us by public
officials are complete, true and accurate;
	 
	 	(e)	 	the articles of continuance are conclusive evidence that the Borrower is
incorporated under the Canada Business Corporations Act;
	 
	 	(f)	 	all facts set forth in the certificates supplied by the respective officers
and directors of the Borrower including, without limitation, the Officer’s
Certificate are complete, true and accurate;
	 
	 	(g)	 	the Credit Agreement has been duly authorized, executed and delivered by
and is enforceable in accordance with its terms against each party to it other than
the Borrower; and
	 
	 	(h)	 	performance of the obligations would not be illegal under the law of the
place of performance if that is a place other than Ontario.





          Our opinion below is expressed only with respect to the laws of the province of Ontario (the
“Jurisdiction”) and of the laws of Canada applicable in




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the Jurisdiction. Any reference to the laws of the Jurisdiction includes the laws of Canada
that apply in the Jurisdiction.




          Our opinion is expressed with respect to the laws of the Jurisdiction in effect on the date of
this opinion and we do not accept any responsibility to take into account or inform the addressees,
or any other person authorized to rely on this opinion, of any changes in law, facts or other
developments subsequent to this date that do or may affect the opinions we express, nor do we have
any obligation to advise you of any other change in any matter addressed in this opinion or to
consider whether it would be appropriate for any other person other than the addressees to rely on
our opinion.




          Based on the above, and subject to the qualifications below, we are of the opinion that:





	1.	 	The Borrower (a) is a corporation incorporated and existing under the laws of Canada, and (b)
has the corporate power to enter into and perform its obligations under the Credit Agreement.
	 
	2.	 	The execution and delivery of and performance by the Borrower of the Credit Agreement have
been authorized by all necessary corporate action on the part of the Borrower.
	 
	3.	 	The execution and delivery of and performance by the Borrower of the Credit Agreement does
not constitute or result in a violation or breach of or a default under:






	 	(a)	 	its articles of continuance or by-laws; or
	 
	 	(b)	 	any applicable law in the Jurisdiction.






	4.	 	No authorization, consent or approval of, or filing, registration, qualification or recording
with any Governmental Authority (as defined in the Credit Agreement) having jurisdiction in
the Jurisdiction is required in connection with the execution and delivery of or performance
by the Borrower of the Credit Agreement, except any continuous disclosure filings required to
be made by a reporting issuer pursuant to applicable securities laws.
	 
	5.	 	The Credit Agreement has been duly executed and delivered by the Borrower.
	 
	6.	 	The Credit Agreement constitutes a legal, valid and binding agreement of the Borrower
enforceable against it in accordance with its terms.





          All of the opinions expressed above are subject to the following qualifications:




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	 	(a)	 	the enforceability of the Credit Agreement may be limited by bankruptcy,
winding-up, insolvency, arrangement, fraudulent preference and conveyance, assignment
and preference and other similar laws of general application affecting the
enforcement of creditors’ rights;
	 
	 	(b)	 	a court may exercise discretion in the granting of equitable remedies such
as specific performance and injunction;
	 
	 	(c)	 	the enforceability of the Credit Agreement may be limited by general
principles of law and equity relating to the conduct of the Agent and/or the Lenders
prior to execution of or in the administration or performance of the Credit
Agreement, including, without limitation, (i) estoppel and waiver, (ii) laches, and
(iii) reasonableness and good faith in the exercise of discretionary powers;
	 
	 	(d)	 	the discretion that a court may reserve to itself to decline to hear an
action if it is not the proper forum to hear the action or if concurrent proceedings
are being brought elsewhere;
	 
	 	(e)	 	the Currency Act (Canada) precludes a court in Canada from giving judgment
in any currency other than Canadian currency;
	 
	 	(f)	 	the Agent on behalf of the Lenders may be required to give the Borrower a
reasonable time to repay following a demand for payment prior to taking any action to
enforce right of repayment or before exercising any of the rights and remedies
expressed to be exercisable by the Agent and/or the Lenders in the Credit Agreement;
and
	 
	 	(g)	 	the provisions for the payment of interest in the Credit Agreement may not
be enforceable if those provisions provide for the receipt of interest by the Agent
and/or the Lenders at a “criminal rate” within the meaning of section 347 of the
Criminal Code (Canada).





          This opinion is solely for the benefit of the addressees and not for the benefit of any other
person except that it may be relied on by a person who becomes a Lender from time to time under the
Credit Agreement. It is rendered solely in connection with the transaction to which it relates.
It may not be quoted, in whole or in part or otherwise referred to or used for any purpose without
our prior written consent.




Yours truly,




/s/ Stikeman Elliott LLP





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SCHEDULE I

SUBSIDIARIES




	 	 	 
	 	 	Jurisdiction of
	 	 	Incorporation or
	Name of Entity	 	Formation
	 
	 	 
	101070338 Saskatchewan Ltd.

	 	Saskatchewan
	175360 Canada Inc.

	 	Canada
	4420 Investment LLC

	 	Delaware
	609430 Saskatchewan Ltd.

	 	Saskatchewan
	628550 Saskatchewan Ltd.

	 	Saskatchewan
	AA Sulfuric Corporation

	 	Louisiana
	Canpotex Bulk Terminals Limited

	 	Canada
	Chilkap Resources Ltd.

	 	Yukon
	Inversiones El Boldo Limitada

	 	Chile
	Inversiones El Coigüe S.A.

	 	Chile
	Inversiones El Roble Limitada

	 	Chile
	Inversiones El Sauce Limitada

	 	Chile
	Inversiones PCS Chile S.A.

	 	Chile
	Inversiones RAC Chile Limitada

	 	Chile
	Minera Saskatchewan Limitada

	 	Chile
	PCS Administration (USA), Inc.

	 	Delaware
	PCS (Barbados) Holdings SRL

	 	Barbados
	PCS (Barbados) Investment Company Ltd.

	 	Barbados
	PCS (Barbados) Shipping, Ltd.

	 	Barbados
	PCS Cassidy Lake Company

	 	Ontario
	PCS Cassidy Lake Limited

	 	Canada
	PCS Chesapeake LLC

	 	Delaware
	PCS Chile I LLC

	 	Delaware
	PCS Chile II LLC

	 	Delaware
	PCS Fosfatos do Brasil Ltda.

	 	Brazil
	PCS Hungary Holding Limited Liability Company

	 	Hungary
	PCS Industrial Products Inc.

	 	Delaware
	PCS Joint Venture, Ltd.

	 	Florida
	PCS Jordan LLC

	 	Delaware
	PCS L.P. Inc.

	 	Delaware
	PCS LP LLC 2

	 	Delaware
	PCS Nitrogen Ammonia Terminal Corporation I

	 	Texas
	PCS Nitrogen Ammonia Terminal Corporation II

	 	Delaware
	PCS Nitrogen Delaware LLC

	 	Delaware
	PCS Nitrogen Fertilizer, L.P.

	 	Delaware
	PCS Nitrogen Fertilizer Limited

	 	Trinidad
	PCS Nitrogen Fertilizer Operations, Inc.

	 	Delaware
	PCS Nitrogen, Inc.

	 	Delaware
	PCS Nitrogen LCD Corporation

	 	Delaware
	PCS Nitrogen Limited

	 	Trinidad
	PCS Nitrogen Ohio, L.P.

	 	Delaware
	PCS Nitrogen Trinidad Corporation

	 	Delaware
	PCS Nitrogen Trinidad Limited

	 	Trinidad
	PCS Phosphate Company, Inc.

	 	Delaware
	PCS Purified Phosphates

	 	Virginia
	PCS Sales (Canada) Inc.

	 	Saskatchewan
	PCS Sales (Indiana), Inc.

	 	Indiana
	PCS Sales (Iowa), Inc.

	 	Iowa
	PCS Sales (USA), Inc.

	 	Delaware
	PCS USA LLC

	 	Delaware
	Pérola S.A.

	 	Brazil
	Phosphate Holding Company, Inc.

	 	Delaware
	Potash Corporation of Saskatchewan (Florida) Inc.

	 	Florida
	Potash Corporation of Saskatchewan Transport Limited

	 	Saskatchewan
	PotashCorp Agricultural Cooperative Society Ltd.

	 	Israel
	PotashCorp Finance (Barbados) Limited

	 	Barbados
	Potash Holding Company, Inc.

	 	Delaware
	RAC Investments Ltd.

	 	Cayman
	TG Corporation

	 	Delaware
	White Springs Agricultural Chemicals, Inc.

	 	Delaware






 









 






SCHEDULE J

PARTNERSHIPS, JOINT VENTURES AND SYNDICATES




See Schedule I