Exhibit 10.4


 


EXECUTION COPY


 


CREDIT AGREEMENT


 


Dated as of March 5,
2010

among




NISKA GAS STORAGE US, LLC,

as US Borrower,




AECO GAS STORAGE
PARTNERSHIP,

as Canadian Borrower,




NISKA GS HOLDINGS I, L.P.,

as US Holdings,




NISKA GS HOLDINGS II, L.P.,

as Canada Holdings




ROYAL BANK OF CANADA,

as Administrative Agent and Collateral Agent




and




The Other Lenders Party
Hereto


 


and


 


MORGAN
STANLEY BANK, N.A., UBS SECURITIES LLC, GOLDMAN SACHS LENDING


PARTNERS LLC, CREDIT SUISSE and
RBC CAPITAL MARKETS,


as
Co-Arrangers and Joint Book Managers


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I. DEFINITIONS AND
  ACCOUNTING TERMS

  	
   

  	
  1

  
	
  1.01

  	
  Defined Terms

  	
   

  	
  1

  
	
  1.02

  	
  Other Interpretive Provisions

  	
   

  	
  50

  
	
  1.03

  	
  Accounting Terms

  	
   

  	
  51

  
	
  1.04

  	
  Rounding

  	
   

  	
  51

  
	
  1.05

  	
  Times of Day

  	
   

  	
  51

  
	
  1.06

  	
  Letter of Credit Amounts

  	
   

  	
  51

  
	
  1.07

  	
  Dollar Equivalents; Spot Rates

  	
   

  	
  51

  
	
  1.08

  	
  Designation of Project Subsidiaries

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II. THE COMMITMENTS AND
  CREDIT EXTENSIONS

  	
   

  	
  52

  
	
  2.01

  	
  Loans

  	
   

  	
  52

  
	
  2.02

  	
  Borrowings, Conversions, Continuations of Loans

  	
   

  	
  53

  
	
  2.03

  	
  Letters of Credit

  	
   

  	
  55

  
	
  2.04

  	
  Swing Line Loans

  	
   

  	
  63

  
	
  2.05

  	
  Prepayments

  	
   

  	
  66

  
	
  2.06

  	
  Termination or Reduction of Commitments

  	
   

  	
  68

  
	
  2.07

  	
  Repayment of Loans

  	
   

  	
  69

  
	
  2.08

  	
  Interest

  	
   

  	
  70

  
	
  2.09

  	
  Fees

  	
   

  	
  70

  
	
  2.10

  	
  Computation of Interest and Fees

  	
   

  	
  72

  
	
  2.11

  	
  Evidence of Debt

  	
   

  	
  72

  
	
  2.12

  	
  Payments Generally; Administrative Agent’s Clawback

  	
   

  	
  73

  
	
  2.13

  	
  Sharing of Payments by Lenders

  	
   

  	
  75

  
	
  2.14

  	
  Borrowing Base Reporting

  	
   

  	
  76

  
	
  2.15

  	
  Incremental Facilities

  	
   

  	
  77

  
	
  2.16

  	
  Creation of Bankers’ Acceptances

  	
   

  	
  78

  
	
  2.17

  	
  Terms of Acceptance by Canadian Revolver Lenders

  	
   

  	
  79

  
	
  2.18

  	
  General Procedures for Bankers’ Acceptances

  	
   

  	
  81

  
	
  2.19

  	
  Execution of Bankers’ Acceptances

  	
   

  	
  81

  
	
  2.20

  	
  Prepayment of Bankers’ Acceptances

  	
   

  	
  82

  
	
  2.21

  	
  Currency Fluctuation

  	
   

  	
  82

  
	
  2.22

  	
  Canadian Revolver Adjustments

  	
   

  	
  82

  
	
  2.23

  	
  US Revolver Adjustments

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III. TAXES, YIELD
  PROTECTION AND ILLEGALITY

  	
   

  	
  84

  
	
  3.01

  	
  Taxes

  	
   

  	
  84

  
	
  3.02

  	
  Illegality

  	
   

  	
  86

  
	
  3.03

  	
  Inability to Determine Rates

  	
   

  	
  86

  
	
  3.04

  	
  Increased Costs; Reserves on Eurodollar Rate Loans

  	
   

  	
  86

  
	
  3.05

  	
  Compensation for Losses

  	
   

  	
  88

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  88

  
	
  3.07

  	
  Survival

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV. CONDITIONS PRECEDENT
  TO THIS AGREEMENT AND CREDIT EXTENSIONS

  	
   

  	
  89

  
	
  4.01

  	
  Conditions of Agreement

  	
   

  	
  89

  
	
  4.02

  	
  Conditions to all Credit Extensions

  	
   

  	
  92

  



 


i

















 


	
  ARTICLE V. REPRESENTATIONS AND
  WARRANTIES

  	
  93

  
	
  5.01

  	
  Existence, Qualification and Power

  	
  93

  
	
  5.02

  	
  Authorization; No Contravention

  	
  93

  
	
  5.03

  	
  Governmental Authorization; Other Consents

  	
  93

  
	
  5.04

  	
  Binding Effect

  	
  94

  
	
  5.05

  	
  Financial Statements; No Material Adverse Effect

  	
  94

  
	
  5.06

  	
  Litigation

  	
  95

  
	
  5.07

  	
  No Default

  	
  95

  
	
  5.08

  	
  Ownership of Property; Liens

  	
  95

  
	
  5.09

  	
  Environmental Compliance

  	
  96

  
	
  5.10

  	
  Insurance

  	
  96

  
	
  5.11

  	
  Taxes

  	
  96

  
	
  5.12

  	
  ERISA and Pension Plan Compliance

  	
  96

  
	
  5.13

  	
  Subsidiaries; Equity Interests

  	
  97

  
	
  5.14

  	
  Margin Regulations; Investment Company Act; Permits and
  Authorizations

  	
  97

  
	
  5.15

  	
  Disclosure

  	
  98

  
	
  5.16

  	
  Compliance with Laws

  	
  98

  
	
  5.17

  	
  Intellectual Property; Licenses, Etc.

  	
  98

  
	
  5.18

  	
  Labor Disputes

  	
  98

  
	
  5.19

  	
  Solvency

  	
  98

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. AFFIRMATIVE COVENANTS

  	
  99

  
	
  6.01

  	
  Financial Statements

  	
  99

  
	
  6.02

  	
  Certificates; Other Information

  	
  101

  
	
  6.03

  	
  Notices

  	
  103

  
	
  6.04

  	
  Payment of Taxes

  	
  103

  
	
  6.05

  	
  Preservation of Existence, Etc.

  	
  103

  
	
  6.06

  	
  Maintenance of Properties

  	
  104

  
	
  6.07

  	
  Maintenance of Insurance

  	
  104

  
	
  6.08

  	
  Compliance with Laws

  	
  104

  
	
  6.09

  	
  Books and Records

  	
  104

  
	
  6.10

  	
  Inspection Rights; Commercial Finance Examinations

  	
  104

  
	
  6.11

  	
  Use of Proceeds

  	
  105

  
	
  6.12

  	
  Additional Guarantors and Grantors

  	
  105

  
	
  6.13

  	
  Further Assurances

  	
  106

  
	
  6.14

  	
  Environmental Matters; Environmental Reviews

  	
  106

  
	
  6.15

  	
  Deposit Accounts, Securities Accounts and Commodities
  Accounts

  	
  107

  
	
  6.16

  	
  Risk Management Review

  	
  108

  
	
  6.17

  	
  Post Closing Deliveries

  	
  108

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. NEGATIVE COVENANTS

  	
  109

  
	
  7.01

  	
  Liens

  	
  109

  
	
  7.02

  	
  Investments

  	
  112

  
	
  7.03

  	
  Indebtedness

  	
  113

  
	
  7.04

  	
  Swap Contracts

  	
  115

  
	
  7.05

  	
  Fundamental Changes

  	
  115

  
	
  7.06

  	
  Dispositions

  	
  116

  
	
  7.07

  	
  Restricted Payments

  	
  117

  
	
  7.08

  	
  Change in Nature of Business

  	
  118

  
	
  7.09

  	
  Transactions with Affiliates

  	
  118

  
	
  7.10

  	
  Burdensome Agreements

  	
  119

  
	
  7.11

  	
  Prepayments, Etc. of Subordinated Debt

  	
  119

  



 


ii

















 


	
  7.12

  	
  Risk Management Compliance

  	
  120

  
	
  7.13

  	
  Use of Proceeds

  	
  120

  
	
  7.14

  	
  Fiscal Years and Fiscal Quarters of Holdings

  	
  120

  
	
  7.15

  	
  Subordinated Debt

  	
  120

  
	
  7.16

  	
  Fixed Charge Coverage Ratio

  	
  120

  
	
  7.17

  	
  Canadian Pension Plans

  	
  120

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. EVENTS OF DEFAULT
  AND REMEDIES

  	
  120

  
	
  8.01

  	
  Events of Default

  	
  120

  
	
  8.02

  	
  Remedies Upon Event of Default

  	
  122

  
	
  8.03

  	
  Application of Funds

  	
  123

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. AGENTS

  	
  123

  
	
  9.01

  	
  Appointment and Authority

  	
  123

  
	
  9.02

  	
  Rights as a Lender

  	
  123

  
	
  9.03

  	
  Exculpatory Provisions

  	
  124

  
	
  9.04

  	
  Reliance by Agents

  	
  124

  
	
  9.05

  	
  Delegation of Duties

  	
  125

  
	
  9.06

  	
  Resignation of Agents

  	
  125

  
	
  9.07

  	
  Non-Reliance on Agents and Other Lenders

  	
  126

  
	
  9.08

  	
  No Other Duties, Etc.

  	
  126

  
	
  9.09

  	
  Administrative Agent May File Proofs of Claim

  	
  126

  
	
  9.10

  	
  Collateral and Guaranty Matters

  	
  127

  
	
  9.11

  	
  Enforcement Actions and Application of Proceeds

  	
  127

  
	
  9.12

  	
  Field Audit and Examination Reports; Disclaimer by Lenders

  	
  128

  
	
  9.13

  	
  Post Closing Field Audit

  	
  129

  
	
   

  	
   

  	
   

  
	
  ARTICLE X. MISCELLANEOUS

  	
  129

  
	
  10.01

  	
  Amendments, Etc.

  	
  129

  
	
  10.02

  	
  Notices; Effectiveness; Electronic Communication

  	
  131

  
	
  10.03

  	
  No Waiver; Cumulative Remedies

  	
  133

  
	
  10.04

  	
  Expenses; Indemnity; Waivers

  	
  133

  
	
  10.05

  	
  Payments Set Aside

  	
  135

  
	
  10.06

  	
  Successors and Assigns

  	
  135

  
	
  10.07

  	
  Right of Set-off

  	
  140

  
	
  10.08

  	
  Interest Rate Limitation

  	
  141

  
	
  10.09

  	
  Counterparts; Integration; Effectiveness

  	
  141

  
	
  10.10

  	
  Survival of Representations and Warranties

  	
  141

  
	
  10.11

  	
  Severability

  	
  141

  
	
  10.12

  	
  Replacement of Lenders

  	
  141

  
	
  10.13

  	
  Governing Law; Jurisdiction; Etc.

  	
  142

  
	
  10.14

  	
  No Advisory or Fiduciary Responsibility

  	
  143

  
	
  10.15

  	
  USA PATRIOT Act Notice

  	
  144

  



 


	
  ANNEXES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex
  A-1

  	
  US
  Commitments & Percentages

  	
   

  
	
  Annex
  A-2

  	
  Canadian
  Commitments & Percentages

  	
   

  



 


iii

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.01A-1

  	
  Account
  Debtors (Affiliates)

  	
   

  
	
  Schedule 1.01A-2

  	
  Account
  Debtors (Excess Receivables)

  	
   

  
	
  Schedule 2.14

  	
  Borrowing
  Base Procedures

  	
   

  
	
  Schedule 5.06

  	
  Litigation

  	
   

  
	
  Schedule 5.11

  	
  Audits/Examinations
  of Tax Returns

  	
   

  
	
  Schedule 5.13

  	
  Subsidiaries;
  Other Equity Investments; Information Regarding Loan Parties

  	
   

  
	
  Schedule 7.01

  	
  Existing
  Liens

  	
   

  
	
  Schedule 7.02

  	
  Existing
  Investments

  	
   

  
	
  Schedule 7.03

  	
  Existing
  Indebtedness

  	
   

  
	
  Schedule 7.10

  	
  Burdensome
  Agreements

  	
   

  
	
  Schedule 10.02

  	
  Administrative
  Agent’s Office; Certain Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Assignment and Assumption

  	
   

  
	
  Exhibit B-1

  	
  Form of
  US Revolver Note

  	
   

  
	
  Exhibit B-2

  	
  Form of
  Canadian Revolver Note

  	
   

  
	
  Exhibit B-6

  	
  Form of
  US Swing Line Note

  	
   

  
	
  Exhibit B-7

  	
  Form of
  Canadian Swing Line Note

  	
   

  
	
  Exhibit C-1

  	
  Form of
  US Guaranty

  	
   

  
	
  Exhibit C-2

  	
  Form of
  Canadian Guarantee

  	
   

  
	
  Exhibit D

  	
  Form of
  Compliance Certificate

  	
   

  
	
  Exhibit E-1

  	
  Form of
  Loan Notice

  	
   

  
	
  Exhibit E-2

  	
  Form of
  Swing Line Loan Notice

  	
   

  
	
  Exhibit F-1

  	
  Form of
  US Security Agreement

  	
   

  
	
  Exhibit F-2

  	
  Form of
  Canadian Security Agreement

  	
   

  
	
  Exhibit G-1

  	
  Form of
  Opinion of Latham & Watkins L.L.P.

  	
   

  
	
  Exhibit G-2

  	
  Form of
  Opinion of Bennett Jones LLP

  	
   

  
	
  Exhibit G-3

  	
  Form of
  Opinion of Blake, Cassels & Graydon LLP

  	
   

  
	
  Exhibit I

  	
  Form of
  Solvency Certificate of US Holdings / Canada Holdings

  	
   

  
	
  Exhibit K-1

  	
  Form of
  US Borrowing Base Report

  	
   

  
	
  Exhibit K-2

  	
  Form of Canadian
  Borrowing Base Report

  	
   

  



 


iv














 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT (“Agreement”) is entered into as of March 5, 2010,
among NISKA GAS STORAGE US, LLC, a Delaware limited liability company (the “US
Borrower”), AECO GAS STORAGE PARTNERSHIP, an Alberta general partnership
(the “Canadian Borrower” and, together with the US Borrower the “Borrowers”),
NISKA GS HOLDINGS I, L.P., a Delaware limited partnership (“US Holdings”),
NISKA GS HOLDINGS II, L.P., a Delaware limited partnership (“Canada Holdings”),
ROYAL BANK OF CANADA, as the Administrative Agent and Collateral Agent, US
Swing Line Lender and US L/C Issuer, Canadian Swing Line Lender and Canadian
L/C Issuer, each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), Morgan Stanley Senior Funding, Inc., Goldman
Sachs Lending Partners LLC, UBS Securities LLC and Credit Suisse AG, as co-documentation
agents (the “Co-Documentation Agents”).


 


The Borrowers have requested
that the Lenders provide a revolving credit facility to the US Borrower and a
revolving credit facility to the Canadian Borrower, and each Lender is willing
to provide the portion of each facility specified for such Lender herein on the
terms and conditions set forth herein.


 


In consideration of the
mutual covenants and agreements herein contained, the parties hereto covenant
and agree as follows:


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined
Terms.  As used in this Agreement, the
following terms shall have the meanings set forth below:


 


“Acceptable Issuer”
means (a) any national or state bank or trust company or credit union or financial service cooperative which is
organized under the laws of the United States or any state thereof or under the
laws of Canada or any province or territory thereof or (b) any branch
licensed to operate under the laws of the United States or any state thereof or
under the laws of Canada or any province or territory thereof, which is a
branch of a bank organized under any country which is a member of the
Organization for Economic Cooperation and Development, in each case which has
capital, surplus and undivided profits of at least $500,000,000 (or the
equivalent thereof in one or more other currencies) and whose commercial paper
is rated at least P-1 by Moody’s or A-1 by S&P.


 


“Account” has the
meaning given such term in the PPSA or the UCC, as applicable.


 


“Account Debtor”
means any Person who is or who may become obligated under, with respect to, or
on account of, an Account.  For purposes
of the determination of Eligible Receivables, Account Debtors that are
Affiliates of each other shall be treated as a single Account Debtor unless
otherwise consented to by the Administrative Agent in its Permitted Discretion.


 


“Additional Lender”
has the meaning specified in Section 2.15.


 


“Administrative Agent”
means Royal Bank of Canada, in its capacity as administrative agent under any
of the Loan Documents, or any permitted successor administrative agent.


 


“Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate, account
as set forth on Schedule 10.02, or such other address or account as the
Administrative Agent may from time to time notify to the Borrowers and the
Lenders.


 


1

















 


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


 


“Affiliate” means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.


 


“Agents” means the
Administrative Agent and the Collateral Agent.


 


“Aggregate Borrowing Base”
means, at any time, the sum of the US Borrowing Base and the Canadian Borrowing
Base.


 


“Aggregate Canadian
Revolver Commitments” means, at any time, the sum of the Canadian Revolver
Commitments of all Canadian Revolver Lenders at such time, as the same may be
increased or reduced from time to time in accordance with Sections 2.22 or 2.23
or reduced from time to time in accordance with Section 2.06; provided
that the Aggregate Canadian Revolver Commitments shall not at any time exceed
$300,000,000 plus any New Canadian Revolver Commitments.  The Aggregate Canadian Revolver Commitments
shall be $200,000,000 on the Closing Date.


 


“Aggregate Revolver
Commitments” means, at any time, the sum of (a) the Aggregate US
Revolver Commitments at such time plus (b) the Aggregate Canadian
Revolver Commitments at such time.


 


“Aggregate US Revolver
Commitments” means, at any time, the sum of the US Revolver Commitments of
all US Revolver Lenders at such time, as the same may be increased or reduced
from time to time in accordance with Sections 2.22 or 2.23 or reduced from time
to time in accordance with Section 2.06; provided that the Aggregate US
Revolver Commitments shall not at any time exceed $300,000,000 plus any New US
Revolver Commitments.  The Aggregate US
Revolver Commitments shall be $200,000,000 on the Closing Date.


 


“Agreement” means
this Credit Agreement, as amended, supplemented, restated, increased, extended
or otherwise modified from time to time.


 


“Applicable Canadian
Pension Legislation” means, at any time, any applicable Canadian federal or
provincial pension benefits standards legislation, including all regulations
made thereunder and all legally enforceable rules, regulations, rulings and
interpretations made or issued by any Governmental Authority in Canada having
or asserting jurisdiction in respect thereof, each as amended or replaced from
time to time.


 


“Applicable L/C Issuer”
means (a) with respect to a US Letter of Credit, the US L/C Issuer and (b) with
respect to a Canadian Letter of Credit, the Canadian L/C Issuer.


 


“Applicable Percentage”
means, with respect to any Lender at any time, such Lender’s US Revolver
Percentage or Canadian Revolver Percentage, as applicable, at such time.


 


“Applicable Rate”
means, for any day, with respect to Eurodollar Rate Loans, US Letter of Credit
Fees, Base Rate Loans, Canadian Prime Rate Loans, Canadian US Dollar Base Rate
Loans, Swing Line Loans, Bankers’ Acceptances or Canadian Letter of Credit
Fees, the applicable rate per annum set forth in the table below under the
caption “Eurodollar Rate Loans / US Letter of Credit Fees”, “Base Rate
Loans / Canadian Prime Rate Loans / Canadian US Dollar Base Rate
Loans / Swing Line Loans”, or “Bankers’ Acceptances Stamping Fee /
Canadian Letter of Credit Fees”, as the case may be, based upon the
Consolidated Leverage Ratio of Holdings as of the most recent date of
determination:


 


2

















 


	
  Pricing

  Level

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Eurodollar Rate

  Loans /

  US Letter of Credit

  Fees

  	
   

  	
  Base Rate Loans / Canadian

  Prime Rate Loans / Canadian

  US Dollar Base Rate Loans /

  Swing Line Loans

  	
   

  	
  Bankers’

  Acceptances

  Stamping

  Fee/Canadian

  Letter of Credit

  Fees

  
	
  1

  	
   

  	
  Greater than or
  equal to 4.5 to 1.0

  	
   

  	
  3.75%

  	
   

  	
  2.75%

  	
   

  	
  3.75%

  
	
  2

  	
   

  	
  Less than 4.5 to
  1.0 but greater than or equal to 3.5 to 1.0

  	
   

  	
  3.5%

  	
   

  	
  2.5%

  	
   

  	
  3.5%

  
	
  3

  	
   

  	
  Less than 3.5 to
  1

  	
   

  	
  3.25%

  	
   

  	
  2.25%

  	
   

  	
  3.25%

  



 


For purposes of the
foregoing, (i) the Consolidated Leverage Ratio shall be determined as of
the end of each Fiscal Quarter and set forth in the Compliance Certificate
delivered to the Administrative Agent pursuant to Section 6.02(b) and
(ii) any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall become effective as of the
first Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(b); provided that (A) if a
Compliance Certificate is not delivered when due in accordance with Section 6.02(b),
then Pricing Level 1 shall apply as of the first Business Day after the date on
which such Compliance Certificate was required to have been delivered until
such time as such Compliance Certificate is delivered, whereupon the Applicable
Rate shall be determined as if such Compliance Certificate had been timely
delivered, and is to be effective as of the first Business Day immediately
following the date such Compliance Certificate was delivered and (B) prior
to the initial delivery of a Compliance Certificate pursuant to Section 6.02(b),
the Applicable Rate shall be determined by reference to Pricing Level 2.


 


“Applicable Swing Line
Lender” means (a) with respect to a US Swing Line Loan, the US Swing
Line Lender and (b) with respect to a Canadian Swing Line Loan, the
Canadian Swing Line Lender.


 


“Approved Account”
has the meaning set forth in Section 6.15(a).


 


“Approved Eligible
Receivables” means each Eligible Receivable that is (a) from a Person
whose Debt Rating is either at least Baa3 by Moody’s or at least BBB- by
S&P, (b) fully and unconditionally guaranteed as to payment by a
Person whose Debt Rating is either at least Baa3 by Moody’s or at least BBB- by
S&P, (c) from any Person Currently Approved by the Administrative
Agent, or (d) fully covered by a letter of credit or cash collateral from
an Acceptable Issuer; provided that for purposes of this clause (d), such
Eligible Receivable shall not constitute an Approved Eligible Receivable to the
extent such cash collateral constitutes Eligible Cash Equivalents under the
applicable Borrowing Base.


 


“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.


 


“Arrangers” means
Morgan Stanley Bank, N.A., UBS Securities LLC, Goldman Sachs Lending Partners LLC, Credit Suisse
and RBC Capital Markets, in their capacities as joint lead arrangers and
jointbook managers.


 


3

















 


“Assignee Group”
means two or more Eligible Assignees that are Affiliates of one another or two
or more Approved Funds managed by the same investment advisor.


 


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and
an Eligible Assignee (with the consent of any party whose consent is required
by Section 10.06(b)), and accepted by the Administrative Agent, in
substantially the form of Exhibit A or any other form approved by the
Administrative Agent.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any Capital Lease
of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a Capital Lease.


 


“Available Amount”
means as at any date, the sum of, without duplication:  (a) prior to any Qualified MLP IPO, 50%
of the Consolidated Net Income of Holdings for the period (taken as one
accounting period) from the beginning of the fiscal quarter commencing January 1,
2010 to the end of the most recently ended Fiscal Quarter of Holdings for which
internal financial statements are available at the time of such determination, plus;
(b) 100% of the aggregate net cash proceeds or the fair market value of
property, assets or marketable securities received by Holdings (including the
fair market value of any Permitted Business or long-term assets that are used
or useful in a Permitted Business to the extent acquired in consideration of
Equity Interests of Holdings or any Subsidiary) since the date hereof as a
contribution to its common equity capital, in each case, that has not been
previously applied pursuant to Section 7.02(f), 7.02(k), 7.02(s), 7.07(i) or
7.11(e).


 


“BA Discount Rate”
means, in respect of a BA being accepted by a Canadian Revolver Lender on any
date, (a) for a Canadian Revolver Lender that is listed in Schedule I
to the Bank Act (Canada) at such time, the average bankers’ acceptance discount
rate as quoted on Reuters CDOR page (or such other page as may, from
time to time, replace such page on that service for the purpose of
displaying quotations for bankers’ acceptances accepted by leading Canadian
financial institutions) at approximately 10:00 a.m. (Toronto, Ontario
time) on such drawdown date for bankers’ acceptances having a comparable
maturity date as the maturity date of such BA (the “CDOR Rate”); or, if
such rate is not available at or about such time, the average of the bankers’
acceptance rates (expressed to five decimal places) as quoted to the
Administrative Agent by the Schedule I BA Reference Banks as of 10:00 a.m.
(Toronto, Ontario time) on such drawdown date for bankers’ acceptances having a
comparable maturity date as the maturity date of such BA; (b) for a Canadian
Revolver Lender that is listed in Schedule II to the Bank Act (Canada) or
a Canadian Revolver Lender that is listed in Schedule III to the Bank Act
(Canada) that is not subject to the restrictions and requirements referred to
in subsection 524 (2) of the Bank Act (Canada), the rate established
by the Administrative Agent to be the lesser of (i) the CDOR Rate plus
0.10% per annum and (ii) the average of the bankers’ acceptance rates
(expressed to five decimal places) as quoted to the Administrative Agent by the
Schedule II BA Reference Banks and the Schedule III BA Reference
Banks as of 10:00 a.m. (Toronto, Ontario time) on such drawdown date for
bankers’ acceptances having a comparable maturity date as the maturity date of
such BA; and (c) for other Canadian Revolver Lenders, the CDOR Rate plus
0.10% per annum.


 


“BA Equivalent Advance”
means a loan provided hereunder by a Canadian Revolver Lender in lieu of
accepting a BA pursuant to Section 2.17(f).


 


“Bank of Canada Rate”
means the “Noon Day Rate” as set by the Bank of Canada, as quoted on Reuters Page BOFC.


 


4

















 


“Bankers’ Acceptance”
or “BA” means a draft in a Canadian Revolver Lender’s usual form,
including a depository bill within the meaning of the Depository
Bills and Notes Act (Canada) made originally payable to and
deposited with the Canadian Depository for Securities Limited, denominated in
Canadian Dollars, drawn by or on behalf of the Canadian Borrower, for a term
selected by the Canadian Borrower of either 30, 60, 90 or 180 days or, as
agreed to by the relevant Canadian Revolver Lenders,  14-29 days (in each case, as reduced or
extended by the Administrative Agent, acting reasonably, to allow the maturity
thereof to fall on a Business Day), or such other term as agreed to by the
Canadian Revolver Lenders, payable in Canada, and accepted by a Canadian
Revolver Lender in accordance with this Agreement.


 


“Base Rate” means for
any day a fluctuating rate per annum equal to the highest of:  (a) 3.0% per annum; (b) the higher
of:  (i) the rate of interest in
effect for such day as publicly announced from time to time by Royal Bank of
Canada as its “prime rate” and (ii) 1⁄2 of 1% per annum above the Federal
Funds Rate; and (c) the Eurodollar Rate for an Interest Period of one
month in effect on such day plus 1%.


 


“Base Rate Loan”
means a Loan or portion of a Loan that bears interest based on the Base Rate.


 


“Bcf” means billion
cubic feet.


 


“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial ownership of
any particular “person” (as that term is used in Section 13(d)(3) of
the Exchange Act), such “person” will be deemed to have beneficial ownership of
all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time (other than any right conditioned
upon the occurrence of events or circumstances outside such person’s
control).  The terms “Beneficially Owns”
and “Beneficially Owned” have a corresponding meaning.


 


“Borrower” means the
US Borrower or the Canadian Borrower, and “Borrowers” means,
collectively, the US Borrower and the Canadian Borrower.


 


“Borrower Materials”
has the meaning specified in Section 6.02.


 


“Borrowing” means a
US Revolver Borrowing, a US Swing Line Borrowing, a Canadian Revolver Borrowing
or a Canadian Swing Line Borrowing, as the context may require.


 


“Borrowing Base”
means the US Borrowing Base or the Canadian Borrowing Base, as applicable.


 


“Borrowing Base Parties”
means the US Borrowing Base Parties and the Canadian Borrowing Base Parties.


 


“Borrowing Base Reports”
means the US Borrowing Base Reports and the Canadian Borrowing Base Reports.


 


“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks
are authorized to close under the Laws of, or are in fact closed in, the
jurisdiction where the Administrative Agent’s Office is located; provided
that (i) when used in connection with a Eurodollar Rate Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in
deposits in the applicable currency in the London interbank eurodollar market
and (ii) when used in connection with any Loan to the Canadian Borrower,
any Canadian Letter of Credit or any payment made in connection therewith, the
term “Business Day” shall also exclude any day on which commercial banks



 


5

















 


are authorized to close
under the Laws of, or are in fact closed in, the Provinces of Ontario, Alberta,
Quebec or New York, New York.


 


“Calculation Date”
has the meaning specified in the definition of “Fixed Charge Coverage Ratio”.


 


“Canada Holdings” has
the meaning specified in the introductory paragraph hereto.


 


“Canada Holdings GP”
means Carlyle/Riverstone Energy Partners III, L.P., a Delaware limited
partnership.


 


“Canada Issuer” means
Niska Gas Storage Canada ULC, an Alberta unlimited liability company, or any
successor.


 


“Canada Subordinated
Indebtedness” means (a) Indebtedness of Niska Gas Storage Canada, LP
owing to Canada Holdings in an aggregate principal amount as of the Closing
Date equal to approximately $562,000,000(which Indebtedness represents a loan
made by Canada Holdings to Niska Gas Storage Canada, LP) and (b) Indebtedness
of the Canada Issuer owing to Niska Gas Storage Canada, LP in an aggregate
principal amount as of the Closing Date equal to approximately $508,000,000
(which Indebtedness represents a loan made by Niska Gas Storage Canada, LP to
the Canada Issuer.


 


“Canada Subordinated
Notes” means the promissory notes evidencing the Canada Subordinated
Indebtedness, in form and substance reasonably acceptable to the Administrative
Agent.


 


“Canadian Audited
Financial Statements” means for the period from the Closing Date through
the date until audited financial statements are first delivered pursuant to Section 6.01(a)(iii),
a consolidated balance sheet of Canada Holdings and its Subsidiaries for the
Fiscal Year ended March 31, 2009, and the related consolidated statements
of income or operations, partners’ capital and cash flows for such Fiscal Year.


 


“Canadian Borrower”
has the meaning specified in the introductory paragraph hereto.


 


“Canadian Borrowing Base”
means, at any time, the sum of the following:


 


(a)           100% of the Canadian
Borrowing Base Parties’ Eligible Cash Equivalents at such time; plus


 


(b)           90% of the Canadian
Borrowing Base Parties’ Approved Eligible Receivables at such time; plus


 


(c)           85% of the Canadian
Borrowing Base Parties’ Other Eligible Receivables at such time; plus


 


(d)           85% of the Net Liquidating
Value of Hedge Positions in Brokers Accounts of the Canadian Borrowing Base
Parties at such time; plus


 


(e)           90% of the value of the
Canadian Borrowing Base Parties’ Hedged Eligible Inventory at such time; plus


 


(f)            60% of the Other Eligible
Inventory Value of the Canadian Borrowing Base Parties at such time; plus


 


(g)           80% of the Issued but Unused
Letter of Credit Value in respect of Letters of Credit issued for the account
of or on behalf of the Canadian Borrowing Base Parties at such time (provided
that such amount shall be increased by the lesser of (i) 20% of any Issued
but Unused Letter of Credit Value of Letters of 


 


6

















 


Credit issued for the
benefit of Natural Gas Exchange Inc. or any of its Affiliates and (ii) $5,000,000);
plus


 


(h)           100% of the portion of the
Fixed Asset Amount not included in the US Borrowing Base designated by the
Canadian Borrower in the most recent Canadian Borrowing Base Report to be
allocated to the Canadian Borrowing Base; minus


 


(i)            100% of the Canadian
Borrowing Base Parties’ Other Priority Claims at such time.


 


“Canadian Borrowing Base
Parties” means the Canadian Borrower and each other Canadian Loan Party
that is party to a Security Agreement as a “Grantor” or “Debtor” thereunder.


 


“Canadian Borrowing Base
Report” has the meaning specified in Section 6.02(f)(ii).


 


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


 


“Canadian Guarantee”
means a Guarantee made by the Canadian Loan Parties that are organized under
the laws of Canada or any province or territory thereof in favor of the Secured
Parties, substantially in the form of Exhibit C-2.


 


“Canadian L/C Borrowing”
means an extension of credit resulting from a drawing under any Canadian Letter
of Credit which has not been reimbursed on the date when made or refinanced as
a Canadian Revolver Borrowing.


 


“Canadian L/C Issuer”
means Royal Bank of Canada, in its capacity as the issuer of Canadian Letters
of Credit hereunder, and its successors and permitted assigns in such
capacity.  The Administrative Agent may,
with the consent of the Canadian Borrower and the Canadian Revolver Lender in
question, or the Canadian Borrower may, with the consent of Canadian Revolver
Lender in question and notice to the Administrative Agent, appoint any Canadian
Revolver Lender as a Canadian L/C Issuer in place of or in addition to Royal
Bank of Canada.  A Canadian L/C Issuer
may, in its discretion, arrange for one or more Canadian Letters of Credit to
be issued by Affiliates of such Canadian L/C Issuer, in which case the term “Canadian
L/C Issuer” shall include any such Affiliate with respect to Canadian Letters
of Credit issued by such Affiliate.  The
commitment of each Canadian L/C Issuer shall be as set forth on Schedule A-2,
as amended from time to time.


 


“Canadian L/C Obligations”
means L/C Obligations in respect of Canadian Letters of Credit.


 


“Canadian Letter of
Credit” means any letter of credit issued by the Canadian L/C Issuer
hereunder upon the application of the Canadian Borrower.  A Canadian Letter of Credit may be a
commercial letter of credit or a standby letter of credit.


 


“Canadian Letter of
Credit Fee” has the meaning set forth in Section 2.09(a).


 


“Canadian Loan Parties”
means (a) prior to any Qualified MLP IPO, each Subsidiary of Canada
Holdings (including, Canada Holdings, Niska Gas Storage Canada GP, LLC, Niska
Gas Storage Canada, LP, Niska Gas Storage Canada ULC, Niska GP Alberta ULC and
the Canadian Borrower) that is or is required to be a party to any Loan
Document and (b) after any Qualified MLP IPO, each Subsidiary of MLP
(including, Canada Holdings, Niska Gas Storage Canada GP, LLC, Niska Gas
Storage Canada, LP, Niska Gas Storage Canada ULC, Niska GP Alberta ULC and the
Canadian Borrower), that is or is required to be a party to any Loan Document.


 


7

















 


“Canadian Pension Plan”
means any plan, program, agreement or arrangement that is a pension plan for
the purposes of Applicable Canadian Pension Legislation which is maintained or
contributed to, or to which there is or may be an obligation to contribute, by
any Canadian Loan Party in respect of their respective employees in Canada, but
excluding, for greater certainty, the Canada and Quebec Pension Plans.


 


“Canadian Prime Rate”
means, on any day, a fluctuating annual rate of interest expressed on the basis
of a year of 365 or 366 days equal on that day to the highest of (a) 3.00%
per annum; and (b) the higher of (i) the rate of interest per annum
most recently announced by the Administrative Agent as its reference rate for
Canadian Dollar commercial demand loans made to a Person in Canada; and (ii) the
Administrative Agent’s BA Discount Rate for Bankers’ Acceptances having a
maturity of one month plus one percent per annum.  The Canadian Prime Rate is not necessarily
the lowest rate that the Administrative Agent is charging to its corporate
customers.


 


“Canadian Prime Rate Loan”
means a Canadian Revolver Loan or portion of a Canadian Revolver Loan that
bears interest based on the Canadian Prime Rate.


 


“Canadian Revolver
Adjustment” has the meaning set forth in Section 2.22(a).


 


“Canadian Revolver
Adjustment Date” has the meaning set forth in Section 2.22(a).


 


“Canadian Revolver
Advance” has the meaning set forth in Section 2.01(b).


 


“Canadian Revolver
Availability Period” means the period from and including the Closing Date
to the earliest of (a) the Revolver Maturity Date, (b) the date of
termination of all Canadian Revolver Commitments pursuant to Section 2.06
and (c) the date of termination of the commitment of each Canadian
Revolver Lender to make Canadian Revolver Loans pursuant to Section 8.02.


 


“Canadian Revolver
Borrowing” means (a) a borrowing or continuation or conversion of
loans consisting of simultaneous Canadian Revolver Loans made by the Canadian
Revolver Lenders pursuant to Section 2.01(b) and (b) the
acceptance or purchase by the Canadian Revolver Lenders of Bankers’ Acceptances
issued by the Canadian Borrower pursuant to Section 2.16, including
pursuant to a rollover of Bankers’ Acceptances.


 


“Canadian Revolver
Commitment” means, as to each Canadian Revolver Lender, its obligation to (a) make
Canadian Revolver Advances to the Canadian Borrower pursuant to Section 2.01(b),
(b) acquire participations in Canadian Letters of Credit and (c) acquire
participations in Canadian Swing Line Loans, in an aggregate principal amount
at any one time outstanding not to exceed the amount set forth as its “Canadian
Revolver Commitment” opposite such Lender’s name on Annex A-2 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


 


“Canadian Revolver
Exposure” means, with respect to any Canadian Revolver Lender at any time,
the sum of (a) the Dollar Equivalent of the outstanding principal amount
of such Lender’s Canadian Revolver Advances at such time plus (b) such
Lender’s Canadian Revolver L/C Exposure at such time plus (c) such
Lender’s Canadian Revolver Percentage of the Dollar Equivalent of the
outstanding principal amount of all Canadian Swing Line Loans at such time.


 


“Canadian Revolver
Facility” means, at any time, the aggregate amount of the Canadian Revolver
Lenders’ Canadian Revolver Commitments at such time.


 


8

















 


“Canadian Revolver L/C
Exposure” means, with respect to any Canadian Revolver Lender at any time,
such Lender’s Canadian Revolver Percentage of the Total Canadian Revolver L/C
Exposure at such time.


 


“Canadian Revolver Lender”
means, at any time, any Lender that has a Canadian Revolver Commitment at such
time or, if the Canadian Revolver Commitments have terminated or expired, a
Lender with Canadian Revolver Exposure and, as the context requires, includes a
Canadian L/C Issuer.


 


“Canadian Revolver Loan”
has the meaning set forth in Section 2.01(b).


 


“Canadian Revolver
Maximum Available Amount” means, at any date, an amount equal to the lesser
of (a) the Aggregate Canadian Revolver Commitments as of such date and (b) the
Dollar Equivalent of the Canadian Borrowing Base on such date (as determined by
reference to the Canadian Borrowing Base Report most recently delivered
pursuant to Section 6.02(f)(ii)).


 


“Canadian Revolver Note”
means a promissory note made by the Canadian Borrower in favor of a Canadian
Revolver Lender evidencing the Canadian Revolver Loans made by such Lender,
substantially in the form of Exhibit B-2.


 


“Canadian Revolver
Obligations” means all indebtedness, liabilities and obligations from time
to time owing by any Loan Party to any Canadian Revolver Lender or the Canadian
Swing Line Lender under or pursuant to any Loan Document with respect to any
Canadian Revolver Advance, Canadian Letter of Credit or Canadian Swing Line
Loan, or under or pursuant to any guaranty of such indebtedness, liabilities or
obligations, or under or pursuant to any Security Document which secures the
payment and performance of such indebtedness, liabilities and obligations,
whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.  “Canadian Revolver Obligation” means
any part of the Canadian Revolver Obligations.


 


“Canadian Revolver
Percentage” means, with respect to any Canadian Revolver Lender at any
time, the percentage (carried out to the ninth decimal place) of the Aggregate
Canadian Revolver Commitments represented by such Lender’s Canadian Revolver
Commitment at such time.  If the
commitment of each Canadian Revolver Lender to make Canadian Revolver Advances
has been terminated pursuant to Section 8.02 or if the Aggregate Canadian
Revolver Commitments have expired, then the Canadian Revolver Percentage of
each Canadian Revolver Lender shall be determined based on the Canadian
Revolver Percentage of such Lender most recently in effect, giving effect to
any subsequent assignments.  The initial
Canadian Revolver Percentage of each Canadian Revolver Lender is set forth as
its “Canadian Revolver Percentage” opposite the name of such Lender on Annex
A-2 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“Canadian Revolver
Required Lenders” means, as of any date of determination, Canadian Revolver
Lenders holding more than 50% of the sum of (a) the Total Canadian Revolver
Exposure (with the aggregate amount of each Canadian Revolver Lender’s risk
participation and funded participation in Canadian L/C Obligations and Canadian
Swing Line Loans being deemed “held” by such Canadian Revolver Lender for
purposes of this definition) as of such date and (b) the aggregate unused
Canadian Revolver Commitments as of such date; provided that the unused
Canadian Revolver Commitment of, and the portion of the Total Canadian Revolver
Exposure held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Canadian Revolver Required Lenders.


 


9














 


“Canadian Revolver Supermajority Lenders”
means, as of any date of determination, Canadian Revolver Lenders holding more
than 66 2/3% of the sum of (a) the
Total Canadian Revolver Exposure (with the aggregate amount of each Canadian
Revolver Lender’s risk participation and funded participation in Canadian L/C
Obligations and Canadian Swing Line Loans being deemed “held” by such Canadian
Revolver Lender for purposes of this definition) as of such date and (b) the
aggregate unused Canadian Revolver Commitments as of such date; provided
that the unused Canadian Revolver Commitment of, and the portion of the Total
Canadian Revolver Exposure held or deemed held by, any Defaulting Lender shall
be excluded for purposes of making a determination of Canadian Revolver
Required Lenders.


 


“Canadian Security Agreement” means
that certain Canadian General Security Agreement dated as of the date hereof
and executed by the Canadian Loan Parties that are organized under the Laws of
Canada or any province or territory thereof in favor of the Collateral Agent,
for the benefit of itself and the other Secured Parties, substantially in the
form of Exhibit F-3.


 


“Canadian Subsidiary” means (a) prior
to any Qualified MLP IPO, any Subsidiary of Canada Holdings and (b) after
any Qualified MLP IPO, any Subsidiary of MLP, in each case, that is organized
under the Laws of Canada or any province or territory thereof.


 


“Canadian Swing Line Borrowing” means
a borrowing of a Canadian Swing Line Loan pursuant to Section 2.04.


 


“Canadian Swing Line Lender” means
Royal Bank of Canada, in its capacity as provider of Canadian Swing Line Loans,
or any successor Canadian swing line lender hereunder.


 


“Canadian Swing Line Loan” has the
meaning set forth in Section 2.04(a)(ii).


 


“Canadian Swing Line Note” means a
promissory note made by the Canadian Borrower in favor of the Canadian Swing
Line Lender evidencing the Canadian Swing Line Loans made by such Swing Line
Lender, substantially in the form of Exhibit B-7.


 


“Canadian Swing Line Sublimit” means
an amount equal to the lesser of (i) $10,000,000 and (ii) the
Canadian Revolver Facility.  The Canadian
Swing Line Sublimit is part of, and not in addition to, the Canadian Revolver
Facility.


 


“Canadian US Dollar Base Rate” means for any day a fluctuating rate
per annum equal to the highest of: (a) 3.0% per annum; (b) the higher
of: (i) the rate of interest in effect for such day as publicly announced
from time to time by Royal Bank of Canada as its “U.S. Base Rate” and (ii) 1⁄2
of 1% per annum above the Federal Funds Rate; and (c) the Eurodollar Rate
for an Interest Period of one month in effect on such day plus 1%.


 


“Canadian US Dollar Base Rate Loan”
means a Loan or portion of a Loan that bears interest based on the Canadian US
Dollar Base Rate.


 


“Capital Improvement” means any (a) addition or improvement
to the capital assets owned by Holdings or any of its Subsidiaries, (b) acquisition
(through an asset acquisition, merger, amalgamation, stock acquisition or other
form of investment) of existing, or the construction of new, capital assets, or
(c) capital contribution by Holdings or any of its Subsidiaries to a
Person that is not a Subsidiary, in which Holdings or any of its Subsidiaries
has an equity interest (or after such capital contribution will have) to fund
Holdings’ or any Subsidiary’s pro rata share of the cost of the acquisition of
existing, or the construction of new or the improvement of existing, capital
assets, in each case if such addition, improvement, acquisition or construction
is made to increase the long term operating capacity or net 


 


10

















 


income of Holdings and its Subsidiaries from the
long term operating capacity or net income of Holdings and its Subsidiaries, in
the case of clauses (a) and (b), or such Person, in the case of clause
(c), from that existing immediately prior to such addition, improvement,
acquisition or construction.


 


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


 


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


 


“Cash Collateral” means the cash or deposit
account balances referred to in the definition of “Cash Collateralize”.


 


“Cash Collateralize” means (a) with
respect to Letters of Credit, to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Applicable L/C Issuer and the US
Revolver Lenders or Canadian Revolver Lenders, as applicable, as Collateral for
the applicable L/C Obligations, cash or deposit account balances or a back stop
letter of credit pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the Applicable L/C Issuer (which
documents are hereby consented to by the US Revolver Lenders and Canadian
Revolver Lenders) and (b) with respect to Bankers’ Acceptances, to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of the
Canadian Revolver Lenders, as Collateral for the applicable Bankers’
Acceptances, cash or deposit account balances or a back stop letter of credit
pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent (which documents are hereby consented to by the Canadian
Revolver Lenders).


 


“Cash Equivalents”
means Investments in:


 


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


 


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


 


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


 


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


 


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


 


“Cash Management Agreement” means any
agreement to provide cash management services, including treasury, depository,
overdraft, electronic funds transfer and other cash management arrangements.


 


11

















 


“Cash Management Bank” means any Person that,
at the time it enters into a Cash Management Agreement, is a Lender or an
Affiliate of a Lender, in its capacity as a party to such Cash Management
Agreement.


 


“CFC” means a Person that is a controlled
foreign corporation under Section 957 of the Code.


 


“Change in Law” means the occurrence, after
the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any
Governmental Authority.


 


“Change of Control”
means:


 


(a) prior
to any Qualified MLP IPO, the occurrence of any one of the following events:


 


(i)            (1) the Permitted Investors shall cease to own
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) directly or indirectly, at least 50.1% of the outstanding
Voting Stock (on a fully diluted basis) in US Holdings GP, or (2) the
Permitted Investors shall cease to own and control (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended), directly or indirectly,
at least 50.1% of the outstanding Voting Stock (on a fully diluted basis) in US
Holdings;


 


(ii)           the Permitted Investors shall cease to own and control
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended), directly or indirectly, at least 50.1% of the outstanding
Voting Stock (on a fully diluted basis) in Canada Holdings;


 


(b) following any
Qualified MLP IPO, the occurrence of any one of the following events:


 


(i)            MLP ceases to own, directly or indirectly, 100% of the
outstanding Equity Interests of the Borrowers; or


 


(ii)           any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) (other than MLP or any
other Permitted Investor) shall become the “beneficial owner” (as defined in Rules 13(d)-3
and 13(d)-5 under such Act), directly or indirectly, of more than thirty-five
percent (35%) of the then outstanding Voting Stock of the Borrowers.


 


For the avoidance of doubt, it is understood and
agreed that neither a Qualified MLP IPO nor the MLP Formation Transactions
shall constitute or otherwise be deemed to cause a Change of Control for
purposes hereof.


 


“Closing Date” means the date on which the
conditions precedent set forth in Section 4.01 shall have been satisfied
or waived, which date is March 5, 2010.


 


“Code” means the Internal Revenue Code of
1986, as amended from time to time.


 


“Co-Documentation Agents” has the meaning
specified in the introductory paragraph hereto.


 


“Collateral” means all property of any kind
which, under the terms of any Security Document, (i) is subject to a Lien
in favor of the Secured Parties (or in favor of the Administrative Agent for
the benefit of 


 


12

















 


the Secured Parties) or (ii) is purported to be
subject to such a Lien, in each case granted or created to secure all or part
of the Obligations.


 


“Collateral Agent” means Royal Bank of
Canada, in its capacity as collateral agent under any of the Loan Documents, or
any successor collateral agent.


 


“Commences Commercial Service” means a
Capital Improvement is first put into commercial service following, if
applicable, completion of construction and testing.


 


“Commitment” means a US Revolver Commitment
or a Canadian Revolver Commitment.


 


“Compliance Certificate” means a certificate
substantially in the form of Exhibit D.


 


“Consolidated EBITDA”
means, without duplication, with respect to any specified Person for any four
Fiscal Quarter period, the Consolidated Net Income of such Person for such
period plus:


 


(a)           an
amount equal to any net loss realized by such Person or any of its Subsidiaries
in connection with a Disposition, to the extent such losses were deducted in
computing such Consolidated Net Income; plus


 


(b)           provision
for taxes based on income or profits of such Person and its Subsidiaries for
such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus


 


(c)           Fixed
Charges to the extent deducted in computing such Consolidated Net Income; plus


 


(d)           depreciation
and amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period),
impairment and other non-cash expenses (excluding any such non-cash expense to
the extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Subsidiaries for such period to the extent
that such depreciation and amortization, impairment and other non-cash expenses
were deducted in computing such Consolidated Net Income; plus


 


(e)           non-cash
losses resulting from foreign currency balance sheet adjustments required by
GAAP to the extent such losses were deducted in computing such Consolidated Net
Income; plus


 


(f)            all
extraordinary, unusual or non-recurring items of gain or loss, or revenue or
expense; minus


 


(g)           non-cash
items increasing such Consolidated Net Income for such period, other than items
that were accrued in the ordinary course of business;


 


in each case, in respect
of Holdings and its  Subsidiaries,
on a consolidated basis and determined in accordance with GAAP.  It is further understood and agreed that (a) the
Consolidated EBITDA for the Fiscal Quarters ending on December 31, 2009, September 30,
2009 and June 30, 2009 shall be $79,100,000, $35,200,000 and $21,700,000,
respectively, and (b) for any period ending after December 31,
2009, the Consolidated EBITDA of MLP for each of the three Fiscal Quarters
ended prior to the Qualified MLP IPO shall be deemed to be the Consolidated
EBITDA of the Holdings Entities in each such Fiscal Quarter.


 


“Consolidated Funded Indebtedness” means, as
of any date, the sum of the following (without duplication):  (i) all Indebtedness which is classified
as “long-term indebtedness” on a consolidated 


 


13

















 


balance sheet of Holdings and its Subsidiaries
(other than any Project Subsidiaries) prepared as of such date in accordance
with GAAP and any current maturities and other principal amount in respect of
such Indebtedness due within one year but which was classified as “long-term
indebtedness” at the creation thereof, plus (ii) Indebtedness for
borrowed money of Holdings and its Subsidiaries (other than any Project Subsidiaries)
outstanding as of such date under a revolving credit or similar agreement
providing for borrowings (and renewals and extensions thereof) over a period of
more than one year, notwithstanding the fact that any such borrowing is made
within one year of the expiration of such agreement, plus (iii) Indebtedness
in respect of Capital Leases of Holdings and its Subsidiaries (other than any
Project Subsidiaries) as of such date, less (iv) to the extent
covered by the foregoing clauses (i) or (ii), (A) Inventory
Loans and (B)  outstanding obligations of the types described in
clauses (b), (c) and (d) of the definition of “Indebtedness”
(including Letters of Credit).


 


“Consolidated Leverage Ratio” means, as of
any date of determination, the ratio of (a) Consolidated Funded
Indebtedness of Holdings as of such date to (b) Consolidated EBITDA of
Holdings for the most recently completed four Fiscal Quarters.


 


“Consolidated Net Income” means, with respect
to any specified Person for any period, the aggregate of the Net Income of such
Person and its Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP, provided that:


 


(a)           the
Net Income (but not loss) of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting will be included, but only to
the extent of the amount of dividends or distributions paid in cash to the
specified Person or a Subsidiary of the Person; provided that with
respect to any joint venture, the aggregate Net Income of such joint venture
will be included to the extent of Holdings’ and a Subsidiary’s percent ownership
of such joint venture so long as the declaration or payment of dividends or
similar distributions by such joint venture of that Net Income is at the date
of determination permitted without any prior governmental approval (that has
not been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that joint venture or its stockholders,
partners or members;


 


(b)           the
Net Income of any Subsidiary (other than the Borrowers) that is not a Guarantor
will be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that Net Income is not at the date
of determination permitted without any prior governmental approval (that has
not been obtained) or, directly or indirectly, by operation of the terms of its
charter or any judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its stockholders, partners or members;


 


(c)           the
cumulative effect of a change in accounting principles will be excluded;


 


(d)           unrealized
losses and gains under derivative instruments included in the determination of
Consolidated Net Income, including, without limitation those resulting from the
application of pre-codification Statement of Financial Accounting Standards No. 133
will be excluded;


 


(e)           any
nonrecurring charges relating to any premium or penalty paid, write off of
deferred finance costs or other charges in connection with redeeming or
retiring any Indebtedness prior to its stated maturity will be excluded; and


 


(f)            any
impairment charge or asset write-off or write-down, including those pursuant to
Financial Accounting Standards Board Statement No. 142.


 


14

















 


“Consolidated Tangible Assets” means, as to
any Person, the aggregate amount of total assets included in such Person’s most
recent quarterly or annual consolidated balance sheet prepared in accordance
with GAAP (less applicable reserves reflected in such balance sheet) after
deducting therefrom all goodwill, trademarks, patents, unamortized debt
discount and expenses and any other like intangibles.


 


“Contractual Obligation” means, as to any
Person, of any agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound.


 


“Control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
a Person, whether through the ability to exercise voting power, by contract or
otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Control Investment Affiliate” means, as to
any Person, any other Person that (a) directly or indirectly, is in
Control of, is Controlled by, or is under common Control with, such Person and (b) is
organized by such Person primarily for the purpose of making equity or debt
investments in one or more companies.


 


“Countess Facility” means the natural gas
storage facility located in south central Alberta, Canada and having, as of the
Closing Date, two storage reservoirs with a total capacity of approximately
55 Bcf, and associated compressors, compressor sites, pipeline headers,
pipelines and other related equipment and buildings.


 


“Credit Extension” means each of the
following:  (a) a Borrowing and (b) an
L/C Credit Extension.


 


“Currently Approved by the Administrative Agent”
means, with respect to any matter relating to either the US Borrowing Base or
the Canadian Borrowing Base, such matter, as reflected in the most recent
written notice given by the Administrative Agent to the applicable Borrower as
being approved by the Administrative Agent. 
Each such written notice will supersede and revoke (or supplement, to
the extent applicable) each prior notice that pertains to the same subject
matter.


 


“Cushion
Gas” means the volume of gas needed as a permanent non-cycling inventory to
maintain adequate reservoir pressures and deliverability rates at a Natural Gas
Storage Facility.


 


“Debt Rating” means, as of any date of
determination, a Person’s corporate family credit rating or the corporate
family rating as determined, respectively, by either S&P or Moody’s
(collectively, the “Debt Ratings”); provided that if a Debt
Rating is issued by each of the foregoing rating agencies, then the less
favorable of such Debt Ratings shall apply, unless there is a split in Debt
Ratings of more than one level, in which case the level that is one level
better than the less favorable of such Debt Ratings shall apply.


 


“Debtor Relief Laws” means the Bankruptcy
Code of the United States, the Bankruptcy and Insolvency Act (Canada), the
Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring
Act (Canada) and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the United States,
Canada (or any province therein) or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally.


 


“Default” means any event or condition that
constitutes an Event of Default or that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.


 


“Default Rate” means (a) when used with
respect to Obligations other than US Letter of Credit Fees and Canadian Letter
of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2%
per annum; provided that, with respect to a Eurodollar 


 


15

















 


Rate Loan, a Bankers’ Acceptance or a Canadian Prime
Rate Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Rate) otherwise applicable to such Loan plus
2% per annum, and (b) when used with respect to US Letter of Credit Fees
or Canadian Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.


 


“Defaulting Lender” means any Lender that (a) other
than at the direction of any regulatory agency or authority, has failed to fund
any portion of the Loans, participations in L/C Obligations or participations
in Swing Line Loans required to be funded by it hereunder within two Business
Days of the date required to be funded by it hereunder and such failure has not
been cured, unless the subject of a good faith dispute, (b) has otherwise
failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within two Business Days of the date
when due and such failure has not been cured, unless the subject of a good
faith dispute, (c) has been adjudicated by a court of competent
jurisdiction to be insolvent or has become the subject of a bankruptcy or
insolvency proceeding, or (d) has notified either Borrower or the
Administrative Agent that it does not intend to comply with its obligations to
fund any Loan or its portion of unreimbursed obligations under this Agreement; provided
that a Lender shall not qualify as a Defaulting Lender solely as a result of
the acquisition or maintenance of an ownership interest in such Lender or its
parent company, or as a result of the exercise of Control over such Lender or
any Person Controlling such Lender, in each case, by a Governmental Authority
or instrumentality thereof.


 


“Designated Dividend”
means (a) any Restricted Payment to Sponsor  made
on or around the Closing Date in an amount not to exceed $125,000,000 and (b) if
a Qualified MLP IPO does not occur on or before September 30, 2010, any
Restricted Payment to Sponsor in an amount not to exceed $75,000,000; provided
that, immediately after making such Restricted Payment, Total Revolver Exposure
shall not exceed 85% of Total Revolver Maximum Available Amount.


 


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


 


	
   

  	
  Face
  Amount

  	
   

  	
   

  
	
   

  	
  1
  + (Rate x Term/365)

  	
   

  	
   

  



 


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


 


“Disposition” means the sale, transfer,
license, or other disposition (including any sale leaseback transaction) of any
property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith, and the terms “Dispose” and “Disposing”
have corresponding meanings.


 


“Disqualified Stock” means (a) in the
case of Holdings or any of its Subsidiaries, any Equity Interests that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case, at the option of the holder of the
Equity Interests), or upon the happening of any event, matures or is
mandatorily redeemable for cash, pursuant to a sinking fund obligation or otherwise,
or redeemable for cash at the option of the holder of the Equity Interests, in
whole or in part, on or prior to the date that is 91 days after the Revolver
Maturity Date and (b) in the case of any Subsidiary, any other Equity
Interest other than any common equity with no preferences, privileges, and no
cash redemption or repayment provisions. 
Notwithstanding the preceding sentence, (i) any Equity 


 


16

















 


Interest that would constitute Disqualified Stock
solely because the holders of the Equity Interest have the right to require the
issuer thereof to repurchase such Equity Interest upon the occurrence of a
change of control or an asset sale will not constitute Disqualified Stock if (x) the
terms of such Equity Interest provide that the issuer thereof may not
repurchase or redeem any such Equity Interest pursuant to such provisions
unless such repurchase or redemption complies with the requirements of Section 7.07
hereof or (y) the terms of such Equity Interest provide that the issuer
thereof may not repurchase or redeem any such Equity Interest prior to Holdings’
prepayment of the Revolver Loans hereunder and (ii) incentive distribution
rights shall not constitute Disqualified Stock solely by virtue of the right of
the holder thereof to require repurchase thereof upon removal of the Managing
Member without cause.  The amount of
Disqualified Stock deemed to be outstanding at any time for purposes hereof
will be the maximum amount that Holdings or any of its Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.


 


“Dollar Equivalent” means, at any time, (a) with
respect to any amount denominated in Dollars, such amount and (b) with
respect to any amount denominated in Canadian Dollars, the equivalent in
Dollars of such amount as determined by the Administrative Agent at such time
on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of Dollars with Canadian Dollars.  In making any determination of the Dollar
Equivalent, the Administrative Agent shall use the relevant Spot Rate in effect
on the date on which the Canadian Borrower delivers a Request for Credit
Extension or on such other date on which a Dollar Equivalent is required to be
determined pursuant to the provisions of this Agreement.  As appropriate, amounts specified herein as
amounts in Dollars shall be or include any relevant Dollar Equivalent amount.


 


“Dollars”, “US Dollars” or “$”
means the lawful currency of the United States.


 


“Eligible Assignee” means any Person that
meets the requirements to be an assignee under Section 10.06(b)(iii), (v),
(vi) and (vii) (subject to such consents, if any, as may be required
under Section 10.06(b)(iii)).


 


“Eligible Cash Equivalents” means Cash
Equivalents (a) in which a Borrowing Base Party has lawful and absolute
title, (b) which are free from any express or implied at law Lien, trust
or other beneficial interest (other than (i) Liens in favor of the
Administrative Agent for the benefit of the Secured Parties and (ii) non-consensual
Liens arising by operation of law for which amounts are not yet due and owing),
and (c) in which the Administrative Agent holds a fully perfected
first-priority security interest prior to the rights of, and enforceable as
such against, any other Persons pursuant to an account agreement satisfactory
to the Administrative Agent or any other legal requirement necessary for
perfecting a security interest in such assets with such priority.


 


“Eligible Inventory”
means, at the time of any determination thereof, with respect to any Borrowing
Base Party, inventories of Natural Gas of such Borrowing Base Party in good and
saleable condition as to which the following requirements have been fulfilled
at the Permitted Discretion of the Administrative Agent:


 


(a)           such
Borrowing Base Party has sole, lawful and absolute title to such inventories;


 


(b)           such
inventories are located on or in:


 


(i)            a
Natural Gas Storage Facility comprised of real property owned by a Borrowing
Base Party, provided that such real property is not subject to any Lien
in favor of any Person other than the Administrative Agent (other than other
Liens permitted by Section 7.01);


 


17

















 


(ii)           a
Natural Gas Storage Facility (other than those Natural Gas Storage Facilities
specifically addressed in other clauses of this paragraph (b)) comprised
of real property leased by a Borrowing Base Party or as to which a Borrowing
Base Party has been granted rights by easement, license or otherwise to have
access to and operate such Natural Gas Storage Facility; provided that
such real property is not subject to any Lien in favor of any Person other than
the Administrative Agent (other than other Liens permitted by Section 7.01);


 


(iii)          a
Third-Party Location pursuant to an agreement with the owner of such
Third-Party Location providing for the storage of such inventories at such
Third-Party Location, provided that (A) such agreement is subject
to a valid and fully perfected first priority security interest pursuant to the
Security Documents, (B) such agreement is not subject to any Lien in favor
of any Person other than Liens permitted by Section 7.01, and (C) such
agreement is in full force and effect and the owner of such Third-Party
Location is not in material violation of its obligations thereunder;


 


(c)           such
inventories are subject to a fully perfected first priority security interest
(subject only to (i) Permitted Natural Gas Liens and (ii) non-consensual
Liens arising by operation of law for which amounts are not yet due and
payable) in favor of the Administrative Agent for the benefit of the Secured
Parties pursuant to the Loan Documents, prior to the rights of, and enforceable
as such against, any other Person;


 


(d)           such
inventories are not subject to any Lien in favor of any Person other than the
Administrative Agent (other than (i) Permitted Natural Gas Liens and (ii) non-consensual
Liens arising by operation of law for which amounts are not yet due and
payable);


 


(e)           such
inventories are currently saleable in the normal course of such Borrowing Base
Party’s business without any notice to, or consent of, any Governmental
Authority (other than those already made or obtained), except for any
immaterial notice or consent incident to such sale where the failure to give
such notice or consent does not prevent or rescind such sale or materially
adversely affect the security interest to be granted therein pursuant to the
Security Documents or the perfection thereof;


 


(f)            such
inventories do not consist of Cushion Gas, bill-and-hold goods (i.e.,
inventories which have been previously sold by a Borrowing Base Party but which
are being held by such Borrowing Base Party pending delivery) or inventories on
consignment;


 


(g)           such
inventories are located in the United States or Canada; and


 


(h)           as
to inventories located at properties subject to a lease, surface or access
agreement referred to in items (b)(ii) above, each such agreement is
valid, in full force and effect and there has been no material impairment to or
interference with the applicable Loan Parties’ rights thereunder;


 


provided that the amount of “Eligible
Inventory” shall be reduced, without duplication, by the amount of any “Eligible
Inventory” owed in respect of product exchange obligations; provided, further,
that, for the avoidance of doubt, “Eligible Inventory” shall exclude any
inventory as to which a corresponding Eligible Receivable is accounted for in
the applicable Borrowing Base.


 


“Eligible Receivables” at the time of any
determination thereof (the “Determination Date”), and without
duplication, with respect to any Borrowing Base Party, each Account of such
Borrowing Base Party under any firm written agreement with respect to
injection, withdrawal, sale, delivery of or other service relating to Natural
Gas as to which the following requirements have been fulfilled (or as to future
Accounts, will be fulfilled):


 


(a)           such
Borrowing Base Party has lawful and absolute title to such Account;


 


18














 


(b)           such Account is a valid, legally enforceable obligation of
an Account Debtor payable in US Dollars (in the case of a US Borrowing Base
Party) or payable in Canadian Dollars or US Dollars (in the case of a Canadian
Borrowing Base Party), arising from storage, injection, withdrawal, sale,
delivery of or other service relating to Natural Gas to such Person in the
United States or Canada in the ordinary course of business of such Borrowing
Base Party;


 


(c)           there has been excluded from such Account (i) any portion
of such Account that is subject to any dispute, rejection, loss,
non-conformance, counterclaim or other claim or defense on the part of any
Account Debtor or to any claim on the part of any Account Debtor denying
liability under such Account, and (ii) the amount of any account payable
or other liability owed by such Borrowing Base Party to the Account Debtor on
such Account, whether or not a specific netting agreement may exist (other than
any liability consisting of an obligation of such Borrowing Base Party to
re-deliver Natural Gas of such Account Debtor that is stored in any Natural Gas
Storage Facility), excluding, however, any portion of any such account payable
or other liability which is at the time in question covered by a Letter of
Credit;


 


(d)           such Borrowing Base Party has the full and unqualified
right to grant a valid and enforceable security interest in such Account to the
Administrative Agent for the benefit of the Secured Parties as security for the
Obligations;


 


(e)           such Account (i) (A) is evidenced by an invoice
rendered to the applicable Account Debtor or (B) represents the unbilled
amount that will be invoiced and due in the current or next two (or as may be
limited to one succeeding calendar month in clause (g)) succeeding calendar
months, (ii) is governed by a written Storage Services Agreement, Gas EDI,
NAESB or is with NGX (or similar exchange) which is in full force and effect
and which constitutes the valid, legally enforceable obligation of the
applicable Account Debtor and (iii) is not evidenced by any promissory
note or other instrument;


 


(f)            such Account (and any letter of credit securing it) is
not subject to any Lien in favor of any Person (other than (i) Liens in
favor of the Administrative Agent and (ii) non-consensual Liens arising by
operation of law for which amounts are not yet due and payable) and is subject
to a fully perfected first priority security interest (or, in the case of a
letter of credit, assignment of proceeds) in favor of the Administrative Agent
for the benefit of the Secured Parties pursuant to the Loan Documents, prior to
the rights of, and enforceable as such against, any other Person;


 


(g)           if the Determination Date occurs on or before the
Settlement Date for the month in which such Determination Date occurs, such
Account is due in such month or the immediately following month; and if the
Determination Date occurs after the Settlement Date for the month in which such
Determination Date occurs, such Account is due in the next succeeding two
months;


 


(h)           such Account is not owed by an Account Debtor with respect
to which five percent (5%) or more of its Accounts have not been settled in the
month originally invoiced;


 


(i)            the Account Debtor in respect of such Account (A) is
located, is conducting significant business or has significant assets in the
United States or Canada or is a Person Currently Approved by the Administrative
Agent, (B) is not an Affiliate of any Borrowing Base Party (or, if such
Account Debtor is an Affiliate of any Borrowing Base Party, such Account Debtor
is either listed on Schedule 1.01A-1 or is otherwise approved by the
Administrative Agent), and (C) is not the subject of any event of the type
described in Section 8.01(f), (g) or, to the extent that such Account
is materially impaired, (h);


 


(j)            in the case of US government contracts, such Account is
subject to a properly filed and acknowledged assignment in accordance with the
Assignment of Claims Act, if applicable, and, in the case of Canadian
government contracts, such Account is subject to all notification, consent,
filing and 


 


19

















 


other requirements under the
Financial Administration Act (Canada), if applicable, and under all other
applicable Laws for the perfection and enforceability of the first priority
security interest under the Loan Documents, in each case, prior to the rights
of, and enforceable as such against, any other Person;


 


(k)           such Account is not an Account with respect to which the
Administrative Agent determines in its Permitted Discretion is not collectable
within the time periods otherwise required hereby; and


 


(l)            there has been excluded from such Account any portion of
such Account representing sales tax, excise tax or any other Taxes or
collections on behalf of any Governmental Authority which such Borrowing Base
Party is obligated to distribute to such Governmental Authority;


 


provided that, in the
determination of Eligible Receivables, there shall be excluded the portion of
any Accounts owed by any Account Debtor exceeding (x) in the event that
the such Account Debtor has received either a Debt Rating by S&P of at
least A- or a Debt Rating by Moody’s of at least A3, twenty percent (20%) of
the total Eligible Receivables and (y) otherwise, ten percent (10%) of the
total Eligible Receivables, in each case, other than the Account Debtors listed
on Schedule 1.01A-2 (as such Schedule 1.01A-2 may be amended from
time to time at the request of the applicable Borrower with the approval of the
Administrative Agent) or Account Debtors otherwise approved by the
Administrative Agent in its Permitted Discretion.


 


“Enforcement Action”
shall mean, collectively, or individually, any of the following:  (a) to demand, sue for, take or receive
from or on behalf of any Loan Party of any of the Obligations, by set-off or in
any other manner, the whole or any part of any moneys which may now or
hereafter be owing by any Loan Party with respect to the Obligations, (b) to
initiate or participate with others in any suit, action or proceeding against
any Loan Party to (i) enforce payment of or to collect the whole or any
part of the Obligations, or (ii) commence judicial enforcement of any of
the rights and remedies under the Loan Documents or applicable law with respect
to the Obligations, (c) to accelerate any of the Obligations, or (d) to
participate in any Insolvency Proceeding against, or with respect to any of the
assets of, any Loan Party instituted by any creditor thereof or taking any
action to institute, or joinder with other creditors of any Loan Party for the
purpose of instituting, any Insolvency Proceeding against any Loan Party or of
any portion of the assets of any Loan Party; and such term shall include the
exercise of remedies provided for in Section 8.02.


 


“Environmental Laws”
means any and all applicable federal, state, provincial, territorial, local, or
foreign statutes, Laws (including common law), judgments, orders, decrees,
concessions, grants, franchises, licenses, certificates, entitlements,
agreements or governmental authorizations or restrictions, or other legal
requirement, regulating or prohibiting releases of materials into any part of
the workplace or the environment, or pertaining to the protection or
improvement of natural resources or wildlife, the environment or public and
employee health and safety, or pollution or exposure to Hazardous Materials,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”) (42 U.S.C. Section 9601
et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801
et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.), the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean
Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 7401 et seq.), the Atomic Energy Act (42 U.S.C. Section 2014
et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136
et seq.), the Communications Act (47 U.S.C. Section 151 et seq.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) (“OSHA”),
the Canadian Environmental Protection Act, 1999, the Navigable Waters
Protection Act, the Canadian Environmental Assessment Act, the Species at Risk
Act, the Fisheries Act, the Hazardous Products Act, the Hazardous Materials
Information Review Act, the Nuclear Safety and Control Act, the Transportation
of Dangerous Goods Act, 1992, the Environmental Protection and Enhancement Act
(Alberta), the Water Act (Alberta), the Dangerous Goods 


 


20

















 


Transportation and Handling
Act (Alberta), the Safety Codes Act (Alberta), the Occupational Health and
Safety Act (Alberta), the Climate Change and Emissions Management Act
(Alberta), the Oil and Gas Conservation Act (Alberta), the Energy Resources
Conservation Act (Alberta), the Pipeline Act (Alberta), the Municipal
Government Act (Alberta), the Forest and Prairie Protection Act (Alberta), and
the regulations promulgated pursuant thereto, and any such applicable foreign,
state, provincial, or local statutes, and the regulations promulgated pursuant
thereto.


 


“Environmental Liability”
means any liability, contingent or otherwise (including any liability for
damages, costs or expenses related to environmental studies, assessments and
remediation, fines, penalties, indemnities or consulting or legal fees), of any
Borrower, any other Loan Party or any of their respective Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment, recycling or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the Release or threatened Release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


 


“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with any Loan Party within the meaning of Section 414(b) or (c) of
the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).


 


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) a withdrawal by any
Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon any Loan Party or any ERISA Affiliate.


 


“Eurodollar
Rate” shall mean, for any Interest Period with respect to any Eurodollar
Rate Loan, an interest rate per annum equal to the higher of:  (a) 1.5% per annum (“Libor Floor”),
(b) the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the LIBOR01
screen (or any successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with 


 


21

















 


a
term equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such
Interest Period, or (c) if the rates referenced in the preceding subsection (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest (rounded upward to the nearest whole multiple of one-sixteenth
of one percent (1/16th %) at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate amount
of the Eurodollar Rate Loan being made, continued or converted by the
Administrative Agent and with a term equivalent to such Interest Period would
be offered by the Administrative Agent’s London Branch to major banks in the
offshore Dollar market at their request at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such
Interest Period.


 


“Eurodollar Rate Loan”
means a Loan or portion of a Loan that bears interest at a rate based on the
Eurodollar Rate for the particular interest period.


 


“Event of Default”
has the meaning specified in Section 8.01.


 


“Excluded Accounts”
means (a) all payroll, withholding tax and other fiduciary accounts and (b) all
other accounts as long as the aggregate balance for all Loan Parties in all
such other accounts does not exceed $5,000,000 at any time.


 


“Excluded Subsidiary”
means (a) each Immaterial Subsidiary for so long as such Subsidiary
remains an Immaterial Subsidiary, (b) each Subsidiary that is not a
wholly-owned Subsidiary on any date such Subsidiary would otherwise be required
to become a Guarantor pursuant to the requirements hereof  (for so long as such Subsidiary remains a
non-wholly-owned Subsidiary), (c) each Subsidiary to the extent that (i) such
Subsidiary is prohibited by any applicable Contractual Obligation or Laws from
guaranteeing the Obligations, (ii) any Contractual Obligation prohibits
such guarantee without the consent of the other party or (iii) a guarantee
of the Obligations would give any other party to a Contractual Obligation the
right to terminate its obligation thereunder and (d) any Subsidiary formed
in connection with the MLP Formation Transactions, which, following the
Qualified MLP IPO, will not be a Subsidiary of MLP; provided that (x) (i) the
aggregate assets and aggregate revenues of any Subsidiary so designated as at
the end of and for any Fiscal Year may not exceed, respectively, 3% of the
Consolidated Tangible Assets of Holdings and 3% of aggregate revenues of
Holdings as reflected on the most recent financial statements delivered
pursuant to Section 6.01(a), and (ii) the aggregate assets and
aggregate revenues of all such Subsidiaries so designated as at the end of and
for any Fiscal Year may not exceed, respectively, 5% of the Consolidated
Tangible Assets of Holdings and 5% of total revenues of Holdings as reflected
on the most recent financial statements delivered pursuant to Section 6.01(a),
and (y) no such Subsidiary or the assets thereof may be components of any
Borrowing Base.


 


“Excluded Taxes”
means, with respect to any Agent, any Lender, any L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net
income, profits or capital (however denominated), and franchise taxes imposed
on it (in lieu of net income taxes), in the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized, is
resident, carries on business (other than executing, delivering or performing
its obligations or receiving a payment under, or enforcing, any Loan Document)
or in which its principal office is located or, in the case of any Lender, in
which its applicable Lending Office is located, (b) any withholding tax
that is imposed under the provisions of the Income Tax Act (Canada) on amounts
paid or payable to any Person that is attributable to such Person not dealing
at arm’s length (within the meaning of the Income Tax Act (Canada) with the
Person making the payment hereunder, (c) in the case of a Non-US Lender
(other than an assignee pursuant to a request by such Borrower under Section 10.12),
any withholding tax that is imposed on amounts payable to such Non-US Lender at
the time such Non-US Lender becomes a party hereto or designates a new Lending
Office that 


 


22

















 


is] attributable to such
Non-US Lender’s failure or inability (other than as a result of a Change in Law
that occurred after the date such Non-US Lender or its assignee, if any,
becomes a party to this Agreement) to comply with Section 3.01(e), except
to the extent that such Non-US Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrowers with respect to such withholding tax
pursuant to Section 3.01(a), and (d) interest and penalties with respect
to taxes referred to in subsections (a)-(c) hereof.


 


“Expansion Capital
Expenditures” means cash expenditures for Capital Improvements. Expansion
Capital Expenditures shall not include Maintenance Capital Expenditures or
Investment Capital Expenditures. Expansion Capital Expenditures shall include
interest (and related fees) on debt incurred to finance the construction of a
Capital Improvement and paid in respect of the period beginning on the date
that any of Holdings or its Subsidiaries enters into a binding obligation to
commence construction of a Capital Improvement and ending on the earlier to
occur of (a) the date that such Capital Improvement Commences Commercial
Service and (b) the date that such Capital Improvement is abandoned or
disposed of.  Debt incurred or equity
issued to fund interest payments described in the immediately preceding
sentence or incurred to fund distributions in respect of equity issued
(including incremental incentive distributions related thereto) to fund the
construction of a Capital Improvement as described in clause (a)(iv) of
the definition of Operating Surplus shall also be deemed to be debt incurred to
finance the construction of a Capital Improvement.  Where capital expenditures are made in part
for Expansion Capital Expenditures and in part for other purposes, the Managing
Member shall determine the allocation between the amounts paid for each.


 


“Facility” means the
US Revolver Facility or the Canadian Revolver Facility, as the context may
require.


 


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


 


“Fee Letter” means
that certain fee letter dated as of February 26, 2010 among the
Administrative Agent and the Borrowers, as the same may be amended, amended and
restated, supplemented or modified from time to time.


 


“Fiscal Quarter”
means any fiscal quarter of Holdings.


 


“Fiscal Year” means
any fiscal year of Holdings ending March 31.


 


“Fixed Asset Amount”
means (a) prior to any Fixed Asset Financing Date, an amount equal to
$150,000,000 and (b) following any Fixed Asset Financing Date, an amount
not less than zero equal to $150,000,000 minus the aggregate amount of Fixed
Asset Collateral Value relating to each Fixed Asset Financing occurring after
the date hereof.


 


“Fixed Asset Collateral
Value” means an amount, not less than zero, equal to the aggregate of (a)(i) the
book value of any property, plant or equipment (which, for the avoidance of
doubt, shall include Cushion Gas) of any Loan Party as reflected on the
financial statements most recently delivered pursuant to Section 6.01,
which, prior to the applicable Fixed Asset Financing Date, constituted
Collateral and which, 


 


23

















 


in connection with one or
more Fixed Asset Financings, was subordinated on a second priority basis and/or
released by the Administrative Agent from the Liens in favor of the Secured
Parties and used to secure such Fixed Asset Financing minus (ii) the
sum of (x) $50,000,000 and (y) the book value of any property, plant
and equipment (which, for the avoidance of doubt, shall include Cushion Gas) of
any Loan Party as reflected on the financial statements most recently delivered
pursuant to Section 6.01, which, following the repayment or termination of
any applicable Fixed Asset Financing, becomes Collateral subject to Liens in
favor of the Secured Parties and (b) the amount (if positive) by which
Fixed Asset Value is less than $600,000,000; provided, however,
that, to the extent that Cushion Gas at a Natural Gas Storage Facility is
subject to any sale leaseback transaction permitted by Section 7.03, the
book value of all Cushion Gas at such Natural Gas Storage Facility shall be
excluded from any determination of “Fixed Asset Collateral Value”.


 


“Fixed Asset Financing” means the incurrence of
any (i) Indebtedness of the type referred to in clauses (a), (c) and (f) of
the definition thereof by any Loan Party that is secured by property, plant or
equipment (which, for the avoidance of doubt, shall include Cushion Gas) of any
Loan Party, (ii) any Attributable Indebtedness in connection with the
sale-leaseback of Cushion Gas and (iii) guarantees of the Indebtedness set
forth in clauses (i) and (ii).


 


“Fixed Asset Financing
Date” means the date on which any Loan Party incurs Indebtedness in respect
of a Fixed Asset Financing.


 


“Fixed Asset Value”
means an amount, not less than zero, equal to the book value of any property,
plant and equipment (which, for the avoidance of doubt, shall include Cushion
Gas) of any Loan Party as reflected on the financial statements most recently
delivered pursuant to Section 6.01.


 


“Fixed
Charges”  means, with
respect to any specified Person for any period, the sum, without duplication,
of: (a) the consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued (including, without
limitation, amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred
in respect of letter of credit or bankers’ acceptance financings), and net of
the effect of all payments made or received pursuant to interest rate Hedging Obligations;
plus (b) the consolidated interest expense of such Person and its
Subsidiaries that was capitalized during such period; plus (c) any
interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Subsidiaries or secured by a Lien on assets of such Person
or one of its Subsidiaries, whether or not such guarantee or Lien is called
upon; plus (d) all dividends, whether paid or accrued and whether
or not in cash, on any series of Disqualified Stock of such Person or any of
its Subsidiaries, other than dividends on Equity Interests payable solely in
Equity Interests of Holdings (other than Disqualified Stock) or to Holdings or
a Subsidiary of Holdings, in each case, on a consolidated basis and in accordance
with GAAP; plus (e) any lease payments in connection with
sale-leaseback transactions of Cushion Gas; provided, that any amounts
otherwise constituting Fixed Charges under this clause (e) shall be
disregarded for purposes of Section 7.07(i) hereof.


 


“Fixed
Charge Coverage Ratio”  means with
respect to any specified Person (including Holdings) for any four-quarter
reference period, the ratio of the Consolidated EBITDA of such Person for such
period to the Fixed Charges of such Person for such period.  In the event that the specified Person or any
of its  Subsidiaries incurs, assumes,
guarantees, repays, repurchases, defeases or otherwise discharges or redeems
any Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
applicable four-quarter reference period and on or prior to the date on which
the event for which the calculation of the Fixed Charge Coverage Ratio is made
(the “Calculation Date”), then the Fixed Charge Coverage Ratio will be
calculated giving 


 


24

















 


pro forma effect to such
incurrence, assumption, guarantee, repayment, repurchase, redemption,
defeasance of other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of such period.  In addition, for purposes of calculating the
Fixed Charge Coverage Ratio: (a) acquisitions that have been made by the
specified Person or any of its Subsidiaries, including through mergers,
consolidations or otherwise (including acquisitions of assets used in a
Permitted Business and increases in ownership of Subsidiaries), and including
in each case any related financing transactions (including repayment of Indebtedness)
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date, will be given pro forma
effect as if they had occurred on the first day of the four-quarter reference
period, including any Consolidated EBITDA and any pro forma
expense and cost reductions that have occurred or are reasonably expected to
occur, in the reasonable judgment of the chief financial or accounting officer
of the Person (regardless of whether those cost savings or operating
improvements could then be reflected in pro forma financial statements in
accordance with Regulation S-X promulgated under the Securities Act or any
other regulation or policy of the Commission related thereto); (b) the
Consolidated EBITDA attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded; (c) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, will be excluded, but only to the
extent that the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Subsidiaries following the
Calculation Date; and (d) interest income reasonably anticipated by such
Person to be received during the applicable four-quarter period from cash or
Cash Equivalents held by such Person or any Subsidiary of such Person, which
cash or Cash Equivalents exist on the Calculation Date or will exist as a
result of the transaction giving rise to the need to calculate the Fixed Charge
Coverage Ratio, will be included.


 


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


 


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


 


“GAAP” means
generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in the United
States, that are applicable to the circumstances as of the date of
determination, consistently applied.


 


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


 


“Guarantee” means, as
to any Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or 


 


25

















 


level of income or cash flow
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien). 
The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


 


“Guaranties” means
the US Guaranty, the Canadian Guarantee and each other guaranty agreement made
by a Loan Party in favor of the Administrative Agent, for the benefit of the
Secured Parties, and “Guaranty” means any of the foregoing.


 


“Guarantors” means,
collectively, (a) prior to any Qualified MLP IPO, US Holdings, Canada
Holdings and each of their respective Subsidiaries that executes and delivers
to the Administrative Agent a Guaranty (or an applicable supplement thereto) (b) following
any Qualified MLP IPO, MLP and each additional Subsidiary that executes and
delivers to the Administrative Agent a Guaranty (or an applicable supplement
thereto), but excluding, for the avoidance of doubt, any Person that was a
Guarantor prior to the Qualified MLP IPO but is no longer a Subsidiary of MLP
following such Qualified MLP IPO.


 


“Hazardous Materials”
means all explosive or radioactive substances, wastes or recyclables and all
hazardous or toxic substances, wastes, recyclables or other pollutants, and all
substances which, if released, may cause impairment of or damage to the
environment, human health or safety or property, including petroleum or
petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances, wastes or recyclables of any nature regulated pursuant to any
Environmental Law.


 


“Hedge Positions in
Brokers Accounts” means all investments by the Borrowing Base Parties in
commodities futures accounts in which the Administrative Agent, for the benefit
of the Secured Parties, has been granted an exclusive security interest in a
manner reasonably satisfactory to the Administrative Agent and pursuant to a
control agreement (to the extent applicable) in form and substance reasonably
satisfactory to the Administrative Agent, with such interest being subject only
to the rights of the broker under such account, in excess of the amounts
required to be maintained pursuant to the applicable margin requirements.


 


“Hedged Eligible Inventory” means Eligible Inventory with
respect to which the price risk has been:


 


(a)           hedged for delivery
by either:


 


(i)            a NYMEX contract arranged through brokers approved by the
Administrative Agent and with whom a three-party agreement among a Borrowing
Base Party, the Administrative Agent and such broker has been entered in form
and substance reasonably satisfactory to the Administrative Agent; or


 


(ii)           a contract for a specified price for physical delivery of
such inventory to a counterparty whose Account would qualify as an Approved
Eligible Receivable; or


 


(b)           hedged pursuant to an over-the-counter put option with a
floor price and with a counterparty whose Account would qualify as an Approved
Eligible Receivable; or


 


26

















 


(c)           otherwise hedged in a manner reasonably satisfactory to
the Administrative Agent;


 


provided, however,
that (x) no more than 10% of Hedged Eligible Inventory in the applicable
Borrowing Base shall consist of Hedged Eligible Inventory that has been hedged
for a term of more than twenty-four (24) months and (y) the amount of any
Hedged Eligible Inventory excluded from the applicable Borrowing Base on
account of clause (x) of this proviso shall nonetheless be included in the
calculation of the Other Eligible Inventory Value for such Borrowing Base.


 


The value of Hedged Eligible
Inventory shall be the forward inventory value, which for any day shall be
determined as the total of the monthly future scheduled withdrawal quantity
times the corresponding appropriate forward month price on such day.  The forward month price shall be the NYMEX
forward price plus (or minus) the forward location basis at the applicable
Natural Gas Storage Facility (and adjusted for any transportation differential
not captured by the forward location basis) as set forth below:


 


	
  Natural Gas Storage Facility

  	
   

  	
  Location Basis

  
	
  AECO (Countess and Suffield) Facility

  	
   

  	
  AECO C Basis

  
	
  TCPL Leased Storage Facility

  	
   

  	
  AECO C Basis

  
	
  Salt Plains Facility

  	
   

  	
  Panhandle Basis

  
	
  Wild Goose Facility

  	
   

  	
  PG&E Citigate Basis

  
	
  NGPL (TexOk) Leased Storage Facility

  	
   

  	
  NGPL TXOK Basis

  
	
  NGPL (Mid Con) Leased Storage Facility

  	
   

  	
  NGPL Midcon Basis

  



 


“Hedging Obligations” of any Person means the obligations of
such Person under Swap Contracts dealing with interest rates, currency exchange
rates or commodity prices, either generally or under specific contingencies.


 


“Holdings” means (a) prior
to any Qualified MLP IPO, the Holdings Entities, on a combined basis, and (b) following
any Qualified MLP IPO, MLP.  For the
avoidance of doubt, prior to any Qualified MLP IPO, any reference to Holdings
in connection with the definitions of Consolidated Leverage Ratio, Fixed Charge
Coverage Ratio and Consolidated EBITDA shall be deemed to refer to the Holdings
Entities and their respective consolidated Subsidiaries on a combined basis.


 


“Holdings Entities”
means US Holdings and Canada Holdings.


 


“Honor Date” has the
meaning set forth in Section 2.03(c)(i).


 


“Hydrocarbons”
means crude oil, natural gas, casinghead gas, drip gasoline, natural
gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and
all constituents, elements or compounds thereof and products refined or
processed therefrom.


 


“Immaterial Subsidiary”
means, as at any date, any Subsidiary of Holdings (other than the Borrowers)
designated as such by Holdings in a certificate delivered by Holdings to the Administrative
Agent on the date hereof or at any time thereafter (and which designation has
not been rescinded in a subsequent certificate of Holdings delivered to the
Administrative Agent); provided that (a) the aggregate assets of
all 


 


27

















 


such Subsidiaries so
designated as at the end of and for any Fiscal Year may not exceed 5.0% of
Consolidated Tangible Assets of Holdings as reflected on the most recent
financial statements delivered pursuant to Section 6.01(a), and (b) no
such Subsidiary and assets thereof may be components of any Borrowing Base.


 


“Income Tax Act (Canada)”
means the Income Tax Act (Canada), including the regulations made and, from
time to time, in force under that Act.


 


“Incremental Facility
Amendment” has the meaning specified in Section 2.15.


 


“Indebtedness” means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:


 


(a)           all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;


 


(b)           all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;


 


(c)           net obligations of such Person under any Swap Contract;


 


(d)           all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts payable in
the ordinary course of business that are not unpaid for more than 60 days after
the date on which such trade account payable was created);


 


(e)           indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;


 


(f)            Capital Lease Obligations and Synthetic Lease
Obligations; and


 


(g)           all Guarantees of such Person in respect of any of the
foregoing.


 


For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or a joint
venturer, unless, and to the extent that, such Indebtedness is expressly made
non-recourse to such Person.  The amount of
any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date.  The amount of any Capital Lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


“Indemnitee” has the
meaning specified in Section 10.04(b).


 


“Information” has the
meaning specified in Section 10.06.


 


“Initial Financial Statements” means:


 


(a)           the financial statements referred to in the definition of
US Audited Financial Statements; and


 


28














 


(b)           the financial statements referred to in the definition of
Canadian Audited Financial Statements.


 


“Insolvency Proceeding”
shall mean, with respect to any Person, any involuntary or voluntary
liquidation, dissolution, or any sale of all or substantially all of the assets
in connection with any reorganization of such Person following a default,
marshaling of assets or liabilities, receivership, conservatorship, assignment
for the benefit of creditors, insolvency, bankruptcy, reorganization,
arrangement or composition of such Person (whether or not pursuant to Debtor
Relief Laws) and any other proceeding, whether voluntary or involuntary, under
Debtor Relief Laws for the protection of debtors involving such Person or any
of its assets.


 


“Interest Act (Canada)”
means the Interest Act (Canada), including the regulations made and, from time
to time, in force under that Act.


 


“Interest Payment Date” means:


 


(a)           as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan and the Revolver Maturity Date; provided
that if any Interest Period for a Eurodollar Rate Loan exceeds three months,
the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates;


 


(b)           as to any Base Rate Loan, Canadian Prime Rate Loan,
Canadian US Dollar Base Rate Loan or Swing Line Loan, the last Business Day of
each March, June, September and December and the Revolver Maturity
Date; and


 


(c)           as to any BA or BA Equivalent Advance, on the first day of
the term of the applicable BA or BA Equivalent Advance, as the case may be.


 


“Interest Period”
means, with respect to any Eurodollar Rate Loan, the period commencing on the
date such Loan is disbursed or converted to or continued as a Eurodollar Rate
Loan, and ending on the date one, two, three or six months thereafter, or, if
requested by the US Borrower and so long as at such time nine-month or
twelve-month deposits (as the case may be) in the London Interbank market in
Dollars are available to all affected Lenders, nine or twelve months, in each
case, as selected by the US Borrower or the Canadian Borrower, as applicable,
in the applicable Loan Notice; provided that (i) any Interest
Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (ii) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period, and (iii) no Interest Period shall extend beyond the
Revolver Maturity Date.


 


“Interim Capital
Transactions” means the following transactions:


 


(a)           borrowings, refinancings or refundings of Indebtedness
(other than Working Capital Borrowings and other than for items purchased on open
account or for a deferred purchase price in the ordinary course of business) by
Holdings or any of its Subsidiaries, and sales of debt securities of Holdings or
any of its Subsidiaries;


 


(b)           sales of Equity Interests by Holdings or any of its
Subsidiaries; and


 


29

















 


(c)           sales or other voluntary or involuntary dispositions of
any assets of Holdings or any of its Subsidiaries (other than sales or other
dispositions of inventory, accounts receivable and other assets in the ordinary
course of business, sales or other dispositions of assets as a part of normal
retirements or replacements).


 


“Inventory Loan”
means any Revolver Loan hereunder requested for Inventory Purposes.


 


“Inventory Purposes”
means financing the purchase for storage and future deliveries of Natural Gas.


 


“Investment” means,
as to any Person, any acquisition or investment by such Person, whether by
means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee
or assumption of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, or (c) the purchase
or other acquisition (in one transaction or a series of transactions) of assets
of another Person that constitute a business unit.  For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment, but shall be reduced by the amount of any returns on such
Investment.


 


“Investment Capital
Expenditures” means capital expenditures that are neither Expansion Capital
Expenditures or Maintenance Capital Expenditures.


 


“IP Rights” has the meaning
specified in Section 5.17.


 


“IRS” means the
United States Internal Revenue Service.


 


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


 


“Issued but Unused Letter
of Credit Value” means an amount, not less than zero, equal to the face
amount of Letters of Credit  reduced by any
net exchange payable and further reduced by any forward Mark-to-Market
losses.  “Issued but Unused Letter of
Credit Value” cannot simultaneously be included in Eligible Receivables.


 


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


 


“Judgment Interest Act
(Alberta)” means the Judgment Interest Act of Alberta, including the
regulations made and, from time to time, in force under that Act.


 


“L/C Advance” means,
with respect to each US Revolver Lender or Canadian Revolver Lender, as
applicable, such Lender’s funding of its participation in any US L/C Borrowing
or Canadian L/C Borrowing, as applicable, in accordance with Section 2.03(c)(iii).


 


“L/C Borrowing” means
a US L/C Borrowing or a Canadian L/C Borrowing.


 


“L/C Credit Extension”
means, with respect to any US Letter of Credit or Canadian Letter of Credit, as
applicable, the issuance thereof or extension of the expiry date thereof, or
the increase of the amount thereof.


 


30

















 


“L/C Issuer” means
the US L/C Issuer or the Canadian L/C Issuer.


 


“L/C Disbursement Loan”
has the meaning set forth in Section 2.03(c)(ii).


 


“L/C Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Laws” means,
collectively, all international, foreign, federal, state, provincial,
territorial and local laws, statutes, treaties, rules, guidelines, directives,
guides, bulletins, interpretations, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.


 


“Lender” has the
meaning specified in the introductory paragraph hereto and includes (a) the
successors of each such party as Lenders hereunder pursuant to Section 10.06
and (b) as the context requires, the US Swing Line Lender and the Canadian
Swing Line Lender.


 


“Lender Party Accounts”
has the meaning set forth in Section 6.15(a).


 


“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices
as a Lender may from time to time notify the applicable Borrower and the
Administrative Agent.


 


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


 


“Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the
Applicable L/C Issuer.


 


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


 


“Letter of Credit Fees”
means the US Letter of Credit Fees and the Canadian Letter of Credit Fees.


 


“Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, floating charge or preference, priority or
other security interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever, whether arising under any Law or by
contract (including any conditional sale or other title retention agreement,
any easement, right of way or other encumbrance on title to real property, and
any financing lease having substantially the same economic effect as any of the
foregoing).


 


“Loan” means a US
Revolver Loan, a US Swing Line Loan, a Canadian Revolver Advance or a Canadian
Swing Line Loan, as the context may require.


 


31

















 


“Loan Documents”
means this Agreement, each Note, each BA, the Guaranties, the Security
Documents, the Letters of Credit, each amendment, supplement, joinder, modification,
consent or waiver of, to or in respect of any of the foregoing entered into
from time to time, and all other agreements and instruments at any time
delivered in connection herewith or therewith (exclusive of term sheets, the
Fee Letter and any engagement letter).


 


“Loan Notice” means a
notice of (a) a Borrowing pursuant to Section 2.01, (b) a
conversion of Loans from one Type to another pursuant to Section 2.02(a) or
(c) a continuation of Eurodollar Rate Loans pursuant to Section 2.02(a) or
rollover of Bankers’ Acceptances pursuant to Section 2.18(a), in each case
which, if in writing, shall be substantially in the form of Exhibit E-1.


 


“Loan Parties” means,
collectively, the US Loan Parties, the Canadian Loan Parties and each other
Subsidiary of Holdings that is or is required to be a party to any Loan
Document.


 


“Long Term Hedge Contract”  refers to any Swap Agreement with a specified
termination date more than twelve months after the date the Swap Agreement is
entered into.


 


“Maintenance Capital
Expenditures” means cash expenditures (including expenditures for the
addition or improvement to or replacement of the capital assets owned by
Holdings or its Subsidiaries or for the acquisition of existing, or the
construction of new, capital assets) made to maintain the operating capacity,
revenues or asset base of Holdings and its Subsidiaries.


 


“Managing Member”
means the business entity with the ultimate authority to manage the business
and operations of the MLP (which may be the MLP or its successors).


 


“Mark-to-Market”
means the process of revaluing for trading purposes commodity contracts held by
any Person, whether in respect of physical inventory, futures, forward
exchanges, swaps or other derivatives, in each case relating to Natural Gas,
and which contracts may have a fixed price, a floating price and fixed
differential, or other pricing basis, to the current market prices for such
contracts, and determining the gain or loss on such contracts, on an aggregate
net trading basis for all such contracts of such Person, by comparing the
original prices of such contracts to the market prices on the date of
determination.


 


“Master Agreement”
has the meaning set forth in the definition of “Swap Contract”.


 


“Material Adverse Effect”
means (a) a material adverse change in, or a material adverse effect upon,
the operations, business, properties or financial condition of Holdings and its
Subsidiaries, taken as a whole; (b) a material impairment of the rights
and remedies of any Agent or any Lender under any Loan Document; or (c) a
material impairment of the ability of the Holdings Entities and their
respective Subsidiaries, taken as a whole, to perform their obligations under
the Loan Documents; or (d) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.


 


“Maximum Rate” has
the meaning set forth in Section 10.08.


 


“MLP” means an
entity formed to acquire, directly or indirectly, all of the Equity Interests
of the Borrowers, in order to undertake an initial public offering of its
Equity Interests and that, immediately following consummation of such offering,
will be treated as a partnership for U.S. federal income tax purposes.


 


“MLP Distribution Amount”
means (a) if the Fixed Charge Coverage Ratio for Holdings’ most recently
ended four full fiscal quarters for which internal financial statements are
available at the time of such 


 


32

















 


Restricted Payment is not
less than 1.75 to 1.0, Restricted Payments in an aggregate amount not to exceed
(i) (A) Operating Surplus calculated as of the end of Holdings’
preceding fiscal quarter plus (B) to the extent not included in the
calculation of Operating Surplus calculated as of the end of the Holdings’
preceding fiscal quarter, 100% of the aggregate net cash proceeds received by
Holdings (including the fair market value of any Permitted Business or
long-term assets that are used or useful in a Permitted Business to the extent
acquired in consideration of Equity Interests of Holdings (other than
Disqualified Stock)) after the date hereof as a contribution to its common
equity capital or from the issue or sale of Equity Interests of Holdings (other
than Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities
of Holdings that have been converted into or exchanged for such Equity
Interests (other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of Holdings), plus (C) to the
extent not included in the calculation of Operating Surplus calculated as of
the end of Holdings’ preceding fiscal quarter, to the extent that any
Investment that was made after the date hereof is sold for cash or Cash
Equivalents or otherwise liquidated or repaid for cash, the lesser of (i) the
cash return of capital with respect to such Investment (less the cost of
disposition, if any) and (ii) the initial amount of such  Investment, plus (D) to the
extent not included in the calculation of Operating Surplus calculated as of
the end of Holdings’ preceding fiscal quarter, the net reduction in Investments
or Restricted Payments permitted hereunder resulting from dividends, repayments
of loans or advances, or other transfers of assets in each case to Holdings or
any of its Subsidiaries from any Person (including, without limitation, Project
Subsidiaries) or from redesignations of Project Subsidiaries as Subsidiaries,
to the extent such amounts have not been included in Operating Surplus for any
period commencing on or after the date of the indenture (items (B), (C) and
(D) being referred to as “Incremental Funds”) and (b) if the
Fixed Charge Coverage Ratio for Holdings’ most recently ended four full fiscal
quarters for which internal financial statements are available at the time of
such Restricted Payment is less than 1.75 to 1.00, Restricted Payments in an
aggregate amount not to exceed (i) $75,000,000 less the aggregate amount
of all Restricted Payments made by Holdings and its Restricted Subsidiaries
pursuant to this clause (b)(i) during the period ending on the last day of
the fiscal quarter immediately preceding the date of such Restricted Payment
and beginning on the Closing Date, plus (ii) Incremental Funds to
the extent not previously expended pursuant to this clause (b) or clause (a) above.


 


“MLP Formation
Transactions” means (i) the legal formation of the MLP, (ii) the
acquisition, directly or indirectly, of the Borrowers by the MLP, (iii) the
borrowing hereunder of an amount not to exceed the anticipated gross proceeds
of a Qualified MLP IPO and the distribution of that amount to the Sponsors
immediately prior to such Qualified MLP IPO, (iv) transactions described
on the registration statement on Form S-1 of the MLP on file with the
Securities and Exchange Commission and (v) transactions reasonably related
thereto that Holdings has determined not to have a material adverse effect on
the Lenders.


 


“Moody’s” means Moody’s
Investors Service, Inc. and any successor thereto.


 


“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.


 


“Natural Gas” means
any mixture of hydrocarbons or hydrocarbons and noncombustible gases, in a
gaseous state, consisting primarily of methane.


 


“Natural Gas Storage
Facility” means any Natural Gas storage facility now or hereafter owned,
leased or utilized by any Loan Party and operated by a Loan Party, other than
the NGPL Facility; provided that, for the avoidance of doubt, the Countess
Facility and the Suffield Facility shall each be deemed to be a separate
Natural Gas Storage Facility.


 


33

















 


“Net BA Proceeds”
means, with respect to any Bankers’ Acceptance, the Discount Proceeds thereof
less the amount equal to the stamping fee paid in respect thereto at the
Applicable Rate as provided in Section 2.09(d).


 


“Net Income” means, with respect to any specified Person, the
net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however:


 


(1)           any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with:  (a) any Disposition; or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries;
and


 


(2)           any extraordinary gain (but not loss), together with any
related provision for taxes on such extraordinary gain (but not loss).


 


“Net Liquidating Value of
Hedge Positions in Brokers Accounts” means, as of any date of determination
thereof, the net liquidating value in all Hedge Positions in Brokers Accounts.


 


“New Canadian Revolver
Commitments” has the meaning specified in Section 2.15.


 


“New Revolver Commitments”
has the meaning specified in Section 2.15.


 


“New US Revolver
Commitments” has the meaning specified in Section 2.15.


 


“NGPL Facility” means
the storage facilities owned or operated by Natural Gas Pipeline Company of
America in respect of which the Loan Parties have rights to store Natural Gas
pursuant to one or more contracts with Natural Gas Pipeline Company of America.


 


“Non-BA Lender” means
a Canadian Revolver Lender that (a) is not a bank chartered under the Bank
Act (Canada) or (b) has notified the Administrative Agent that it is
unable to accept Bankers’ Acceptances or does not customarily stamp, for
purposes of subsequent sale, or accept, Bankers’ Acceptances.


 


“Non-Ordinary Course
Asset Disposition” means any Disposition other than in the ordinary course
of business by one or more Loan Parties of inventory with a contribution to any
Borrowing Base in excess of 25% of such Borrowing Base.


 


“Non-Ordinary Course
Borrowing Base Certificate” means a Borrowing Base Report delivered in
connection with a Non-Ordinary Course Asset Disposition pursuant to Section 7.06.


 


“Non-US Lender” means
any Lender that is organized under the Laws of a jurisdiction other than the
United States.  For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.


 


“Note” means a US
Revolver Note, a Canadian Revolver Note, a US Swing Line Note or a Canadian
Swing Line Note, as the context may require.


 


“Notice of Exclusive
Control” has the meaning set forth in Section 6.15(b).


 


“NYMEX” means the New
York Mercantile Exchange.


 


34

















 


“Obligation Currency”
has the meaning set forth in Section 2.12(f).


 


“Obligations” means
all advances to, and debts, liabilities, obligations and covenants of, any Loan
Party arising under any Loan Document with respect to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including without limitation, US Revolver Obligations, Canadian Revolver
Obligations and interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding.


 


“Operating Agreement”
means Amended and Restated Agreements of Limited Partnership of Niska GS
Holdings I, L.P. and Niska GS Holdings II, L.P.


 


“Operating Expenditures”
means cash expenditures of the MLP and its Subsidiaries (or the MLP’s
proportionate share of expenditures in the case of Subsidiaries that are not
wholly owned), including taxes, reimbursements of expenses of the Managing
Member, payments made in the ordinary course of business underlying Swap
Agreements, repayment of Working Capital Borrowings, debt service payments and
capital expenditures, subject to the following:


 


(1)           repayment of Working Capital Borrowings deducted from
Operating Surplus pursuant to clause (b)(iii) of the definition of
Operating Surplus shall not constitute Operating Expenditures when actually
repaid;


 


(2)           payments (including prepayments and prepayment penalties)
of principal of and premium on indebtedness other than Working Capital
Borrowings shall not constitute Operating Expenditures;


 


(3)           Operating Expenditures shall not include (i) Expansion
Capital Expenditures or Investment Capital Expenditures, (ii) payment of
transaction expenses relating to Interim Capital Transactions, (iii) distributions
by the MLP to its members or (iv) repurchases of membership interests of
the MLP of any class, other than repurchases of membership interests to satisfy
obligations under employee benefit plans, or reimbursements of expenses of the
Managing Member for such purchases. 
Where capital expenditures are made in part for Expansion Capital
Expenditures and in part for other purposes, the Managing Member shall
determine the allocation between the amounts paid for each; and


 


(4)           payments made in connection with the termination of any
Long Term Hedge Contract prior to the expiration of its stipulated settlement
or termination date shall be excluded and amounts paid in connection with the
initial purchase of a Long Term Hedge Contract shall be amortized over the life
of the applicable Long Term Hedge Contract.


 


“Operating Surplus”
means, (a) the sum of:


 


(i) $50,000,000; plus


 


(ii) all cash receipts
of the MLP and its Subsidiaries (or the MLP’s proportionate share of cash receipts
in the case of Subsidiaries that are not wholly owned) for the period beginning
on the date of consummation of a Qualified MLP IPO and ending on the last day
of such period, but excluding cash receipts from Interim Capital Transactions
and the termination of Long Term Hedge Contracts; provided
that cash receipts from the termination of a Long Term Hedge Contracts prior to
its specified termination date shall be included in Operating Surplus in equal
quarterly installments over the remaining scheduled life of such Long Term
Hedge Contract; plus


 


35

















 


(iii) all cash receipts
of the MLP and its Subsidiaries (or the MLP’s proportionate share of cash receipts
in the case of Subsidiaries that are not wholly owned) after the end of such
period but on or before the date of determination of Operating Surplus with
respect to such period resulting from Working Capital Borrowings; plus


 


(iv) the amount of
distributions paid on equity (including incremental incentive distributions)
issued to finance all or a portion of the construction,  acquisition or improvement of a Capital
Improvement and paid in respect of the period beginning on the date that Holdings
or one of its Subsidiaries enters into a binding obligation to commence
construction or improvement  of,  or to acquire,  such Capital Improvement and ending on the earlier to occur
of (A) the date that such Capital Improvement Commences Commercial Service
and (B) the date that it is abandoned or disposed of (equity issued to
fund the construction period interest payments on debt incurred (including
periodic net payments under related interest rate swap agreements), or
construction period distributions on equity issued, to finance the
construction, acquisition or improvement  of
a Capital Improvement shall also be deemed to be equity issued to finance the
construction, acquisition or improvement  of
a Capital Improvement for purposes of this clause (iv)); less


 


(b) the sum of:


 


(i) all Operating
Expenditures of MLP and its Subsidiaries for the period beginning on the date
of consummation of a Qualified MLP IPO and ending on the last day of such
period; plus


 


(ii) the amount of cash
reserves established by the Managing Member (or the MLP’s proportionate share
of cash reserves in the case of Subsidiaries that are not wholly owned) to
provide funds for future Operating Expenditures; plus


 


(iii) all Working
Capital Borrowings not repaid within twelve months after having been incurred; plus


 


(iv) any loss realized
on disposition of an Investment Capital Expenditure;


 


provided, however, that disbursements made
(including contributions to the MLP of any of its Subsidiaries or disbursements
on behalf of MLP of any of its Subsidiaries) or cash reserves established,
increased or reduced after the end of such period but on or before the date of
determination of cash to be distributed with respect to such period shall be
deemed to have been made, established, increased or reduced, for purposes of determining
Operating Surplus, within such period if the Managing Member so determines;
receipts from an Investment Capital Expenditures shall be treated as cash
receipts only to the extent they are a return on principal, but return of principal
shall not be treated as cash receipts.


 


“Organization Documents”
means, (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive
documents with respect to any non-US jurisdiction); (b) with respect to
any limited liability company, the certificate or articles of formation or
organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


 


“Other Currency” has
the meaning set forth in Section 2.12(f).


 


36

















 


“Other Eligible Inventory
Value” means the quantity of Inventory, other than Hedged Eligible
Inventory (except as contemplated by clause (y) of the proviso contained
in the definition of “Hedged Eligible Inventory”), multiplied by the Prompt
Market Price.


 


“Other Eligible Receivable”
means any Eligible Receivable which is not an Approved Eligible Receivable.


 


“Other Priority Claims”
means, without duplication, (a) any account payable, obligation or
liability which the Administrative Agent has determined in its Permitted
Discretion has or will have a Lien upon or claim against any Cash Equivalent,
account or inventory of any Borrowing Base Party senior or equal in priority to
the security interests in favor of the Administrative Agent for the benefit of
the Secured Parties, in each case to the extent such Cash Equivalent, account
or inventory of such Borrowing Base Party is otherwise included in the
determination of the applicable Borrowing Base and the included portion thereof
has not already been reduced by such Lien or claim; and (b) other
Reserves.


 


“Other Taxes” means
all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.


 


“Outstanding Amount”
means (a) with respect to US Revolver Loans, US Swing Line Loans, Canadian
Revolver Advances or Canadian Swing Line Loans, on any date, the Dollar
Equivalent of the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of such Loans, as the
case may be, occurring on such date; and (b) with respect to any L/C
Obligations on any date, the Dollar Equivalent of the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
applicable Borrower of Unreimbursed Amounts.


 


“Participant” has the
meaning specified in Section 10.06(d).


 


“Patriot Act” means
The Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub.  L. No. 107-56 (signed into law on October 26,
2001)), as amended or modified from time to time.


 


“PBGC” means the
Pension Benefit Guaranty Corporation.


 


“Pension Plan” means
any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to
which any Loan Party or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
plan years.


 


“Permits and
Authorizations” means all permits, licenses, approvals, certificates,
entitlements, exemptions and other authorizations issued by Governmental
Authorities, including those required under Environmental Laws, certificates of
occupancy, those permits required in connection with the ownership and
operation of the Loan Parties’ respective businesses (including all Natural Gas
Storage Facilities and applicable pipelines), and all amendments,
modifications, consolidations, replacements, supplements, general and specific
terms and conditions and addenda thereto.


 


37

















 


“Permitted Acquisitions”
means any acquisition or series of related acquisitions by any Loan Party of (a) all
or substantially all of the capital stock or other Equity Interests in a Person
which has been approved or recommended by the board of directors or similar
governing body of such Person, including an acquisition through a merger or
consolidation of such Person with or into a Loan Party, (b) all or
substantially all of the business, assets or operations of a Person or (c) a
portion of the business, assets or operations of a Person constituting one or
more divisions, business units or business lines of such Person; provided
that (i) prior to and after giving effect to such acquisition or series of
related acquisitions, no Default or Event of Default shall have occurred and be
continuing; (ii) all representations and warranties contained in the Loan
Documents shall be true and correct in all material respects as if made
immediately following the consummation of such acquisition or series of related
acquisitions, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date; (iii) substantially all of such business,
assets and operations so acquired, or of the Person so acquired, consists of a
Permitted Business; (iv) the aggregate purchase price for all such
acquisitions of Persons that do not become Loan Parties and assets that will
not be owned by a Loan Party does not exceed $400,000,000  plus
the Available Amount; and (v) prior to and after giving effect to such
acquisition or series of related acquisitions, the Fixed Charge Coverage Ratio
shall be at least 2.0 to 1.0 on a pro forma basis as at the
end of the trailing four Fiscal Quarters most recently ended.


 


“Permitted
Business”  means either (1) purchasing,
gathering, transporting, marketing, selling, distributing, storing or otherwise
handling or providing services relating to Hydrocarbons or activities or
services reasonably related or ancillary thereto, including entering into Hedging
Obligations to support these businesses, (2) or any other activity
consistent with the Risk Management Policy or (3) any other business that
generates gross income that constitutes “qualifying income” under Section 7704(d) of
the Code.


 


“Permitted Discretion” means a determination made in good faith and in
the exercise of commercially reasonable business judgment.


 


“Permitted Investors”
means, collectively, (a) Sponsor and (b) directors and the members of
management of Holdings and its Subsidiaries that have ownership interests in
Holdings (for so long as the ownership interests held by such directors or
members of management are less than the ownership interests held by the
Sponsor).


 


“Permitted Natural Gas
Lien” means any Lien on Natural Gas of the type described in Section 7.01(c) (so
long as such Lien is inchoate), Section 7.01(d), Section 7.01(t) and
Section 7.01(x).


 


“Person” means any
natural person, corporation (including an unlimited liability corporation),
limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.


 


“Plan” means any “employee
benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by any Holdings Entity or any Borrower, or, with respect to any
such plan that is subject to Section 412 of the Code or Title IV of ERISA,
any ERISA Affiliate.


 


“Platform” means
IntraLinks or another similar electronic system on which information provided
by the Loan Parties is made available to the Lenders by the Administrative
Agent.


 


“Pledge Agreements”
means the US Pledge Agreement, the Canadian Security Agreement and each other
pledge agreement executed and delivered by a Loan Party in favor of the
Administrative Agent.


 


38














 


“Position” means (a) any
physically owned Natural Gas constituting inventory, (b) any obligation to
purchase or sell Natural Gas constituting inventory, however evidenced, whether
for the then current or forward time, (c) any exchange or over-the-counter
put, call or other options or any forward or futures contract relating to
Natural Gas that constitutes inventory, (d) any type of Swap Contract
relating to Natural Gas constituting inventory and (e) any other
arrangement relating to Natural Gas constituting inventory that has price or
spread risk.


 


“PPSA” means the
Personal Property Security Act (Alberta).


 


“Project Subsidiary”
means any Subsidiary of Holdings that is designated as a Project Subsidiary
pursuant to a resolution of the board of directors or similar governing body,
and any Subsidiary thereof, but only to the extent that such Subsidiary: (a) has
no Indebtedness that is recourse to any Loan Party; (b) except as
permitted hereunder, is not party to any agreement, contract, arrangement or
understanding with Holdings or any Subsidiary unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
Holdings or such Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of Holdings; (c) is a Person with respect
to which neither Holdings nor any Subsidiary has any direct or indirect
obligation (i) to subscribe for additional Equity Interests or (ii) to
maintain or preserve such Person’s financial condition or to cause such Person
to achieve any specified levels of operating results; and (d) has not
guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of Holdings or any Subsidiary.


 


“Prompt Market Price”
means the market price of the front month at each appropriate pricing location.
For purpose of calculating the foregoing, the prompt month price shall be the
NYMEX prompt month price plus the prompt location basis at the applicable
Natural Gas Storage Facility as set forth below:


 


	
  Natural Gas Storage Facility

  	
   

  	
  Location Basis

  
	
  AECO (Countess and Suffield) Facility

  	
   

  	
  AECO C Basis

  
	
  TCPL Leased Storage Facility

  	
   

  	
  AECO C Basis

  
	
  Salt Plains Facility

  	
   

  	
  Panhandle Basis

  
	
  Wild Goose Facility

  	
   

  	
  PG&E Citigate Basis

  
	
  NGPL (TexOk) Leased Storage Facility

  	
   

  	
  NGPL TXOK Basis

  
	
  NGPL (Mid Con) Leased Storage Facility

  	
   

  	
  NGPL Midcon Basis

  



 


“Public Lender” has
the meaning set forth in Section 6.02.


 


“Qualified MLP IPO”
means an initial offer and sale of common units of the MLP in an underwritten
public offering for cash pursuant to a registration statement that has been
declared effective by the SEC pursuant to the Securities Act (other than a
registration statement on Form S-4 or Form S-8 or otherwise relating
to Equity Interests of the MLP issuable under any employee benefit plan); provided,
however, that immediately after such offering, the MLP is treated as a
partnership for U.S. federal income tax purposes and qualifies for the
exception contained in Section 7704(c) of the Code for partnerships
with “qualifying income” (as defined in Section 7704(d) of the Code).


 


“Register” has the
meaning set forth in Section 10.06(c).


 


39

















 


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


 


“Release” means any
release, seepage, spill, emission, leak, escape, pumping, injection, deposit,
disposal, discharge, dispersal, leaching, dumping or migration into the
environment, including the movement of Hazardous Materials through ambient air,
soil, surface water, ground water, wetlands, land or sub-surface strata.


 


“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the 30 day notice period has been waived.


 


“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolver Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.


 


“Required Lenders”
means, as of any date of determination, Lenders holding more than 50% of the
sum of (a) the aggregate Outstanding Amount of all Loans and all L/C
Obligations as of such date (with the aggregate amount of each Revolver Lender’s
risk participation and funded participation in L/C Obligations and Swing Line
Loans being deemed “held” by such Revolver Lender for purposes of this
definition) and (b) the aggregate unused Commitments; provided that
the unused Commitment of, and the portion of the Outstanding Amount of any Loan
or L/C Obligation held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders unless such
Defaulting Lender is otherwise permitted to vote any proposed amendment
pursuant to the penultimate sentence of Section 10.01.


 


“Reserves” means:


 


(a) at any time when a
Fixed Asset Amount constitutes a portion of the Borrowing Base, and without
duplication of any items that are otherwise addressed or excluded through
eligibility criteria such reserves as the Administrative Agent from time to
time and upon not less than five Business Days’ notice to the Borrowers (unless
an Event of Default exists and is continuing) determines in its Permitted
Discretion as being appropriate to reflect any impediments arising after the
Closing Date to the Administrative Agent’s ability to realize upon the
Collateral included in any Borrowing Base; and


 


(b) at any time when a
Fixed Asset Amount does not constitute a portion of the Borrowing Base, and
without duplication of any items that are otherwise addressed or excluded
through eligibility criteria such reserves as the Administrative Agent from time
to time and upon not less than ten Business Days’ notice to the Borrowers
(unless an Event of Default exists and is continuing) determines in its
Permitted Discretion as being appropriate (x) to reflect any impediments
arising after the Closing Date to the Administrative Agent’s ability to realize
upon the Collateral included in any Borrowing Base, (y) to reflect claims
and liabilities that the Administrative Agent determines will need to be
satisfied in connection with the realization of the realization upon the
Collateral included in any Borrowing Base or (z) to reflect certain
criteria, events, conditions, contingencies or risks which adversely affect any
component of the applicable Borrowing Base;


 


provided, however,
that any reserve shall bear a reasonable relationship as determined by the
Administrative Agent in its Permitted Discretion to the event, condition or
other matter that is the basis for the reserve; and provided, further,
that for purposes of this clause (b), the following reserves shall be deemed to
be a reasonable exercise of the Administrative Agent’s Permitted Discretion: (a) a
reserve for accrued, unpaid interest then due on the Obligations, (b) reserves
for rent at a leased Natural Gas Storage Facility or bailment location for
which the Administrative Agent has not received a collateral access or 


 


40

















 


similar agreement, and
reserves for other statutory liens (including, without limitation, for liens
arising from the non-payment of claims or demands, when due), in an aggregate
amount not to exceed $1,000,000 for all such locations (as such amount shall be
reduced as agreed to by the Borrowers and the Administrative Agent upon
obtaining any such collateral access or similar agreement), (c) reserves
for taxes, assessments, charges and other governmental levies which are
delinquent, (d) $2,000 per Canadian employee, and (e)  additionally,
reserves established by the Administrative Agent for amounts payable by each of
the Borrowers and secured by any Liens, choate or inchoate, on assets which
comprise the applicable Borrowing Base and that rank and that could reasonably
be expected to rank in priority to the Administrative Agent’s and/or Lenders’
Liens and/or for amounts that represent costs relating to the enforcement of
the Administrative Agent’s Liens.


 


“Responsible Officer”
means with respect to any Loan Party, the chief executive officer, president, a
vice president, chief financial officer, treasurer or assistant treasurer of
such Loan Party (or, if such Loan Party is managed by a third party, such as a
general partner, manager or managing member, the persons performing comparable
roles).  Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party (a) shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party (or, if such Loan Party is a
general partnership, on the part of such Loan Party’s general partner), (b) such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party (or, if such Loan Party is a limited partnership, on behalf of
such Loan Party’s general partner) and (c) such Responsible Officer shall
be conclusively presumed to have acted in his or her capacity as an officer of
such Loan Party (or, if such Loan Party is limited partnership, as an officer
of such Loan Party’s general partner), and not in his or her individual
capacity.


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other Equity Interest of any
Loan Party or any Subsidiary, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such capital stock or other Equity Interest, or on account of any return
of capital to any Loan Party’s or any Subsidiary’s stockholders, partners or
members (or the equivalent of any thereof).


 


“Revaluation Date”
means (a) with respect to any Canadian Revolver Advance, (i) each
date of a Canadian Revolver Borrowing and (ii) such additional dates as
any Agent shall determine or the Required Canadian Revolver Lenders shall
require; and (b) with respect to any Canadian Letter of Credit, (i) each
date of issuance of a Canadian Letter of Credit, (ii) each date of an
amendment to a Canadian Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each
date of any payment by the Canadian L/C Issuer under any Canadian Letter of
Credit and (iv) such additional dates as any Agent or the Canadian L/C
Issuer shall determine or the Required Canadian Revolver Lenders shall require.


 


“Revolver Commitment”
means a US Revolver Commitment or a Canadian Revolver Commitment.


 


“Revolver Exposure”
means, as to any Revolver Lender, such Revolver Lender’s US Revolver Exposure
and Canadian Revolver Exposure.


 


“Revolver Lender”
means a US Revolver Lender or a Canadian Revolver Lender.


 


“Revolver Loans”
means the US Revolver Loans and the Canadian Revolver Loans.


 


“Revolver Maturity Date”
means March 5, 2014.


 


41

















 


“Risk Management Policy”
means the Risk Management Policy, which has been adopted by the Loan Parties on
or prior to the Closing Date, as such policy may be amended, supplemented or
otherwise modified from time to time by the Loan Parties to the extent consistent
with customary industry practice and, in all cases, reasonably satisfactory to
the Administrative Agent.


 


“Riverstone” means
Riverstone Equity Partners LP.


 


“Riverstone Monitoring
Fee” means an annual monitoring fee of $1,000,000 payable by Holdings to
Riverstone, plus Riverstone’s reasonable expenses incurred in connection
with the monitoring services it performs with respect to Holdings and its
Subsidiaries during such Fiscal Year.


 


“S&P” means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.


 


“Salt Plains Facility”
means the natural gas storage facility located in Grant County, Oklahoma and
having, as of the Closing Date, one storage reservoir with a total capacity of
approximately 13 Bcf, and associated compressors, compressor sites,
pipeline headers, pipelines and other related equipment and buildings.


 


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


 


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


 


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


 


“Secured Cash Management
Agreement” means any Cash Management Agreement that is entered into by and
between any Borrower and any Cash Management Bank.


 


“Secured Cash Management
Obligations” means all amounts owing under Secured Cash Management
Agreements.


 


“Secured Obligations”
means the Obligations and the Secured Cash Management Obligations.


 


“Secured Parties”
means the Administrative Agent, the Collateral Agent, each Lender, each L/C
Issuer and each other Person to which any of the Secured Obligations is owed.


 


“Security Agreements”
means the US Security Agreement, the Canadian Security Agreement and each other
security agreement entered into by any Loan Party and the Administrative Agent
to secure the payment of any part of the Secured Obligations or the performance
of any Loan Party’s other duties and obligations under the Loan Documents.


 


“Security Documents”
means the Security Agreements, the Pledge Agreements, any mortgages and all
other security agreements, deeds of trust, mortgages, chattel mortgages,
pledges, financing statements, continuation statements, extension agreements
and other agreements or instruments now, heretofore or hereafter delivered by
any Loan Party to the Administrative Agent in connection with this Agreement or



 


42

















 


any transaction contemplated
hereby to secure the payment of any part of the Secured Obligations or the
performance of any Loan Party’s other obligations under the Loan Documents.


 


“Senior Credit Facilities”
means the revolving credit facilities provided under this Agreement.


 


“Senior Notes” means,
collectively, the Units consisting of $218.75 million principal amount of     % senior notes due 2018 of the US Borrower
and  Niska Gas Storage US Finance Corp. and
$781.25 million principal amount of    %
senior notes due 2018 of Niska Gas Storage Canada ULC and Niska Gas Storage
Canada Finance Corp.


 


“Senior Notes Documents”
means, collectively, the senior notes indenture, any supplemental indentures
relating thereto, the Senior Notes and any other agreement or document related
thereto.


 


“Settlement Date”
means the 25th of every month; provided, however, that in the
circumstance when the 25th of a month is not a Business Day, the Settlement
Date shall be the Business Day before or after such date as determined by the
applicable Borrower.


 


“Solvent” and “Solvency”
mean, with respect to any Person on a particular date, that on such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.


 


“Sponsor” means,
collectively, Carlyle/Riverstone Global Energy and Power Fund II, L.P.,
Carlyle/Riverstone Global Energy and Power Fund III, L.P. and their respective
Control Investment Affiliates.


 


“Spot Rate” means, on any day, the Bank of Canada noon rate
quoted or published by the Bank of Canada at which Canadian Dollars may be
exchanged into Dollars with respect to any Outstanding Amounts.


 


“Storage Services Agreements”
means any agreement between any Loan Party and any third party relating to the
storage, injection, withdrawal, delivery or other service relating to Natural
Gas, including, without limitation, any long term firm or short term firm
contracts.


 


“Subordinated Debt”
means Indebtedness subordinated to the Obligations on terms and pursuant to
agreements reasonably acceptable and satisfactory to the Administrative Agent.


 


“Subsidiary” of a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of US Holdings, Canada Holdings or MLP, as
applicable.  Notwithstanding the
foregoing, a Project Subsidiary shall be deemed 


 


43

















 


not to be a Subsidiary of
Holdings or any of its Subsidiaries for purposes of Articles V, VI (other than Section 6.01),
VII and VIII of this Agreement.


 


“Suffield Facility”
means the natural gas storage facility located in southeastern Alberta, Canada
near the CFB Suffield military range and having, as of the Closing Date, five
storage reservoirs with a total capacity of approximately 80 Bcf, and
associated compressors, compressor sites, pipeline headers, pipelines and other
related equipment and buildings.


 


“Supermajority Lenders”
means, as of any date of determination, Lenders holding more than 662/3% of the sum of (a) the aggregate Outstanding
Amount of all Loans and all L/C Obligations as of such date (with the aggregate
amount of each Revolver Lender’s risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed “held” by such Revolver
Lender for purposes of this definition) and (b) the aggregate unused
Commitments; provided that the unused Commitment of, and the portion of
the Outstanding Amount of any Loan or L/C Obligation held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Supermajority Lenders unless such Defaulting Lender is otherwise permitted
to vote any proposed amendment pursuant to the penultimate sentence of Section 10.01.


 


“Swap Contract” means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, commodity futures contracts, equity or equity
index swaps or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any international foreign exchange master agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Swap Termination Value”
means, in respect of any one or more Swap Contracts, after taking into account
the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have
been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the
date referenced in clause (a), the amount(s) determined as the
Mark-to-Market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by
any recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).


 


“Swing Line Borrowing”
means a US Swing Line Borrowing or a Canadian Swing Line Borrowing.


 


“Swing Line Lender”
means the US Swing Line Lender or the Canadian Swing Line Lender.


 


“Swing Line Loan”
means a US Swing Line Loan or a Canadian Swing Line Loan.


 


“Swing Line Loan Notice”
means a notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit E-2.


 


44

















 


“Synthetic Lease
Obligation” means the monetary obligation of a Person under a so-called
synthetic, off-balance sheet or tax retention lease.


 


“Tax Returns” has the
meaning set forth in Section 5.11(a).


 


“Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority,
including all income, sales, use, goods and services, value added, capital,
capital gains, alternative, net worth, transfer, profits, withholding, payroll,
employer health, excise, real property and personal property taxes, and any
other taxes, customs duties, fees, assessments or similar charges in the nature
of a tax, including Canada Pension Plan, Quebec Pension Plan, Canadian Pension
Plan and provincial pension plan contributions, unemployment insurance payments
and workers’ compensation premiums, in each case together with any installments
or estimated payments with respect thereto, and any interest, fines and
penalties with respect thereto.


 


“Third-Party Location”
means any Natural Gas storage facility that is neither owned nor leased nor
licensed by a Borrowing Base Party, including the NGPL Facility.


 


“Threshold Amount”
means $25,000,000.


 


“Total Canadian Revolver
Exposure” means at any time, the sum of (a) the Dollar Equivalent of
the aggregate outstanding principal amount of all Canadian Revolver Lenders’
Canadian Revolver Advances at such time plus (b) the Total Canadian
Revolver L/C Exposure at such time plus (c) the Dollar Equivalent
of the aggregate outstanding principal amount of all Canadian Swing Line Loans
at such time.


 


“Total Canadian Revolver
L/C Exposure” means, at any time, the Dollar Equivalent of the aggregate
amount of all Canadian L/C Obligations at such time.


 


“Total Revolver Exposure”
means the sum of the Total Canadian Revolver Exposure and the Total US Revolver
Exposure; provided that, until delivery of the first completed field
examination after the Closing Date with respect to the Collateral to be
included in each of the US Borrowing Base and the Canadian Borrowing Base and
of the relevant accounting systems, policies and procedures of Holdings and
their respective Subsidiaries, with results reasonably satisfactory to the
Administrative Agent, the Total Revolver Exposure shall not exceed
$150,000,000.


 


“Total Revolver Maximum
Available Amount” means the sum of the US Revolver Maximum Available Amount
plus the Canadian Revolver Maximum Available Amount.


 


“Total US Revolver
Exposure” means at any time, the sum of (a) the aggregate outstanding
principal amount of all US Revolver Loans at such time plus (b) the
Total US Revolver L/C Exposure at such time plus (c) the aggregate
outstanding principal amount of all US Swing Line Loans at such time.


 


“Total US Revolver L/C
Exposure” means, at any time, the aggregate amount of all US L/C
Obligations at such time.


 


“Trigger Event Period”
means, at any time following the delivery of the first field audit or
examination after the Closing Date, (a) any period commencing on the date
on which the Total Revolver Exposure is greater than 85% of the Aggregate
Borrowing Base and ending on the date on which the Total Revolver Exposure
shall have been less than 85% of the Aggregate Borrowing Base for 30 consecutive
calendar days or (b) any period during which an Event of Default shall
have occurred and be continuing.


 


45

















 


“Type”, (a) when
used in reference to any US Revolver Loan or any portion thereof, refers to its
character as a Base Rate Loan or a Eurodollar Rate Loan, and (b) when used
in reference to any Canadian Revolver Advance or any portion thereof, refers to
its character as a Canadian Prime Rate Loan, a Canadian US Dollar Base Rate
Loan, a Eurodollar Rate Loan or a Bankers’ Acceptance.


 


“UCC” means the
Uniform Commercial Code as in effect in the State of New York.


 


“UCP” has the meaning
set forth in Section 2.03(h).


 


“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 in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.


 


“United States” and “U.S.”
mean the United States of America.


 


“Unreimbursed Amount”
has the meaning specified in Section 2.03(c)(i).


 


“Unsupported Amount”
means on any date of determination, an amount (not less than zero) equal to the
difference between (a) the Total Revolver Exposure in respect of L/C
Obligations and Swingline Loans and (b) the amount equal to (i) the
aggregate Revolver Commitments of the Revolver Lenders which are not Defaulting
Lenders minus (ii) the aggregate amount of outstanding Revolver
Loans of such Lenders.


 


“US Audited Financial
Statements” means for the period from the Closing Date through the date
until audited financial statements are first delivered pursuant to Section 6.01(a)(iii),
a consolidated balance sheet of US Holdings and its Subsidiaries for the Fiscal
Year ended March 31, 2009, and the related consolidated statements of
income or operations, partners’ capital and cash flows for such Fiscal Year.


 


“US Borrower” has the
meaning specified in the introductory paragraph hereto.


 


“US Borrowing Base”
means, at any time, the sum of the following:


 


(a)           100% of the US Borrowing Base Parties’ Eligible Cash
Equivalents at such time; plus


 


(b)           90% of the US Borrowing Base Parties’ Approved Eligible
Receivables at such time; plus


 


(c)           85% of the US Borrowing Base Parties’ Other Eligible
Receivables at such time; plus


 


(d)           85% of the Net Liquidating Value of Hedge Positions in
Brokers Accounts of the US Borrowing Base Parties at such time; plus


 


(e)           90% of the value of the US Borrowing Base Parties’ Hedged
Eligible Inventory at such time; plus


 


(f)            60% of the Other Eligible Inventory Value of the US
Borrowing Base Parties at such time; plus


 


(g)           80% of the Issued but Unused Letter of Credit Value in
respect of Letters of Credit issued for the account of or on behalf of the US
Borrowing Base Parties at such time (provided that such amount shall be
increased by the lesser of (i) 20% of any Issued by Unused Letter of
Credit Value of Letters of Credit issued for the benefit of Natural Gas
Exchange Inc. or any of its Affiliates and (ii) $5,000,000); plus


 


46

















 


(h)           100% of the portion of the Fixed Asset Amount not included
in the Canadian Borrowing Base designated by the US Borrower in the most recent
US Borrowing Base Report to be allocated to the US Borrowing Base; minus


 


(i)            100% of the US Borrowing Base Parties’ Other Priority
Claims at such time.


 


“US Borrowing Base
Parties” means the US Borrower and each other US Loan Party that is party
to the US Security Agreement as a “Grantor” thereunder.  For the avoidance of doubt, the term “US
Borrowing Base Parties” does not include any Project Subsidiary.


 


“US Borrowing Base Report”
has the meaning specified in Section 6.02(f)(i).


 


“US Guaranty” means a
Guaranty made by the US Loan Parties and the Canadian Loan Parties that are
organized under the laws of any jurisdiction of the United States in favor of
the Secured Parties, substantially in the form of Exhibit C-1.


 


“US Holdings” has the
meaning specified in the introductory paragraph hereto.


 


“US Holdings GP”
means Niska US GP LLC.


 


“US L/C Borrowing”
means an extension of credit resulting from a drawing under any US Letter of
Credit which has not been reimbursed on the date when made or refinanced as a
US Revolver Borrowing.


 


“US L/C Issuer” means
Royal Bank of Canada in its capacity as issuer of US Letters of Credit
hereunder, or any successor or permitted assigns as issuer of US Letters of
Credit hereunder.  The commitment of each
US L/C Issuer shall be as set forth on Schedule A-1, as amended from time to
time.


 


“US L/C Obligations”
means L/C Obligations in respect of US Letters of Credit.


 


“US Letter of Credit”
means any letter of credit issued by the US L/C Issuer hereunder upon the
application of the US Borrower.  A US
Letter of Credit may be a commercial letter of credit or a standby letter of
credit.


 


“US Letter of Credit Fee”
has the meaning set forth in Section 2.09(a).


 


“US Loan Parties”
means (a) prior to any Qualified MLP IPO, US Holdings, the US Borrower,
and each other Subsidiary of US Holdings that (i) is organized under the
laws of any jurisdiction of the United States and (ii) is or is required
to be a party to any Loan Document and (b) following any Qualified MLP
IPO, MLP, the US Borrower, and each other Subsidiary of MLP that (i) is
organized under the laws of any jurisdiction of the United States and (ii) is
or is required to be a party to any Loan Document.


 


“US Pledge Agreement”
means a Pledge Agreement executed and delivered by the US Loan Parties and the
Canadian Loan Parties that are organized under the laws of any jurisdiction of
the United States in favor of the Administrative Agent, for the benefit of the
Secured Parties, substantially in the form of Exhibit H-1.


 


“US Revolver Adjustment”
has the meaning set forth in Section 2.23(a).


 


“US Revolver Adjustment
Date” has the meaning set forth in Section 2.23(a).


 


47

















 


“US Revolver Availability
Period” means the period from and including the Closing Date to the
earliest of (a) the Revolver Maturity Date, (b) the date of
termination of all US Revolver Commitments pursuant to Section 2.06 and (c) the
date of termination of the commitment of each US Revolver Lender to make US
Revolver Loans pursuant to Section 8.02.


 


“US Revolver Borrowing”
means a borrowing or continuation or conversion of loans consisting of
simultaneous US Revolver Loans of the same Type and, in the case of Eurodollar
Rate Loans, having the same Interest Period made by the Lenders pursuant to Section 2.02(a).


 


“US Revolver Commitment”
means, as to each US Revolver Lender, its obligation to (a) make US
Revolver Loans to the US Borrower pursuant to Section 2.01(a), (b) acquire
participations in US Letters of Credit and (c) acquire participations in
US Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth as its “US Revolver Commitment”
opposite such Lender’s name on Annex A-1 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.


 


“US Revolver Exposure”
means, with respect to any US Revolver Lender at any time, the sum of (a) the
outstanding principal amount of such Lender’s US Revolver Loans at such time plus
(b) such Lender’s US Revolver L/C Exposure at such time plus (c) such
Lender’s US Revolver Percentage of the outstanding principal amount of all US
Swing Line Loans at such time.


 


“US Revolver Facility”
means, at any time, the aggregate amount of the US Revolver Lenders’ US
Revolver Commitments at such time.


 


“US Revolver L/C Exposure”
means, with respect to any US Revolver Lender at any time, such Lender’s US
Revolver Percentage of the Total US Revolver L/C Exposure at such time.


 


“US Revolver Lender”
means, at any time, any Lender that has a US Revolver Commitment at such time
or, if the US Revolver Commitments have terminated or expired, a Lender with US
Revolver Exposure and, as the context requires, includes the US L/C Issuer.


 


“US Revolver Loan”
has the meaning set forth in Section 2.01(a).


 


“US Revolver Maximum
Available Amount” means, at any date, an amount equal to the lesser of (a) the
Aggregate US Revolver Commitments as of such date and (b) the US Borrowing
Base on such date (as determined by reference to the US Borrowing Base Report
most recently delivered pursuant to Section 6.02(f)(i)).


 


“US Revolver Note”
means a promissory note made by the US Borrower in favor of a US Revolver
Lender evidencing the US Revolver Loans made by such Lender, substantially in
the form of Exhibit B-1.


 


“US Revolver Obligations”
means all indebtedness, liabilities and obligations from time to time owing by
any Loan Party to any US Revolver Lender or the US Swing Line Lender under or
pursuant to any Loan Document with respect to any US Revolver Loan, US Letter
of Credit or US Swing Line Loan, or under or pursuant to any guaranty of such
indebtedness, liabilities or obligations, or under or pursuant to any Security
Document which secures the payment and performance of such indebtedness,
liabilities and obligations, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such 


 


48

















 


interest and fees are
allowed claims in such proceeding.  “US
Revolver Obligation” means any part of the US Revolver Obligations.


 


“US Revolver Percentage”
means, with respect to any US Revolver Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate US Revolver
Commitments represented by such Lender’s US Revolver Commitment at such
time.  If the commitment of each US
Revolver Lender to make US Revolver Loans has been terminated pursuant to Section 8.02
or if the Aggregate US Revolver Commitments have expired, then the US Revolver
Percentage of each US Revolver Lender shall be determined based on the US
Revolver Percentage of such Lender most recently in effect, giving effect to
any subsequent assignments.  The initial
US Revolver Percentage of each US Revolver Lender is set forth as its “US
Revolver Percentage” opposite the name of such Lender on Annex A-1 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.


 


“US Revolver Required
Lenders” means, as of any date of determination, US Revolver Lenders
holding more than 50% of the sum of (a) the Total US Revolver Exposure
(with the aggregate amount of each US Revolver Lender’s risk participation and
funded participation in US L/C Obligations and US Swing Line Loans being deemed
“held” by such US Revolver Lender for purposes of this definition) as of such
date and (b) the aggregate unused US Revolver Commitments as of such date;
provided that the unused US Revolver Commitment of, and the portion of
the Total US Revolver Exposure held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of US Revolver
Required Lenders.


 


“US Revolver Supermajority
Lenders” means, as of any date of determination, US Revolver Lenders
holding more than 66 2/3% of the sum of (a) the Total US Revolver
Exposure (with the aggregate amount of each US Revolver Lender’s risk
participation and funded participation in US L/C Obligations and US Swing Line
Loans being deemed “held” by such US Revolver Lender for purposes of this
definition) as of such date and (b) the aggregate unused US Revolver
Commitments as of such date; provided that the unused US Revolver
Commitment of, and the portion of the Total US Revolver Exposure held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of US Revolver Supermajority Lenders.


 


“US Security Agreement”
means a Security Agreement among the US Loan Parties and the Canadian Loan
Parties that are organized under the laws of any jurisdiction of the United
States in favor of Administrative Agent, for the benefit of the Secured
Parties, substantially in the form of Exhibit F-1.


 


“US Swing Line Borrowing”
means a borrowing of a US Swing Line Loan pursuant to Section 2.04.


 


“US Swing Line Lender”
means Royal Bank of Canada, in its capacity as provider of US Swing Line Loans,
or any successor US swing line lender hereunder.


 


“US Swing Line Loan”
has the meaning set forth in Section 2.04(a)(i).


 


“US Swing Line Note”
means a promissory note made by the US Borrower in favor of the US Swing Line
Lender evidencing the US Swing Line Loans made by such Swing Line Lender,
substantially in the form of Exhibit B-6.


 


“US Swing Line Sublimit”
means an amount equal to the lesser of (i) $20,000,000 and (ii) the
US Revolver Facility.  The US Swing Line
Sublimit is part of, and not in addition to, the US Revolver Facility.


 


49














 


“Voting Stock” of any
specified Person as of any date, means the Equity Interests of such Person that
is at the time entitled to vote in the election of the board of directors or
any similar governing body of such Person.


 


“Weighted Average Life to
Maturity” shall mean, when applied to any Indebtedness at any date, the
number of years obtained by dividing: (a) the sum of the products obtained
by multiplying (i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment; by (b) the then outstanding principal amount
of such Indebtedness.


 


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


 


“Wild Goose Facility”
means the natural gas storage facility located in Butte County, California and
having, as of the Closing Date, two storage zones and a total capacity of
approximately 29 Bcf, and associated compressors, compressor sites,
pipeline headers, pipelines and other related equipment and buildings.


 


“Working Capital
Borrowings” means borrowings that the Managing Member intends to use for
working capital purposes or to pay distributions to Members, made pursuant to a
credit facility, commercial paper facility or similar financing arrangement; provided
that when incurred it is the intent of the borrower to repay such borrowings
within 12 months from sources other than additional Working Capital
Borrowings.


 


“Yield Differential”
has the meaning specified in Section 2.15.


 


1.02         Other
Interpretive Provisions.  With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


 


(a)           The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The
word “will” shall be construed to have the same meaning and effect as
the word “shall.”  Unless the
context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth
herein or in any other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (iii) the
words “herein,” “hereof” and “hereunder,” and words of
similar import when used in any Loan Document, shall be construed to refer to
such Loan Document in its entirety and not to any particular provision thereof,
(iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law
or regulation as amended, modified or supplemented from time to time, and (vi) the
words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


50

















 


(b)           In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to”
and “until” each mean “to but excluding”; and the word “through”
means “to and including”.


 


(c)           Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


1.03         Accounting Terms.


 


(a)           Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, except as otherwise specifically prescribed herein.


 


(b)           Changes
in GAAP.  If at any time any change
in GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrowers or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrowers shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrowers shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP.


 


1.04         Rounding.  Any financial ratios required to be
maintained by any Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).


 


1.05         Times
of Day.  Unless otherwise specified,
all references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).


 


1.06         Letter
of Credit Amounts.  Unless
otherwise specified, all references herein to the amount of a Letter of Credit
at any time shall be deemed to be the Dollar Equivalent of the stated amount of
such Letter of Credit in effect at such time.


 


1.07         Dollar Equivalents; Spot
Rates.


 


(a)           Unless
otherwise specified herein, (i) all dollar amounts expressed herein shall
refer to Dollars and (ii) for purposes of calculating compliance with the
terms of this Agreement and the other Loan Documents (including for purposes of
calculating compliance with the covenants), each obligation or calculation
shall be converted to its Dollar Equivalent. 
Unless otherwise provided, dollar ($) baskets set forth in the representations
and warranties, covenants and events of default provisions of this Agreement
and other similar baskets (it being understood that this sentence does not
apply to Article II of this Agreement) are calculated as of each date of
measurement by the Dollar Equivalent thereof as of such date of measurement; provided
that if any such baskets are exceeded solely as a result of fluctuations 


 


51

















 


in
applicable currency exchange rates after the last time such baskets were
accessed, such baskets will not be deemed to have been exceeded solely as a
result of such fluctuations in currency exchange rates.


 


(b)           The
Administrative Agent or the Applicable L/C Issuer, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Canadian Dollars.  Such
Spot Rates shall become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. 
Except for purposes of financial statements delivered by Holdings
hereunder and calculating financial covenants hereunder, and except as
otherwise provided herein, the applicable amount of Canadian Dollars for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so
determined by the Administrative Agent or the Applicable L/C Issuer, as
applicable.


 


1.08         Designation of Project
Subsidiaries.


 


(a)           Holdings
or any Subsidiary may designate any Subsidiary (other than any Borrower) to be
a Project Subsidiary (i) if such designation would not result in a Default
or an Event of Default and (ii) upon delivery of Borrowing Base Reports
with pro forma calculations of such designation.  If a Subsidiary is designated as a Project
Subsidiary, the aggregate fair market value of all outstanding Investments
owned by Holdings or any of its other Subsidiaries in the subsidiary designated
as a Project Subsidiary will be deemed to be an Investment made as of the time
of the designation and will reduce the amount available for Investments
permitted hereunder.  That designation
will only be permitted if the Investment would be permitted at that time and if
such Subsidiary otherwise meets the definition of a Project Subsidiary.  Any Project Subsidiary may be redesignated to
be a Subsidiary if that redesignation would not cause a Default or an Event of
Default upon such redesignation.


 


(b)           Holdings will notify the Administrative Agent promptly
following the designation of any Project Subsidiary, which notification shall
include a certification by a Responsible Officer to the effect that such
designation complied with the preceding conditions and was permitted by Section 7.02.  If, at any time, any Project Subsidiary  fails to meet the preceding requirements of a
Project Subsidiary, it will thereafter cease to be a Project Subsidiary for
purposes hereof and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Subsidiary of Holdings as of the date of such determination.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01         Loans.


 


(a)           US
Revolver Loans.  Subject to the terms
and conditions set forth herein, each US Revolver Lender severally agrees to
make loans (each such loan, a “US Revolver Loan”) to the US Borrower,
denominated in Dollars, from time to time on any Business Day during the US
Revolver Availability Period, in an aggregate principal amount that will not
result in (i) such Lender’s US Revolver Exposure exceeding such Lender’s
US Revolver Commitment, or (ii) the Total US Revolver Exposure exceeding
the US Revolver Maximum Available Amount. 
Within the foregoing limits and subject to the other terms and
conditions set forth herein, the US Borrower may borrow, prepay and reborrow US
Revolver Loans.  US Revolver Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided herein.


 


(b)           Canadian
Revolver Advances.  Subject to the
terms and conditions set forth herein, each Canadian Revolver Lender severally
agrees to extend credit (each such extension of credit, a 


 


52

















 


“Canadian
Revolver Advance”) to the Canadian Borrower, denominated in Canadian
Dollars or Dollars, from time to time on any Business Day during the Canadian
Revolver Availability Period, by (i) making loans (each such loan, a “Canadian
Revolver Loan”) to the Canadian Borrower and (ii) accepting and
purchasing or selling, at such Canadian Revolver Lender’s sole discretion,
Bankers’ Acceptances issued under this Agreement by the Canadian Borrower, in
each case in an aggregate principal amount that will not result in (x) such
Lender’s Canadian Revolver Exposure exceeding such Lender’s Canadian Revolver
Commitment or (y) the Total Canadian Revolver Exposure exceeding the
Canadian Revolver Maximum Available Amount. 
Within the foregoing limits and subject to the other terms and
conditions set forth herein, the Canadian Borrower may (A) borrow, prepay
and reborrow Canadian Revolver Loans and (B) issue BAs, rollover BAs,
repay maturing BAs and issue new BAs. 
Canadian Revolver Loans denominated in Canadian Dollars shall only be
Canadian Prime Rate Loans.  Canadian
Revolver Loans denominated in Dollars may be Canadian US Dollar Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.


 


2.02         Borrowings, Conversions,
Continuations of Loans.


 


(a)           Notice
of Borrowing, Conversion, Continuation. 
Each Borrowing, each conversion of Loans from one Type to another, each
continuation of Eurodollar Rate Loans and each issuance (including pursuant to
any rollover) of Bankers’ Acceptances shall be made upon the US Borrower’s or
the Canadian Borrower’s, as applicable, notice to the Administrative Agent,
which may be given by telephone.  Each
such notice must be received by the Administrative Agent not later than (i) 1:00 p.m.
three Business Days prior to the requested date of (x) any Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or (y) any
conversion of Eurodollar Rate Loans to Base Rate Loans or Canadian US Dollar
Base Rate Loans, (ii) 1:00 p.m. two Business Days prior to the
requested date of any issuance (including pursuant to any rollover) of Bankers’
Acceptances, (iii) 1:00 p.m. one Business Day prior to the requested
date of any Borrowing of Canadian US Dollar Base Rate Loans or Canadian Prime
Rate Loans, and (iv) 10:00 a.m. on the requested date of any
Borrowing of Base Rate Loans (other than Canadian US Dollar Base Rate
Loans).  Each telephonic notice by a
Borrower pursuant to this Section 2.02(a) must be confirmed promptly
by delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of such Borrower.  Each Borrowing of, conversion to or continuation
of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. 
Except as provided in Section 2.03(c), each Borrowing of or
conversion to (i) Base Rate Loans or Canadian US Dollar Base Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in
excess thereof and (ii) Canadian Prime Rate Loans shall be in a principal
amount of C$1,000,000 or a whole multiple of C$100,000 in excess thereof.  Each Loan Notice (whether telephonic or
written) shall specify (i) the identity of the Borrower that is
requesting, as the case may be, a Borrowing, a conversion of Loans from one
Type to another, a continuation of Eurodollar Rate Loans or a rollover of
Bankers’ Acceptances, (ii) the requested date of the Borrowing,
conversion, continuation or rollover, as the case may be (which shall be a
Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued or the principal amount of Bankers’ Acceptances to be
issued (including pursuant to any rollover), (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, (v) if
applicable, the duration of the Interest Period or term with respect thereto, (vi) whether
such Loans are US Revolver Loans or Canadian Revolver Advances, and (vii) if
such Loans are Canadian Revolver Loans, whether such Loans are to be
denominated in Canadian Dollars or Dollars. 
Notwithstanding anything to the contrary contained herein, a Swing Line
Loan may not be converted to a Eurodollar Rate Loan or a Borrowing by way of
Bankers’ Acceptances.


 


(b)           Incomplete
Loan Notice; Failure to Deliver Timely Loan Notice.  If any Borrower fails to specify a Type of
Loan in a Loan Notice relating to Loans other than Canadian Revolver 


 


53

















 


Loans,
or if any Borrower fails to give a timely notice requesting a conversion or
continuation of Loans other than Canadian Revolver Loans, then the applicable
Loans shall be made as, or converted to, Base Rate Loans.  If the Canadian Borrower fails to specify a
Type of Canadian Revolver Advance in a Loan Notice relating to Canadian
Revolver Advances, or if the Canadian Borrower fails to give a timely notice
requesting a conversion or continuation of Eurodollar Rate Loans or a
conversion or rollover of Bankers’ Acceptances, then the applicable Canadian
Revolver Advances shall be made as, or converted to, Canadian US Dollar Base
Rate Loans or Canadian Prime Rate Loans, as applicable.  Any such automatic conversion or continuation
to Eurodollar Rate Loans, Base Rate Loans, Canadian US Dollar Base Rate Loans
or Canadian Prime Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans or the maturity date of the applicable Bankers’ Acceptances, as
applicable.  If any Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
Loan Notice, but fails to specify an Interest Period, such Borrower will be
deemed to have specified an Interest Period of one month.  If the Canadian Borrower requests a Borrowing
by way of, conversion to, or rollover of Bankers’ Acceptances in any Loan
Notice, but fails to specify a term therefor, the Canadian Borrower will be
deemed to have specified a term of 30 days.


 


(c)           Funding
of Loans.  Following receipt of a
Loan Notice, the Administrative
Agent shall promptly notify each
US Revolver Lender of the amount of its US Revolver Percentage and each
Canadian Revolver Lender of the amount of its Canadian Revolver Percentage, as
the case may be, of the applicable Loans, and if no timely notice of a
conversion, continuation or rollover is provided by the applicable Borrower
with respect to an expiring Eurodollar Loan or Bankers’ Acceptance, the Administrative Agent
shall notify each applicable Lender of the details of any automatic conversion
to Base Rate Loans, Canadian US Dollar Base Rate Loans or Canadian Prime Rate
Loans described in the preceding subsection. 
In the case of a Borrowing, each Lender shall make the amount of its
Loan available to the Administrative
Agent in immediately available
funds at the Administrative
Agent’s Office not later than
1:00 p.m. on the Business Day specified in the applicable Loan
Notice.  Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is
on the Closing Date, Section 4.01), the Administrative
Agent shall make all funds so
received available to the applicable Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of such Borrower on the books of the
Administrative Agent, with the amount of such funds or (ii) wire transfer
of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative
Agent by such Borrower; provided
that (x) if, on the date a Loan Notice with respect to a US Revolver
Borrowing is given by the US Borrower, there are US L/C Borrowings outstanding,
then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such US L/C Borrowings, and second, shall be made
available to the US Borrower as provided above and (y) if, on the date a
Loan Notice with respect to a Canadian Revolver Borrowing is given by the
Canadian Borrower, there are Canadian L/C Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be applied to the payment in full of
any such Canadian L/C Borrowings, and second, shall be made available to the
Canadian Borrower as provided above.


 


(d)           Continuation
and Conversion of Eurodollar Rate Loans. 
Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted either (i) on the last day of an Interest Period
for such Eurodollar Rate Loan or (ii) subject to the payment of any
amounts owing under Section 3.05, on any other Business Day during an
Interest Period for such Eurodollar Rate Loan. 
During the existence of an Event of Default, no Loans may be requested
as, converted to or continued as Eurodollar Rate Loans without the consent of
the Required Lenders.


 


(e)           Notification
of Interest Rates.  The Administrative Agent
shall promptly notify the applicable Borrower and the applicable Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate in accordance with the terms hereof.  


 


54

















 


At
any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the US Borrower and the US Revolver Lenders of any change in Royal Bank
of Canada’s prime rate used in determining the Base Rate promptly following the
public announcement of such change.  At
any time that Canadian Prime Rate Loans are outstanding, the Administrative
Agent shall notify the Canadian Borrower and the Canadian Revolver Lenders of
any change in Royal Bank of Canada’s reference rate for Canadian Dollar
commercial demand loans made to a Person in Canada used in determining the
Canadian Prime Rate promptly following the public announcement of such
change.  At any time that Canadian US
Dollar Base Rate Loans are outstanding, the Administrative Agent shall notify
the Canadian Borrower and the Canadian Revolver Lenders of any change in the
Administrative Agent’s reference rate for US Dollar commercial loans made to a
Person in Canada used in determining the Canadian US Dollar Base Rate promptly
following the public announcement of such change.


 


(f)            Separate
Nature of Types of Loans; Limits on Certain Types of Loans.  The interest rate on each Type of Loan shall
be determined (as stated in Section 2.08(a)) separately, and for this
purpose, each Borrowing of a Eurodollar Rate Loan shall be elected separately
for US Revolver Loans and Canadian Revolver Loans.  No continuation of a Eurodollar Rate Loan or
conversion of a Base Rate Loan or Canadian US Dollar Base Rate Loan into a
Eurodollar Rate Loan may combine a US Revolver Loan or a Canadian Revolver Loan
into a single Eurodollar Rate Loan. 
After giving effect to all Borrowings, all conversions of Loans from one
Type to the other, and all continuations and rollovers of Loans as the same
Type, there shall not be more than twenty (20) Eurodollar Rate Loans
outstanding at any time and no more than five (5) Borrowings in
effect with respect to Bankers’ Acceptances at any time.


 


2.03         Letters of Credit.


 


(a)           The Letter of Credit Commitment.


 


(i)            Subject to the terms and conditions set forth herein, (A) the
US L/C Issuer agrees, in reliance upon the agreements of the US Revolver
Lenders set forth in this Section 2.03, (1) from time to time on any
Business Day during the period from the Closing Date through the Letter of
Credit Expiration Date, to issue US Letters of Credit for the account of the US
Borrower in support of obligations of the US Borrower or one or more of its
Subsidiaries, and to amend US Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings
under the US Letters of Credit; and (B) each US Revolver Lender severally
agrees to participate in US Letters of Credit issued for the account of the US
Borrower and any drawings thereunder; provided that, after giving effect
to any L/C Credit Extension with respect to any US Letter of Credit, (x) the
Total US Revolver Exposure shall not exceed the US Revolver Maximum Available
Amount and (y) the US Revolver Exposure of any US Revolver Lender shall
not exceed such Lender’s US Revolver Commitment.  Each request by the US Borrower for the
issuance or amendment of a US Letter of Credit shall be deemed to be a
representation by the US Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits,
and subject to the terms and conditions hereof, the US Borrower’s ability to
obtain US Letters of Credit shall be fully revolving, and accordingly the US
Borrower may, during the period from the Closing Date through the Letter of
Credit Expiration Date, obtain US Letters of Credit to replace US Letters of
Credit that have expired or that have been drawn upon and reimbursed.


 


(ii)           Subject to the terms and conditions set forth herein, (A) the
Canadian L/C Issuer agrees, in reliance upon the agreements of the Canadian
Revolver Lenders set forth in this Section 2.03, (1) from time to
time on any Business Day during the period from 


 


55

















 


the Closing Date through the Letter of Credit
Expiration Date, to issue Canadian Letters of Credit for the account of the
Canadian Borrower in support of obligations of the Canadian Borrower or one or
more of its Subsidiaries, and to amend Canadian Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Canadian Letters of Credit; and (B) each Canadian
Revolver Lender severally agrees to participate in Canadian Letters of Credit
issued for the account of the Canadian Borrower and any drawings thereunder; provided
that, after giving effect to any L/C Credit Extension with respect to any
Canadian Letter of Credit, (x) the Total Canadian Revolver Exposure shall
not exceed the Canadian Revolver Maximum Available Amount and (y) the
Canadian Revolver Exposure of any Canadian Revolver Lender shall not exceed such
Lender’s Canadian Revolver Commitment. 
Each request by the Canadian Borrower for the issuance or amendment of a
Canadian Letter of Credit shall be deemed to be a representation by the
Canadian Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Canadian Borrower’s ability to obtain
Canadian Letters of Credit shall be fully revolving, and accordingly the
Canadian Borrower may, during the period from the Closing Date through the
Letter of Credit Expiration Date, obtain Canadian Letters of Credit to replace
Canadian Letters of Credit that have expired or that have been drawn upon and
reimbursed.


 


(A)          The Applicable L/C Issuer shall not issue any Letter
of Credit if the expiry date of such requested Letter of Credit would occur
later than the earlier of (x) fifteen months after the date of issuance
and (y) unless the Borrower Cash Collateralizes the Outstanding Amount of
the L/C Obligation, five Business Days prior to the Revolver Maturity Date,
unless the US Revolver Required Lenders or Canadian Revolver Required Lenders,
as applicable, have approved such expiry date.


 


(iii)          The Applicable L/C Issuer shall not be
under any obligation to issue any Letter of Credit if:


 


(A)          any order, judgment or decree of any Governmental Authority
shall by its terms purport to enjoin or restrain such L/C Issuer from issuing
such Letter of Credit, or any Law applicable to such L/C Issuer or any request
or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit, or request
that such L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon such L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which such L/C Issuer in good faith deems material to it;


 


(B)           in the case of a US Letter of Credit, such Letter of
Credit is to be denominated in a currency other than Dollars, and in the case
of a Canadian Letter of Credit, such Letter of Credit is to be denominated in a
currency other than Canadian Dollars or Dollars; or


 


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


 


56

















 


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


 


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


 


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


 


(b)           Procedures for Issuance and Amendment of Letters of
Credit.


 


(i)            Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the applicable Borrower, and delivered to the
Applicable L/C Issuer (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower making such request.  Such Letter of Credit Application must be
received by the Applicable L/C Issuer and the Administrative Agent not later
than 1:00 p.m. at least three Business Days (or such later date and time
as the Administrative Agent and the Applicable L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be.  In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the Applicable L/C Issuer:  (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the Applicable L/C Issuer may reasonably require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the Applicable L/C Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment;
and (D) such other matters as the Applicable L/C Issuer may reasonably
require.  Additionally, the requesting
Borrower shall furnish to the Applicable L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the Applicable L/C
Issuer or the Administrative Agent may reasonably
require.


 


(ii)           Promptly after receipt of any Letter of Credit
Application, the Applicable L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit 


 


57

















 


Application from the requesting Borrower and will
provide the Administrative Agent with a copy
thereof.  Unless the Applicable L/C
Issuer has received written notice from any US Revolver Lender or Canadian
Revolver Lender, as applicable, the Administrative Agent or any
Loan Party, at least one Business Day prior to the requested date of issuance
or amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Section 4.02 (and if the requested date of
issuance of such Letter of Credit is the Closing Date, Section 4.01) shall
not then be satisfied, then, subject to the terms and conditions hereof, the
Applicable L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the requesting Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the Applicable
L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each US
Letter of Credit, each US Revolver Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, severally purchase from the US L/C
Issuer a risk participation in such US Letter of Credit in an amount equal to
the product of such Lender’s US Revolver Percentage times the amount of
such Letter of Credit.  Immediately upon
the issuance of each Canadian Letter of Credit, each Canadian Revolver Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
severally purchase from the Canadian L/C Issuer a risk participation in such
Canadian Letter of Credit in an amount equal to the product of such Lender’s
Canadian Revolver Percentage times the amount of such Letter of Credit.


 


(iii)          Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the Applicable L/C Issuer will also deliver to the
applicable Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.


 


(c)           Drawings and Reimbursements; Funding of Participations.


 


(i)            Upon receipt
from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the Applicable L/C Issuer shall notify the applicable
Borrower and the Administrative Agent thereof.  Not later than 1:00 p.m.
on the date of any payment by the Applicable L/C Issuer under a Letter of
Credit (each such date of payment, an “Honor Date”), the applicable
Borrower shall reimburse the Applicable L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing; provided that, in the
event that the drawing occurs after 11:00 a.m. on the Honor Date, the
Borrower shall reimburse the Applicable L/C Issuer through the Administrative
Agent no later than 1:00 p.m. one Business Day immediately following
the Honor Date, together with interest accrued on the amount thereof at the
rate then applicable to Base Rate Loans. If such Borrower fails to so reimburse the Applicable L/C Issuer by such
time, the Administrative Agent shall promptly notify each US Revolver Lender or
Canadian Revolver Lender, as applicable, of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”) and the amount of such
Lender’s US Revolver Percentage or Canadian Revolver Percentage, as applicable,
thereof. In such event, the applicable Borrower shall be deemed to have
requested a Borrowing of Base Rate Loans in the case of a US Letter of Credit,
or a Borrowing of Canadian Prime Rate Loans or Canadian US Dollar Base Rate
Loans, as applicable, in the case of a Canadian Letter of Credit, to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, Canadian Prime Rate Loans or Canadian
US Dollar Base Rate Loans, but subject to the US Revolver Maximum Available
Amount or Canadian Revolver Maximum Available Amount, as the case may be, and
the conditions set forth in Section 4.02 (other than the delivery of a
Loan Notice). Any 


 


58

















 


notice
given by any L/C Issuer or any Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)           Each US Revolver Lender
or Canadian Revolver Lender, as applicable, shall, upon receipt of a notice
pursuant to Section 2.03(c)(i), make funds available to the Administrative
Agent for the account of the Applicable L/C Issuer at the Administrative Agent’s
Office in an amount equal to its US Revolver Percentage or Canadian Revolver
Percentage, as applicable, of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each US Revolver Lender
or Canadian Revolver Lender, as applicable, that so makes funds available shall
be deemed to have made (A) in the case of a US Letter of Credit, a Base
Rate Loan, or (B) in the case of a Canadian Letter of Credit, a Canadian
Prime Rate Loan or Canadian US Dollar Base Rate Loan (each such Loan, an “L/C
Disbursement Loan”), to the applicable Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the Applicable L/C Issuer.


 


(iii)          With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of L/C Disbursement Loans because the conditions set
forth in Section 4.02 cannot be satisfied or for any other reason, the
applicable Borrower shall be deemed to have incurred from the Applicable L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate.  In such event, each US Revolver Lender’s or
Canadian Revolver Lender’s, as applicable, payment to the Administrative Agent for the
account of the Applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03(c).


 


(iv)          Until each US Revolver Lender or Canadian Revolver Lender,
as applicable, funds its L/C Disbursement Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the Applicable L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s US Revolver Percentage or Canadian
Revolver Percentage, as applicable, of such amount shall be solely for the
account of the Applicable L/C Issuer.


 


(v)           Each US Revolver Lender’s or Canadian Revolver Lender’s,
as applicable, obligation to make L/C Disbursement Loans or L/C Advances to
reimburse the Applicable L/C Issuer for amounts drawn under Letters of Credit,
as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Applicable L/C Issuer, the applicable Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a
Default; or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided that each US Revolver Lender’s
or Canadian Revolver Lender’s, as applicable, obligation to make L/C
Disbursement Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the
applicable Borrower of a Loan Notice). 
No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the applicable Borrower to reimburse the Applicable L/C Issuer
for the amount of any payment made by the Applicable L/C Issuer under any
Letter of Credit, together with interest as provided herein.


 


59














 


(vi)          If any US Revolver Lender or Canadian Revolver Lender, as
applicable, fails to make available to the Administrative Agent for the
account of the Applicable L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii), the Applicable L/C Issuer shall
be entitled to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to the Applicable L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate (or, as to Canadian Dollar-denominated obligations, the Bank
of Canada Rate) and a rate determined by the Applicable L/C Issuer in
accordance with banking industry rules on interbank compensation.  A certificate of the Applicable L/C Issuer
submitted to any US Revolver Lender or Canadian Revolver Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.


 


(d)           Repayment of Participations.


 


(i)            At any time after the Applicable L/C Issuer has made a
payment under any Letter of Credit and has received from any US Revolver Lender
or Canadian Revolver Lender, as applicable, such Lender’s L/C Advance in
respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives
for the account of the Applicable L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the
applicable Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its US Revolver Percentage or Canadian Revolver
Percentage, as applicable, thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the Administrative Agent.


 


(ii)           If any payment received by the Administrative Agent for the
account of the Applicable L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the Applicable L/C Issuer
in its discretion), each US Revolver Lender or Canadian Revolver Lender, as
applicable, shall pay to the Administrative Agent for the account of the
Applicable L/C Issuer its US Revolver Percentage or Canadian Revolver
Percentage, as applicable, thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate
(or, as to Canadian Dollar-denominated obligations, the Bank of Canada Rate)
from time to time in effect.  The
obligations of the US Revolver Lenders and Canadian Revolver Lenders under this
clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(e)           Obligations Absolute.  The obligation of the US Borrower or Canadian
Borrower, as applicable, to reimburse the Applicable L/C Issuer for each
drawing under each US Letter of Credit or Canadian Letter of Credit, as
applicable, and to repay each US L/C Borrowing or Canadian L/C Borrowing, as
applicable, shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement regardless of any circumstances,
including any of the following:


 


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


 


60

















 


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


 


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


 


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


 


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


 


The applicable Borrower
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with such Borrower’s instructions or other irregularity, such Borrower will
immediately notify the Applicable L/C Issuer thereof.  The applicable Borrower shall be conclusively
deemed to have waived any such claim against the Applicable L/C Issuer and its
correspondents unless such notice is given as aforesaid.


 


(f)            Role
of L/C Issuer.  Each of the US
Revolver Lenders, the Canadian Revolver Lenders, the US Borrower and the
Canadian Borrower agrees that, in paying any drawing under a Letter of Credit,
the Applicable L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
of any such document or the authority of the Person executing or delivering any
such document.  Neither the L/C Issuers,
the Agents, any of their respective Related Parties nor any correspondent,
participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the US Revolver Lenders, the Canadian Revolver Lenders, the US
Revolver Required Lenders, the Canadian Revolver Required Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document.  The applicable Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided that this assumption is not
intended to, and shall not, preclude such Borrower from pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement.  Neither the
L/C Issuers, the Agents, any of their respective Related Parties nor any
correspondent, participant or assignee of any L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided that, anything in such 


 


61

















 


clauses
to the contrary notwithstanding, the applicable Borrower may have a claim
against the Applicable L/C Issuer, and the Applicable L/C Issuer may be liable
to the applicable Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by such
Borrower which such Borrower proves were caused by such L/C Issuer’s willful
misconduct or gross negligence or such L/C Issuer’s willful failure to pay
under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft, certificate(s) and documents expressly required by the Letter
of Credit strictly complying with the terms and conditions of a Letter of
Credit.  In furtherance and not in
limitation of the foregoing, the Applicable L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and, in
the event a Letter of Credit allows for transfer or assignment of such Letter
of Credit, the Applicable L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign such Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.  The
Applicable L/C Issuer shall deliver to the applicable Borrower copies of any
documents purporting to assign or transfer a Letter of Credit issued for the
account of such Borrower.  The failure of
such L/C Issuer to deliver such documents will not relieve such Borrower of its
obligations hereunder.


 


(g)           Cash
Collateral.  Upon the request of the
Administrative Agent, if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the applicable Borrower shall,
in each case, immediately Cash Collateralize the then Outstanding Amount of all
L/C Obligations.  The US Borrower hereby
grants to the Administrative Agent, for the benefit of the US L/C Issuer and
the US Revolver Lenders, a security interest in all Cash Collateral pledged and
deposited with or delivered to the Administrative Agent as Collateral for the
US L/C Obligations, and all proceeds of the foregoing.  The Canadian Borrower hereby grants to the
Administrative Agent, for the benefit of the Canadian L/C Issuer and the
Canadian Revolver Lenders, a security interest in all Cash Collateral pledged
and deposited with or delivered to the Administrative Agent as Collateral for
the Canadian L/C Obligations, and all proceeds of the foregoing.  Cash Collateral pledged and deposited by the
US Borrower shall be maintained in blocked deposit accounts at a financial institution
that has agreed with the US Borrower and the Administrative Agent to enter into
an account control agreement in form and substance reasonably satisfactory to
the Administrative Agent and will bear interest at prevailing rates for similar
deposits.  Cash Collateral pledged and
deposited by the Canadian Borrower shall be maintained in blocked deposit
accounts at a financial institution that has agreed with the Canadian Borrower
and the Administrative Agent to enter into an account control agreement in form
and substance reasonably satisfactory to the Administrative Agent and will bear
interest at prevailing rates for similar deposits.


 


(h)           Applicability
of ISP and UCP.  Unless otherwise
expressly agreed by the Applicable L/C Issuer and the applicable Borrower, when
a Letter of Credit is issued, (i) such Borrower may specify that either
the rules of the ISP or the rules of the Uniform Customs and Practice
for Documentary Credits (“UCP”), as most recently published by the
International Chamber of Commerce at the time of issuance, apply to each
standby Letter of Credit, and (ii) the rules of the UCP shall apply
to each commercial Letter of Credit.


 


(i)            Conflict
with Letter of Credit Applications. 
To the extent that any provision of any Letter of Credit Application
related to any Letter of Credit is inconsistent with this Agreement or contains
defaults, covenants or grants of security not found in this Agreement, such
provisions shall be deemed ineffective and the provisions of this Agreement
shall apply and control.


 


(j)            US
Letters of Credit Issued for Subsidiaries of the US Borrower.  Notwithstanding that a US Letter of Credit
issued or outstanding hereunder is in support of any obligations of a
Subsidiary of the US Borrower, the US Borrower shall be obligated to reimburse
the US L/C Issuer hereunder for any and all drawings under such US Letter of
Credit.  The US Borrower hereby 


 


62

















 


acknowledges
that the issuance of US Letters of Credit for the account of its Subsidiaries
inures to the benefit of the US Borrower, and that its business derives
substantial benefits from the businesses of such Subsidiaries.


 


(k)           Canadian
Letters of Credit Issued for Subsidiaries of the Canadian Borrower.  Notwithstanding that a Canadian Letter of
Credit issued or outstanding hereunder is in support of any obligations of a
Subsidiary of the Canadian Borrower, the Canadian Borrower shall be obligated
to reimburse the Canadian L/C Issuer hereunder for any and all drawings under
such Canadian Letter of Credit.  The
Canadian Borrower hereby acknowledges that the issuance of Canadian Letters of
Credit for the account of its Subsidiaries inures to the benefit of the
Canadian Borrower, and that its business derives substantial benefits from the
businesses of such Subsidiaries.


 


2.04         Swing Line Loans.


 


(a)           The Swing Line.


 


(i)            Subject to the terms and conditions set forth herein, the
US Swing Line Lender agrees, in reliance upon the agreements of the other US
Revolver Lenders set forth in this Section 2.04, to make loans (each such
loan, a “US Swing Line Loan”) to the US Borrower, denominated in
Dollars, from time to time on any Business Day during the US Revolver
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the US Swing Line Sublimit, notwithstanding the fact
that such US Swing Line Loans, when aggregated with the outstanding principal
amount of US Revolver Loans of, and the US Revolver L/C Exposure of, the Lender
acting as US Swing Line Lender, may exceed the amount of such Lender’s US
Revolver Commitment; provided that after giving effect to any US Swing
Line Loan, (A) the Total US Revolver Exposure shall not exceed the US
Revolver Maximum Available Amount, and (B) the US Revolver Exposure of any
US Revolver Lender shall not exceed such Lender’s US Revolver Commitment; and provided further
that the US Borrower shall not use the proceeds of any US Swing Line Loan to
refinance any outstanding US Swing Line Loan. 
Within the foregoing limits, and subject to the other terms and conditions
hereof, the US Borrower may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04. 
Each US Swing Line Loan shall bear interest only at a rate based on the
Base Rate.  Immediately upon the making
of a US Swing Line Loan, each US Revolver Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the US Swing Line
Lender a risk participation in such US Swing Line Loan in an amount equal to
the product of such US Revolver Lender’s US Revolver Percentage times the
amount of such US Swing Line Loan.


 


(ii)           Subject to the terms and conditions set forth herein, the
Canadian Swing Line Lender agrees, in reliance upon the agreements of the other
Canadian Revolver Lenders set forth in this Section 2.04, to make loans
(each such loan, a “Canadian Swing Line Loan”) to the Canadian Borrower,
denominated in Canadian Dollars or Dollars, from time to time on any Business
Day during the Canadian Revolver Availability Period in an aggregate amount not
to exceed at any time outstanding the amount of the Canadian Swing Line
Sublimit, notwithstanding the fact that such Canadian Swing Line Loans, when
aggregated with the outstanding principal amount of Canadian Revolver Loans of,
and the Canadian Revolver L/C Exposure of, the Lender acting as Canadian Swing
Line Lender, may exceed the amount of such Lender’s Canadian Revolver
Commitment; provided that after giving effect to any Canadian Swing Line
Loan, (A) the Total Canadian Revolver Exposure shall not exceed the
Canadian Revolver Maximum Available Amount, and (B) the Canadian Revolver
Exposure of any Canadian Revolver Lender shall not exceed such Lender’s
Canadian 


 


63

















 


Revolver Commitment; and provided further
that the Canadian Borrower shall not use the proceeds of any Canadian Swing
Line Loan to refinance any outstanding Canadian Swing Line Loan.  Within the foregoing limits, and subject to
the other terms and conditions hereof, the Canadian Borrower may borrow under
this Section 2.04, prepay under Section 2.05, and reborrow under this
Section 2.04.  Each Canadian Swing
Line Loan denominated in Canadian Dollars shall bear interest only at a rate
based on the Canadian Prime Rate, and each Canadian Swing Line Loan denominated
in Dollars shall bear interest only at a rate based on the Canadian US Dollar
Base Rate.  Immediately upon the making
of a Canadian Swing Line Loan, each Canadian Revolver Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Canadian Swing Line Lender a risk participation in such Canadian Swing Line
Loan in an amount equal to the product of such Canadian Revolver Lender’s
Canadian Revolver Percentage times the amount of such Canadian Swing Line Loan.


 


(b)           Borrowing
Procedures.  Each Swing Line
Borrowing shall be made upon the applicable Borrower’s irrevocable notice to
the Applicable Swing Line Lender, which notice may be given by telephone.  Each such notice must be received by the
Applicable Swing Line Lender not later than (x) 1:00 p.m. on the
requested borrowing date in the case of a US Swing Line Borrowing and (y) 1:00 p.m.
on the requested borrowing date in the case of a Canadian Swing Line Borrowing,
and shall specify (i) the amount to be borrowed, which shall be a minimum
of $500,000 (or, if denominated in Canadian Dollars, C$500,000), (ii) the
requested borrowing date, which shall be a Business Day, and (iii) in the
case of a Canadian Swing Line Borrowing, whether the Canadian Swing Line Loans
to be included therein are to be denominated in Canadian Dollars or
Dollars.  Each such telephonic notice
must be confirmed promptly by delivery to the Applicable Swing Line Lender of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the applicable Borrower. 
Promptly after receipt by the Applicable Swing Line Lender of any
telephonic Swing Line Loan Notice, the Applicable Swing Line Lender will
confirm with the Administrative
Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if
not, the Applicable Swing Line Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof.  Unless the Applicable Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any applicable Revolver Lender) prior to 1:00 p.m.
on the date of the proposed Swing Line Borrowing (A) directing the
Applicable Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section 2.04(a)(i) or
Section 2.04(a)(ii), as applicable, or (B) that one or more of the
applicable conditions contained in Section 4.02 (and, if the date of the
proposed Swing Line Borrowing is the Closing Date, Section 4.01) is not
then satisfied, then, subject to the terms and conditions hereof, the
Applicable Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its
Swing Line Loan available to the applicable Borrower.


 


(c)           Refinancing of Swing Line Loans.


 


(i)            (A) The US Swing Line Lender at any time in its sole
and absolute discretion may request, on behalf of the US Borrower (which hereby
irrevocably authorizes the US Swing Line Lender to so request on its behalf),
that each US Revolver Lender make a Base Rate Loan in an amount equal to such
Lender’s US Revolver Percentage of the amount of US Swing Line Loans then
outstanding, and (B) the Canadian Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Canadian Borrower
(which hereby irrevocably authorizes the Canadian Swing Line Lender to so
request on its behalf), that each Canadian Revolver Lender make a Canadian
Prime Rate Loan or a Canadian US Dollar Base Rate Loan, as applicable, in an
amount equal to such Lender’s 


 


64

















 


Canadian Revolver Percentage of the amount of
Canadian Swing Line Loans then outstanding. 
Any such request shall be made in writing (which written request shall
be deemed to be a Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02(a), without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans,
Canadian Prime Rate Loans or Canadian US Dollar Base Rate Loans, but subject to
the US Revolver Maximum Available Amount or Canadian Revolver Maximum Available
Amount, as the case may be, and the conditions set forth in Section 4.02.  The Applicable Swing Line Lender shall
furnish the applicable Borrower with a copy of the applicable Loan Notice
promptly after delivering such notice to the Administrative Agent.  Each US Revolver Lender or Canadian Revolver
Lender, as applicable, shall make an amount equal to its Applicable Percentage
of the amount specified in such Loan Notice available to the Administrative
Agent in immediately available funds for the account of the Applicable Swing
Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Revolver Lender that so makes funds available shall be deemed to have made
a Base Rate Loan, Canadian Prime Rate Loan or Canadian US Dollar Base Rate
Loan, as applicable, to the applicable Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the Applicable Swing Line Lender.


 


(ii)           If for any reason any Swing Line Loan cannot be refinanced
by a Borrowing of US Revolver Loans or Canadian Revolver Loans, as applicable,
in accordance with Section 2.04(c)(i), the request for Base Rate Loans,
Canadian Prime Rate Loans or Canadian US Dollar Base Rate Loans submitted by
the Applicable Swing Line Lender as set forth in Section 2.04(c)(i) shall
be deemed to be a request by the Applicable Swing Line Lender that each of the
US Revolver Lenders or Canadian Revolver Lenders, as applicable, fund its risk
participation in the relevant Swing Line Loan and each such Revolver Lender’s
payment to the Administrative  Agent for the account of the
Applicable Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.


 


(iii)          If any Revolver Lender fails to make available to the
Administrative  Agent for the account of the Applicable Swing
Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(i), then the Applicable Swing Line Lender shall be
entitled to recover from such Lender (acting through the Administrative  Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to the Applicable Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate (or, as to Canadian Swing Line Loans denominated in
Canadian Dollars, the Bank of Canada Rate) and a rate determined by the
Applicable Swing Line Lender in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Applicable Swing Line Lender in connection with the
foregoing.  If such Lender pays such
amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Loan included in the relevant Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Applicable Swing Line
Lender submitted to any US Revolver Lender or Canadian Revolver Lender, as
applicable (through the Administrative  Agent), with respect to any
amounts owing under this Section 2.04(c)(iii) shall be conclusive
absent manifest error.


 


(iv)          Each Revolver Lender’s obligation to make Revolver Loans or
to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) 


 


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shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the Applicable Swing Line Lender, the applicable Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided that each Revolver Lender’s
obligation to make Revolver Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall
relieve or otherwise impair the obligation of any Borrower to repay Swing Line
Loans made to it, together with interest as provided herein.


 


(d)           Repayment
of Participations.  (i)  At any
time after any Revolver Lender has purchased and funded a risk participation in
a Swing Line Loan, if the Applicable Swing Line Lender receives any payment on
account of such Swing Line Loan, the Applicable Swing Line Lender will distribute
to such Revolver Lender its Applicable Percentage thereof in the same funds as
those received by the Applicable Swing Line Lender.


 


(ii)           If any payment received by the Applicable Swing Line
Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by such Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered
into by such Swing Line Lender in its discretion), each US Revolver Lender or
Canadian Revolver Lender, as applicable, shall pay to the Applicable Swing Line
Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate (or, as to
Canadian Swing Line Loans denominated in Canadian Dollars, the Bank of Canada
Rate).  The Administrative Agent will make
such demand upon the request of the Applicable Swing Line Lender.  The obligations of the Revolver Lenders under
this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(e)           Interest
for Account of Swing Line Lender. 
The Applicable Swing Line Lender shall be responsible for invoicing the
applicable Borrower for interest on the Swing Line Loans made to it.  Until each US Revolver Lender funds its Base
Rate Loan or risk participation pursuant to this Section 2.04, or each
Canadian Revolver Lender funds its Canadian Prime Rate Loan or Canadian US
Dollar Base Rate Loan, as applicable, or risk participation pursuant to this Section 2.04,
in each case to refinance such Lender’s Applicable Percentage of any Swing Line
Loan, interest in respect of such Applicable Percentage shall be solely for the
account of the Applicable Swing Line Lender.


 


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


 


2.05         Prepayments.


 


(a)           Optional
Prepayments.  (i)  Any Borrower
may, upon notice to the Administrative
Agent, at any time or from time
to time voluntarily prepay (x) Loans (other than BAs) made to it and (y) in
accordance with Section 2.20, BAs with terms of 30 days or longer
issued by it, in each case in whole or in part, without premium or penalty; provided
that (A) such notice must be received by the Administrative
Agent not later than 1:00 p.m.:  (1) three Business Days prior to any
date of prepayment of Eurodollar Rate Loans, (2) one Business Day prior to
any date of prepayment of Canadian US Dollar Base Rate Loans or Canadian Prime
Rate Loans and (3) on the date of prepayment of Base Rate Loans; (B) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or 


 


66

















 


a
whole multiple of $1,000,000 in excess thereof or, if less, the entire
principal amount thereof then outstanding; (C) any prepayment of Base Rate
Loans or Canadian US Dollar Base Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof or, if less, the
entire principal amount thereof then outstanding; and (D) any prepayment
of Canadian Prime Rate Loans shall be in a principal amount of C$1,000,000 or a
whole multiple of C$100,000 in excess thereof or, if less, the entire principal
amount thereof then outstanding.  Each
such notice shall specify whether such notice relates to US Revolver Loans or
Canadian Revolver Loans, and the date and amount of such prepayment and the
Type(s) of Loans to be prepaid.  The
Administrative Agent will promptly notify each applicable Lender of its
receipt of each such notice, and the amount of such Lender’s US Revolver
Percentage or Canadian Revolver Percentage, as applicable, of such
prepayment.  The applicable Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  For greater certainty, in the event of any
prepayment of BAs with a term of 30 days or longer issued by the Canadian
Borrower in accordance with this Section 2.05(a) and Section 2.20,
the Canadian Borrower shall not be entitled to any refund or adjustment in
respect of Bankers’ Acceptances Stamping Fees or interest (discount) already
paid in respect of the BAs that are being prepaid.


 


(ii)           The US Borrower or the Canadian Borrower may, upon notice
to the Applicable Swing Line Lender (with a copy to the Administrative Agent), at any
time or from time to time, voluntarily prepay Swing Line Loans made to it in
whole or in part without premium or penalty; provided that (A) such
notice must be received by the Applicable Swing Line Lender and the Administrative Agent not later
than (x) 1:00 p.m. on the date of prepayment in the case of a
prepayment of US Swing Line Loans and (y) 11:00 a.m. on the date of
prepayment in the case of a prepayment of Canadian Swing Line Loans, and (B) any
such prepayment shall be in a minimum principal amount of (x) $500,000 in
the case of Swing Line Loans denominated in Dollars and (y) C$500,000 in
the case of Swing Line Loans denominated in Canadian Dollars.  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given by the US Borrower or the Canadian Borrower, such Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.


 


(b)           Mandatory
Prepayments of US Revolver Loans Due to Excess Total US Revolver Exposure.  If at any time the Total US Revolver Exposure
exceeds the US Revolver Maximum Available Amount (including by reason of the
delivery of a Non-Ordinary Course Borrowing Base Certificate), the US Borrower
shall immediately (or, if such excess is due to a reduction by the
Administrative Agent in the amount of the US Borrowing Base pursuant to Section 2.14,
within five Business Days) apply an amount equal to such excess to prepay
the US Revolver Loans, the US Swing Line Loans and the US L/C Borrowings and/or
Cash Collateralize the US L/C Obligations (other than the US L/C Borrowings)
until the Total US Revolver Exposure, net of the amount of Cash Collateral
applied to Cash Collateralize the US L/C Obligations (other than the US L/C
Borrowings), does not exceed the US Revolver Maximum Available Amount.


 


(c)           Mandatory
Prepayments of Canadian Revolver Loans Due to Excess Total Canadian Revolver
Exposure.  If at any time the Total
Canadian Revolver Exposure exceeds the Canadian Revolver Maximum Available
Amount (including by reason of the delivery of a Non-Ordinary Course Borrowing
Base Certificate) (other than as a result of fluctuations in currency exchange
rates), the Canadian Borrower shall immediately (or, if such excess is due to a
reduction by the Administrative Agent in the amount of the Canadian Borrowing
Base pursuant to Section 2.14, within five Business Days) apply an amount
equal to such excess to prepay the Canadian Revolver Loans, the Canadian Swing 


 


67

















 


Line
Loans and the Canadian L/C Borrowings and/or Cash Collateralize outstanding BAs
and the Canadian L/C Obligations (other than the Canadian L/C Borrowings) until
the Total Canadian Revolver Exposure, net of the amount of Cash Collateral
applied to Cash Collateralize BAs and the Canadian L/C Obligations (other than
the Canadian L/C Borrowings), does not exceed the Canadian Revolver Maximum
Available Amount.


 


(d)           General
Provisions Relating to Prepayments. 
Each prepayment of the Loans under Section 2.05(a), (b), or (c),
shall be accompanied by all interest then accrued and unpaid on the principal
so prepaid, together with any additional amounts required pursuant to Section 3.05.  Any principal or interest prepaid pursuant to
this Section shall be in addition to, and not in lieu of, all payments
otherwise required to be paid under the Loan Documents at the time of such
prepayment.  Each such prepayment shall
be applied to the US Revolver Loans or Canadian Revolver Loans, as applicable,
of the Lenders in accordance with their respective US Revolver Percentage or
Canadian Revolver Percentage, as applicable.


 


2.06         Termination or Reduction
of Commitments.


 


(a)           Termination
or Reduction of US Revolver Commitments. 
The US Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate US Revolver Commitments or the US Swing Line Sublimit, or from
time to time permanently reduce the Aggregate US Revolver Commitments or the US
Swing Line Sublimit; provided that (i) any such notice shall be
received by the Administrative Agent not later than (i) 1:00 p.m.
five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $1,000,000 or any
whole multiple of $500,000 in excess thereof, and (iii) the US Borrower
shall not terminate or reduce (A) the Aggregate US Revolver Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total US Revolver Exposure would exceed the US Revolver Maximum Available
Amount or (B) the US Swing Line Sublimit if, after giving effect thereto
and to any concurrent prepayments hereunder, the Outstanding Amount of US Swing
Line Loans would exceed the US Swing Line Sublimit.  If after giving effect to any reduction or
termination of the Aggregate US Revolver Commitments under this Section 2.06(a),
the US Swing Line Sublimit exceeds the US Revolver Facility at such time, the
US Swing Line Sublimit shall be automatically reduced by the amount of such
excess.  The Administrative Agent will
promptly notify the US Revolver Lenders of any such notice of termination or
reduction of the Aggregate US Revolver Commitments or the US Swing Line
Sublimit.  Any reduction of the Aggregate
US Revolver Commitments shall be applied to the US Revolver Commitment of each
US Revolver Lender according to its US Revolver Percentage.  All fees accrued until the effective date of
any termination of the Aggregate US Revolver Commitments shall be paid on the
effective date of such termination.


 


(b)           Termination
or Reduction of Canadian Revolver Commitments.  The Canadian Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Canadian Revolver Commitments or
the Canadian Swing Line Sublimit, or from time to time permanently reduce the
Aggregate Canadian Revolver Commitments or the Canadian Swing Line Sublimit; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 1:00 p.m. five Business Days prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $1,000,000 or any whole multiple of $500,000 in excess
thereof, and (iii) the Canadian Borrower shall not terminate or reduce (A) the
Aggregate Canadian Revolver Commitments if, after giving effect thereto and to
any concurrent prepayments hereunder, the Total Canadian Revolver Exposure would
exceed the Aggregate Canadian Revolver Commitments or (B) the Canadian
Swing Line Sublimit if, after giving effect thereto and to any concurrent
prepayments hereunder, the Outstanding Amount of Canadian Swing Line Loans
would exceed the Canadian Swing Line Sublimit. 
If after giving effect to any reduction or termination of the Aggregate
Canadian Revolver Commitments under this 


 


68

















 


Section 2.06(b),
the Canadian Swing Line Sublimit exceeds the Canadian Revolver Facility at such
time, the Canadian Swing Line Sublimit shall be automatically reduced by the
amount of such excess.  The
Administrative Agent will promptly notify the Canadian Revolver Lenders of any
such notice of termination or reduction of the Aggregate Canadian Revolver
Commitments or the Canadian Swing Line Sublimit.  Any reduction of the Aggregate Canadian
Revolver Commitments shall be applied to the Canadian Revolver Commitment of
each Canadian Revolver Lender according to its Canadian Revolver
Percentage.  All fees accrued until the
effective date of any termination of the Aggregate Canadian Revolver
Commitments shall be paid on the effective date of such termination.


 


(c)           Termination
or Reduction of Commitment of any Defaulting Lenders.  If any Revolver Lender becomes a Defaulting
Lender hereunder, then, in addition to its rights under Section 10.12, the
applicable Borrower and the Administrative Agent (in consultation with the
Required Lenders) may, upon notice to such Defaulting Lender, terminate the
applicable Revolver Commitment, whether used or unused, of such Defaulting
Lender; provided that (i) at the time thereof, no Event of Default
shall have occurred and be continuing and (ii) after giving effect
thereto, including the adjustment to the Applicable Percentage of each other
Revolver Lender resulting therefrom as provided below, and to any concurrent
prepayment of the applicable Revolver Loans and Swingline Loans, the applicable
Revolver Exposure of any Revolver Lender (excluding any portion thereof
attributable to the Revolver Loans of such Defaulting Lender) shall not exceed
the applicable Revolver Commitment of such Revolver Lender prior to the
termination of the Revolver Commitment of the Defaulting Lender.  It is agreed and understood that (x) upon
any such termination of the Revolver Commitment of any Defaulting Lender, the
Applicable Percentage of such Defaulting Lender and each other Revolver Lender
shall, at such time, automatically be adjusted for purposes of determining the
applicable Revolver Exposure at such time of such Defaulting Lender and such
other Revolver Lender in respect of L/C Obligations and Swingline Loans and for
the purpose of determining the respective principal amounts of any new Revolver
Loans to be made by the Revolver Lenders (other than the Defaulting Lender), (y) any
such termination of the applicable Revolver Commitment of any Defaulting Lender
shall not require a prepayment of any Revolver Loan of such Defaulting Lender
then outstanding, and (z) each outstanding Revolver Loan of such
Defaulting Lender shall continue to be outstanding as part of the applicable
borrowing in accordance with the terms hereof and such Defaulting Lender shall
be entitled to its pro rata share of any principal or
interest payments made on account thereof. 
In the event that any Revolver Lender shall have become a Defaulting
Lender and the Revolver Commitment of such Defaulting Lender shall not have
been terminated as provided above within 20 days after receipt by the
applicable Borrower of a notice from the Administrative Agent that such
Defaulting Lender has become a Defaulting Lender, then such Borrower shall
promptly deposit in a collateral deposit account in the name and under the
control of Administrative Agent, cash in an amount equal to the Unsupported
Amount.  Amounts so deposited shall be
applied by the Administrative Agent to reimburse the applicable  Issuing Lenders and the Swingline Lender for any
participation required to be funded by such Defaulting Lender.  In the event amounts so deposited with
respect to any such Defaulting Lender exceed the Unsupported Amount at any
time, the Administrative Agent shall give prompt notice thereof to the
applicable Borrower and, unless otherwise specified in writing by such Borrower,
shall promptly return to such Borrower cash in an amount of such excess.


 


2.07         Repayment of Loans.


 


(a)           Repayment
of US Revolver Loans.  The US
Borrower shall repay on the Revolver Maturity Date the aggregate principal
amount of US Revolver Loans outstanding on such date.


 


(b)           Repayment
of Canadian Revolver Advances.  The
Canadian Borrower shall repay on the Revolver Maturity Date the aggregate
principal amount of Canadian Revolver Advances outstanding on such date.


 


69














 


(c)                                  Repayment of Swing Line Loans.


 


(i)                                     The US Borrower shall repay each US Swing
Line Loan on the earlier to occur of (A) the date that is ten Business
Days after such Loan is made and (B) the Revolver Maturity Date.


 


(ii)                                  The Canadian
Borrower shall repay each Canadian Swing Line Loan on the earlier to occur of
(A) the date that is ten Business Days after such Loan is made and (B) the
Revolver Maturity Date.


 


2.08                           Interest.


 


(a)                                  Rates of Interest. 
Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Loan and each US Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate;
(iii) each Canadian US Dollar Base Rate Loan and each Canadian Swing Line
Loan denominated in Dollars shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Canadian US Dollar Base Rate plus the Applicable Rate;
(iv) each Canadian Prime Rate Loan and each Canadian Swing Line Loan
denominated in Canadian Dollars shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Canadian Prime Rate plus the Applicable Rate.


 


(b)                                 Increased Rates of Interest in Certain
Circumstances.  (i)  So long as an Event of Default has
occurred and is continuing under Section 8.01(a) and (f) or so
long as any other Event of Default has occurred and is continuing and upon the
request of the Required Lenders, each Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


 


(ii)                                  Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand.


 


(c)                                  Payment of Interest. 
Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein.  Interest hereunder
shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any Insolvency Proceeding.  The covenant to pay interest at the rates provided
hereunder shall not merge in any judgment relating to the Obligations.


 


2.09                           Fees.


 


(a)                                  Letter of Credit Fees. 
The US Borrower shall pay to the Administrative Agent for the account of
each US Revolver Lender (other than any Defaulting Lender) in accordance with
its US Revolver Applicable Percentage a Letter of Credit fee (the “US Letter
of Credit Fee”) for each US Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such US Letter of
Credit.  The Canadian Borrower shall pay
to the Administrative Agent for the account of each Canadian Revolver Lender
(other than any Defaulting Lender) in accordance with its Canadian Revolver
Applicable Percentage a Letter of Credit fee (the “Canadian Letter of Credit
Fee”) for each Canadian Letter of Credit equal to the Applicable Rate times
the daily amount available to be drawn under such Canadian Letter of
Credit.  For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06.


 


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Letter of Credit Fees
shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable (x) within fifteen (15) days after the last Business Day
of each March, June, September and December in respect of the most
recently ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of such
Letter of Credit, (y) on the Letter of Credit Expiration Date and
(z) thereafter on demand.  If there
is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. 
Notwithstanding anything to the contrary contained herein, (1) upon
the request of the US Revolver Required Lenders, while any Event of Default
exists, all US Letter of Credit Fees shall accrue at the Default Rate and
(ii) upon the request of the Canadian Revolver Required Lenders, while any
Event of Default exists, all Canadian Letter of Credit Fees shall accrue at the
Default Rate to the fullest extent permitted by applicable Laws.


 


(b)                                 Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuer.  The US
Borrower shall pay directly to the US L/C Issuer for its own account a fronting
fee with respect to each US Letter of Credit, equal to the greater of
(i) $500 and (ii) 0.25% per annum, computed on the daily amount
available to be drawn under such US Letter of Credit on a quarterly basis in
arrears.  The Canadian Borrower shall pay
directly to the Canadian L/C Issuer for its own account a fronting fee with
respect to each Canadian Letter of Credit, equal to the greater of
(i) $500 and (ii) 0.25% per annum, computed on the daily amount
available to be drawn under such Canadian Letter of Credit on a quarterly basis
in arrears.  Such fronting fees with
respect to each Letter of Credit shall be due and payable (x) within
fifteen (15) days after the last Business Day of each March, June,
September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter
of Credit, (y) on the Letter of Credit Expiration Date and
(z) thereafter on demand.  For purposes
of computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with
Section 1.06.  In addition,
(i) the US Borrower shall pay directly to the US L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the US L/C Issuer relating to
letters of credit as from time to time in effect and (ii) the Canadian
Borrower shall pay directly to the Canadian L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the Canadian L/C Issuer relating to
letters of credit as from time to time in effect.  Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.


 


(c)                                  Revolver Commitment Fees. 
The US Borrower shall pay to the Administrative Agent for the account of
each US Revolver Lender (other than any Defaulting Lender), in accordance with
its US Revolver Percentage, a commitment fee equal to 0.75% times the
actual daily amount by which the Aggregate US Revolver Commitments exceed the
Total US Revolver Exposure (calculated without giving effect to
clause (c) of the definition thereof).  The Canadian Borrower shall pay to the
Administrative Agent for the account of each Canadian Revolver Lender (other
than any Defaulting Lender), in accordance with its Canadian Revolver
Percentage, a commitment fee equal to the 0.75% times the actual daily
amount by which the Aggregate Canadian Revolver Commitments exceed the Total
Canadian Revolver Exposure (calculated without giving effect to
clause (c) of the definition thereof).  Such commitment fees shall accrue at all
times during the US Revolver Availability Period and the Canadian Revolver
Availability Period, as applicable, including at any time during which one or
more of the conditions in Section 4.02 are not met, and shall be due and
payable quarterly in arrears within fifteen (15) days after the last
Business Day of each March, June, September and December, commencing with
the first such date to occur after the Closing Date, and on the Revolver
Maturity Date.


 


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(d)                                 Stamping Fees. 
In consideration of each Canadian Revolver Lender’s commitment to accept
or participate in Bankers’ Acceptances or BA Equivalent Advances under this
Agreement, the Canadian Borrower will pay to the Administrative Agent for the
account of such Canadian Revolver Lender a stamping fee equal to the Applicable
Rate per annum indicated as the “Bankers’ Acceptances Stamping Fee” multiplied
by the face amount of each Bankers’ Acceptance or BA Equivalent Advances, as
the case may be, accepted by such Canadian Revolver Lender on behalf of the
Canadian Borrower under this Agreement, calculated for the number of days in
the term of such Bankers’ Acceptance or BA Equivalent Advances, as the case may
be, and on the basis of a year of 365 days or 366 days, as the case may
be.  Such stamping fee shall be due and
payable on the date on which such Bankers’ Acceptances or BA Equivalent
Advances, as the case may be, are accepted and shall be deducted from the
Discount Proceeds paid to the Canadian Borrower.  If the Default Rate is in effect pursuant to
Section 2.08 while an Event of Default exists, the Applicable Rate in
respect of BAs shall be increased by two percent (2%) per annum.


 


(e)                                  Other Fees.  The Borrowers
shall pay to the Administrative Agent for its account fees in the amounts and
at the times specified in the Fee Letter or as otherwise agreed.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


2.10                           Computation of Interest
and Fees.  All computations of interest for Base Rate
Loans when the Base Rate is determined by Royal Bank of Canada’s “prime rate”,
all computations of interest for Canadian US Dollar Base Rate Loans when the
Canadian US Dollar Base Rate is determined by Royal Bank of Canada’s “reference
rate”, all computations of interest for Canadian Prime Rate Loans and all
computations of fees with respect to BAs and Canadian Letters of Credit
denominated in Canadian Dollars shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  For the
purposes of the Interest Act (Canada), whenever interest payable pursuant to
this Agreement is calculated on the basis of a period other than a calendar
year, each rate of interest determined pursuant to such calculation expressed
as an annual rate is equivalent to such rate as so determined multiplied by the
actual number of days in the calendar year in which the same is to be
ascertained and divided by the number of days in such period.  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusively correct and
binding for all purposes, absent manifest error.


 


2.11                           Evidence of Debt.


 


(a)                                  Accounts or Records Evidencing Credit
Extensions; Promissory Notes.  The Credit
Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business in accordance with its usual practice.  The accounts or records maintained by the
Administrative Agent and each Lender shall be presumed correct, absent manifest
error, of the amount of the Credit Extensions made by the applicable Lenders to
the applicable Borrower and the interest and payments thereon.  Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of any
Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.  Upon the
request of any US Revolver Lender made through the Administrative Agent, the US
Borrower shall execute and deliver to such Lender (through the


 


72

















 


Administrative Agent) a
US Revolver Note, which shall evidence such Lender’s US Revolver Loans, in
addition to such accounts or records. 
Upon the request of any Canadian Revolver Lender made through the
Administrative Agent, the Canadian Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Canadian Revolver Note, which shall
evidence such Lender’s Canadian Revolver Loans in addition to such accounts or
records.  Upon the request of the US
Swing Line Lender or the Canadian Swing Line Lender, the US Borrower or the
Canadian Borrower, as applicable, shall execute and deliver to such Swing Line
Lender a US Swing Line Note or Canadian Swing Line Note, as applicable, which
shall evidence such Swing Line Lender’s US Swing Line Loans or Canadian Swing
Line Loans, as applicable, in addition to such accounts or records.  Each Lender may attach schedules to each of
its Notes and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.


 


(b)                                 Accounts or Records Evidencing
Participations in Letters of Credit.  In addition
to the accounts and records referred to in subsection (a), each US
Revolver Lender or Canadian Revolver Lender, as applicable, and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts
and records of any US Revolver Lender or Canadian Revolver Lender, as
applicable, in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.


 


2.12                           Payments Generally;
Administrative Agent’s Clawback.


 


(a)                                  General.  All payments
to be made by any Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or set-off. 
All payments of principal and interest on each Loan shall be made in the
currency in which the principal amount of such Loan was funded.  All fees in respect of BAs and Canadian
Letters of Credit shall be paid in Canadian Dollars and all other fees shall be
paid in Dollars.  Except as otherwise
expressly provided herein, all payments by any Borrower hereunder shall be made
to the Administrative Agent, for the account of the respective Lenders to which
such payment is owed, at the Administrative Agent’s Office and in immediately
available funds not later than 1:00 p.m. on the date specified
herein.  The Administrative Agent will
promptly distribute to each applicable Lender its Applicable Percentage (or
other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative
Agent after 1:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by any Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


 


(b)                                 (i)  Funding by Lenders;
Presumption by Administrative Agent. 
Unless the Administrative Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing of Eurodollar Rate Loans  (or, in the case of any Borrowing of Base
Rate Loans, Canadian US Dollar Base Rate Loans or Canadian Prime Rate Loans, or
any Borrowing by way of Bankers’ Acceptances, prior to 1:00 p.m. on the
date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate
Loans, Canadian US Dollar Base Rate Loans or Canadian Prime Rate Loans, that
such Lender has made such share available in accordance with and at the time
required by Section 2.02) and may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the applicable Borrower


 


73

















 


severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to such Borrower, to but
excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the Federal Funds
Rate (or, as to Canadian Dollar-denominated amounts, the Bank of Canada Rate)
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (B) in the case of a
payment to be made by any Borrower, the interest rate applicable to Base Rate
Loans, Canadian US Dollar Base Rate Loans or Canadian Prime Rate Loans, as
applicable.  If such Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to such Borrower
the amount of such interest paid by such Borrower for such period.  If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing.  Any payment by any Borrower shall be without
prejudice to any claim such Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


(ii)                                  Payments by Borrowers; Presumptions by
Administrative Agent.  Unless the Administrative Agent shall have
received notice from the US Borrower or the Canadian Borrower, as applicable,
prior to the date on which any payment is due to the Administrative Agent for
the account of the applicable Lenders or the Applicable L/C Issuer hereunder
that such Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to such Lenders
or the Applicable L/C Issuer, as the case may be, the amount due.  In such event, if such Borrower has not in
fact made such payment, then each of the applicable Lenders or the Applicable
L/C Issuer, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or the
Applicable L/C Issuer, in immediately available funds with interest thereon,
for each day from the date such amount is distributed to it to the date of
payment to the Administrative Agent, at the greater of the Federal Funds Rate (or,
as to Canadian Dollar-denominated amounts, the Bank of Canada Rate) and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.


 


A notice of the
Administrative Agent to any Lender or any Borrower, as applicable, with respect
to any amount owing under this subsection (b) shall be conclusively
correct, absent manifest error.


 


(c)                                  Failure to Satisfy Conditions Precedent. 
If any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to the applicable
Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Section 4.02 (and if such Credit Extension
is an initial Credit Extension, Section 4.01) are not satisfied or waived
in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.


 


(d)                                 Obligations of Lenders Several. 
The obligations of the Lenders hereunder to make Loans, to fund
participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan,
to fund any such participation or to make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any
other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan, to purchase its participation or to make its payment under
Section 10.04(c).


 


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(e)                                  Funding Source. 
Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.


 


(f)                                    Currency Indemnity. 
If a payment relative to any of the Obligations is made to any Agent,
any L/C Issuer or any Lender in a currency (the “Other Currency”) other
than the currency in which such Obligation is denominated (the “Obligation
Currency”), whether voluntarily or pursuant to an order of judgment of a
court or tribunal of any jurisdiction, such payment will, to the extent
permitted by applicable Law, constitute a discharge of the liability in respect
of such Obligation only to the extent of the amount of Obligation Currency
which such Agent, L/C Issuer or Lender purchases with the amount received at
the designated place of payment, such purchase to be at such time as such
Agent, L/C Issuer or Lender may reasonably elect, but in any event within three
Business Days after receipt of such payment. 
If the amount of Obligation Currency able to be purchased is less than
the amount of Obligation Currency originally due to such Agent, L/C Issuer or
Lender in respect to the relevant Obligation, the relevant Borrower will indemnify
and save such Agent, L/C Issuer or Lender, as the case may be, harmless from
and against any loss or damage arising as a result of such deficiency.  This indemnity will constitute an obligation
separate and independent from the other obligations contained herein, will give
rise to a separate and independent cause of action, will apply irrespective of
any indulgence granted by any Agent, any L/C Issuer or the Lenders and will
continue in full force and effect notwithstanding any judgment or order in
respect of any amount due hereunder or under any judgment or order.


 


2.13                           Sharing of Payments by
Lenders.  If any Lender shall, by exercising any right
of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it, or the participations
in any of the L/C Obligations or Swing Line Loans held by it, resulting in such
Lender’s receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon or fees with respect
thereto greater than its pro  rata share (other than prepayments
made pursuant to Section 3.06(b)) thereof as provided herein, then the
Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Loans or subparticipations in L/C Obligations or
Swing Line Loans, as applicable, of the other applicable Lenders, or make such
other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the applicable Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Loans and other amounts owing them, provided that:


 


(a)                                  if any such participations or subparticipations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;


 


(b)                                 the provisions of this Section shall
not be construed to apply to (x) any payment made by any Borrower pursuant
to and in accordance with the express terms of this Agreement, (y) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or subparticipations in L/C Obligations or
Swing Line Loans to any assignee or participant, other than to the Borrowers or
any Subsidiary thereof (as to which the provisions of this Section shall
apply) or (z) any payment received by any Lender pursuant to
Section 9.11; and


 


(c)                                  if any Lender shall exercise a right of
set-off or counterclaim with respect to any asset that could be subject to an
Enforcement Action and distributed pursuant to Section 9.11 if realized on
as a result thereof, the benefit of any payment received as a result of such
set-off or counterclaim shall be shared by the Lenders pursuant to this
Section 2.13 ratably in accordance with the respective distributions in
respect of realizing on such asset to which the Lenders would have been
entitled if such


 


75

















 


asset had been realized
on pursuant to an Enforcement Action and the proceeds of such realization
distributed pursuant to Section 9.11.


 


Each Loan Party consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable Law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of set-off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Loan Party in the amount of such participation.


 


2.14                           Borrowing Base Reporting.


 


(a)                                  Borrowing Base Procedures. 
The Borrowing Base Reports are subject to the procedures set forth on
Schedule 2.14.  Notwithstanding
anything to the contrary contained in this Agreement, the Administrative Agent,
in its Permitted Discretion, shall have the right to adjust the procedures and
methodologies used to determine the applicable Borrowing Base and/or prepare
Borrowing Base Reports to reflect the result of any commercial finance
examination.


 


(b)                                 Effectiveness of Borrowing Base. 
Upon delivery to the Administrative Agent of a Borrowing Base Report
pursuant to Section 6.02(f), the Borrowing Base reflected in such
Borrowing Base Report shall become effective and shall remain in effect until
the earlier of (i) the next date on which a Borrowing Base Report
reflecting a redetermination of such Borrowing Base is delivered to the Administrative
Agent pursuant to Section 6.02(f) and (ii) the next date as of
which such Borrowing Base is otherwise redetermined or recalculated pursuant to
the provisions hereof.


 


(c)                                  Reduction of Borrowing Base. 
Notwithstanding anything to the contrary contained herein, the
Administrative Agent may, within five (5) Business Days after any date on
which a Borrowing Base Report is delivered to the Administrative Agent pursuant
to Section 6.02(f), notify Holdings of any dispute as to the calculation
of the Borrowing Base as reflected in such Borrowing Base Report and of the
amount of such Borrowing Base as recalculated by the Administrative Agent in
its Permitted Discretion.  The amount of
such Borrowing Base as so recalculated by the Administrative Agent and set
forth in such notice shall take effect on the date specified in such notice
(which date shall not be earlier than the date on which such notice is sent to
Holdings) and shall continue in effect until the next date as of which such
Borrowing Base is redetermined pursuant to the provisions hereof.  Any such recalculation shall be made by the
Administrative Agent after consultation with the applicable Revolver Lenders
based on the information contained in such Borrowing Base Report and any other
information regarding the components of such Borrowing Base available to the
Administrative Agent at the time in question.


 


(d)                                 Redetermination of Borrowing Base Due to
Failure to Timely Deliver Borrowing Base Report.  If any
Borrowing Base Report is not delivered to the Administrative Agent by the date
specified in Section 6.02(f), the Administrative Agent may redetermine the
applicable Borrowing Base to be any amount which it, in its Permitted
Discretion, deems appropriate based on the information regarding the applicable
Borrowing Base Parties and the components of such Borrowing Base available to
the Administrative Agent at such time, and from time to time thereafter the
Administrative Agent may redetermine such Borrowing Base until the
Administrative Agent receives a Borrowing Base Report of the same type as the
Borrowing Base Report that was not timely delivered, whereupon the Borrowing
Base as reflected in such Borrowing Base Report shall become effective; provided
that the Administrative Agent may not, at any time during the period from the
date on which such Borrowing Base Report was delivered, increase such Borrowing
Base without the consent of the US Revolver Required Lenders or Canadian
Revolver Required Lenders, as applicable.


 


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(e)                                  Determinations by Required Lenders. 
Notwithstanding anything to the contrary contained in this Agreement, if
any Borrower disagrees with any determination or exercise of discretion by the
Administrative Agent relating to the Borrowing Base, including, without
limitation, pursuant to this Section 2.14, at the request of such
Borrower, such determination shall be made by the Required Lenders; provided
that any Reserve implemented by Administrative Agent as to which the Borrower
is exercising its rights under this Section 2.14(e) shall remain in
effect until either the Administrative Agent or the Required Lenders determine
that such Reserve will no longer apply.


 


2.15                           Incremental Facilities. 
At any time prior to the date that is the third anniversary of the
Closing Date, subject to the terms and conditions set forth herein, either
Borrower may by notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy to each of the Lenders)
request additional US Revolver Commitments (the “New US Revolver Commitments”)
or additional Canadian Revolver Commitments (the “New Canadian Revolver
Commitments”; together with the New US Revolver Commitments, the “New
Revolver Commitments”); provided that the New Revolver Commitments
shall be in a principal amount not in excess of $100,000,000 (the “Aggregate
New Revolver Commitments”); provided, further, that:


 


(a)                                  no Default or Event of Default has
occurred and is continuing;


 


(b)                                 the New US Revolver Commitments shall be
in a principal amount not in excess of the Aggregate New Revolver Commitments
minus the New Canadian Revolver Commitments at such time and not less than
$5,000,000 individually (or such lesser amount which shall be approved by the
Administrative Agent) and integral multiples of $1,000,000 in excess of that
amount;


 


(c)                                  the New Canadian Revolver Commitments
shall be in a principal amount not in excess of the Aggregate New Revolver
Commitments minus the New US Revolver Commitments at such time and not less
than $5,000,000 individually (or such lesser amount which shall be approved by
the Administrative Agent) and integral multiples of $1,000,000 in excess of
that amount;


 


(d)                                 the representations and warranties
contained in Article V and the other Loan Documents are true and
correct in all material respects (without duplication of any materiality
qualifier contained in such representations and warranties) immediately before
and immediately after the Increased Amount Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall have been true and correct in all material respects as of such
earlier date;


 


(e)                                  before and after giving effect to any New
US Revolver Commitment or any New Canadian Revolver Commitment, the Borrowers
shall be in compliance, calculated on the last day of the most recently ended
Fiscal Quarter for which financial statements have been delivered pursuant to
Section 6.01(a) and 6.01(b), with the financial covenant set forth in
Section 7.16 on a pro forma basis after giving effect
thereto to the extent such financial covenant is then applicable;


 


(f)                                    all fees and expenses owing to the
Administrative Agent and the Lenders in connection with the New Revolver
Commitments shall have been paid;


 


(g)                                 the Borrowers shall have delivered to the
Administrative Agent a certificate of each Loan Party dated as of the Increased
Amount Date signed by a Responsible Officer of such Loan Party
(i) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to the New US Revolver Commitments or the New Canadian
Revolver Commitments, as applicable, and (ii) certifying the conditions
set forth in this Section 2.15 have been satisfied as of the
Increased Amount Date; and


 


77

















 


(h)                                 the New Revolver Commitments shall rank pari
passu in right of payment and right of security in respect of the
Collateral with the existing Revolver Commitments and shall constitute a part
of the US Revolver Facility or Canadian Revolver Facility, as applicable, for
all purposes.


 


Each such notice shall
specify the date (each, an “Increased Amount Date”) on which the
Borrowers propose that the New Revolving Commitments shall be effective, which
shall be a date not less than 10 Business Days after the date on which
such notice is delivered to the Administrative Agent.  Any bank, financial institution or other
Person that elects to extend the New Revolver Commitments shall be reasonably
satisfactory to the Borrower, the Administrative Agent and the Applicable L/C
Issuer (any such bank, financial institution or other Person being called an “Additional
Lender”) and shall become a Lender under this Agreement pursuant to an
amendment (an “Incremental Facility Amendment”) giving effect to the
modifications permitted by this Section 2.15 and, as appropriate, the
other Loan Documents.  No Lender shall be
obligated to commit to any portion of the New Revolver Commitments.  An Incremental Facility Amendment may, without
the consent of any other Lenders, effect such amendments to this Agreement and
the other Loan Documents as may be necessary or appropriate, in the opinion of
the Administrative Agent, to effect the provisions of this Section 2.15
(including voting provisions applicable to the Additional Lenders); provided,
however, that no such amendment in respect of the New Revolver
Commitments will include any provisions adversely affecting the rights of
non-consenting Lenders, except as otherwise contemplated by this
Section 2.15.


 


Notwithstanding anything
contained herein to the contrary, (x) the final maturity date of any New
Revolver Commitment shall occur on or after the Revolver Maturity Date,
(y) the Weighted Average Life to Maturity of  the New Revolver Commitments shall not be
shorter than the Weighted Average Life to Maturity of the Revolver Commitments
and (y) if the initial yield of any New Revolver Commitment (as determined
by the Administrative Agent, the Borrowers and the Lenders to be equal to the
Applicable Rate with respect to the New Revolver Commitments) exceeds the
Applicable Rate then in effect for the Revolver Loans (the amount of such
excess being referred to herein as the “Yield Differential”), then the
Applicable Rate for each US Revolver Lender or Canadian Revolver Lender, as
applicable, shall automatically be increased by the Yield Differential,
effective upon the providing of the New Revolver Commitments; provided that, in
determining the Applicable Rate applicable to the New Revolver Commitments
original issue discount (“OID”) or upfront fees payable by the Borrowers
to the Lenders of the Revolver Commitments or the New Revolver Commitments
shall be included (with OID being equated to interest based on an assumed
four-year life to maturity).


 


2.16                           Creation of Bankers’
Acceptances.  Upon receipt of a Loan Notice requesting a
Borrowing by way of Bankers’ Acceptances, which notice is received by the
Administrative Agent not later than 1:00 p.m. two Business Days prior to
the requested day of such Borrowing, and subject to the provisions of this
Agreement, each Canadian Revolver Lender shall accept, in accordance with its
Canadian Revolver Percentage of the requested Borrowing from time to time such
Bankers’ Acceptances as the Canadian Borrower shall request; provided
that:


 


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


 


(b)                                 each Bankers’ Acceptance shall have a
term of 30, 60, 90 or 180 days or, as agreed to by the relevant Canadian
Revolver Lenders,  14-29 days (in each
case, as reduced or extended by the Administrative Agent, acting reasonably, to
allow the maturity thereof to fall on a Business Day), or such other term as
agreed to by the Canadian Revolver Lenders, payable in Canada, as selected by
the Canadian Borrower in the relevant Loan Notice provided that each Bankers’
Acceptance shall mature on a Business Day;


 


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(c)                                  the aggregate face amount of Bankers’
Acceptances issued in respect of such Loan Notice shall be not less than C$5,000,000
and in multiples of C$1,000,000 for any amounts in excess thereof; and


 


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


 


2.17                           Terms of Acceptance by
Canadian Revolver Lenders.


 


(a)                                  Delivery and Payment. 
Subject to Sections 2.18 and 2.19 and only if a valid appointment
pursuant to Section 2.17(d) is not in place, the Canadian Borrower
shall pre-sign and deliver to each Canadian Revolver Lender bankers’ acceptance
drafts in sufficient quantity to meet the Canadian Borrower’s requirements for
anticipated Borrowings by way of Bankers’ Acceptances.  Each Canadian Revolver Lender shall maintain
a record with respect to Bankers’ Acceptances (i) received by it in blank
hereunder, (ii) voided by it for any reason, (iii) accepted by it
hereunder and (iv) cancelled at their respective maturities.  On request by or on behalf of the Canadian
Borrower, a Canadian Revolver Lender shall cancel all forms of Bankers’
Acceptances which have been pre-signed or pre-endorsed on behalf of the
Canadian Borrower and which are held by such Canadian Revolver Lender and are
not required to be issued in accordance with the Canadian Borrower’s
irrevocable notice.  Alternatively, the
Canadian Borrower agrees that, at the request of the Administrative Agent, the
Canadian Borrower shall deliver to the Administrative Agent a “depository note”
which complies with the requirements of the Depository Bills and Notes Act
(Canada), and consents to the deposit of any such depository note in the book-based
debt clearance system maintained by the Canadian Depository for Securities
Limited.  The Canadian Borrower shall, at
its option, provide for payment to the Administrative Agent for the benefit of
the Canadian Revolver Lenders of each Bankers’ Acceptance on the date on which
a Bankers’ Acceptance matures, either by payment of the full face amount
thereof, through the rollover of maturing BAs or through utilization of a
conversion to another Type of Borrowing in accordance with this Agreement, or
through a combination thereof.  The
Canadian Borrower waives presentment for payment of Bankers’ Acceptances by the
Canadian Revolver Lenders and shall not claim from the Canadian Revolver
Lenders any days of grace for the payment at maturity of Bankers’ Acceptances.  Any amount owing by the Canadian Borrower in
respect of any Bankers’ Acceptance which is not paid in accordance with the
foregoing, shall, as and from the date on which such Bankers’ Acceptance
matures, be deemed to be outstanding hereunder as a Canadian Prime Rate Loan.


 


(b)                                 No Liability. 
Neither the Administrative Agent nor any of the Canadian Revolver
Lenders shall be liable for any damage, loss or improper use of any bankers’
acceptance draft endorsed in blank except for any loss arising by reason of its
own tortious misconduct.


 


(c)                                  Notice to Lenders. 
Upon receipt by the Administrative Agent of a Loan Notice from the
Canadian Borrower in connection with a Borrowing by way of Bankers’
Acceptances, the Administrative Agent shall promptly notify the Canadian
Revolver Lenders thereof.


 


(d)                                 Power of Attorney.  To facilitate the procedures contemplated in
this Agreement, the Canadian Borrower appoints each Canadian Revolver Lender
from time to time as the attorney-in-fact of the Canadian Borrower to execute,
endorse and deliver on behalf of the Canadian Borrower drafts or depository
bills in the form or forms prescribed by such Canadian Revolver Lender for
Bankers’ Acceptances denominated in Canadian Dollars.  Each Bankers’ Acceptance executed and delivered
by a Canadian Revolver Lender on behalf of the Canadian Borrower shall be as
binding upon the Canadian Borrower as if it had been executed and delivered by
a duly authorized officer of the Canadian Borrower.  The foregoing appointment shall cease to be
effective, in respect of any Canadian Revolver Lender regarding the Canadian
Borrower, three Business Days following receipt by such Canadian Revolver


 


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Lender
of a written notice from the Canadian Borrower revoking such appointment (which
notice shall be copied to the Administrative Agent); provided that any
such revocation shall not affect Bankers’ Acceptances previously executed and
delivered by such Canadian Revolver Lender pursuant to such appointment.


 


(e)                                  Pro-Rata Treatment of Canadian Revolver Advances.


 


(i)                                     Each Canadian
Revolver Advance shall be made available by each Canadian Revolver Lender and
all repayments and reductions in respect thereof shall be made and applied in a
manner so that the Canadian Revolver Advances outstanding hereunder to each
Canadian Revolver Lender will, to the extent possible, thereafter be pro rata
in accordance with such Canadian Revolver Lender’s Canadian Revolver Percentage.  The Administrative Agent is authorized by the
Canadian Borrower and each Canadian Revolver Lender to determine, in its sole
and unfettered discretion, the portion of each Canadian Revolver Advance and
each Type of Canadian Revolver Advance to be made available by each Canadian
Revolver Lender to the Canadian Borrower and the application of repayments and
reductions of Canadian Revolver Advances to give effect to the provisions of
this Section, provided that no Canadian Revolver Lender shall, as a result
of any such determination, have a Canadian Revolver Percentage of the aggregate
Canadian Revolver Advances which is in excess of its Canadian Revolver
Percentage of the Aggregate Canadian Revolver Commitments.


 


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


 


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


 


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Advance
made pursuant to this subsection shall be deemed to be a BA accepted and
purchased by such Non-BA Lender pursuant to the terms hereof, and except in
this subsection, any reference to a BA shall include such BA Equivalent
Advance.


 


2.18                           General
Procedures for Bankers’ Acceptances.


 


(a)                                  Rollovers.  In the case of a rollover of maturing Bankers’
Acceptances of the Canadian Borrower, each Canadian Revolver Lender, in order
to satisfy the continuing liability of the Canadian Borrower to such Canadian
Revolver Lender for the face amount of such maturing Bankers’ Acceptances,
shall retain for its own account the Net BA Proceeds of each new Bankers’
Acceptance issued by it in connection with such rollover; and (i) if the
Net BA Proceeds are less than the face amount of the maturing Bankers
Acceptances, the Canadian Borrower shall, on the maturity date of such maturing
Bankers’ Acceptances, pay to the Administrative Agent for the benefit of the
Canadian Revolver Lenders an amount equal to the difference between the face
amount of such maturing Bankers’ Acceptances and the aggregate Net BA Proceeds
of such new Bankers’ Acceptances or (ii) if the Net BA Proceeds exceed the
face amount of the maturing Bankers Acceptances, the Administrative Agent
shall, on such maturity date pay such excess to the Canadian Borrower.


 


(b)                                 Conversion from Canadian Prime Rate Loans.  In the case of a
conversion from a Borrowing of Canadian Prime Rate Loans into a Borrowing by
way of Bankers’ Acceptances to be accepted by a Canadian Revolver Lender
pursuant to Section 2.16, such Canadian Revolver Lender, in order to
satisfy the continuing liability of the Canadian Borrower to it for the
principal amount of the Canadian Prime Rate Loans being converted, shall retain
for its own account the Discount Proceeds of each new Bankers’ Acceptance
issued by it in connection with such conversion; and the Canadian Borrower
shall, on the date of issuance of the new Bankers’ Acceptances, pay to the
Administrative Agent for the benefit of the Canadian Revolver Lenders an amount
equal to the difference between the aggregate principal amount of the Canadian
Prime Rate Loans being converted and the aggregate Discount Proceeds of such
Bankers’ Acceptances.


 


(c)                                  Authorization.  The Canadian Borrower hereby authorizes each
Canadian Revolver Lender to complete, stamp, hold, sell, rediscount or
otherwise dispose of all Bankers’ Acceptances of the Canadian Borrower accepted
by it pursuant to this Agreement.


 


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


 


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


 


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2.20                           Prepayment
of Bankers’ Acceptances.  Any
amounts received by the Administrative Agent to be applied to outstanding
Bankers’ Acceptances, whether pursuant to an Event of Default and acceleration
of the Obligations under Section 8.02, a prepayment under Section 2.05
or 2.21, or an Enforcement Action as contemplated by Section 9.11, shall
be deposited into a cash collateral account maintained by and in the name of
the Administrative Agent for the benefit of the Canadian Revolver Lenders for
set-off against such outstanding Bankers’ Acceptances as they mature, and pending
such application shall bear interest at the rate declared by the Administrative
Agent from time to time as that payable by it in respect of deposits for such
amount and for such period relative to the maturity date of such Bankers’
Acceptances, as applicable.  The Canadian
Borrower hereby grants to the Administrative Agent, for the benefit of the
Canadian Revolver Lenders, a security interest in such cash collateral account
and all balances therein.  Upon the
repayment of all such outstanding Bankers’ Acceptances, any amounts remaining
(including accrued interest) will (i) during the continuance of an Event
of Default, be subject to such remedies as the Administrative Agent for the
benefit of the Secured Parties may have hereunder or under applicable Law, or (ii) otherwise,
be released to the Canadian Borrower.


 


2.21                           Currency
Fluctuation.  If as a
result of fluctuations in currency exchange rates (which shall be calculated by
the Administrative Agent on each Revaluation Date and in any case no less often
than monthly), the Administrative Agent notifies the Canadian Borrower in
writing that the Total Canadian Revolver Exposure exceeds 105% of the Canadian
Revolver Maximum Available Amount, the Canadian Borrower shall, within 5
Business Days after receipt of such notice, immediately apply an amount equal
to such excess to prepay the Canadian Revolver Loans and the Canadian L/C
Borrowings and/or Cash Collateralize outstanding BAs and the Canadian L/C
Obligations (other than the Canadian L/C Borrowings) until the Total Canadian
Revolver Exposure, net of the amount of Cash Collateral applied to Cash
Collateralize BAs and the Canadian L/C Obligations (other than the Canadian L/C
Borrowings), does not exceed the Canadian Revolver Maximum Available Amount.


 


2.22                           Canadian Revolver Adjustments.


 


(a)                                  The Canadian Borrower may, by written notice to the
Administrative Agent, request that the Administrative Agent and the Canadian
Revolver Lenders increase or decrease the Aggregate Canadian Revolver
Commitments (a “Canadian Revolver Adjustment”), which request shall be
granted if each of the following conditions are satisfied:  (i) only one Canadian Revolver
Adjustment may be made in any two Fiscal Quarters, (ii) the written
request for a Canadian Revolver Adjustment must be received by the
Administrative Agent at least five Business Days prior to the requested date
(which shall be a Business Day) of the effectiveness of such Canadian Revolver
Adjustment (such date of effectiveness, the “Canadian Revolver Adjustment
Date”), (iii) any increase in the Aggregate Canadian Revolver
Commitments shall result in a Dollar-for-Dollar decrease in the Aggregate US
Revolver Commitments, and vice-versa for any decrease in the Aggregate Canadian
Revolver Commitments, (iv) no decrease of the Aggregate Canadian Revolver
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Canadian Revolver Loans on the effective date thereof, the
Total Canadian Revolver Exposure would exceed Canadian Revolver Maximum Available
Amount and (v) no increase in the Aggregate Canadian Revolver Commitments
shall be permitted if, after giving effect thereto and to any prepayments of
the US Revolver Loans on the effective date thereof, the Total US Revolver
Exposure would exceed the US Revolver Maximum Available Amount.  Any such Canadian Revolver Adjustment shall
be in an amount equal to $5,000,000 or a multiple of $1,000,000 in excess
thereof and shall concurrently increase or reduce, as applicable, (1) the
Aggregate US Revolver Commitments then in effect pro rata
among the US Revolver Lenders and (2) the Aggregate Canadian Revolver
Commitments then in effect pro rata among the Canadian
Revolver Lenders.  After giving effect to
any Canadian Revolver Adjustment, the Canadian Revolver Commitment of each
Canadian Revolver 


 


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Lender
shall be equal to such Canadian Revolver Lender’s pro  rata share
of the amount of the Aggregate Canadian Revolver Commitments.


 


(b)                                 The Administrative Agent shall promptly inform the Canadian
Revolver Lenders of any request for a Canadian Revolver Adjustment made by the
Canadian Borrower.  If the conditions set
forth in clause (a) above are not satisfied on the applicable Canadian
Revolver Adjustment Date (or, to the extent such conditions relate to an
earlier date, such earlier date), the Administrative Agent shall notify the
Canadian Borrower in writing that the requested Canadian Revolver Adjustment
will not be effectuated.  On each
Canadian Revolver Adjustment Date, the Administrative Agent shall notify the
Lenders, on or before 1:00 p.m. (New York time), by telecopier or
electronic mail, of the occurrence of the Canadian Revolver Adjustment to be
effected on such Canadian Revolver Adjustment Date, the amount of US Revolver
Loans held by each US Revolver Lender as a result thereof, the amount of the US
Revolver Commitments of each US Revolver Lender, the amount of Canadian
Revolver Loans held by each Canadian Revolver Lender as a result thereof, and
the amount of the Canadian Revolver Commitment of each Canadian Revolver Lender
as a result thereof.


 


2.23                           US Revolver Adjustments.


 


(a)                                  The US Borrower may, by written notice to the Administrative
Agent, request that the Administrative Agent and the US Revolver Lenders
increase or decrease the Aggregate US Revolver Commitments (a “US Revolver
Adjustment”), which request shall be granted if each of the following
conditions are satisfied:  (i) only
one US Revolver Adjustment may be made in any two Fiscal Quarters, (ii) the
written request for a US Revolver Adjustment must be received by the
Administrative Agent at least five Business Days prior to the requested date
(which shall be a Business Day) of the effectiveness of such US Revolver
Adjustment (such date of effectiveness, the “US Revolver Adjustment Date”),
(iii) any increase in the Aggregate US Revolver Commitments shall result
in a Dollar Equivalent of Canadian Dollar-for-Canadian Dollar decrease in the
Aggregate Canadian Revolver Commitments, and vice-versa for any decrease in the
Aggregate US Revolver Commitments, (iv) no decrease of the Aggregate US
Revolver Commitment shall be permitted if, after giving effect thereto and to
any prepayments of the US Revolver Loans on the effective date thereof, the
Total US Revolver Exposure would exceed the US Revolver Maximum Available
Amount and (v) no increase in the Aggregate US Revolver Commitment shall
be permitted if, after giving effect thereto and to any prepayments of the
Canadian Revolver Loans on the effective date thereof, the Total Canadian
Revolver Exposure would exceed the Canadian Revolver Maximum Available
Amount.  Any such US Revolver Adjustment
shall be in an amount equal to $5,000,000 or a multiple of $1,000,000 in excess
thereof and shall concurrently increase or reduce, as applicable, (1) the
Aggregate Canadian Revolver Commitments then in effect pro rata among the
Canadian Revolver Lenders and (2) the Aggregate US Revolver Commitments
then in effect pro rata among the US Revolver Lenders.  After giving effect to any US Revolver
Adjustment, the US Revolver Commitment of each US Revolver Lender shall be
equal to such US Revolver Lender’s pro rata share of the
amount of the Aggregate US Revolver Commitments.


 


(b)                                 The Administrative Agent shall promptly inform the Lenders
of any request for a US Revolver Adjustment made by the US Borrower.  If the conditions set forth in clause (a) above
are not satisfied on the applicable US Revolver Adjustment Date (or, to the
extent such conditions relate to an earlier date, such earlier date), the
Administrative Agent shall notify the US Borrower in writing that the requested
US Revolver Adjustment will not be effectuated. 
On each US  Revolver Adjustment
Date, the Administrative Agent shall notify the Lenders, on or before 1:00 p.m.
(New York time), by telecopier or electronic mail, of the occurrence of the US
Revolver Adjustment to be effected on such US Revolver Adjustment Date, the
amount of Canadian Revolver Loans held by each Canadian Revolver Lender as a
result thereof, the amount of the Canadian Revolver Commitments of each
Canadian Revolver Lender, 


 


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the
amount of US Revolver Loans held by each US Revolver Lender as a result
thereof, and the amount of the US Revolver Commitment of each US Revolver
Lender as a result thereof.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                           Taxes.


 


(a)                                  Payments Free of Taxes.  Any and all payments by or on account of any
obligation of any Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if any Borrower shall be required by
applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased (and in the
case of interest, the amount of interest shall be increased) as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Applicable L/C Issuer, as the case may be, receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall timely
pay the full amount deducted to the relevant Governmental Authority or its
agent in accordance with applicable Law.


 


(b)                                 Payment of Other Taxes by the Borrowers.  Without limiting
the provisions of subsection (a) above, each Borrower shall timely
pay any Other Taxes to the relevant Governmental Authority or to its agent in
accordance with applicable law.


 


(c)                                  Indemnification by the Borrowers.  Each Borrower shall
jointly and severally indemnify the Administrative Agent, each Lender and each
L/C Issuer, within 15 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section 3.01)
paid by such Agent, such Lender or such L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses (including reasonable attorneys’
and accountants’ fees and expenses) arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority, other than any
amounts arising as a result of such party’s gross negligence or willful
misconduct.  A certificate prepared in
good faith as to the amount of such payment or liability delivered to the
applicable Borrower by a Lender or an L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.


 


(d)                                 Evidence of Payments.  Within 30 days after the date of any
payment of Indemnified Taxes or Other Taxes by any Borrower to a Governmental
Authority, such Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment (to the extent such a receipt is issued), a copy of the
return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)                                  Status of Lenders.


 


(i)                                     Any Lender
shall deliver to Holdings and the Administrative Agent (in such number of
copies as shall be requested by the recipient) the applicable forms
specified in subsections (A), (B), (C), (D) and (E) of this Section 3.01(e)(i) at
each of the following times: (i) on or prior to the date on
which such Lender becomes a Lender under this 


 


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Agreement and (ii) from time to time
thereafter upon the reasonable request of Holdings or the Administrative Agent,
but only if such Lender is legally entitled to do so.


 


(A)                              duly completed
copies of Internal Revenue Service Form W-8BEN or any successor form
claiming eligibility for benefits of an income tax treaty to which the United
States is a party;


 


(B)                                duly completed
copies of Internal Revenue Service Form W-8ECI or any successor form
claiming exemption from U.S. federal withholding tax because the applicable
income is effectively connected with a U.S. trade or business;


 


(C)                                in the case of
a Non-US Lender claiming exemption under Section 871(h) or 881(c) of
the Code, duly completed copies of Internal Revenue Service Form W-8BEN or
any successor form;


 


(D)                               duly completed
copies of Internal Revenue Service Form W-9 or any successor form; and


 


(E)                                 Any other form
prescribed by applicable law as a basis for claiming exemption from or a
reduction in United States Federal withholding tax or any other applicable
withholding tax duly completed together with such supplementary documentation
as may be prescribed by applicable law to permit the Borrowers to determine the
withholding or deduction required to be made.


 


(ii)                                  In addition, if
requested by any Borrower or the Administrative Agent, each Lender shall
deliver such other documentation prescribed by applicable Law or reasonably
requested by such Borrower or the Administrative Agent as will enable such
Borrower or the Administrative Agent to determine whether or not such Lender is
subject to any other exemption from or reduction of withholding tax with
respect to payments hereunder or under any other Loan Document, or subject to
backup withholding or information reporting requirements.


 


(f)                                    Treatment of Certain Refunds.  If any Agent, any Lender or any L/C Issuer
determines, in its reasonable discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by any Borrower or
with respect to which any Borrower has paid additional amounts pursuant to this
Section 3.01, it shall pay to such Borrower an amount equal to such refund
(but only to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 3.01 with respect to the Taxes or
Other Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of such Agent, such Lender or such L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund) (such
amount the “Refund Amount”), provided
that such Borrower, upon the request of such Agent, such Lender or such L/C
Issuer, agrees to repay the Refund Amount (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to such Agent,
such Lender or such L/C Issuer if such Agent, such Lender or such L/C Issuer is
required to repay such refund to such Governmental Authority, provided however that the Borrower shall be permitted to
refuse receipt of a Refund Amount.  This subsection shall not be construed to require any Agent,
any Lender or any L/C Issuer to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to any Borrower
or any other Person, and nothing in this subsection shall be construed so as to
interfere with the right of any Agent, any Lender or any L/C Issuer to arrange
its tax affairs as it deems appropriate.


 


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3.02                           Illegality.  If any Lender determines that any Change in
Law occurring after the date hereof has made it unlawful, or that any
Governmental Authority having jurisdiction has asserted after the date hereof
that it is unlawful, for any Lender or its applicable Lending Office to make,
maintain or fund Eurodollar Rate Loans, make or maintain any Bankers’
Acceptances or determine or charge interest rates based upon the Eurodollar
Rate or BA Discount Rate, or any Governmental Authority having jurisdiction
has, after the date hereof, imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to each applicable
Borrower through the Administrative Agent, any obligation of such Lender to
make or continue Eurodollar Rate Loans or accept or rollover Bankers’
Acceptances, as applicable, or to convert Base Rate Loans, Canadian US Dollar
Base Rate Loans or Canadian Prime Rate Loans, as applicable, to Eurodollar Rate
Loans or Bankers’ Acceptances, as applicable, shall be suspended until such
Lender notifies the Administrative Agent and each applicable Borrower that the
circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, each applicable
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all Eurodollar Rate Loans or Bankers’
Acceptances, as applicable, of such Lender to Base Rate Loans, Canadian US
Dollar Base Rate Loans or Canadian Prime Rate Loans, as applicable, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans or Bankers’ Acceptances, as
applicable, to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loans or Bankers’ Acceptances, as
applicable.  Upon any such prepayment or
conversion, such Borrower shall also pay accrued interest on the amount so
prepaid or converted.


 


3.03                           Inability
to Determine Rates.  If the
Required Lenders determine for any reason in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof, or the
Canadian Revolver Required Lenders determine for any reason in connection with
any request for a Bankers’ Acceptance or a conversion to or rollover thereof,
that (a) in the case of a Eurodollar Rate Loan, Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurodollar Rate Loan or (b) adequate
and reasonable means do not exist for determining the Eurodollar Rate or BA
Discount Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan or proposed Bankers’ Acceptance, as applicable, the
Administrative Agent will promptly so notify each applicable Borrower and each
applicable Lender.  Thereafter, the
obligation of the applicable Lenders to make or maintain Eurodollar Rate Loans
or accepting or maintaining Bankers’ Acceptances, as applicable, shall be
suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice.  Upon
receipt of such notice, any Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or any
pending request for a Borrowing by way of, conversion to or rollover of Bankers’
Acceptances, as applicable, or, failing that, will be deemed to have converted
such request into a request for a Borrowing of Base Rate Loans, Canadian US
Dollar Base Rate Loans or Canadian Prime Rate Loans, as applicable, in the
amount specified therein.


 


3.04                           Increased
Costs; Reserves on Eurodollar Rate Loans.


 


(a)                                  Increased Costs Generally.  If any Change in Law shall:


 


(i)                                     impose, modify
or deem applicable any reserve, capital adequacy requirement, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by,
any Lender (except any reserve requirement contemplated by Section 3.04(e))
or any L/C Issuer; or


 


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(ii)                                  impose on any
Lender or any L/C Issuer or the London or Canadian interbank markets any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans
made by such Lender or Bankers’ Acceptances accepted by such Lender or any
Letter of Credit or participation therein;


 


and the result of any of the
foregoing shall be to increase the actual cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any
such Loan) or accepting or maintaining any Bankers’ Acceptance (or of
maintaining its obligation to accept any such Bankers’ Acceptance), or to
increase the actual cost to such Lender or such L/C Issuer of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation
to participate in or to issue any Letter of Credit), or to reduce the amount of
any sum received or receivable by such Lender or such L/C Issuer hereunder
(whether of principal, interest or any other amount), in each case by an amount
deemed by such Lender or such L/C Issuer to be material, then, upon request of
such Lender or such L/C Issuer and delivery by such Lender or such L/C Issuer
of a certificate of the type described in Section 3.04(c), the applicable
Borrower (or, if such cost or reduction shall not be attributable to any
particular Loan or Letter of Credit, Holdings) will pay to such Lender or such
L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or such L/C Issuer, as the case may be, for such
additional costs actually incurred or reduction suffered.


 


(b)                                 Capital Requirements.  If any Lender or any L/C Issuer determines
that any Change in Law affecting such Lender or such L/C Issuer or any Lending
Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if
any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or such L/C Issuer’s capital or on the
capital of such Lender’s or such L/C Issuer’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by such L/C Issuer, to a level below that which such Lender or
such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s
or such L/C Issuer’s policies and the policies of such Lender’s or such L/C
Issuer’s holding company with respect to capital adequacy), in each case by an
amount deemed by such Lender or such L/C Issuer to be material, then from time
to time, upon request of such Lender or such L/C Issuer and delivery by such
Lender or such L/C Issuer of a certificate of the type described in Section 3.04(c),
US Holdings or Canada Holdings, as applicable, will pay to such Lender or such
L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s
holding company for any actual such reduction suffered.


 


(c)                                  Certificates for Reimbursement.  A certificate of a
Lender or an L/C Issuer setting forth the amount or amounts necessary to
compensate such Lender or such L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and
delivered to the applicable Borrower or Holdings shall be presumed correct
absent manifest error.  The applicable
Borrower or Holdings shall pay such Lender or such L/C Issuer, as the case may
be, the amount shown as due on any such certificate within ten (10) Business
Days after receipt thereof.


 


(d)                                 Delay in Requests.  Failure or delay on the part of any Lender or
any L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender’s or such L/C
Issuer’s right to demand such compensation, provided that no Borrower
shall be required to compensate a Lender or an L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender or
such L/C Issuer, as the case may be, notifies the applicable Borrower or Holdings
of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s or such L/C Issuer’s intention to claim compensation therefor
(except that, if the Change in Law giving rise to such increased 


 


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costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof).


 


(e)                                  Reserves on Eurodollar Rate Loans.  The applicable
Borrower shall pay to each applicable Lender, as long as such Lender shall be
required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan made to such Borrower by such Lender equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which
shall be due and payable on each date on which interest is payable on such
Loan, provided that the applicable Borrower shall have received at least
ten (10) days’ prior notice (with a copy to the Administrative Agent)
of such additional interest from such Lender. 
If a Lender fails to give notice ten (10) days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable ten (10) days from receipt of such notice; provided
that no Borrower shall be required to compensate a Lender pursuant to the
foregoing provisions of this paragraph for any such additional interest
incurred more than six months prior to the date that such Lender notifies the
applicable Borrower of such additional interest.


 


3.05                           Compensation
for Losses.  Upon demand
of any Lender (with a copy to the Administrative Agent) from time to time, the
applicable Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any actual loss, cost or expense incurred by it as a
result of:


 


(a)                                  any continuation, rollover (in the case of Bankers’
Acceptances), conversion, payment or prepayment of any Loan other than a Base
Rate Loan, Canadian US Dollar Base Rate Loan or Canadian Prime Rate Loan on a
day other than the last day of the Interest Period for such Loan or the term of
such Bankers’ Acceptance, as applicable (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);


 


(b)                                 any failure by any Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue, rollover
(in the case of a Bankers’ Acceptance) or convert any Loan other than a Base
Rate Loan, Canadian US Dollar Base Rate Loan or Canadian Prime Rate Loan on the
date or in the amount notified by such Borrower; or


 


(c)                                  any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by any
Borrower pursuant to Section 10.12;


 


including any actual loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained.


 


3.06                           Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  Designation of a Different Lending Office.  If any Lender
requests compensation under Section 3.04, or any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, or if any Lender gives a
notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable,
and (ii) in each case, would not subject such Lender to any unreimbursed
cost or expense and 


 


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


 


(b)                                 Replacement of Lenders.  If any Lender requests compensation under Section 3.04,
or if any Lender delivers to Borrowers a notice pursuant to Section 3.02,
or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender, the Borrowers may replace such Lender
in accordance with Section 10.12.


 


3.07                           Survival.  All
of the obligations of the Borrowers and Holdings under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO THIS AGREEMENT AND CREDIT EXTENSIONS


 


4.01                           Conditions
of Agreement.  The
effectiveness of this Agreement is subject to satisfaction or waiver of the
following conditions precedent:


 


(a)                                  The Administrative Agent’s receipt of the following, each of
which shall be originals or telecopies unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party unless
otherwise specified, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance reasonably satisfactory to the Administrative
Agent:


 


(i)                                     executed
counterparts of (A) this Agreement from each party hereto; (B) the US
Guaranty from each party thereto; (C) the Canadian Guarantee from each
party thereto; (D) the US Pledge Agreement from each party thereto;  (E) the US Security Agreement from each
party thereto; and (F) the Canadian Security Agreement from each party
thereto;


 


(ii)                                  a Note executed
by the US Borrower or the Canadian Borrower, as applicable, in favor of each
Lender and Swing Line Lender requesting a Note in advance of the Closing Date;


 


(iii)                               for each of the
Loan Parties:


 


(A)                              a copy of such
Loan Party’s Organization Documents, as amended up to and including the Closing
Date, (1) certified (to the extent such certification can be obtained) as
of a recent date by the applicable Governmental Authority of such Loan Party’s
jurisdiction of incorporation, organization or formation, and (2) certified
as of the Closing Date by the secretary or assistant secretary of such Loan
Party or a Responsible Officer of such Loan Party as being in full force and
effect without further modification or amendment;


 


(B)                                a good standing
certificate or certificate of status from the applicable Governmental Authority
of such Loan Party’s jurisdiction of incorporation, organization or formation,
each dated a recent date prior to the Closing Date;


 


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(C)                                signature and
incumbency certificates of the officers of such Loan Party executing the Loan
Documents to which it is a party, dated as of the Closing Date;


 


(D)                               duly adopted
resolutions of the board of directors or similar governing body of such Loan Party
approving and authorizing the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party or by which it or
its assets may be bound as of the Closing Date, certified as of the Closing
Date by the secretary or assistant secretary of such Loan Party or a
Responsible Officer of such Loan Party, as being in full force and effect
without modification or amendment; and


 


(E)                                 such other
documents as the Administrative Agent may reasonably request;


 


(iv)                              the favorable
opinions (addressed to the Administrative Agent and the Lenders) of (A) Latham &
Watkins LLP, counsel to the Loan Parties, substantially in the form of Exhibit G-1
(B) Bennett Jones LLP, Canadian counsel to the Loan Parties, substantially
in the form of Exhibit G-2 and (C) Blake, Cassels & Graydon
LLP, Canadian counsel to the Administrative Agent, substantially in the form of
Exhibit G-3;


 


(v)                                 the results of
a recent lien search in each of the jurisdictions where the Loan Parties are
located (within the meaning of the UCC or the PPSA, as applicable) and each
other jurisdiction that the Administrative Agent may reasonably request, and
such search shall reveal no liens on any assets of the Loan Parties except for
liens permitted by Section 7.01 or released or discharged on or prior to
the Closing Date pursuant to documentation reasonably satisfactory to the
Administrative Agent;


 


(vi)                              (A) to the
extent the Equity Interests pledged pursuant to the US Pledge Agreement and the
Canadian Security Agreement are certificated, the certificates representing
such Equity Interests, together with an undated stock power for each such
certificate executed in blank by the pledgor thereof (or such other instrument
of transfer required under local law), and (B) any instruments evidencing
any Indebtedness owed to any Loan Party pledged pursuant to any Security
Agreement, indorsed in blank (or accompanied by an executed transfer form in
blank) by the pledgor thereof, including the Canada Subordinated Notes;


 


(vii)                           registration of
financing statements in form appropriate for filing under the UCC, the PPSA or
the Law of Property Act (Alberta), as applicable, in all jurisdictions that the
Administrative Agent may reasonably deem reasonably necessary in order to
perfect the Liens created under each Security Agreement, covering the
Collateral described in such Security Agreement;


 


(viii)                        evidence of the
completion of all other actions, recordings and filings of or with respect to
the Security Documents that the Administrative Agent may deem reasonably
necessary in order to perfect the Liens created thereby;


 


(ix)                                a certificate
signed by a Responsible Officer of each Holdings Entity (it being understood
that, with respect to each person executing such certificate as a Responsible
Officer, such certificate is provided in such person’s capacity as an officer
of the 


 


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general partner of US Holdings GP or Canada
Holdings GP, as applicable, and not in such person’s individual capacity):


 


(A)                              certifying
that, since December 31, 2009, no event has occurred that has had or could
reasonably be expected to have a Material Adverse Effect;


 


(B)                                certifying that
the representations and warranties of each Borrower and each other Loan Party
contained in Article V or any other Loan Document are true and correct in
all material respects (without duplication of any materiality qualifier
contained in such representations and warranties) on and as of the Closing
Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date;


 


(C)                                certifying that
no Default or Event of Default has occurred and is continuing; and


 


(D)                               certifying
that, as of the Closing Date, there is no action, suit, investigation or
proceeding pending or, to the knowledge of any Holdings Entity, threatened in
any court or before any arbitrator or Governmental Authority that could
reasonably be expected to have a Material Adverse Effect;


 


(x)                                   the Initial
Financial Statements;


 


(xi)                                certificates of
insurance evidencing that all insurance required to be maintained pursuant to
the Loan Documents has been obtained and is in effect, and naming the
Collateral Agent, on behalf of the Secured Parties, as an additional insured or
loss payee, as the case may be, under all insurance policies maintained with
respect to the assets and properties of the Loan Parties that constitute
Collateral;


 


(xii)                             (A) a
certificate of a Responsible Officer of US Holdings (it being understood that,
with respect to the person executing such certificate as a Responsible Officer
of US Holdings, such certificate is provided in such person’s capacity as an
officer of US Holdings, and not in such person’s individual capacity), in
substantially the form of Exhibit I, attesting to the Solvency of each US
Loan Party, on a consolidated basis, as of the date hereof and (B) a
certificate of a Responsible Officer of Canada Holdings (it being understood
that, with respect to the person executing such certificate as a Responsible
Officer of Canada Holdings, such certificate is provided in such person’s
capacity as an officer of Canada Holdings, and not in such person’s individual
capacity), in substantially the form of Exhibit I, attesting to the
Solvency of each Canadian Loan Party, on a consolidated basis, as of the date
hereof; and


 


(xiii)                          an
environmental assessment report, in form and substance reasonably satisfactory
to the Administrative Agent, from an environmental consulting firm acceptable
to the Administrative Agent, which report shall identify existing and potential
environmental concerns and shall quantify related costs and liabilities
associated with any facilities of the Borrowers or any of their respective
Subsidiaries (it being understood that the environmental assessment reports
provided to the Administrative Agent prior to March       ,
2010 are satisfactory to the Administrative Agent);


 


(xiv)                         (A) a
completed US Borrowing Base Report setting forth the US Borrowing Base as of a
date not earlier than the fifth (5th) Business Day prior to the Closing 


 


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Date and (B) a completed Canadian
Borrowing Base Report setting forth the Canadian Borrowing Base as of a date
not earlier than the fifth (5th)  Business
Day prior to the Closing Date.


 


(b)                                 After giving effect to the transactions contemplated hereby,
the Loan Parties shall not have any outstanding Indebtedness other than (i) the
Obligations, (ii) the Indebtedness in respect of the Senior Notes and (iii) Indebtedness
permitted by Section 7.03.


 


(c)                                  The Administrative Agent shall have received (i) satisfactory
evidence that the Senior Notes have been issued and that the Borrowers have
received at least $700,000,000 in gross proceeds from the issuance of such
Senior Notes and (ii) certified copies of the Senior Notes Documents, in
form and substance reasonably satisfactory to the Administrative Agent.


 


(d)                                 The Administrative Agent shall have received all
documentation and other information required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the Patriot Act.


 


(e)                                  (i) All accrued fees required to be paid to the
Administrative Agent and, the Arrangers on or before the Closing Date shall
have been paid and (ii) all fees required to be paid to the Lenders on or
before the Closing Date shall have been paid, in each case, to the extent
invoiced at least 1 Business Day prior to the Closing Date.


 


(f)                                    Unless waived by the Administrative Agent, the Borrowers
shall have paid all fees, charges and disbursements of not more than one US and
one Canadian counsel to the Administrative Agent (directly to such counsel if
requested by the Administrative Agent) to the extent invoiced prior to or on
the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges
and disbursements incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrowers and the Administrative Agent).


 


Without limiting the
generality of the provisions of Section 9.03, for purposes of determining
compliance with the conditions specified in this Section 4.01, each Lender
that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.


 


4.02                           Conditions
to all Credit Extensions.  The
obligation of each L/C Issuer and each Lender to honor any Request for Credit
Extension (other than a Loan Notice requesting only a conversion of Loans to
the other Type, or a continuation of Eurodollar Rate Loans or rollover of BAs)
is subject to the following conditions precedent:


 


(a)                                  The representations and warranties of each Borrower and each
other Loan Party contained in Article V or any other Loan Document shall
be true and correct in all material respects (without duplication of any materiality
qualifier contained in such representations and warranties) on and as of the
date of such Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall
be true and correct as of such earlier date.


 


(b)                                 No Default or Event of Default shall exist, or would result
from such proposed Credit Extension or from the application of the proceeds
thereof.


 


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(c)                                  In the case of a Borrowing of US Revolver Loans or US Swing
Line Loans or an L/C Credit Extension in respect of US Letters of Credit, after
giving effect to such Borrowing or L/C Credit Extension, as applicable, the
Total US Revolver Exposure shall not be greater than the US Revolver Maximum
Available Amount.


 


(d)                                 In the case of a Borrowing of Canadian Revolver Loans or
Canadian Swing Line Loans or an L/C Credit Extension in respect of Canadian
Letters of Credit, after giving effect to such Borrowing or L/C Credit
Extension, the Total Canadian Revolver Exposure shall not be greater than the
Canadian Revolver Maximum Available Amount.


 


(e)                                  The Administrative Agent and, if applicable, the Applicable
L/C Issuer or the Applicable Swing Line Lender shall have received a Request for
Credit Extension in accordance with the requirements hereof.


 


Each Request for Credit
Extension (other than a Loan Notice requesting only a conversion of Loans to
the other Type or a continuation of Eurodollar Rate Loans or rollover of BAs)
submitted by any Borrower shall (x) be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) through (e) have
been satisfied on and as of the date of the applicable Credit Extension and (y) include
a calculation based on the most recently delivered US Borrowing Base Report or
Canadian Borrowing Base Report, as the case may be, in respect of the matters
specified in clauses (c) or (d), as the case may be.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


Each of Holdings and the Borrowers represents and warrants to the
Administrative Agent and the Lenders that:


 


5.01                           Existence,
Qualification and Power.  Each
Loan Party (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority to (i) own or
lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and, to the extent such concept is applicable in
such jurisdiction, in good standing, under the Laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business
requires such qualification or license, and (d) is in compliance with all
applicable Laws; except in each case referred to in clause (b)(i), (c) or
(d) to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.


 


5.02                           Authorization;
No Contravention.  The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is party, have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a) contravene
the terms of any of such Person’s Organization Documents; (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, or require any payment to be made under (i) any material
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries (other than Liens
created under the Security Documents) or (ii) any order, injunction, writ
or decree of any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law, except in each
case referred to in clause (b) or (c), to the extent such violations
could not reasonably be expected to have a Material Adverse Effect.


 


5.03                           Governmental
Authorization; Other Consents.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by, or 


 


93

















 


enforcement
against, any Loan Party of this Agreement or any other Loan Document, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Security
Documents, (c) the perfection or maintenance of the Liens created under
the Security Documents or (d) to the best of the Loan Parties’ knowledge,
the exercise by the Administrative Agent or any Lender of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant to the
Security Documents (other than, in each case, as contemplated by the Loan
Documents), except for (i) those that have been obtained, taken, given or
made prior to the Closing Date and are in full force and effect or those
obtained in accordance with Section 6.18, (ii) those filings required
after the Closing Date to maintain the validity, perfection and priority of any
Liens created under the Security Documents, (iii) those filings required
after the Closing Date to create and perfect any Liens created pursuant to the
requirements of Sections 6.12 and 6.13, (iv) prior to the closing of
any Permitted Acquisition, those required in connection with such Permitted
Acquisition, (v) those required in the ordinary course of business of the
Loan Parties in order to comply with the requirements of applicable Law (provided
that, to the extent non-compliance could reasonably be expected to result in a
Material Adverse Effect, they will be obtained by the times required by
applicable Law), (vi) those required by applicable Law in connection with
any Disposition of Collateral by the Administrative Agent or any other Secured
Party in the course of exercising remedies pursuant to the Security Documents
and (vii) to the extent that non-compliance could not reasonably be
expected to result in a Material Adverse Effect.


 


5.04                           Binding
Effect.  This Agreement has been, and
each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other Laws affecting creditors’
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.


 


5.05                           Financial
Statements; No Material Adverse Effect.


 


(a)                                  (i) The US Audited Financial Statements (A) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (B) fairly
present in all material respects the financial condition of (1) prior to a
Qualified MLP IPO, US Holdings and its Subsidiaries and (2) after the date
on which financial statements are first delivered hereunder following a
Qualified MLP IPO, MLP and its Subsidiaries, in each case, as of the dates
specified therein and their results of operations for the periods covered
thereby, in accordance with GAAP consistently applied throughout the periods
covered thereby, except as otherwise expressly noted therein; and prior to the
date on which financial statements are first delivered after a Qualified MLP
IPO, (ii) the Canadian Audited Financial Statements fairly present in all
material respects the financial condition of Canada Holdings and its
Subsidiaries as of the dates specified therein in accordance with GAAP and
their results of operations for the periods covered thereby, except as
otherwise expressly noted therein.


 


(b)                                 Since March 31, 2009, there has been no event or
circumstance either individually or in the aggregate that has had or could
reasonably be expected to have a Material Adverse Effect.


 


(c)                                  The unaudited consolidated pro forma
balance sheet of US Holdings and its Subsidiaries as at December 31, 2009,
and the related unaudited consolidated pro forma statements of income and cash
flows of US Holdings and its Subsidiaries for the period covered thereby,
certified by a Responsible Officer of US Holdings, copies of which have been
furnished to each Lender, fairly present in all material respects the
consolidated pro forma financial condition of US Holdings and its Subsidiaries 


 


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as
at such date and the consolidated pro forma results of operations of US
Holdings and its Subsidiaries for the period ended on such date all in
accordance with GAAP.


 


(d)                                 The unaudited consolidated pro forma
balance sheet of Canada Holdings and its Subsidiaries as at December 31,
2009, and the related unaudited consolidated pro forma
statements of income and cash flows of Canada Holdings and its Subsidiaries for
the period covered thereby, certified by a Responsible Officer of Canada
Holdings, copies of which have been furnished to each Lender, fairly present in
all material respects the consolidated pro forma financial
condition of Canada Holdings and its Subsidiaries as at such date and the
consolidated pro forma results of operations of Canada
Holdings and its Subsidiaries for the period ended on such date all in
accordance with GAAP.


 


(e)                                  The most recent financial statements furnished pursuant to (i) Section 6.01(a)(i) and
(ii) Section 6.01(b)(i), in each case, were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and fairly present in all material
respects the financial condition of (A) prior to any Qualified MLP IPO, US
Holdings and its Subsidiaries and (B) following any Qualified MLP IPO, MLP
and its Subsidiaries in each case, as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of
clause (ii), to the absence of footnotes and to normal year-end audit
adjustments.


 


(f)                                    Prior to any Qualified MLP IPO, the most recent financial
statements furnished pursuant to (i) Section 6.01(a)(ii) and (ii) Section 6.01(b)(ii),
in each case, were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and fairly present in all material respects the financial condition of
Canada Holdings and its Subsidiaries as of the date thereof and their results
of operations for the period covered thereby, subject, in the case of
clause (ii), to the absence of footnotes and to normal year-end audit
adjustments.


 


(g)                                 Prior to any Qualified MLP IPO, the most recent financial
statements furnished pursuant to (i) Section 6.01(a)(iii) and (ii) Section 6.01(b)(iii),
in each case, were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and fairly present in all material respects the financial condition of
Holdings and its respective Subsidiaries on a combined basis as of the date
thereof and their results of operations for the period covered thereby,
subject, in the case of clause (ii), to the absence of footnotes and to normal
year-end audit adjustments.


 


5.06                           Litigation.  Except as set forth on Schedule 5.06,
there are no investigations, actions, suits, proceedings, claims or disputes
pending or, to the knowledge of Holdings or any Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against any Loan Party or against any of the Loan Parties’
properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby or (b) either individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.


 


5.07                           No
Default.  No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated
by this Agreement or any other Loan Document.


 


5.08                           Ownership
of Property; Liens.  Each Loan
Party has good record (or registered) title in fee simple to, or valid
leasehold interests in, or holds other valid rights pursuant to access agreements,
petroleum and natural gas leases, trust agreements or other agreements, to, all
real property necessary or used in the ordinary conduct of its business, except
(a) any deficiency in such rights existing at the time such property was
acquired or any other deficiency that would not reasonably be expected to have
a Material Adverse Effect and (b) Liens permitted by Section 7.01.


 


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Set
forth on Schedule 5.08 is a complete and accurate list, as of the Closing
Date, of the addresses of all real property owned or leased by any Loan Party.


 


5.09                           Environmental
Compliance.  Each Loan Party conducts, from and after the Closing
Date, in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility
for violation of any Environmental Law on its respective businesses, operations
and properties, and as a result thereof Holdings and the Borrowers have
reasonably concluded that such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


5.10                           Insurance.  The properties of each Loan Party are insured
with financially sound and reputable insurance companies not Affiliates of any
Loan Party, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the applicable Loan Party operates.


 


5.11                           Taxes(a)  .  (a) Each Loan
Party has filed all federal and other material tax returns and reports required
to be filed (collectively, the “Tax Returns”); all such Tax Returns are
true, correct and complete in all material respects; and all material Taxes,
charges and other impositions reflected therein or otherwise due and payable
have been paid prior to the date on which any fine, penalty, interest, late
charge or loss may be added thereto for non-payment thereof, except where
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP.


 


(b)                                 Except as could not reasonably be expected to have a
Material Adverse Effect, (i) no adjustment or penalty relating to any Tax
Return has been proposed formally or informally by any Governmental Authority
and, to the knowledge of each Loan Party, no basis exists for any such
adjustment, (ii) except as set forth on Schedule 5.11, no Tax Return
is under audit or examination by and Governmental Authority and no notice of
such an audit or examination or any assertion of any claim for Taxes has been
given or made by any Government Authority, (iii) proper and accurate
amounts have been withheld by each Loan Party from their respective employees
for all periods in full and complete compliance with the tax, social security
and unemployment withholding provisions of the applicable Governmental
Authority and such withholdings have been timely paid to the respective
Governmental Authorities.


 


(c)                                  Except as could not reasonably be expected to have a
Material Adverse Effect, no Loan Party has (i) executed or filed with the
IRS, the Canada Revenue Agency or any other Governmental Authority any
agreement or other document extending, or having the effect of extending, the
period for the filing of any Tax Return or the assessment or collection of any
Taxes,  or (ii) incurred any
obligation under any tax sharing agreement or arrangement.


 


5.12                           ERISA
and Pension Plan Compliance.


 


(a)                                  Except as could not reasonably be expected to have a
Material Adverse Effect, each Plan is in compliance with the applicable
provisions of ERISA, the Code and other federal or state Laws.  Except as could not reasonably be expected to
have a Material Adverse Effect, each Plan that 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 and, to the knowledge of Holdings and each Borrower, nothing
has occurred which would prevent, or cause the loss of, such
qualification.  Except as could not
reasonably be expected to have a Material Adverse Effect, each Loan Party and
each ERISA Affiliate have made all required contributions to each Plan 


 


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subject
to Section 412 of the Code, 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.


 


(b)                                 There are no pending or, to the knowledge of Holdings and
each Borrower, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could reasonably be
expected to have a Material Adverse Effect. 
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.


 


(c)                                  Except as could not reasonably be expected to have a Material
Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) no
Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) no
Loan Party 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
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no
Loan Party nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.


 


(d)                                 No Canadian Loan Party sponsors or participates in, or is
required under Applicable Canadian Pension Legislation to sponsor or
participate in, any Canadian Pension Plan in respect of any of their employees
or former employees in Canada.


 


5.13                           Subsidiaries;
Equity Interests.  As of the
Closing Date, the Holdings Entities and the Borrowers have no Subsidiaries
other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and non-assessable (to
the extent applicable) and are owned by a Loan Party in the amounts specified
in Part (a) of Schedule 5.13 free and clear of all Liens other
than Liens permitted under Section 7.01. 
As of the Closing Date, the Holdings Entities and the Borrowers have no
equity investments in any other corporation or entity other than those
specifically disclosed in Part (b) of Schedule 5.13.  As of the Closing Date, set forth in Part (c) of
Schedule 5.13 is a complete and accurate list of all Loan Parties, showing
as of the Closing Date (as to each Loan Party) the jurisdiction of its
organization, the address of its principal place of business or chief executive
office and its U.S. taxpayer identification number or, in the case of any
non-US Loan Party that does not have a U.S. taxpayer identification number, its
unique identification number issued to it by the jurisdiction of its
organization.


 


5.14                           Margin
Regulations; Investment Company Act; Permits and Authorizations.


 


(a)                                  No Loan Party is engaged or will engage, principally or as
one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.


 


(b)                                 No Loan Party is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.


 


(c)                                  (i) Each Loan Party has obtained and maintains all
Permits and Authorizations, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect and (ii) each
Loan Party has operated its business in compliance with the provisions of its
Permits and Authorizations, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


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5.15                           Disclosure.  No report, financial statement, certificate
or other written factual information furnished by or on behalf of any Loan
Party to any Agent or any Lender in connection with the transactions
contemplated hereby or delivered hereunder or under any other Loan Document (in
each case, as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not materially misleading.


 


5.16                           Compliance
with Laws.  Each Loan
Party is in compliance with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its businesses, operations or
properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.


 


5.17                           Intellectual
Property; Licenses, Etc.  Each
Loan Party, to its knowledge, owns, or possesses the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses to intellectual property rights and other intellectual property
rights (collectively, “IP Rights”) that are reasonably necessary for the
operation of its business, without conflict with the rights of any other
Person, except as could not reasonably be expected to have a Material Adverse
Effect.  To the knowledge of Holdings and
each Borrower, no material slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by any Loan Party infringes upon any material IP
Rights held by any other Person, except as could not reasonably be expected to
have a Material Adverse Effect.  No claim
or litigation regarding any of the foregoing is pending or, to the best
knowledge of Holdings and each Borrower, threatened, which, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


 


5.18                           Labor
Disputes.  Since the Closing Date, (a) there are no
strikes, lockouts or slowdowns against any Loan Party pending, or to the
knowledge of the Borrowers, threatened, and (b) all payments due from any
Loan Party or any Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability
on the books of the Loan Party or such Subsidiary to the extent required by
GAAP, except, in each case, as could not reasonably be expected to have a
Material Adverse Effect.


 


5.19                           Solvency.  Upon giving effect to the execution of this
Agreement, the other Loan Documents and the consummation of the transactions
contemplated hereby, each Borrower together with each Guarantor on a
consolidated basis will be Solvent.


 


5.20                           [INTENTIONALLY OMITTED.]


 


5.21                           International
Financial Reporting Standards.  As of the Closing Date, the Borrowers, US
Holdings and Canada Holdings are aware of the application of International
Financial Reporting Standards in Canada beginning in January, 2011. As of the
Closing Date, the Borrowers, US Holdings and Canada Holdings, are aware of the
SEC’s consideration to incorporate IFRS into future financial reporting
requirements for US issuers, however, as of the Closing Date, to the Borrowers’,
US Holdings” and Canada Holdings’ knowledge, there is no impact or effect on
the accounting and reporting systems or any other aspect of the business of the
Loan Parties as they report under US GAAP.


 


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ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied (other than
indemnification or other contingent obligations not yet due and owing), or any
Letter of Credit and not Cash Collateralized shall remain outstanding, each of
Holdings and the Borrowers shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, and 6.03) cause each of their
respective Subsidiaries that are Loan Parties to:


 


6.01         Financial
Statements.  Deliver to
the Administrative Agent in form and detail reasonably satisfactory to the
Administrative Agent:


 


(a)           as
soon as available, but in any event within 90 days after the end of each Fiscal
Year (commencing with the Fiscal Year ending March 31, 2010):


 


(i)            a consolidated balance sheet
of (A) prior to any Qualified MLP IPO, US Holdings and its Subsidiaries
and (B) following any Qualified MLP IPO, MLP and its Subsidiaries, in each
case, as at the end of such Fiscal Year, and the related consolidated
statements of income or operations, partners’ capital and cash flows for such
Fiscal Year, setting forth in each case (for the Fiscal Year ending March 31,
2011 and each Fiscal Year thereafter) in comparative form the figures for the
previous Fiscal Year, all in reasonable detail and prepared in accordance with
GAAP;


 


(ii)           prior to any Qualified MLP
IPO, a consolidated balance sheet of Canada Holdings and its Subsidiaries as at
the end of such Fiscal Year, and the related consolidated statements of income
or operations, partners’ capital and cash flows for such Fiscal Year, setting
forth in each case (for the Fiscal Year ending March 31, 2011 and each
Fiscal Year thereafter) in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and prepared in accordance with GAAP; and


 


(iii)          prior to any Qualified MLP
IPO, a combined balance sheet of the Holdings Entities and its respective
Subsidiaries as at the end of such Fiscal Year and after any Qualified MLP IPO,
a consolidated balance sheet of such MLP and its Subsidiaries, and, in each
case, the related combined statements of income or operations, partners’
capital and cash flows for such Fiscal Year, setting forth in each case (for
the Fiscal Year ending March 31, 2011 and each Fiscal Year thereafter) in
comparative form the figures for the previous Fiscal Year, all in reasonable
detail and prepared in accordance with GAAP, such combined statements or
consolidated statements, as applicable to be audited and accompanied by a
report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Administrative Agent, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of
such audit;


 


(b)           as
soon as available, but in any event within (x) in
the case of the Fiscal Quarters ending June 30, 2010, September 30,
2010 and December 31, 2010, 60 days after the end of each such Fiscal Quarter, and (y) in
the case of each other Fiscal Quarter that is not the end of a Fiscal Year, 45
days after the end of such Fiscal Quarter:


 


(i)            a consolidated balance sheet
of (A) prior to any Qualified MLP IPO, US Holdings and its Subsidiaries
and (B) following any Qualified MLP IPO, MLP and its 


 


99

















 


Subsidiaries, in each case, as at the end of
such Fiscal Quarter, and the related consolidated statements of income or
operations, partners’ capital and cash flows for such Fiscal Quarter and for
the portion of the Fiscal Year then ended, setting forth in each case (for the
Fiscal Quarter ending June 30, 2011 and each Fiscal Quarter thereafter) in
comparative form the figures for the corresponding Fiscal Quarter of the
previous Fiscal Year and the corresponding portion of the previous Fiscal Year,
all in reasonable detail and prepared in accordance with GAAP, such
consolidated statements to be certified by the chief executive officer, chief
financial officer, treasurer or controller of US Holdings (or, following any
Qualified MLP IPO, the Managing Member) as fairly presenting in all material
respects the financial condition, results of operations, partners’ capital and
cash flows of US Holdings and its Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes;


 


(ii)           prior to any Qualified MLP
IPO, a consolidated balance sheet of Canada Holdings and its Subsidiaries as at
the end of such Fiscal Quarter, and the related consolidated statements of
income or operations, partners’ capital and cash flows for such Fiscal Quarter
and for the portion of the Fiscal Year then ended, setting forth in each case
(for the Fiscal Quarter ending June 30, 2011 and each Fiscal Quarter
thereafter) in comparative form the figures for the corresponding Fiscal
Quarter of the previous Fiscal Year and the corresponding portion of the
previous Fiscal Year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of Canada Holdings as
fairly presenting in all material respects the financial condition, results of
operations, partners’ capital and cash flows of Canada Holdings and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes; and


 


(iii)          prior to any Qualified MLP
IPO, a combined balance sheet of the Holdings Entities and their respective
Subsidiaries as at the end of such Fiscal Quarter, and the related combined
statements of income or operations, partners’ capital and cash flows for such
Fiscal Quarter and for the portion of the Fiscal Year then ended, setting forth
in each case (for the Fiscal Quarter ending June 30, 2011 and each Fiscal
Quarter thereafter) in comparative form the figures for the corresponding Fiscal
Quarter of the previous Fiscal Year and the corresponding portion of the
previous Fiscal Year, all in reasonable detail and prepared in accordance with
GAAP, such combined statements to be certified by the chief executive officer,
chief financial officer, treasurer or controller of the Holdings Entities as
fairly presenting in all material respects the financial condition, results of
operations, partners’ capital and cash flows of the Holdings Entities and their
respective Subsidiaries on a combined basis in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes.


 


(c)           as
soon
as available during any Trigger Event Period, but in any event within
45 days after the end of each calendar month during such Trigger Event
Period (other than March, June, September and December):


 


(i)            prior to any Qualified MLP
IPO, a consolidated balance sheet of US Holdings and its Subsidiaries as at the
end of such calendar month, and the related consolidated statements of income
or operations for such calendar month and for the period from the beginning of
the then current Fiscal Year to the end of such calendar month, all in
reasonable detail and prepared in accordance with GAAP, subject to changes
resulting from normal year end adjustments and the absence of footnotes;


 


100

















 


(ii)           prior to any Qualified MLP
IPO, a consolidated balance sheet of Canada Holdings and its Subsidiaries as at
the end of such calendar month, and the related consolidated statements of
income or operations for such calendar month and for the period from the
beginning of the then current Fiscal Year to the end of such calendar month,
all in reasonable detail and prepared in accordance with GAAP, subject to changes
resulting from normal year end adjustments and the absence of footnotes; and


 


(iii)          following any Qualified MLP
IPO, a consolidated balance sheet of MLP and its Subsidiaries as at the end
of such calendar month, and the related consolidated statements of income or
operations for such calendar month and for the period from the beginning of the
then current Fiscal Year to the end of such calendar month, all in reasonable
detail and prepared in accordance with GAAP, subject to changes resulting from
normal year end adjustments and the absence of footnotes.


 


6.02         Certificates;
Other Information.  Deliver to
the Administrative Agent in form and detail reasonably satisfactory to the
Administrative Agent:


 


(a)           concurrently
with the delivery of the financial statements referred to in Section 6.01(a),
a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default or, if any such Default shall
exist, stating the nature and status of such event;


 


(b)           concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and
(b), a duly completed Compliance Certificate signed by the chief executive
officer, chief financial officer, treasurer or controller of Holdings (not in
his or her individual capacity but solely in his or her capacity as an officer
of Holdings or, following any Qualified MLP IPO, MLP);


 


(c)           as
soon as available, and in any event within the earlier of (x) 60 days
after the end of each Fiscal Year and (y) 15 days after approval by the
board of directors of Holdings, a business and financial plan for Holdings (in
form reasonably satisfactory to the Administrative Agent), prepared or caused
to be prepared by a Responsible Officer of Holdings, setting forth financial
projections and budgets for Holdings for the then current Fiscal Year;


 


(d)           promptly
after the furnishing thereof, copies of any statement or report, furnished to
any holder of debt securities of any Loan Party pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to Section 6.01 or any other
clause of this Section 6.02;


 


(e)           written
notice of the occurrence of a Trigger Event Period as soon as available, and in
any event (x) in the case of a Trigger Event Period arising on account of
the imposition of Reserves, promptly after the occurrence thereof, and (y) in
the case of any other Trigger Event Period, within one (1) Business Day
after the occurrence thereof;


 


(f)            within
five (5) Business Days after the 1st Business Day of each
calendar month, beginning on such day for April, 2010 and on each such day
thereafter (or the next succeeding Business Day if such day is not a Business
Day):


 


(i)            a US Borrowing Base Report
(a “US Borrowing Base Report”) in the form of Exhibit K-1, duly
completed by a Responsible Officer of the US Borrower, showing the US Borrowing
Base as of the close of the 1st Business Day of such calendar month, and
conforming with the requirements of Section 2.14 and Schedule 2.14; provided
that, at any 


 


101

















 


time the Total US Revolver Exposure exceeds
75% of the US Revolver Maximum Available Amount, such US Borrowing Base Report
shall be delivered on each Friday (or the next succeeding Business Day if such
day is not a Business Day or if such day is the day immediately following January 1
or July 4) of each calendar week, showing the US Borrowing Base as of the
immediately preceding Monday; and


 


(ii)           a Canadian Borrowing Base
Report (a “Canadian Borrowing Base Report”) in the form of Exhibit K-2,
duly completed by a Responsible Officer of the Canadian Borrower, showing the
Canadian Borrowing Base as of the close of the 1st Business Day of such
calendar month, and conforming with the requirements of Section 2.14 and
Schedule 2.14; provided that at any time the Total Canadian
Revolver Exposure exceeds 75% of the Canadian Revolver Maximum Available Amount,
such Canadian Borrowing Base Report shall be delivered on each Friday (or the
next succeeding Business Day if such day is not a Business Day or if such day
is the day immediately following January 1 or July 4) of each
calendar week, showing the Canadian Borrowing Base as of the immediately
preceding Monday;


 


provided that the US
Borrower or the Canadian Borrower may deliver a US Borrowing Base Report or
Canadian Borrowing Base Report, as applicable, at such additional times as it
may elect, so long as such Borrowing Base Report conforms with the requirements
of Section 2.14 and Schedule 2.14.


 


(g)           If
requested by the Administrative Agent, the Loan Parties shall permit and
cooperate with an environmental and safety review made in connection with the operations
of the Loan Parties’ properties no more frequently than one time during each
Fiscal Year, by Environmental Resources Management or such other consultants
selected by the Administrative Agent and reasonably acceptable to Holdings, all
at the Loan Parties’ cost and expense; provided that the approval of
Holdings shall not be required if a Default or Event of Default has occurred
and is continuing at the time of such selection by the Administrative
Agent.  The consultant shall render a
verbal or written report, as specified by the Administrative Agent, based upon
such review at the Loan Parties’ cost and expense, and a copy of any such
written report will be provided to Holdings unless a Default or Event of
Default has occurred and is continuing at the time such report is rendered;


 


(h)           as
soon as available, but in any event within 90 days after the end of each Fiscal
year, a report summarizing the insurance coverage (specifying type, amount and
carrier) in effect for each Loan Party and containing such additional
information as the Administrative Agent, or any Lender through the
Administrative Agent, may responsibly specify;


 


(i)            on
each Friday (or the next succeeding Business Day if such day is not a Business
Day or if such day is the day immediately following Thanksgiving, December 25,
January 1 or July 4) of each calendar week, a report as of the
immediately preceding Business Day of all Loan Parties’ Positions in form and
detail satisfactory to the Administrative Agent and certifying that such Positions
are in compliance with the Risk Management Policy;


 


(j)            promptly,
such additional information regarding the business, financial or corporate
affairs of Holdings or any of its Subsidiaries as the Administrative Agent or
any Lender (through the Administrative Agent) may from time to time reasonably
request.


 


Except for the Compliance
Certificates referenced in Section 6.02(b), the Administrative Agent shall
have no obligation to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by any Borrower
with any such request for delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such 


 


102

















 


documents.  Holdings and each Borrower hereby acknowledge
that (a) the Administrative Agent and/or the Arrangers will make available
to the Lenders and the L/C Issuers materials and/or information provided by or
on behalf of the Borrowers hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders may be “public
side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrowers or their securities) (each
a “Public Lender”).  Holdings and
each Borrower hereby agree that, so long as any Borrower is the issuer of any
outstanding debt securities or equity securities that are registered or issued
pursuant to a private offering or is actively contemplating issuing any such
securities, (w) all Borrower Materials that are to be made available to
Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,”
Holdings and each Borrower shall be deemed to have authorized the
Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat
such Borrower Materials as not containing any material non-public information
with respect to the Borrowers or their securities for purposes of United States
Federal and state securities laws (provided that, to the extent such
Borrower Materials constitute Information, they shall be treated as set forth
in Section 10.06(h)); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public
Investor,” and (z) the Administrative Agent and the Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”  Notwithstanding the
foregoing, the provisions of this paragraph shall only be applicable to the
extent any Borrower has issued any public securities.


 


6.03         Notices.


 


(a)           Promptly
notify the Administrative Agent and each Lender of the occurrence of any
Default; and


 


(b)           Promptly
notify the Administrative Agent and each Lender:


 


(i)            of any matter that has
resulted or could reasonably be expected to result in a Material Adverse
Effect;


 


(ii)           of the occurrence of any
ERISA Event; and


 


(iii)          of any material change in
accounting policies or financial reporting practices by any Loan Party.


 


Each notice pursuant to this
Section shall be accompanied by a statement of a Responsible Officer of
the applicable Loan Party setting forth details of the occurrence referred to
therein and stating what action such Loan Party has taken and proposes to take
with respect thereto.  Each notice
pursuant to Section 6.03(a) shall describe with particularity any and
all provisions of this Agreement and any other Loan Document, the breach of
which gave rise to the Default described in such notice.


 


6.04         Payment
of Taxes.  Pay and
discharge as the same shall become due and payable, all its material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets which, if unpaid, would by law become a Lien upon its property,
unless the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being
maintained by the applicable Loan Party.


 


6.05         Preservation
of Existence, Etc.  (a) Preserve,
renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization, provided,



 


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however, that Holdings
and its Subsidiaries may consummate any merger, consolidation or other transfer
of assets pursuant to the MLP Formation Transactions and as otherwise permitted
by Section 7.05 or 7.06, (b) take all reasonable action to maintain
all rights, privileges, Permits and Authorizations and franchises necessary or
desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.


 


6.06         Maintenance
of Properties.  (a) Maintain,
manage and operate all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary
wear and tear excepted, (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.


 


6.07         Maintenance
of Insurance.  Maintain
with financially sound and reputable insurance companies not Affiliates of any
Loan Party, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons and providing (a) with
respect to liability policies, for endorsements listing the Administrative
Agent as an additional insured, as its interests may appear, (b) that such
policies may not be canceled or reduced or affected in any material manner for
any reason without 30 days prior notice to the Administrative Agent, and (c) for
any other matters specified in any applicable Security Document.


 


6.08         Compliance
with Laws.  Comply in
all respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except
in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.


 


6.09         Books
and Records.  Maintain
proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the applicable
Loan Party.


 


6.10         Inspection
Rights; Commercial Finance Examinations.


 


(a)           Permit
representatives and independent contractors (subject to the execution and
delivery by such independent contractors of an appropriate confidentiality
undertaking) of the Administrative Agent to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers and independent public accountants, at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrowers; provided
that (i) unless an Event of Default exists and is continuing, the
Administrative Agent may do each of the foregoing only once during each Fiscal
Year at the expense of the Borrowers, (ii) when an Event of Default
exists, the Administrative Agent (or any of its 
representatives or independent contracts) may do any of the foregoing at
the expense of the Borrowers at any time during normal business hours and with
advance notice, and (iii) the right of representatives and independent
contractors of the Administrative Agent to visit and inspect the Suffield
Facility shall be subject to the Canadian Loan Parties’ ability to provide such
access rights to the Suffield Facility under applicable Laws and applicable Contractual
Obligation.


 


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(b)           Within
45 days after the Closing Date, and once during each Fiscal Year commencing
with the Fiscal Year beginning March 31, 2011, at reasonable times during
normal business hours and upon reasonable prior notice, permit commercial
financial examiners appointed by the Administrative Agent to conduct a
commercial finance examination of the businesses and assets of the Loan Parties
and, in connection with such examination, to have full access to and the right
to examine, audit, make abstracts and copies from, and inspect the Loan Parties’
records, files, books of account and all other documents, instruments and
agreements to which a Loan Party is a party. 
The Borrowers shall pay all reasonable costs and expenses of the
Administrative Agent associated with any such examination once per calendar
year; provided that the Administrative Agent shall provide the Borrowers
with a reasonably detailed accounting of all such expenses; provided, further,
that (i) in the event a Trigger Event Period exists for a period of twelve
consecutive months, the Administrative Agent may conduct up to two (2) such
appraisals and field examinations at the expense of the Borrowers and (ii) the
Administrative Agent may conduct as many appraisals and field examinations at
the expense of the Borrowers as it deems reasonable in its Permitted Discretion
during the existence and continuance of an Event of Default.


 


6.11         Use of
Proceeds.  Use the
proceeds of Revolver Loans and other extensions of credit hereunder for
Inventory Purposes, to fund Unreimbursed Amounts as provided under Section 2.03(c),
for working capital, capital expenditures, Permitted Acquisitions, and
Investments permitted hereunder, Restricted Payments permitted hereunder and
for other lawful corporate, partnership or limited liability company purposes
of Holdings and its Subsidiaries.


 


6.12         MLP;
Additional Guarantors and Grantors.  (a)  Upon the formation (including as a
result of a conversion from one corporate form to another but not including any
MLP Formation Transactions) of the MLP (upon the acquisition by the MLP,
directly or indirectly, of the Equity Interests of the Borrowers) or of any new
or indirect Subsidiary (other than any Excluded Subsidiary or any CFC) or
acquisition of any new direct or indirect Subsidiary (other than any Excluded
Subsidiary or any CFC) by any Loan Party, promptly notify the Administrative
Agent of such formation or acquisition and promptly thereafter (and in any event
within 30 days after such formation or acquisition), at
the Borrowers’ expense:


 


(i)            cause the MLP or such
Subsidiary, as the case may be, to (A) (1) in the case of the MLP and
if such Subsidiary is organized under the laws of any jurisdiction of the United
States, become a party to the US Guaranty as “Guarantor” thereunder by
executing and delivering to the Administrative Agent a supplement to the US
Guaranty in the form specified therein, and (2) if such Subsidiary is
organized under the laws of Canada or any province or territory thereof or any
other jurisdiction, become a party to the Canadian Guarantee as a “Guarantor”
thereunder by executing and delivering to the Administrative Agent a supplement
to the Canadian Guarantee in the form specified therein, and (B) deliver
to the Administrative Agent documents of the types referred to in clause (iii) of
Section 4.01(a); and, if requested by the Administrative Agent, customary
opinions of counsel to such Subsidiary, all in form, content and scope reasonably
satisfactory to the Administrative Agent;


 


(ii)           (A) cause all of the
Equity Interests in such Subsidiary to be pledged to the Administrative Agent
to secure the Secured Obligations by executing and delivering to the
Administrative Agent (1) if such Subsidiary is organized under the laws of
any jurisdiction of the United States, a supplement to the US Pledge Agreement
in the form specified therein, and (2) if such Subsidiary is organized
under the laws of Canada or any province or territory thereof or any other
jurisdiction, a supplement to the Canadian Security Agreement in the form
specified therein, (B) pursuant to the applicable Pledge Agreement, 


 


105

















 


deliver or cause the applicable Subsidiary to
deliver to the Administrative Agent all certificates and stock powers (to the
extent such Equity Interests are certificated) and other documents required by
such Pledge Agreement with respect to all such Equity Interests, (C) take
or cause the applicable Subsidiary to take such other actions as may be
reasonably necessary to provide the Administrative Agent with a first priority
perfected pledge of and security interest in such Equity Interests, and (D) if
requested by the Administrative Agent, deliver or cause the applicable
Subsidiary to deliver to the Administrative Agent documents of the types
referred to in clause (iii) of Section 4.01(a) and
customary opinions of counsel, all in form, content and scope, reasonably
satisfactory to the Administrative Agent; provided that, notwithstanding
anything to the contrary, under no circumstances shall any Loan Party be
required to pledge more than 66% of the Equity Interests of any CFC;


 


(iii)          cause the MLP or such
Subsidiary, as the case may be, to (A) (1) in the case of the MLP and
if such Subsidiary is organized under the laws of any jurisdiction of the
United States, become a party to the US Security Agreement as a “Grantor”
thereunder by executing and delivering to the Administrative Agent a supplement
to the US Security Agreement in the form specified therein, and (2) if
such Subsidiary is organized under the laws of Canada or any province or
territory thereof or any other jurisdiction, become a party to the Canadian
Security Agreement as a “Grantor” or “Debtor” thereunder by executing and
delivering to the Administrative Agent a supplement to the Canadian Security
Agreement the forms specified therein, (B) take whatever action (including
delivering proper financing statements in form appropriate for filing under the
UCC or PPSA, as applicable) may be necessary in the opinion of the
Administrative Agent to vest in the Administrative Agent, for the benefit of
the Secured Parties, a first priority perfected security interest in the assets
purported to be subject to the applicable Security Agreement and (C) if
requested by the Administrative Agent, deliver to the Administrative Agent
additional security and other agreements and customary opinions of counsel, all
in form, content and scope reasonably satisfactory to the Administrative Agent.


 


Notwithstanding anything in
this Section 6.12 to the contrary, the Administrative Agent may, in its
Permitted Discretion, lengthen the foregoing time periods and otherwise modify
(with the consent of the Borrowers) the foregoing requirements and may waive
the foregoing requirements to the extent that the cost of obtaining a security
interest in the foregoing Collateral is excessive (as reasonably determined by
the Administrative Agent) in relation to the benefits to the Lenders.


 


6.13         Further
Assurances.  Promptly
upon reasonable request by the Administrative Agent, (a) correct any
material defect or error in the execution, acknowledgment, filing or
recordation of any Loan Document; and (b) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent may reasonably require from time to time in order to (i) perfect
and maintain the validity, effectiveness and priority of any of the Security
Documents and any of the Liens intended to be created thereunder and (ii) assure,
convey, grant, and confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the Secured Parties under
any Loan Document or under any other instrument executed in connection with any
Loan Document to which any Loan Party is or is to be a party.


 


6.14         Environmental Matters;
Environmental Reviews.  (a) Comply
in all material respects with all Environmental Laws now or hereafter
applicable to such Loan Party and its properties and assets, obtain all Permits
and Authorizations necessary for its operations and maintain all such Permits
and Authorizations in full force and effect (in each case, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect), and conduct any investigation, study, 


 


106

















 


sampling and testing, and undertake any cleanup, removal, remedial or
other action necessary to remove and clean up all Hazardous Materials from any
of its properties, in accordance with the requirements of all applicable
Environmental Laws.  Each Loan Party will
promptly pay and discharge when due all material debts, claims, liabilities and
obligations with respect to any clean-up or remediation measures necessary to
comply with Environmental Laws unless, in each case, the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves required by GAAP are being maintained by the applicable Loan
Party.


 


(b)           Promptly
furnish to the Administrative Agent all written notices of violation, orders,
claims, citations, complaints, penalty assessments, suits or other proceedings
received by any Loan Party, or of which it has notice, pending or threatened
against any Loan Party, by any Governmental Authority with respect to any
alleged violation of or non compliance with any Environmental Laws or any
Permits and Authorizations in connection with its ownership or use of its
properties or the operation of its business that could be reasonably expected
to result in a material liability.


 


(c)           Promptly
furnish to the Administrative Agent all requests for information, notices of
claim, demand letters, and other notifications, received by any Loan Party in
connection with its ownership or use of its properties or the conduct of its
business, relating to potential responsibility with respect to any
investigation, clean up of or exposure to Hazardous Material at any location
that could be reasonably expected to result in a material liability.


 


6.15         Deposit Accounts, Securities
Accounts and Commodities Accounts.


 


(a)           Except
(i) as otherwise approved in writing by the Administrative Agent, (ii) Excluded
Accounts and (iii) accounts that are otherwise subject to a first priority
security interest (subject to the terms hereof) in favor of the Administrative
Agent, for the benefit of the applicable Secured Parties, pursuant to an
account control agreement in form and substance reasonably acceptable to the
Administrative Agent (herein called an “Approved Account”), each
Borrowing Base Party shall at all times maintain all of its deposit accounts,
securities accounts and commodities accounts with one or more of the
Administrative Agent, the L/C Issuers and the Lenders (all such accounts
maintained by the Loan Parties with one or more of the Administrative Agent,
the L/C Issuers and the Lenders being herein collectively called the “Lender
Party Accounts” and, individually, a “Lender Party Account”).  On the date hereof, the Borrowers shall
deliver to the Administrative Agent a schedule of all Lender Party Accounts and
any Approved Accounts in form and substance reasonably acceptable to the Administrative Agent,
which schedule shall be revised promptly upon any change in Lender Party
Accounts and Approved Accounts in a manner sufficient to notify the
Administrative Agent of all then-current Lender Party Accounts and Approved
Accounts.


 


(b)           The
Administrative Agent hereby appoints each of the Administrative Agent, the L/C
Issuers and the Lenders to serve as its bailee to perfect the Administrative
Agent’s Liens in any Collateral in the possession of such L/C Issuer or
Lender.  Each of the Administrative
Agent, the L/C Issuers and the Lenders possessing any Collateral agrees to so
act as bailee for the Administrative Agent in accordance with the terms and
provisions hereof.  In furtherance of the
foregoing, each of the Administrative Agent, the L/C Issuers and the Lenders
acknowledges that certain of the Loan Parties maintain Lender Party Accounts at
one or more of the Administrative Agent, L/C Issuers and Lenders as disclosed
pursuant to this Agreement.  The L/C
Issuers and the Lenders agrees to hold each and every Lender Party Account
maintained with it as bailee for the Administrative Agent to perfect the
security interest held for the benefit of the Secured Parties therein.  Prior to the receipt by the Administrative
Agent, L/C Issuer or Lender of notice from the Administrative Agent that it is
exercising exclusive control over (or, in the case of any Lender Party Account
maintained in Canada, enforcing its security interest in) any Lender Party
Account (a “Notice of Exclusive Control”), the Loan Parties are entitled
to 


 


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make withdrawals from the Lender Party
Accounts and make deposits into and give entitlement orders with respect to the
Lender Party Accounts.  The
Administrative Agent may provide such Notice of Exclusive Control only during a
Trigger Event Period.  Once the
Administrative Agent, L/C Issuer or Lender has a Notice of Exclusive Control,
which such notice shall be given only during a Trigger Event Period, the
Borrowers, the Administrative Agent, the L/C Issuers and the Lenders hereby
agree that the Administrative Agent shall be the only party entitled to make
withdrawals from or otherwise give any entitlement order or other direction
with respect to the Lender Party Accounts or any funds or financial assets on
deposit therein.  To the extent not
already occurring, L/C Issuers and Lenders agrees to transfer, in immediately
available funds by wire transfer to the Administrative Agent, the amount of the
collected funds credited to the deposit accounts which are Lender Party
Accounts held by such L/C Issuer or Lender, and deliver to the Administrative
Agent all moneys or instruments relating to such Lender Party Accounts or held
therein and any other Collateral at any time the Administrative Agent demands
payment or delivery thereof after a Notice of Exclusive Control has been
delivered to the Administrative Agent, L/C Issuer or Lender.  Each Loan Party agrees that the L/C Issuers
and Lenders are authorized to immediately deliver all the Collateral to the
Administrative Agent upon the Administrative Agent’s, L/C Issuer’s or Lender’s
receipt of a Notice of Exclusive Control from the Administrative Agent.  After a Notice of Exclusive Control has been
delivered to the Administrative Agent, L/C Issuer or Lender, such L/C Issuer or
Lender shall not exercise any right of set-off or banker lien against any
Lender Party Account; provided that the foregoing shall not be construed
to prohibit the Administrative Agent, acting for the benefit of the Secured
Parties, from exercising any right of set-off or banker lien against any Lender
Party Account; provided further that each of the
Administrative Agent, L/C Issuers and Lenders shall be entitled to charge, or
set-off against a Lender Party Account and retain for its own account, any
customary fees, costs, charges and expenses owed to it in connection with the
opening, operating and maintaining such Lender Party Account and for the amount
of any item credited to such Lender Party Account that is subsequently returned
for any reason.


 


6.16         Risk Management Review(a)
..  Within 60 days after the Closing Date
(or such longer period as the Administrative Agent may agree), and, in the
Administrative Agent’s discretion, once during each Fiscal Year commencing with
the Fiscal Year beginning April 1, 2010, permit third party risk
management professionals appointed by the Administrative Agent to conduct a
risk management review of the businesses and assets of the Loan Parties and, in
connection with such examination, to have full access to and the right to
examine, audit, make abstracts and copies from, and inspect the Loan Parties’
records, files, books of account and all other documents, instruments and
agreements to which a Loan Party is a party (subject to the execution and
delivery by such third party risk management professionals of an appropriate
confidentiality undertaking).  The
Borrowers shall pay all reasonable costs and expenses of the Administrative
Agent associated with any such review. 
The Administrative Agent shall furnish any written report of the results
of any such review to the Lenders and to Holdings.


 


6.17         Post
Closing Deliveries.  Within the
time periods specified below (which periods may be extended by the
Administrative Agent in its Permitted Discretion), comply with the following
requirements:


 


(a)           The Loan Parties shall have
cooperated with the Administrative Agent in order to permit it to complete a
field examination with respect to the Collateral in accordance with Section 9.13
to be included in each of the US Borrowing Base and the Canadian Borrowing Base
and of the relevant accounting systems, policies and procedures of Holdings and
their respective Subsidiaries, in form and substance reasonably satisfactory to
the Administrative Agent;


 


(b)           within 60 days following the
Closing Date (or such longer period as the Administrative Agent may agree), the
Loan Parties shall use commercially reasonable efforts to cause the owner of
each Third-Party Location to enter into a consent to assignment substantially
in the form of


 


108














 


Exhibit E-1 or
otherwise reasonably satisfactory to the Administrative Agent (it being
understood and agreed that the consents to assignments for each location as in
effect on or prior to the Closing Date are satisfactory to the Administrative
Agent in form and substance);


 


(c)           (i) within 10 days
following the Closing Date (or such longer period as the Administrative Agent
may agree) the relevant Loan Parties shall submit any applicable filing or
registration statement in respect of IP Rights to the applicable governmental
agency and (ii) within 30 days following the Closing Date (or such longer
period as the Administrative Agent may agree), the relevant Loan Parties shall
take such other action with respect to IP Rights that the Administrative
Agent may deem reasonably necessary in order to perfect the Liens created
thereby; and


 


(d)           within 60 days following the
Closing Date (or such longer period as the Administrative Agent may agree), the
relevant Loan Parties shall use commercially reasonable efforts to enter into
an account control agreement in form and substance reasonably satisfactory to
the Administrative Agent in connection with any Approved Account.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder shall
remain unpaid or unsatisfied, or any Letter of Credit and not Cash
Collateralized shall remain outstanding, in each case, other than
indemnification and other contingent obligations not yet due and owing, neither
Holdings nor the Borrowers shall, and neither Holdings nor the Borrowers shall
permit any of their respective Subsidiaries to:


 


7.01         Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:


 


(a)           Liens
pursuant to any Loan Document;


 


(b)           Liens
existing on the date hereof and listed on Schedule 7.01 and any renewals
or extensions thereof, provided that (i) the amount of
Indebtedness, if any, secured or benefited thereby is not increased except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder,
(ii) the direct or any contingent obligor or obligors with respect thereto
are not changed, and (iii) any renewal or extension of the Indebtedness
secured or benefited thereby is permitted by Section 7.03(b);


 


(c)           Liens
for Taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP;


 


(d)           carriers’,
warehousemens’, mechanics’, contractors’, materialmens’, builders’, repairmens’,
possessors’, shippers’, operators’ or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 60 days or
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;


 


(e)           pledges
or deposits (or Liens on segregated deposits established for such purpose) in
the ordinary course of business in connection with workers’ compensation,
unemployment 


 


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insurance, other social security or social
insurance legislation and other similar obligations other than any Lien imposed
by ERISA;


 


(f)            deposits
(or Liens on segregated deposits established for such purpose) to secure the
performance of bids, tenders, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case incurred in the
ordinary course of business;


 


(g)           easements,
encroachments, covenants running with the land, rights-of-way, servitudes,
zoning restrictions and other similar encumbrances affecting real property
incurred in the ordinary course of business which, with respect to all of the
foregoing, do not secure the payment of Indebtedness of any Loan Party, which
could not reasonably be expected to have a Material Adverse Effect;


 


(h)           Liens
securing judgments and attachments in connection with court proceedings not
constituting an Event of Default under Section 8.01(h);


 


(i)            Liens
in the nature of a right of distraint or a power of distress contained in any
and all agreements pertaining to the ownership and operations of any Natural
Gas Storage Facility (including without limitation any natural gas storage
leases, licenses and/or unit agreements) and associated property and assets,
including without limitation any operating
leases of any Canadian Subsidiary that constitute Liens under the Laws of
Canada;


 


(j)            (i) Liens
securing Indebtedness permitted under Sections 7.03(d); provided
that (A) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness, (B) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition and (C) such Liens
shall be created contemporaneously with, or within 45 days after, the
acquisition of the property financed by such Indebtedness, (ii) Liens securing Indebtedness incurred pursuant to Section 7.03(l),
and (iii) Liens in the form of a Letter of Credit securing Indebtedness
incurred pursuant to Section 7.03(n);


 


(k)           (i) Liens
under or with respect to accounts with brokers or counterparties with respect
to Swap Contracts consisting of cash, commodities or futures contracts,
options, securities, instruments, and other like assets securing only Swap
Contracts permitted under Section 7.03(c), and (ii) Liens arising
solely by virtue of any statutory or common law provision relating to banker’s
liens, rights of set-off or similar rights;


 


(l)            rights
reserved to or vested in any Governmental Authority by the terms of any right,
power, agreement, transfer, franchise, grant, lease, license or permit, or by
any provision of Law, to revoke or terminate any such right, power, agreement,
transfer, franchise, grant, lease, license or permit or to condemn or acquire
by eminent domain, expropriation or similar process or to require annual or
other periodic payments as a condition of the continuance thereof;


 


(m)          rights
reserved to or vested in any Governmental Authority by the terms of any right,
power, agreement, transfer, franchise, grant, lease, license or permit, or by
any provision of Law, in any manner, control or regulate any of the properties
of Holdings or any Subsidiary or the use thereof or the rights and interests of
Holdings or any Subsidiary therein, in any manner under the terms of any right,
power, agreement, transfer, franchise, grant, lease, license or permit, or by
any provision of Law;


 


(n)           rights
reserved to the grantors, lessors or licensors of any properties or interests
therein of Holdings or any Subsidiary, and the restrictions, conditions,
restrictive covenants and 


 


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limitations in respect thereof, pursuant to
the terms, conditions and provisions of any permits, licenses, leases
(including any natural gas storage leases and/or unit agreements), transfers or
assignments, operating agreements, access agreements, rights-of-way
agreements, contracts or other agreements associated therewith;


 


(o)           with
respect to any leasehold interest in real property, liens, judgments or other
encumbrances on the fee or other superior title interest to which such
leasehold interest is subject;


 


(p)           any
restriction imposed by applicable Law or under the access agreements in respect
of a Natural Gas Storage Facility, including without limitation the Suffield
Facility on the ability of the Canadian Borrowers or any other Person to access
a Natural Gas Storage Facility, including without limitation the Suffield
Facility; provided that any such restriction could not reasonably be
expected to have a Material Adverse Effect;


 


(q)           Liens
on assets existing at the time such assets are acquired pursuant to a Permitted
Acquisition or other Investment permitted by Section 7.02, provided
that such Liens were not created or assumed in contemplation of such Permitted
Acquisition, and any renewals or extensions thereof, provided that (i) any
such renewal or extension Lien shall extend solely to the assets so acquired, (ii) the
principal amount of Indebtedness secured or benefited thereby, if any, is not
increased and (iii) the direct or any contingent obligor with respect
thereto is not changed;


 


(r)            Liens
in favor of customs and revenue authorities arising as a matter of law to
secure the payment of customs duties in connection with the importation of
goods in the ordinary course of business;


 


(s)           Liens
on Equity Interests in Project Subsidiaries securing Indebtedness incurred by
such Project Subsidiaries;


 


(t)            Liens
upon specific items of inventory or other goods and proceeds arising in the
ordinary course of business securing such Person’s obligations in respect of
bankers’ acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;


 


(u)           Liens
securing Indebtedness permitted by Section 7.03(u);


 


(v)           Liens
on cash or cash equivalents used to defease or to satisfy or discharge
Indebtedness and any interest, penalties or fees relating to such Indebtedness;
provided that such defeasance or satisfaction and discharge is not
prohibited hereunder;


 


(w)          Liens
securing Indebtedness or other obligations in an amount not to exceed 2.5% of
the Consolidated Tangible Assets of Holdings as of the date of the financial
statements most recently delivered under Section 6.01 (it being understood
that the assets of any Loan Party subject to Liens pursuant to this Section 7.01(w) shall
not be included in the Borrowing Base);


 


(x)            customary
non-assignment provisions in hydrocarbon purchase and sale, storage or exchange
agreements or similar operational agreements or licenses, sublicenses, leases
or subleases, in each case entered into in the ordinary course of business and
consistent with past practices; and


 


(y)           Liens
securing obligations to a public utility, municipality or Governmental
Authority with respect to operations conducted in respect of any assets;


 


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provided that (i) none
of the foregoing exceptions shall permit any Loan Party to create, incur,
assume or suffer to exist any Lien on any Accounts, inventory, cash or
investment securities which constitute Collateral, unless such Lien has been
accounted for in the most recently calculated Borrowing Base, except (A) Liens
permitted under clauses (a), (c), (e), and (f), (B) Permitted Natural
Gas Liens, (C) Liens permitted under clause (k) above in
connection with any Hedge Positions in Brokers Accounts to secure Swap
Contracts permitted under Section 7.03(c) with the broker that is the
holder of such Hedge Positions in Brokers Accounts and (D) statutory liens
and liens arising under customary Natural Gas transportation agreements in
favor of transporters and carriers of Natural Gas permitted under clause (d) above;
and (ii) other than as permitted in Section 7.01(s), none of the
foregoing exceptions shall permit any Loan Party to create, incur, assume or
suffer to exist any Lien on property, assets or revenues of a Loan Party to
secure obligations or liabilities of any Project Subsidiary.


 


7.02         Investments.  Make or hold any Investments, except:


 


(a)           Investments
by Holdings or any Subsidiary in the form of Cash Equivalents;


 


(b)           (i) Investments
by Holdings and its Subsidiaries in any Loan Party and (ii) Investments by
any Subsidiary of Holdings that is not a Loan Party in any other Subsidiary of
Holdings that is not a Loan Party;


 


(c)           Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(d)           Guarantees
permitted by Section 7.03;


 


(e)           Investments
existing on the date hereof and set forth on Schedule 7.02;


 


(f)            Permitted
Acquisitions;


 


(g)           Investments
in Swap Contracts permitted by Section 7.04;


 


(h)           Hedge
Positions in Brokers Accounts;


 


(i)            advances
to officers, directors and employees of any Loan Party made in the ordinary
course of business for business-related expenses in an aggregate outstanding
amount for all Loan Parties not to exceed $1,000,000 at any time;


 


(j)            Investments
resulting from the forgiveness or conversion to equity of any Indebtedness
permitted by Section 7.03;


 


(k)           (i) Investments
by Holdings or any of its Subsidiaries that are Loan Parties in any of its
Subsidiaries that are not Loan Parties or (ii) Investments by Holdings or
any of its Subsidiaries in any joint venture or Project Subsidiary; provided
that the aggregate amount of such Investments does not exceed at any time an
amount equal to the greater of (1) $40 million and (2) 2.5% of the
Consolidated Tangible Assets of Holdings as of the date of the financial
statements then most recently delivered under Section 6.01, in each case,
plus the Available Amount; provided that, immediately after making such
Investment, Total Revolver Exposure shall not exceed 85% of Total Revolver
Maximum Available Amount;


 


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(l)            loans
to employees, officers or directors of Holdings or any of its Subsidiaries in
connection with management incentive plans; provided that such loans represent
cashless transactions pursuant to which such employees, officers or directors
directly invest the proceeds of such loans in the Equity Interests of Holdings;


 


(m)          Investments
of any Person in existence at the time such Person becomes a Subsidiary;
provided that such Investment was not made in connection with or in
anticipation of such Person becoming a Subsidiary;


 


(n)           Investments
in connection with the MLP Formation Transactions and the Qualified MLP IPO;


 


(o)           Investments
in newly formed Subsidiaries, if the requirements of Section 6.12 (if
applicable) are complied with;


 


(p)           (i) Investments
arising directly out of the receipt of non-cash consideration for any
Disposition of assets permitted under Section 7.06 and (ii) Investments
resulting from pledges and deposits permitted by Section 7.01;


 


(q)           any
Investment in any Subsidiary that is not a Loan Party to the extent such
Investment is substantially contemporaneously repaid in full with a dividend or
other distribution from such Subsidiary;


 


(r)            provided
that Holdings or any of its Subsidiaries would be permitted to make a
Restricted Payment under Section 7.07, Investments constituting loans or
advances in an amount not to exceed the amount of such Restricted Payment
permitted pursuant to Section 7.07; and


 


(s)           Investments
not otherwise permitted under clauses (a) through (r) of this Section 7.02
in an aggregate outstanding amount not to exceed at any time an amount equal to
the greater of $40 million and (ii) 2.5% of the Consolidated Tangible
Assets of Holdings as of the date of the financial statements then most
recently delivered under Section 6.01, in each case, plus the Available
Amount; provided that, immediately after making such Investment, Total
Revolver Exposure shall not exceed 85% of Total Revolver Maximum Available
Amount.


 


7.03         Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness; provided, however, that Holdings, the Borrowers and
their respective Subsidiaries may create, incur, assume or suffer to exist (if
such Indebtedness was permitted to be incurred at the time so incurred) any
Indebtedness, if, at the time such Indebtedness is created, incurred or
assumed, the Fixed Charge Coverage Ratio is at least 2.0 to 1.0 on a pro forma
basis as at the end of the trailing four Fiscal Quarters most recently ended,
as if such Indebtedness had been incurred at the beginning of such period; provided, further,
that Holdings, the Borrowers and their respective Subsidiaries may create,
incur, assume or suffer to exist the following Indebtedness:


 


(a)           Indebtedness
under the Loan Documents;


 


(b)           Indebtedness
outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the
amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to a reasonable
premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder, and (ii) the terms of such
refinancing, refunding, renewal or 


 


113

















 


extension are no less favorable to such Loan
Party, the Administrative Agent or the Lenders than the original Indebtedness;


 


(c)           obligations
(contingent or otherwise) existing or arising under any Swap Contract to the
extent that such Swap Contract is not prohibited by the Risk Management Policy
at the time such Swap Contract is in effect;


 


(d)           Indebtedness
in respect of Capital Lease Obligations, Synthetic Lease Obligations and
purchase money obligations for fixed or capital assets within the requirements
set forth in Section 7.01(j); provided that the aggregate amount of
all such Indebtedness at any one time outstanding shall not exceed $15,000,000
and Guarantees in respect of any such Indebtedness;


 


(e)           (i) Indebtedness
of any Loan Party owing to Holdings or any of its Subsidiaries and (ii) Guarantees
by Holdings or any of its Subsidiaries of any Indebtedness of any Loan Party;


 


(f)            to
the extent constituting Indebtedness, obligations with respect to surety, performance
and appeal bonds obtained in the ordinary course of business;


 


(g)           the
Canada Subordinated Indebtedness;


 


(h)           Indebtedness
in respect of the Senior Notes providing gross cash proceeds not to exceed
$800,000,000 and, in each case, any Guarantees with respect thereto plus any
accrued pay-in-kind interest, capitalized interest, accrued interest, fees,
discounts, premiums and expenses, in each case, in respect thereof and any
refinancings, refundings, renewals or extensions thereof; provided that the
amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to a reasonable
premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder;


 


(i)            Indebtedness
of any Subsidiary of Holdings that is not a Loan Party owing to Holdings or any
Subsidiary of Holdings that is a Loan Party to the extent otherwise permitted
under Section 7.02 and Guarantees by any Loan Party of Indebtedness of any
Subsidiary of Holdings that is not a Loan Party to the extent such Guarantee
would be permitted by Section 7.02(k);


 


(j)            Indebtedness
in respect of netting services, automatic clearinghouse arrangements and other
cash management and similar arrangements in the ordinary course of business;


 


(k)           Indebtedness
(i) in the form of earn-outs, indemnification, incentive, non-compete,
consulting or other similar arrangements and other contingent obligations in
respect of acquisitions or Investments consummated prior to the date hereof or
otherwise permitted by Section 7.02 (both before or after any liability
associated therewith becomes fixed) and, in each case, any Guarantees with
respect thereto and (ii) arising from agreements providing for
indemnification related to sales of goods or adjustment of purchase price or
similar obligations in any case incurred in connection with the acquisition or
Disposition of any business, assets or Subsidiary and any Guarantees with
respect thereto;


 


(l)            Indebtedness
of Subsidiaries that are not Loan Parties in respect of lines of credit,
letters of credit, bank guarantees, factoring arrangements, sale/leaseback
transactions and similar extensions of credit in the ordinary course of
business, in an aggregate principal amount at any one time outstanding not to
exceed an amount equal to $10,000,000;


 


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(m)          Indebtedness
in respect of workers’ compensation claims, bank guarantees, warehouse receipts
or similar facilities, property casualty or liability insurance, take-or-pay
obligations in supply arrangements, self-insurance obligations, performance,
bid and surety bonds and completion guaranties, in each case in the ordinary
course of business;


 


(n)           Indebtedness
to the extent supported by a Letter of Credit, in a principal amount not in
excess of the stated amount of such Letter of Credit;


 


(o)           Indebtedness
issued in lieu of cash payments of Restricted Payments permitted by Section 7.07;


 


(p)           Indebtedness
in respect of trade letters of credit issued in the ordinary course of
business;


 


(q)           unsecured
Guarantees made in the ordinary course of business; provided that such
Guarantees are not of Indebtedness for borrowed money;


 


(r)            Indebtedness
representing deferred compensation to employees incurred in the ordinary course
of business;


 


(s)           Subordinated
Debt and any Guarantees with respect thereto, so long as the Fixed Charge Coverage Ratio is at least 2.0 to 1.0 on a pro forma
basis as at the end of the trailing four Fiscal Quarters most recently ended,
as if such Indebtedness had been incurred at the beginning of such period;


 


(t)            the
incurrence by Holdings and its Subsidiaries of Indebtedness in connection with
MLP Formation Transactions;


 


(u)           Fixed
Asset Financing; provided that (i) as of the date of incurrence of
such Indebtedness and after giving effect thereto, no Default shall exist or
have occurred and be continuing, (ii) after giving pro  forma
effect to the incurrence of such Indebtedness, the Fixed Charge Coverage Ratio
as at the end of the trailing four Fiscal Quarter period most recently ended
shall be equal to at least 2.0 to 1.0 and (iii) at the time of such
Indebtedness, the Borrower shall have granted a second priority Lien on all
Collateral securing such Fixed Asset Financing in accordance with intercreditor
arrangements satisfactory to the Administrative Agent; and


 


(v)           Indebtedness
in an aggregate principal amount at any time outstanding, not to exceed the
greater of (i) $50,000,000 and (ii) 4% of the Consolidated Tangible
Assets of Holdings.


 


7.04         Swap Contracts(a)
..  Be a party to or in any manner be
liable on any Swap Contract, except those entered into in accordance with the
Risk Management Policy.


 


7.05         Fundamental
Changes.  Merge, amalgamate or
consolidate with or into another Person, dissolve, liquidate or Dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except that, so long as no Event of Default would
result therefrom:


 


(a)           any
Subsidiary of Holdings (other than a Borrower) may merge, consolidate or
amalgamate with (i) a Borrower, provided that such Borrower shall
be a continuing or surviving Person, or (ii) any one or more other Wholly
Owned Subsidiaries of Holdings or any Project Subsidiary; provided that
when any Guarantor is merging, consolidating or amalgamating with any Wholly
Owned Subsidiary 


 


115

















 


of a Borrower that is not a Guarantor or with
a Project Subsidiary, such Guarantor shall be a continuing or surviving Person;


 


(b)           any
Subsidiary that is not a Loan Party may Dispose of all or substantially all of
its assets (upon voluntary liquidation, dissolution, winding-up or otherwise)
to any other Subsidiary that is not a Loan Party;


 


(c)           any
Subsidiary of a Borrower may Dispose of all or substantially all of its assets
(upon voluntary liquidation, dissolution, winding-up or otherwise) to such
Borrower or to another Wholly Owned Subsidiary of such Borrower that is a
Guarantor;


 


(d)           Holdings
and any Subsidiary may engage in Permitted Acquisitions, the MLP Formation
Transactions and any Qualified MLP IPO;


 


(e)           Dispositions
permitted by Section 7.06 and any merger, dissolution, liquidation,
consolidation, investment or Disposition, the purpose of which is to effect a
Disposition permitted by this Section 7.05; and


 


(f)            any
Investment expressly permitted by Section 7.02 may be structured as a
merger, consolidation or amalgamation.


 


7.06         Dispositions.  Make any Disposition, except:


 


(a)           Dispositions
of obsolete or worn out equipment, whether now owned or hereafter acquired, in
the ordinary course of business;


 


(b)           Dispositions
of inventory and Cash Equivalents in the ordinary course of business;


 


(c)           Dispositions
of equipment or real property or other property not constituting Collateral for
fair market value unless the Disposition could reasonably be expected to have a
Material Adverse Effect on the fair market value of the Collateral on the date
of such Disposition;


 


(d)           Dispositions
of property by any Subsidiary of Holdings to Holdings or to a Wholly Owned
Subsidiary of Holdings; provided that if a Subsidiary of Holdings that
is a Guarantor is Disposing of property, the transferee thereof must be
Holdings, a Borrower or another Guarantor;


 


(e)           Dispositions
permitted by Section 7.02, 7.05 and 7.07;


 


(f)            Dispositions
of Cushion Gas for fair market value or in connection with any sale-leaseback
transactions otherwise permitted by Section 7.03;


 


(g)           the
Disposition of any Excluded Subsidiary or any Project Subsidiary;


 


(h)           the
sale or discount, in each case without recourse and in the ordinary course of
business, of overdue accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof
consistent with customary industry practice (and not as part of any bulk sale
or financing of receivables);


 


(i)            transfers
of condemned Property as a result of the exercise of “eminent domain” or other
similar policies to the respective Governmental Authority or agency that has
condemned the 


 


116

















 


same (whether by deed in lieu of condemnation
or otherwise), and transfers of properties that have been subject to a casualty
to the respective insurer of such Property as part of an insurance settlement;
and


 


(j)            the
Disposition of other assets for fair market value (with the cash or Cash
Equivalent component thereof not being less than 75% of the aggregate
consideration) not to exceed in any fiscal year an amount equal to 7.5% of the
Consolidated Tangible Assets of Holdings as of the date of the financial
statements then most recently delivered pursuant to Section 6.01(a);


 


provided that, promptly
after any Non-Ordinary Course Asset Disposition, the applicable Borrower shall
deliver to the Administrative Agent a Non-Ordinary Course Borrowing Base
Certificate as of the date of consummation of such Non-Ordinary Course Asset
Disposition and, if required, shall comply with Section 2.05 and as of the
date of any such Disposition and after giving effect thereto, no Event of
Default shall exist and be continuing.


 


7.07         Restricted
Payments.  Declare or
make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:


 


(a)           (i) each Subsidiary of
Holdings may make Restricted Payments to Holdings, any Subsidiary of Holdings
that is a Loan Party and any other Person that owns a direct Equity Interest in
such Subsidiary, ratably according to their respective holdings of the type of
Equity Interest in respect of which such Restricted Payment is being made and (ii) each
Subsidiary of Holdings that is not a Loan Party may make Restricted Payments to
any other Subsidiary of Holdings that is not a Loan Party and any other Person
that owns a direct Equity Interest in such Subsidiary, ratably according to
their respective holdings of the type of Equity Interest in respect of which
such Restricted Payment is being made;


 


(b)           Holdings and each Subsidiary
may declare and make dividend payments or other distributions payable solely in
the common stock or other common Equity Interests of such Person;


 


(c)           for so long as Holdings is a “pass through” entity for U.S.
federal income tax purposes, Holdings may make quarterly distributions to its
partners based upon the estimated taxable income of Holdings for such quarter
in an amount equal to (i) the Applicable Tax Rate (as defined below) times
(ii) estimated taxable income of Holdings for such quarter, as reasonably
determined in good faith by Holdings’ accountants.  Distributions for the final quarter of any
year shall be based on the estimated taxable income of Holdings for the entire
taxable year and shall take into account the prior quarterly distributions by
Holdings for such year.  Such amounts
shall be determined separately for each Holding Entity prior to a Qualified MLP
IPO.  To the extent that the actual
taxable income of Holdings for any Fiscal Year exceeds the sum of the foregoing
quarterly estimates, then Holdings shall be entitled to make an additional
distribution to its partners in an amount equal to such excess multiplied by
the Applicable Tax Rate.  To the extent
that the actual taxable income of Holdings for any Fiscal Year is less than the
sum of the foregoing quarterly estimates, then Holdings shall deduct an amount
equal to such difference multiplied by the Applicable Tax Rate from the amounts
it is otherwise entitled to distribute to its partners in future quarters;


 


(d)           Holdings may pay the Riverstone Monitoring Fee so long as no Default or Event of Default has occurred and
is continuing at the time of such Restricted Payment and so long as no Default
or Event of Default would exist after giving pro forma
effect thereto;


 


(e)           Holdings may purchase from employees, former employees,
directors, consultants or former directors (or permitted transferees thereof)
Equity Interests in Holdings issued under such Holdings’ incentive plans; provided
that the aggregate purchase price for all such purchases by Holdings during any
Fiscal Year shall not exceed $5,000,000 (with unused amounts being available to


 


117

















 


be
used in the following calendar year, but not in any succeeding calendar year) plus
the net cash proceeds of any “key-man” life insurance policies that have not
been applied to the payment of Distributions pursuant to this clause;


 


(f)            Holdings and each Subsidiary may make noncash repurchases of
Equity Interests deemed to occur upon exercise of stock options or similar
equity incentive awards if such Equity Interests represent a portion of the
exercise price of such options or similar equity incentive awards;


 


(g)           Holdings and each Subsidiary may make Restricted Payments to
consummate the MLP Formation Transactions and the Qualified MLP IPO;


 


(h)           Holdings and each Subsidiary may make Restricted Payments in
an aggregate principal amount not to exceed $10,000,000 to allow Holdings to
make payments in cash, in lieu of the issuance of fractional shares, upon the
exercise of warrants or upon the conversion or exchange of Equity Interests of
any such Person;


 


(i)            Holdings and each Subsidiary may make (i) prior to a
Qualified MLP IPO so long as no
Default or Event of Default has occurred and is continuing at such time and so
long as no Default or Event of Default would exist after giving pro forma
effect thereto, Restricted
Payments in an aggregate amount not to exceed the sum of $25,000,000 and the
Available Amount, and (ii) after a Qualified MLP IPO, Restricted Payments
by Holdings in an amount not to exceed the MLP Distribution Amount so long as no Default or Event of Default has occurred and
is continuing at the time of such Restricted Payment and so long as no Event of
Default would exist after giving pro forma effect thereto;


 


(j)            the payment of any dividend or distribution or consummation
of any irrevocable redemption with sixty (60) days after the date of its
declaration or giving the redemption notice, as the case may be, if at the date
of declaration or notice, the dividend, distribution or redemption payment
would have complied with the provisions hereof, so
long as, at the time of such declaration or giving of such redemption notice,
no Default or Event of Default has occurred and is continuing and, at the time
of such declaration or giving of such redemption notice, no Default or Event of
Default would exist after giving pro forma effect thereto;


 


(k)           to the extent constituting Restricted Payments, Holdings and
its Subsidiaries may enter into and consummate transactions expressly permitted
by any provision of Sections 7.02, 7.04, 7.05 and 7.06; and


 


(l)            Holdings and each Subsidiary may make any Designated
Dividend so long as no Default or Event
of Default has occurred and is continuing at such time and so long as no
Default or Event of Default would exist after giving pro forma effect thereto.


 


For purposes of the
foregoing, “Applicable Tax Rate” means, with respect to any period, the
highest combined federal, state and local individual income tax rate for an
individual resident of New York, New York in effect for such period, giving
effect to the deductibility, if any and to the extent applicable, of state and
local taxes for U.S. federal income tax purposes.


 


7.08         Change
in Nature of Business. 
Engage in any material line of business that is not a Permitted
Business.


 


7.09         Transactions
with Affiliates.  Enter into
any transaction of any kind with any Affiliate of any Loan Party, whether or
not in the ordinary course of business, other than transactions on terms
substantially as favorable to such Loan Party or its Subsidiaries as would be
obtainable by such Loan


 


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Party
or its Subsidiaries at the time in a comparable arm’s length transaction with a
Person other than an Affiliate; provided that this Section 7.09
shall not apply to (a) transactions among Holdings and any of its
Subsidiaries and among its Subsidiaries; (b) the payment of reasonable
compensation, fees and expenses to, and indemnity provided on behalf of,
directors and officers of any Loan Party or its Subsidiaries; (c) Restricted
Payments permitted by Section 7.07; (d) a management agreement
between the Holdings Entities and between Holdings and certain of its
Subsidiaries providing for sharing of certain personnel; (e) payments by
Holdings to Riverstone of the Riverstone Monitoring Fee; (f) the payment
by Holdings to Riverstone of a closing fee; (g) any issuance of Equity
Interests (other than Disqualified Stock) of Holdings to Affiliates of
Holdings; (h) any transaction with an Affiliate that is expressly
permitted by the terms of this Agreement to be entered into by Holdings or such
Subsidiary with an Affiliate; (i) the MLP Formation Transactions and any
Qualified MLP IPO; (j) any transaction with any Person that is an
Affiliate of Holdings only by reason of such Person and Holdings having common
directors; (k) transactions relating to the purchase or sale of
hydrocarbons, the lease of storage capacity or the transportation of
hydrocarbons, in each case with investors in Holdings or its Affiliates entered
into in the ordinary course of business consistent with past practice; and (l) the
payments to Affiliates made in accordance with the terms of, and in an amount
not to exceed that required by, the Operating Agreement in effect as of the
date hereof.


 


7.10         Burdensome Agreements(a)
..  Enter into or permit to exist any
Contractual Obligation (other than this Agreement or any other Loan Document or
the Senior Notes Documents) that (a) limits the ability (i) of any
Subsidiary (other than any Excluded Subsidiary) to make Restricted Payments to
any Borrower or any Guarantor or invest in any Borrower or any Guarantor, or to
repay loans and other indebtedness owing by it to any Borrower or any
Guarantor, (ii) of any Subsidiary (other than any Excluded Subsidiary) to
transfer property to any Borrower or any Guarantor, (iii) of any
Subsidiary (other than any Excluded Subsidiary) to Guarantee the Secured
Obligations of any Borrower or (iv) of any Loan Party to create, incur,
assume or suffer to exist Liens in favor of the Secured Parties on property of
such Loan Party, provided that the foregoing shall not prohibit (1) customary
provisions contained in any agreement to which a Loan Party is party that
restrict or prohibit such Loan Party from transferring or assigning such
agreement to an affiliate of such Loan Party, (2) any negative pledge (and
related restriction on sale or transfer) incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.03 solely to the extent
any such negative pledge relates to the property financed by or the subject of
such Indebtedness, (3) customary restrictions and conditions contained in
any agreement relating to the sale of a Subsidiary, or any or all of its
assets, pending such sale, so long as such restrictions and conditions are not
applicable to any Person (or its property or assets) other than the applicable Subsidiary
and its assets, (4) any restriction existing in any agreement or
instrument (including any lease, right of way, access right, easement or other
agreement) in effect on the Closing Date and set forth on Schedule 7.10, (5) agreements
related to secured Indebtedness permitted hereunder, if such restrictions apply
only to the collateral for such Indebtedness, (6) customary provisions in
leases and other contracts restricting assignment thereof; Contractual
Obligations incurred in the ordinary course of business and on customary terms
which limit Liens on the assets subject of the applicable Contractual
Obligation; (7) any agreement in effect at the time any Person becomes a
Subsidiary, so long as such agreement was not entered into in contemplation of
such Person becoming a Subsidiary and (8) restrictions imposed by any
Subordinated Debt that are consistent with the definition thereof; (9) any
agreement regarding Indebtedness of any Subsidiary that is not a Guarantor to
the extent permitted by Section 7.03; and (10) customary restrictions
and conditions contained in any agreement relating to any Disposition of
property.


 


7.11         Prepayments,
Etc. of Subordinated Debt. 
Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Subordinated Debt, except (a) the payment
of any obligations in 


 


119

















 


respect
of any Subordinated Debt in accordance with the terms of the subordination
agreement applicable thereto, (b) any prepayment,
redemption, purchase or defeasance of any Subordinated Debt permitted under Section 7.03
in connection with any refinancing or replacement thereof, (c) any
prepayment of any Subordinated Debt permitted under Section 7.03 required
as a result of any sale, lease, transfer or other disposition of any property
securing such Subordinated Debt to the extent that such security is permitted
under this Agreement, (d) any prepayment, redemption, purchase or
defeasance of any Subordinated Debt permitted under Section 7.03 to the
extent financed with the proceeds of other Subordinated Debt permitted to be
incurred under Section 7.03, and (e) the prepayment, redemption,
purchase or defeasance of Subordinated Debt permitted under Section 7.03
made with the Available Amount.


 


7.12         Risk Management
Compliance.


 


Enter
into any transaction or permit to exist any Position that is in violation of
the Risk Management Policy, except transactions or Positions entered into with
a good faith belief that no such violation exists and where such violation is
remedied as promptly as possible.


 


7.13         Use of
Proceeds.  Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the
FRB) or to extend credit to others for the purpose of purchasing or carrying
margin stock or to refund indebtedness originally incurred for such purpose.


 


7.14         Fiscal
Years and Fiscal Quarters of Holdings.  Prior to a Qualified MLP IPO, permit (a) the
fiscal year of Holdings to end on a date that is different than the last date
of the fiscal year of the other Holdings Entity or (b) any fiscal quarter
of any Holdings Entity to end on a date that is different than the last date of
the corresponding fiscal quarter of the other Holdings Entity.


 


7.15         Subordinated
Debt.  Amend or modify the terms
(including subordination terms) of the Canada Subordinated Notes or the
documents evidencing or governing any other Subordinated Debt permitted by Section 7.03(s) in
a manner materially adverse to the Lenders without the prior written consent of
the Administrative Agent, or violate any of the subordination terms of the
Canada Subordinated Notes or the documents evidencing or governing any other
subordinated Indebtedness permitted by Section 7.03.


 


7.16         Fixed
Charge Coverage Ratio.  If
at any time the Total Revolver Exposure exceeds 85% of the Total Revolver
Maximum Available Amount and until such time as the Total Revolver Exposure is
less than 85% of the Total Revolver Maximum Available Amount for a period of at
least thirty (30) consecutive days, the Fixed Charge Coverage Ratio for the
most recent completed four Fiscal Quarter period measured at the end of each
Fiscal Quarter during such period shall be not less than 1.10:1.0.


 


7.17         Canadian
Pension Plans.  Establish
or maintain any Canadian Pension Plan in respect of any of their employees or
former employees in Canada.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01         Events
of Default.  Any of the
following shall constitute an Event of Default:


 


(a)           Non-Payment.  Holdings, any
Borrower or any other Loan Party fails to pay (i) when and as required to
be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within
three days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or 


 


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any
fee due hereunder, or (iii) within five days after the same becomes due,
any other amount payable hereunder or under any other Loan Document; or


 


(b)           Specific
Covenants.


 


(i)            Any Loan Party fails to
perform or observe any term, covenant or agreement contained in any of Section 6.03,
6.05(a) or 6.11 or Article VII;


 


(ii)           Any Loan Party fails to
perform or observe any term, covenant or agreement contained in Section 6.02(f),
and such failure continues for 5 Business Days;


 


(iii)          Any Loan Party fails to
perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02 (other than Section 6.02(f) and (j)), or 6.10, and such failure
continues for 15 days; or.


 


(c)           Other
Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of (i) the date on
which a Responsible Officer of any Loan Party becomes aware of such failure and
(ii) the date on which notice of such failure is given to any Loan Party
by any Agent (which notice will be given at the request of any Lender); or


 


(d)           Representations
and Warranties; Certifications; Statements of Fact.  Any representation,
warranty, certification or statement of fact made or deemed made by or on
behalf of Holdings, any Borrower or any other Loan Party herein in writing, in
any other Loan Document, or in any certificate delivered in connection herewith
or therewith shall be incorrect or misleading in any material respect when made
or deemed made; or


 


(e)           Cross-Default.  (i) Any Loan
Party (A) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in respect
of any Indebtedness for borrowed money having an aggregate principal amount
(including (x) the undrawn face amount of any outstanding letter of
credit, surety bonds and other similar contingent obligations outstanding under
any agreement relating to such Indebtedness, (y) undrawn committed or
available amounts and (z) amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount,
or (B) fails to observe or perform any other agreement or condition relating
to any such Indebtedness for borrowed money or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such holder
or holders) to cause, with the giving of notice if required, such Indebtedness
to be demanded or to become due or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity;
or


 


(f)            Insolvency
Proceedings, Etc.  Any Loan Party or any of its Subsidiaries
(other than any Immaterial Subsidiary) institutes or consents to the
institution of any Insolvency Proceeding, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator, monitor
or similar officer for it or for all or any material part of its property; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator,
monitor or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any Insolvency Proceeding relating to any such Person or to
all or any material part of its property is instituted without the consent of 


 


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such
Person and continues undismissed or unstayed for 60 calendar days, or an order
for relief is entered in any such proceeding; or


 


(g)           Inability
to Pay Debts; Attachment.  (i) Any Loan Party becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or


 


(h)           Judgments.  There is entered against any Loan Party (i) one or more
final non-appealable judgments or orders for the payment of money in an
aggregate amount (as to all such judgments and orders) exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to
which the insurer is rated at least “A” by A.M. Best Company, has been
notified of the potential claim and does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or


 


(i)            ERISA.  (i) An ERISA
Event occurs with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of any Loan
Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) any
Loan Party or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or


 


(j)            Invalidity
of Loan Documents.  Any
Loan Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or thereunder or satisfaction in
full of all the Obligations, ceases to be in full force and effect; or any Loan
Party contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any provision of any Loan Document; or


 


(k)           Change
of Control.  There occurs any Change of Control; or


 


(l)            Security
Documents.  Any Security Document shall for any reason
(other than pursuant to the terms thereof) cease to create a valid and
perfected Lien (subject to Liens permitted hereunder) on a material portion of
the Collateral purported to be covered thereby, with the priority required by
the applicable Security Document, or any Loan Party shall so assert in writing.


 


8.02         Remedies
Upon Event of Default.  If
any Event of Default occurs and is continuing, the Administrative Agent shall,
at the request of, or may, with the consent of, the Required Lenders, take any
or all of the following actions:


 


(a)           declare
the commitment of each Lender to make Loans and any obligation of each L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;


 


(b)           declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan 


 


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Document
to be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by each
Borrower;


 


(c)           require
that the US Borrower or the Canadian Borrower, as applicable, Cash
Collateralize the L/C Obligations (in an amount equal to the then Outstanding
Amount thereof) and all outstanding BAs (in accordance with Section 2.20);
and


 


(d)           exercise
on behalf of itself, the Lenders and the L/C Issuers all rights and remedies
available to it, the Lenders and the L/C Issuers under the Loan Documents and
applicable Law;


 


provided that, upon the
occurrence of an Event of Default under Section 8.01(f), the obligation of
each Lender to make Loans and any obligation of each L/C Issuer to make L/C
Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the US Borrower and
the Canadian Borrower, as applicable, to Cash Collateralize the L/C Obligations
and outstanding BAs as aforesaid shall automatically become effective, in each
case without further act of the Administrative Agent or any Lender.


 


8.03         Application
of Funds.  After the
exercise of remedies provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations and
outstanding BAs have automatically been required to be Cash Collateralized as
set forth in the proviso to Section 8.02), any amounts received on account
of the Obligations shall be applied by the Administrative Agent as provided in Section 9.11.


 


ARTICLE IX.

AGENTS


 


9.01         Appointment
and Authority.


 


(a)           Each
of the Lenders and L/C Issuers hereby irrevocably appoints Royal Bank of Canada
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents.  Each of the Lenders and
L/C Issuers authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to such Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.


 


(b)           The
Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders and L/C Issuers hereby irrevocably appoints
and authorizes the Administrative Agent to act as the agent of such Lender and
such L/C Issuer for purposes of acquiring, holding and enforcing any and all
Liens on Collateral granted by any of the Loan Parties to secure any of the
Secured Obligations, together with such powers and discretion as are reasonably
incidental thereto.  In this connection,
the Administrative Agent, as “collateral agent” and any co-agents, sub-agents
and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Security Documents, or for exercising any rights and
remedies thereunder at the direction of the Administrative Agent, shall be
entitled to the benefits of all provisions of this Article IX and Article X
(including Section 10.04(c)), as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral agent” under the Loan Documents) as if
set forth in full herein with respect thereto.


 


9.02         Rights
as a Lender.  Each Person
serving as an Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not such Agent, and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or 


 


123

















 


unless
the context otherwise requires, include the Person serving as such Agent
hereunder in its individual capacity. 
Each such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with any Loan Party or any Subsidiary
or other Affiliate thereof as if such Person were not such Agent hereunder and
without any duty to account therefor to the Lenders.


 


9.03         Exculpatory
Provisions.  The Agents
shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. 
Without limiting the generality of the foregoing:


 


(a)           no
Agent shall be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;


 


(b)           no
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that such Agent is required
to exercise as directed in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for herein
or in the other Loan Documents), provided that no Agent shall be
required to take any action that, in its opinion or the opinion of its counsel,
may expose such Agent to liability or that is contrary to any Loan Document or
applicable law; and


 


(c)           no
Agent shall, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and no Agent shall be liable for the
failure to disclose, any information relating to any Borrower, any Loan Party
or any of their Affiliates that is communicated to or obtained by the Person
serving as such Agent or any of its Affiliates in any capacity.


 


No Agent shall be liable for
any action taken or not taken by it (i) with the consent or at the request
of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as such Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02)
or (ii) in the absence of its own gross negligence or willful misconduct,
as determined by a final and nonappealable order or judgment of a court of
competent jurisdiction.  The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative
Agent by the Borrowers, a Lender or the L/C Issuer.


 


No Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to
such Agent.


 


9.04         Reliance
by Agents.  The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan, or
the 


 


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issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or an L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or such L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such
Lender or such L/C Issuer prior to the making of such Loan or the issuance of
such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.


 


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


 


9.06         Resignation
of Agents.  Any Agent
may at any time, or upon the request of Holdings shall, give notice of its
resignation to the Lenders, the L/C Issuers and the Borrowers effective upon
appointment of a successor Agent.  Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrowers, to appoint a successor Agent from
among the Lenders, which shall be a bank with an office in the United States,
or an Affiliate of any such bank, which, in the case of a resignation of the
Agent other than upon the request of Holdings, shall, unless an Event of
Default under Section 8.01(a) or (f) shall have occurred and be
continuing, be subject to the approval of the Borrowers.  If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may on behalf of the Lenders, and the L/C Issuers (and the
Borrowers (not to be unreasonably withheld or delayed), in the case of a
resignation other than at the request of Holdings, unless an Event of Default
under Section 8.01(a) or (f) shall have occurred and be
continuing) appoint a successor Agent meeting the qualifications set forth
above; provided that if the retiring Agent shall notify the Borrowers
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the
case of any Collateral held by the Administrative Agent on behalf of the
Lenders or the L/C Issuers under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such Collateral until such time as
a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through such
Agent shall instead be made by or to each applicable Lender and each applicable
L/C Issuer directly, until such time as the Required Lenders appoint a
successor Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Agent, and the retiring Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by the Borrowers to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrowers and such successor.  After the retiring Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and
Section 10.04 shall continue in effect for the benefit of such retiring
Agent, its sub agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring Agent
was acting as Agent.


 


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Any resignation by Royal
Bank of Canada as the Administrative Agent pursuant to this Section shall
also constitute its resignation as US L/C Issuer, US Swing Line Lender,
Canadian L/C Issuer and Canadian Swing Line Lender.  Upon the acceptance of a successor’s
appointment as the Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring L/C Issuer and Swing Line Lender, (b) the
retiring L/C Issuer and Swing Line Lender shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the US
Letters of Credit or Canadian Letters of Credit, as the case may be, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of the retiring L/C Issuer with respect to such Letters of Credit.


 


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


 


9.08         No
Other Duties, Etc.  Anything
herein to the contrary notwithstanding, neither the Arrangers, the Sole Book
Manager, the Co-Syndication Agents nor the Co-Documentation Agents listed on
the cover page hereof shall have any powers, duties, liabilities or
responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
an L/C Issuer hereunder.


 


9.09         Administrative
Agent May File Proofs of Claim.  In case of the pendency of any Insolvency
Proceeding relative to any Loan Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether such Agent shall have made any demand on any Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise:


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, the L/C Issuers and
the Agents (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuers and the Agents and
their respective agents and counsel and all other amounts due the Lenders, the
L/C Issuers and the Agents under Sections 2.09 and 10.04) allowed in such
judicial proceeding; and


 


(b)           to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender and each L/C
Issuer to make such payments to such Agent and, in the event that such Agent
shall consent to the making of such payments directly to the Lenders and the
L/C Issuers, to pay to such Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of such Agent and its agents
and counsel, and any other amounts due such Agent under Sections 2.09 and
10.04.


 


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Nothing contained herein
shall be deemed to authorize any Agent to authorize or consent to or accept or
adopt on behalf of any Lender or any L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize any Agent to vote in respect of the claim of any
Lender in any such proceeding.


 


9.10         Collateral and Guaranty Matters(a) .  The Lenders and
the L/C Issuers irrevocably authorize the Administrative Agent, at its option
and in its discretion,


 


(i)            to release any Lien on any
property granted to or held by the Administrative Agent under any Loan Document
(A) upon termination of the Aggregate Commitments and payment in full of
all Secured Obligations (other than contingent indemnification obligations) and
the expiration or termination of all Letters of Credit (other than Letters of
Credit that have been Cash Collateralized to the reasonable satisfaction of
Administrative Agent), (B) that is Disposed of as part of or in connection
with any Disposition permitted hereunder or under any other Loan Document, (C) that
is intended to secure any Fixed Asset Financing permitted hereunder or (D) subject
to Section 10.01, if approved, authorized or ratified in writing by the
Required Lenders; and


 


(ii)           to release any Guarantor
from its obligations under the applicable Guaranty if such Person ceases to be
a Subsidiary or becomes an Excluded Subsidiary as a result of a transaction
permitted hereunder.


 


Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release its interest in particular
types or items of property, or to release any Guarantor from its obligations
under the applicable Guaranty pursuant to this Section 9.10(a).


 


(b)           In
connection with any release of any Lien or any Guarantor pursuant to this Section 9.10,
the Administrative Agent shall execute and deliver all such documents and
instruments as the applicable Loan Party shall reasonably request to evidence
such release.


 


9.11         Enforcement Actions and
Application of Proceeds.


 


(a)           The
Obligations shall be subject to acceleration as provided in Section 8.02.


 


(b)           If
any Agent receives any payment or distribution of any kind (whether in cash,
securities or other property) in respect of any Enforcement Action concerning
the Collateral, such Agent shall apply such proceeds as follows:


 


(i)            first, to the
repayment of all costs and expenses, including reasonable attorneys’ fees and
legal expenses, incurred by the Agents in connection with (A) the
administration of the Security Documents, (B) the custody, preservation,
use or operation of, or the sale of, collection from, or other realization
upon, any Collateral, (C) the exercise or enforcement of any of the rights
of the Agents hereunder or under the Security Documents, or (D) the
failure of any Loan Party to perform or observe any of the provisions of the
Security Documents;


 


(ii)           second, to the
payment or other satisfaction of any Liens, encumbrances, or adverse claims
upon or against any of the Collateral that are prior to those of such Agent or
which such Agent is otherwise required to pay under applicable Law;


 


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(iii)          third, to the
reimbursement of any Agent for the amount of any obligations of any Loan Party
that are prior to those of such Agent or which such Agent is otherwise required
to pay under applicable law and are paid or discharged by such Agent (other
than amounts for principal and interest under the US Revolver Loans and the
Canadian Revolver Loans) pursuant to the provisions hereof or of the Security
Documents, and of any related expenses of such Agent payable by any Loan Party
hereunder or thereunder;


 


(iv)          fourth, on a pro rata
basis, to the satisfaction of (A) the US Revolver Obligations (and, in
respect of amounts in respect of US Revolver Loans, US Swing Line Loans and US
L/C Obligations, first to repay the US Revolver Loans, the US Swing Line Loans
and the applicable Unreimbursed Amounts (ratably based upon the amount of such
Obligations) and then to Cash Collateralize that portion of US L/C Obligations
comprised of the undrawn amount of US Letters of Credit), and (B) the
Canadian Revolver Obligations (and, in respect of amounts in respect of
Canadian Revolver Advances, Canadian Swing Line Loans and Canadian L/C
Obligations, first to repay the Canadian Revolver Loans, the Canadian Swing
Line Loans and the applicable Unreimbursed Amounts (ratably based upon the
amount of such Obligations) and then ratably to Cash Collateralize (x) that
portion of Canadian L/C Obligations comprised of the undrawn amount of Canadian
Letters of Credit and (y) BAs);


 


(v)           fifth, to the
satisfaction of any other Obligations not included in clause (iv) above,
which payment shall be made ratably to each Lender in accordance with its pro
rata share of such Obligations;


 


(vi)          sixth, to the
satisfaction of the Secured Cash Management Obligations in an amount not to
exceed $10,000,000 on a pro rata basis;


 


(vii)         seventh, to the
payment of any other amounts required by applicable Law (including any
provision of the UCC or the PPSA);


 


(viii)        eighth, by delivery
to Borrowers or to whomever shall be lawfully entitled to receive the same or
as a court of competent jurisdiction shall direct; and


 


(ix)           ninth, to the
satisfaction of any remaining Secured Cash Management Obligations.


 


Subject to Section 2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit and BAs, as applicable, pursuant to clause (iv) above shall be
applied to satisfy drawings under such Letters of Credit as they occur and to
satisfy such BAs as they mature, as applicable. 
If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired and all BAs have matured, such
remaining amount shall be applied in the order set forth above.


 


9.12         Field Audit and
Examination Reports; Disclaimer by Lenders. 
By signing this Agreement,
each Lender:


 


(a)           is deemed to have requested that the Administrative
Agent furnish such Lender, promptly after it becomes available, a copy of each
field audit or examination report (each a “Report” and collectively, “Reports”)
prepared by or on behalf of the Administrative Agent;


 


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(b)           expressly agrees and acknowledges that the
Administrative Agent does not (i) make any representation or warranty as
to the accuracy of any Report or (ii) shall not be liable for any
information contained in any Report;


 


(c)           expressly agrees and acknowledges that the Reports
are not comprehensive audits or examinations, that the Administrative Agent or
other party performing any audit or examination will inspect only specific
information regarding the relevant Loan Party and will rely significantly upon
the relevant Loan Party’s books and records, as well as on representations of
the relevant Loan Party’s personnel;


 


(d)           agrees to keep all Reports confidential and strictly
for its internal use, and not to distribute except to its participants or use
any Report in any other manner (other than as may be permitted by Section 10.06(h));
and


 


(e)           without limiting the generality of any other
indemnification provision contained in this Agreement, agrees: (i) to hold
the Administrative Agent and any such other Lender preparing a Report harmless
from any action the indemnifying Lender may take or conclusion the indemnifying
Lender may reach or draw from any Report in connection with any loans or other
credit accommodations that the indemnifying Lender has made or may make to
Borrower or the indemnifying Lender’s participation in or the indemnifying
Lender’s purchase of, a loan or loans of Borrower; and (ii) to pay and
protect, and indemnify, defend and hold the Administrative Agent and any such
other Lender preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses and other amounts (including reasonable
fees, charges and disbursements of counsel) incurred by the Administrative
Agent and any such other Lender preparing a Report as the direct or indirect
result of any third parties who might obtain all or part of any Report through
the indemnifying Lender.


 


9.13         Post Closing Field Audit(a)
..


 


The
Administrative Agent shall use its commercially reasonable efforts to ensure that
the field audit or examination pending as of the date hereof shall be completed
no later than 45 days following the Closing Date.


 


ARTICLE X.

MISCELLANEOUS


 


10.01       Amendments,
Etc.  Subject to Section 2.15,
no amendment or waiver of any provision of this Agreement or any other Loan
Document (except as provided therein), and no consent to any departure by any
Borrower or any other Loan Party therefrom (except as provided therein), shall
be effective unless in writing and signed by the Required Lenders and such
Borrower or the applicable Loan Party, as the case may be, and acknowledged by
the Administrative Agent and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided
that:


 


(a)           no
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders, do any of the following at any time:


 


(i)            release all or substantially
all of the value of any Guaranty, except as a result of any release of a
Guarantor that has ceased to be a Subsidiary of Holdings or any Borrower or has
become an Excluded Subsidiary in a transaction permitted under this Agreement;


 


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(ii)           release all or substantially
all of the Collateral in any transaction or series of related transactions; or


 


(iii)          change any provision of this
Section and the definition of “Required Lenders” or “US Revolver
Supermajority Lenders” or “Canadian Revolver Supermajority Lenders”
or any provision of the Loan Documents which provides for the unanimous consent
or approval of all the Lenders; or


 


(b)           no
amendment, waiver or consent shall increase the US Revolver Commitment or the
Canadian Revolver Commitment of any Lender (or reinstate the commitment of any
Lender terminated pursuant to Section 8.02), unless in writing and signed
by such Lender;


 


(c)           no
amendment, waiver or consent shall, unless in writing and signed by each of the
US Revolver Lenders (without the necessity of the signatures of the Required
Lenders):


 


(i)            reduce, forgive or waive the
principal of, or interest on, the US Revolver Loans or any fees or other
amounts payable hereunder to the US Revolver Lenders;


 


(ii)           postpone, waive or otherwise
defer any date scheduled for any payment of principal of or interest on the US
Revolver Loans or any fees or other amounts payable to the US Revolver Lenders;


 


(iii)          change the order of
application of any payment set forth in Section 9.11 in any manner that
materially affects the US Revolver Lenders; or


 


(iv)          change any provision of this
clause (c) or the definition of “US Revolver Required Lenders” or any
other provision of the Loan Documents which provides for the unanimous consent
or approval of the US Revolver Lenders;


 


(d)           no
amendment, waiver or consent shall, unless in writing and signed by each of the
Canadian Revolver Lenders (without the necessity of the signatures of the
Required Lenders):


 


(i)            reduce, forgive or waive the
principal of, or interest on, the Canadian Revolver Loans or any fees or other
amounts payable hereunder to Canadian Revolver Lenders;


 


(ii)           postpone, waive or otherwise
defer any date scheduled for any payment of principal of or interest on the
Canadian Revolver Loans or any fees or other amounts payable to the Canadian
Revolver Lenders;


 


(iii)          change the order of
application of any payment set forth in Section 9.11 in any manner that
materially affects the Canadian Revolver Lenders; or


 


(iv)          change any provision of this
clause (d) or the definition of “Canadian Revolver Required Lenders”
or any other provision of the Loan Documents which provides for the unanimous
consent or approval of the Canadian Revolver Lenders;


 


(e)           other
than by operation of Section 2.22 or 2.23, no amendment, waiver or consent
shall, unless in writing and signed by the US Revolver Supermajority Lenders
change the definition of “US Revolver Maximum Available Amount” or “US
Borrowing Base” or any component definition of any such terms if, as a result
thereof, the amounts available to be borrowed by the Borrower 


 


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would
be increased, provided that the foregoing shall not limit the Permitted
Discretion of the Administrative Agent to change, establish or eliminate any
Reserves pursuant hereto; and


 


(f)            other
than by operation of Section 2.22 or 2.23, no amendment, waiver or consent
shall, unless in writing and signed by the Canadian Revolver Supermajority
Lenders change the definition of “Canadian Revolver Maximum Available Amount”
or “Canadian Borrowing Base” or any component definition of any such terms if,
as a result thereof, the amounts available to be borrowed by the Borrower would
be increased, provided that the foregoing shall not limit the Permitted
Discretion of the Administrative Agent to change, establish or eliminate any
Reserves pursuant hereto;


 


provided, further,
that (i) no amendment, waiver or consent shall, unless in writing and
signed by the Applicable L/C Issuer in addition to the Lenders required above,
affect the rights or duties of such L/C Issuer under this Agreement or any
Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Applicable Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of such Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) any Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties
thereto.  Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the written
consent of such Lender.


 


Notwithstanding
anything to the contrary contained in Section 10.01, if within
thirty (30) days following the Closing Date, the Administrative Agent and the
Borrowers shall have jointly identified an obvious error or any error or
omission of a technical or immaterial nature, in each case, in any provision of
the Loan Documents, then the Administrative Agent and the Borrowers shall be
permitted to amend such provision and such amendment shall become effective
without any further action or consent of any other party to any Loan Document
if the same is not objected to in writing by the Required Lenders within five (5) Business
Days following receipt of notice thereof.


 


10.02       Notices; Effectiveness;
Electronic Communication.


 


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


 


(i)            if to Holdings, any Borrower,
any other Loan Party, any Agent, any L/C Issuer or any Swing Line Lender, to
the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and


 


(ii)           if to any other Lender, to
the address, telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.


 


Notices sent by hand or
overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by telecopier shall be
deemed to have been given when successfully transmitted or receipt acknowledged
by the recipient’s telecopier (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening 


 


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of business on the next
business day for the recipient).  Notices
delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such
subsection (b).


 


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


 


Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to
an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.


 


(c)           The
Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to Holdings, any Borrower, any other
Loan Party, any Lender, any L/C Issuer or any other Person for losses, claims,
damages, liabilities of any kind (whether in tort, contract or otherwise)
arising out of any Borrower’s, any other Loan Party’s or any Agent’s
transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party; provided
that in no event shall any Agent Party have any liability to Holdings, any
Borrower, any other Loan Party, any Lender, any L/C Issuer or any other Person
for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).


 


(d)           Effectiveness
of Facsimile Documents and Signatures.  Loan Documents may be transmitted and/or
signed by facsimile.  The effectiveness
of any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Agents, the L/C Issuers and the Lenders.  The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually-signed
original thereof; provided that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.


 


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(e)           Change
of Address, Etc.  Holdings, the Borrowers, the Agents, the L/C
Issuers and the Swing Line Lenders may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to
the other parties hereto.  Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to Holdings, the Borrowers, the
Agents, the L/C Issuers and the Swing Line Lenders.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that such Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.


 


(f)            Reliance
by Agents, L/C Issuers and Lenders.  The Agents, the L/C Issuers and the Lenders
shall be entitled to rely and act upon any notices (including telephonic Loan
Notices and Swing Line Loan Notices) purportedly given by or on behalf of any
Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof.  Each Borrower shall indemnify the
Administrative Agent, each L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
any Borrower, except to the extent such losses, costs, expenses and liabilities
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such indemnified party.  All telephonic
notices to and other telephonic communications with any Agent may be recorded
by such Agent, and each of the parties hereto hereby consents to such
recording.


 


10.03       No
Waiver; Cumulative Remedies.  No failure by any Lender, any L/C Issuer or
any Agent to exercise, and no delay by any such Person in exercising, any
right, remedy, power or privilege hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder or under any other Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. 
The rights, remedies, powers and privileges herein provided and provided
under each other Loan Document are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


10.04       Expenses; Indemnity; Waivers.


 


(a)           Costs
and Expenses.  The Borrowers shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of
Shearman & Sterling LLP, Blake, Cassels & Graydon LLP) in
connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by each L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by
the Administrative Agent, any Lender or any L/C Issuer (including the fees,
charges and disbursements of any counsel for such Agent, such Lender or such
L/C Issuer) in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.


 


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(b)           Indemnification
by the Borrowers.  Each Borrower shall indemnify each Agent (and
any sub-agent thereof), each Arranger, each Co-Documentation Agent, each Lender
and each L/C Issuer, and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee) incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by any Borrower or any other Loan Party
arising out of, in connection with, as a result of or in any other way
associated with any litigation, proceeding or investigation in connection with (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement
or instrument contemplated hereby or thereby, and the performance by the
parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the
case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by any L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any property owned or operated by any Loan
Party, or any Environmental Liability related in any way to any Loan Party, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by any Borrower or any other Loan Party,
and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence, bad faith or willful
misconduct or material breach in bad faith of such Indemnitee or (y) result
from a claim brought by any Borrower or any other Loan Party against an
Indemnitee for material breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if such Borrower or such Loan Party
has obtained a final and non-appealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.


 


(c)           Reimbursement
by Lenders.  To the extent that any Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to any Agent (or any sub-agent
thereof), any L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to such Agent (or any such sub-agent) or any
such Related Party thereof (but without affecting such Borrower’s payment
obligations with respect thereto), and each Revolver Lender severally agrees to
pay to such L/C Issuer or any such Related Party thereof, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against such Agent (or any such sub-agent) or such L/C Issuer in
its capacity as such, or against such Related Party acting for any Agent (or
any such sub-agent) or any L/C Issuer in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).


 


(d)           Waiver
of Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, no Borrower shall assert, and each Borrower hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended 


 


134

















 


recipients
of any information or other materials distributed to such unintended recipients
by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


(e)           Payments.  All amounts due
under this Section shall be payable not later than ten Business Days after
demand therefor.


 


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


 


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


 


(h)           Survival.  The agreements in
this Section shall survive the resignation of any Agent, any L/C Issuer
and any Swing Line Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


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


 


10.06       Successors and Assigns.


 


(a)           Successors
and Assigns Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender, and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, 


 


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shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the L/C Issuers
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


(b)           Assignments
by Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(i)            Minimum Amounts.


 


(A)          in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitment under any
Facility and the Loans at the time owing to it under such Facility or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved
Fund, no minimum amount need be assigned; and


 


(B)           in any case not described in
subsection (b)(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if the Commitment is not then in effect, the principal outstanding balance of
the Loans of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000, in the case of any assignment in respect of the US Revolver
Facility or the Canadian Revolver Facility, unless each of the Administrative
Agent and, so long as no Event of Default under Sections 8.01(a) or 8.01(f) has
occurred and is continuing, the applicable Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); provided that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;


 


(ii)           Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not (A) apply to
the US Swing Line Lender’s rights and obligations in respect of US Swing Line
Loans, or (B) apply to the Canadian Swing Line Lender’s rights and
obligations in respect of Canadian Swing Line Loans. Notwithstanding
anything in this Agreement to the contrary, no Lender shall be permitted to
assign (x) all or any portion of its Canadian Revolver Commitment or
outstanding Canadian Revolver Loans without assigning the same pro rata portion
of its US Revolver Commitment or outstanding US Revolver Loans, or (y) all
or any portion of its US Revolver Commitment or outstanding US Revolver Loans
without assigning the same pro rata portion of its Canadian Revolver Commitment
or outstanding Canadian Revolver Loans;


 


(iii)          Required Consents.  No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:


 


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(A)          the consent of the
applicable Borrower (such consent not to be unreasonably withheld or delayed)
shall be required unless (1) an Event of Default under Sections 8.01(a) or
8.01(f) has occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;


 


(B)           the consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed)
shall be required for assignments in respect of any Commitment if such
assignment is to a Person that is not a Lender with a Commitment in respect of
the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect
to such Lender;


 


(C)           the consent of the US L/C
Issuer (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more US Letters of Credit (whether or not
then outstanding);


 


(D)          the consent of the Canadian
L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more Canadian Letters of Credit (whether
or not then outstanding);


 


(E)           the consent of the US Swing
Line Lender (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment in respect of the US Revolver Facility; and


 


(F)           the consent of the Canadian
Swing Line Lender (such consent not to be unreasonably withheld or delayed)
shall be required for any assignment in respect of the Canadian Revolver
Facility.


 


(iv)          Assignment and Assumption.  The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500.00 for each
assignment; provided that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of
any assignment. The assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.


 


(v)           Assignments in Respect of
the Canadian Revolver Facility.  Unless an Event of Default has occurred and
is continuing at the time of such assignment, no assignment by a Canadian
Revolver Lender of any of its rights and obligations in respect of the Canadian
Revolver Facility shall be made to any Person that, immediately after giving
effect to such assignment, would not deal at arms length (within the meaning of
the Income Tax Act (Canada)) with any Person making a payment hereunder.


 


(vi)          No Assignment to Borrowers.  No such assignment shall be made to any
Borrower or any of such Borrower’s Subsidiaries or Affiliates; provided
that assignments may be made to Affiliates of the Permitted Investors (other
than the Borrowers and their respective Subsidiaries) as long as (1) no
Default or Event of Default has occurred or is continuing or would result
therefrom; (2) no Revolver Loan or Commitment may be assigned to such  Affiliates of the Permitted Investors
pursuant to this Section if after giving effect to such assignment, such
Affiliates of the Permitted Investors would own in the aggregate in excess of
10% of all Revolver Loans and Commitments then outstanding; and (3) 


 


137

















 


notwithstanding anything to the contrary in
this Agreement, no such Affiliate shall have any right to (x) attend
(including by telephone) any meeting or discussions (or portion thereof) among
the Administrative Agent or any Lender to which representatives of the Loan
Parties are not invited, and (y) receive any information or material
prepared by Administrative Agent or any Lender or any communication by or among
the Administrative Agent and/or one or more Lenders, except to the extent such
information or materials have been made available to any Loan Party or its
representatives or (z) make or bring (or participate in, other than as a
passive participant in or recipient of its pro rata benefits of) any claim, in
its capacity as a Lender, against the Administrative Agent, the Collateral
Agent or any other Lender with respect to any duties or obligations or alleged
duties or obligations of such Agent or any other such Lender under the Loan
Documents.  Notwithstanding anything
contained herein to the contrary, any debt fund Controlled by The Carlyle Group
(other than any such debt fund directly or indirectly Controlled by Riverstone
Holdings LLC) shall not be considered an Affiliate of the Borrower for purposes
of this Section 10.06(b)(vi).


 


(vii)         No Assignment to Natural
Persons.  No such assignment shall be
made to a natural person.


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment.  Upon request, the US Borrower or the Canadian
Borrower, as applicable, (at its expense) shall execute and deliver a Note to
the assignee Lender with respect to the assigned interest and a replacement
Note to the assigning Lender to the extent of the interest, if any, retained by
such assigning Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


Notwithstanding anything in
this Section 10.06(b)(vi) or the definition of “Required Lenders” or “Supermajority
Lenders” to the contrary, for purposes of determining whether the Required
Lenders or Supermajority Lenders have (i) consented (or not consented) to
any amendment, modification, waiver, consent or other action with respect to
any of the terms of any Loan Document or any departure by any Loan Party
therefrom, (ii) otherwise acted on any matter related to any Loan
Document, or (iii) directed or required the Administrative Agent,
Collateral Agent or any Lender to undertake any action (or refrain from taking
any action) with respect to or under any Credit Document, all Revolver Loans
held by any Affiliate of a Permitted Investor shall be deemed to be not outstanding
for all purposes of calculating whether the Required Lenders or the
Supermajority Lenders have taken any actions.


 


(c)           Register.  The Administrative
Agent, acting solely for this purpose as an agent of each Borrower, shall
maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). 
Upon receipt of an Assignment and Assumption executed and delivered in
accordance with this Section 10.06, the Administrative Agent shall record
such Assignment and Assumption in the Register. The entries in the Register
shall be conclusive,


 


138














 


and
the Borrowers, the Agents and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by each of the Borrowers and the Lenders at any reasonable time and
from time to time upon reasonable prior notice.


 


(d)           Participations.  Any Lender may at
any time, without the consent of, or notice to, the Borrowers or the Agents,
sell participations to any Person (other than a natural person or any Borrower
or any of any Borrower’s Affiliates or Subsidiaries; provided that
participations may be sold to Affiliates of the Permitted Investors (other than
the Borrowers and their respective Subsidiaries)) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Agents, the Lenders and the L/C
Issuers shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification described in clause (a)(ii), (a)(iii), (c)(i), (c)(ii),
(d)(i), (d)(ii), (e) or (f) in each case contained in the first
proviso to Section 10.01, that affects such Participant.  Subject to subsection (e) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were
a Lender (including, for the avoidance of doubt with respect to Section 3.01
compliance with Section 3.01(e) as though such Participant was a
Lender)  and
had acquired its interest by assignment pursuant to subsection (b) of
this Section.  To the extent permitted by
Law, each Participant also shall be entitled to the benefits of Section 10.07
as though it were a Lender, provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.


 


(e)           Limitations
upon Participant Rights.  A Participant shall not be entitled to receive
any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive as of the date of the sale with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with any Borrower’s prior written
consent.


 


(f)            Certain
Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


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


 


(h)           Treatment
of Certain Information; Confidentiality.  Each of the Agents, the Lenders and the L/C
Issuers agrees to maintain the confidentiality of the Information (as defined
below), 


 


139

















 


except
that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, trustees, officers, employees,
agents, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to
the extent requested by any Governmental Authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to any securitization, swap or derivative transaction relating to any Borrower
and its obligations, (g) with the consent of the Borrowers or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to any
Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrowers.


 


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


 


Each of the Agents, the
Lenders and the L/C Issuers acknowledges that (a) the Information may
include material non-public information concerning any Borrower or any
Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will
handle such material non-public information in accordance with applicable Law,
including federal, state and provincial securities Laws.


 


10.07       Right
of Set-off.  If an Event
of Default shall have occurred and be continuing, each Lender, each L/C Issuer
and each of their respective Affiliates is hereby authorized at any time and
from time to time, after obtaining the prior written consent of the
Administrative Agent, to the fullest extent permitted by applicable Law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender and such
L/C Issuer to or for the credit or the account of any Borrower or any other
Loan Party against any and all of the obligations of such Borrower or such Loan
Party now or hereafter existing under this Agreement or any other Loan Document
to such Lender or such L/C Issuer, irrespective of whether or not such Lender
or such L/C Issuer shall have made any demand under this Agreement or any other
Loan Document and although such obligations of such Borrower or such Loan Party
may be contingent or unmatured or are owed to a branch or office of such
Lender, such L/C Issuer or any such Affiliate different from the branch or
office holding such deposit or obligated on such indebtedness.  The rights of each Lender, each L/C Issuer or
their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of set-off) that such Lender and
such L/C Issuer may have.  Each Lender,
each L/C Issuer or their respective Affiliates agrees to notify the applicable
Borrower and the Administrative Agent promptly after any such set-off and
application, provided that the failure to give such notice shall not
affect the validity of such set-off and application.


 


140

















 


10.08       Interest
Rate Limitation. 
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law
(the “Maximum Rate”).  If any
Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the
Loans or, if it exceeds such unpaid principal, refunded to the applicable
Borrower.  In determining whether the
interest contracted for, charged, or received by an Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


10.09       Counterparts;
Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. 
This Agreement and the other Loan Documents constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof.  This
Agreement shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties
hereto.  Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.


 


10.10       Survival
of Representations and Warranties.  All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. 
Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by any Agent or any Lender or on their behalf and notwithstanding that any
Agent or any Lender may have had notice or knowledge of any Default at the time
of any Credit Extension, and shall continue in full force and effect as long as
any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.


 


10.11       Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions.  The
invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


10.12       Replacement
of Lenders.  If any
Lender requests compensation under Section 3.04, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender is a Defaulting Lender or if any Lender has refused to consent to
any waiver or amendment with respect to any Loan Document that requires such
Lender’s consent and has been consented to by the Required Lenders, then the
Borrowers may, in addition to their rights under Section 2.06(c), at their
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:


 


141

















 


(a)           the
Borrowers shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);


 


(b)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrowers (in the case of all other amounts);


 


(c)           in
the case of any such assignment resulting from a claim for compensation under Section 3.04
or payments required to be made pursuant to Section 3.01, such assignment
will result in a reduction in such compensation or payments thereafter; and


 


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


 


A Lender shall not be
required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling any
Borrower to require such assignment and delegation cease to apply.


 


10.13       Governing Law; Jurisdiction; Etc.


 


(a)           Governing
Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)           Submission
to Jurisdiction.  Each Borrower and each other Loan Party
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the courts of the State of New York sitting in New
York County and of the United States District Court of the Southern District of
New York sitting in New York County, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State court or, to the fullest extent permitted by applicable
law, in such Federal court.  Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.  Nothing in this Agreement or in any other
Loan Document shall affect any right that any Agent, any Lender or any L/C
Issuer may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Borrower or any other Loan
Party or its properties in the courts of any jurisdiction.


 


(c)           Waiver
of Venue.  Each Borrower and each other Loan Party
irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying
of venue of any action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in
paragraph (b) of this Section. 
Each of the parties hereto hereby agrees that Sections 5-1401 and
5-1402 of the General Obligations Law of the State of New York shall apply to
the Loan Documents and irrevocably waives, to the fullest extent permitted by
applicable Law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.


 


(d)           Service
of Process.  Each Borrower and each other Loan Party
consents to process being served in any action or proceeding of the nature
referred to in paragraph (b) of this Section by mailing a copy
thereof by registered or certified mail to such Borrower or such other Loan 


 


142

















 


Party
at its address set forth in Section 10.02 or, in the case of each Canadian
Loan Party, at its registered office. 
Each Borrower and each other Loan Party agrees that such service of
process (i) shall be deemed in every respect effective and binding service
of process upon such Borrower or such other Loan Party, as the case may be, in
any such action or proceeding and (ii) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon and
personal delivery to such Borrower or such other Loan Party, as the case may
be.  Nothing herein shall affect the
right of any Agent, any L/C Issuer or any Lender to serve process in any other
manner permitted by law or shall limit the right of the Agents, the L/C Issuers
and the Lenders to bring proceedings against any Borrower or any other Loan
Party in the courts of any other jurisdiction.


 


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


 


10.14       No
Advisory or Fiduciary Responsibility.  In connection with all aspects of each
transaction contemplated hereby, each Borrower acknowledges and agrees, and
acknowledge their respective Affiliates’ understanding, that:  (i) the credit facilities provided for
hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document) are an arm’s-length commercial
transaction between the Borrowers and their respective Affiliates, on the one
hand, and the Agents and the Arrangers, on the other hand, and each Borrower is
capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction,
each of the Agents and the Arrangers is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for any
Borrower or any of its Affiliates, stockholders, creditors or employees or any
other Person; (iii) neither the Agents nor the Arrangers has assumed or
will assume an advisory, agency or fiduciary responsibility in favor of the
Borrowers with respect to any of the transactions contemplated hereby or the process
leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of whether any
Agent or any Arranger has advised or is currently advising any Borrower or any
of its Affiliates on other matters) and neither the Agents nor the Arrangers
has any obligation to any Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; (iv) the Agents and the Arrangers
and their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Borrowers and their
respective Affiliates, and neither the Agents nor the Arrangers has any
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) the Agents and the Arrangers have not
provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any
amendment, waiver or other modification hereof or of any other Loan Document)
and each Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate.  Each Borrower hereby waives and releases, to
the fullest extent permitted by law, any claims


 


143

















 


that
it may have against the Agents and the Arrangers with respect to any breach or
alleged breach of agency or fiduciary duty.


 


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


 


[Remainder of
Page Intentionally Left Blank]


 


144

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US, LLC,

  
	
   

  	
  as
  US Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul Amirault

  
	
   

  	
  Name:  Paul Amirault

  
	
   

  	
  Title:  Senior Vice-President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AECO
  GAS STORAGE PARTNERSHIP,

  
	
   

  	
  as
  Canadian Borrower

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  Niska
  Gas Storage ULC,

  
	
   

  	
   

  	
  its
  managing partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul Amirault

  
	
   

  	
  Name:  Paul Amirault

  
	
   

  	
  Title:  Senior Vice-President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  US
  HOLDINGS:

  
	
   

  	
   

  
	
   

  	
  NISKA
  GS HOLDINGS I, L.P.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul Amirault

  
	
   

  	
  Name:  Paul Amirault

  
	
   

  	
  Title:  Senior Vice-President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CANADA
  HOLDINGS:

  
	
   

  	
   

  
	
   

  	
  NISKA
  GS HOLDINGS II, L.P.,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul Amirault

  
	
   

  	
  Name:  Paul Amirault

  
	
   

  	
  Title:  Senior Vice-President

  
				



 


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  ROYAL
  BANK OF CANADA,

  
	
   

  	
  as
  Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yvonne Brazier

  
	
   

  	
  Name:  Yvonne Brazier

  
	
   

  	
  Title:  Manager, Agency

  



 


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  ROYAL
  BANK OF CANADA,

  
	
   

  	
  as
  US L/C Issuer and Canadian L/C Issuer 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dustin Craven

  
	
   

  	
  Name:  Dustin Craven

  
	
   

  	
  Title:  Attorney-in-Fact

  



 


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  ROYAL
  BANK OF CANADA,

  
	
   

  	
  as
  US Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sonia G. Tibbatts

  
	
   

  	
  Name:  Sonia G. Tibbatts

  
	
   

  	
  Title:  Authorized Signatory

  



 


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  ROYAL
  BANK OF CANADA,

  
	
   

  	
  as
  Canadian Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sonia G. Tibbatts

  
	
   

  	
  Name:  Sonia G. Tibbatts

  
	
   

  	
  Title:  Authorized Signatory

  



 


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  ROYAL
  BANK OF CANADA,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dustin Craven

  
	
   

  	
  Name:  Dustin Craven

  
	
   

  	
  Title:  Attorney-in-Fact

  



 


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  CITIBANK,
  N.A., CANADIAN BRANCH,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ivan Davey

  
	
   

  	
  Name:
  Ivan Davey

  
	
   

  	
  Title:
  Authorised Signer

  



 


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  BNP
  PARIBAS,

  
	
   

  	
  as
  US Revolver Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Betsy Jocher

  
	
   

  	
  Name:
  Betsy Jocher

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Juan Carlos Sandoval

  
	
   

  	
  Name:
  Juan Carlos Sandoval

  
	
   

  	
  Title:
  Vice President

  



 


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  CITIBANK,
  N.A.,

  
	
   

  	
  as
  a U.S. Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Reilly

  
	
   

  	
  Name:
  James Reilly

  
	
   

  	
  Title:
  Vice President

  



 


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  NATIXIS,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis P. Laville, III

  
	
   

  	
  Name:
  Louis P. Laville, III

  
	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel Payer

  
	
   

  	
  Name:
  Daniel Payer

  
	
   

  	
  Title:
  Director

  



 


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  U.S. BANK NATIONAL ASSOCATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Monte E. Deckerd

  
	
   

  	
  Name:
  Monte E. Deckerd

  
	
   

  	
  Title:
  Senior Vice President

  



 


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  CAISSE
  CENTRALE DESJARDINS,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Oliver Sumugod

  
	
   

  	
  Name:
  Oliver Sumugod

  
	
   

  	
  Title:
  Manager, Corporate Banking

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pierre R. Tremblay

  
	
   

  	
  Name:
  Pierre R. Tremblay

  
	
   

  	
  Title:
  Vice President, Corporate Banking

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAISSE CENTRALE DESJARDINS, US BRANCH,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michel Brouillet

  
	
   

  	
  Name:
  Michel Brouillet

  
	
   

  	
  Title:
  Vice President, Corporate Banking

  



 


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  SCOTIA CAPITAL,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D.G. Mills

  
	
   

  	
  Name:
  D.G. Mills

  
	
   

  	
  Title:
  Managing Director

  



 


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  MORGAN STANLEY BANK, N.A.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ryan Vetsch

  
	
   

  	
  Name:
  Ryan Vetsch

  
	
   

  	
  Title:
  Authorized Signatory

  



 


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  SUMITOMO MITSUI BANKING
  CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Masakazu Hasegawa

  
	
   

  	
  Name:
  Masakazu Hasegawa

  
	
   

  	
  Title:
  General Manager

  



 


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  BARCLAYS BANK PLC,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas Bell

  
	
   

  	
  Name:
  Nicholas Bell

  
	
   

  	
  Title:
  Director

  



 


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  GOLDMAN SACH LENDING PARTNERS,
  LLC,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Teri Streusand

  
	
   

  	
  Title:
  Authorized Signatory

  



 


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  CREDIT SUISSE AG, CAYMAN
  ISLANDS BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alain Daoust

  
	
   

  	
  Name:
  Alain Daoust

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Reo Day

  
	
   

  	
  Name:
  Christopher Reo Day

  
	
   

  	
  Title:
  Associate

  



 


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  CREDIT SUISSE AG, TORONTO
  BRANCH,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alain Daoust

  
	
   

  	
  Name:
  Alain Daoust

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce F. Wetherly

  
	
   

  	
  Name:
  Bruce F. Wetherly

  
	
   

  	
  Title:
  Director

  



 


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  UBS LOAN FINANCE LLC,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Irja R. Otsa

  
	
   

  	
  Name:
  Irja R. Otsa

  
	
   

  	
  Title:
  Associate Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary E. Evans

  
	
   

  	
  Name:
  Mary E. Evans

  
	
   

  	
  Title:
  Associate Director

  



 


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  U.S.
  BANK NATIONAL ASSOCIATION, CANADA BRANCH,

  
	
   

  	
  as Canadian Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Rodgers

  
	
   

  	
  Name:
  Paul Rodgers

  
	
   

  	
  Title:
  Principal Officer

  



 


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  BNP PARIBAS (CANADA),

  
	
   

  	
  as a Canadian Revolver Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Rice

  
	
   

  	
  Name:
  Chris Rice

  
	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Gosselin

  
	
   

  	
  Name:
  Michael Gosselin

  
	
   

  	
  Title:
  Managing Director

  



 


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  SUMITOMO
  MITSUI BANKING CORPORATION OF CANADA,

  
	
   

  	
  as Canadian Revolver Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Yusuke Ono

  
	
   

  	
  Name:
  Yusuke Ono

  
	
   

  	
  Title:
  Senior Vice President

  



 


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