exv10w1






Exhibit 10.1



EXECUTION VERSION




REVOLVING CREDIT AGREEMENT




Dated as of September 10, 2010



Among



EOG RESOURCES, INC.

as Borrower



and



BANK OF AMERICA, N.A.

as Administrative Agent



JPMORGAN CHASE BANK, N.A. and BARCLAYS CAPITAL

as Co-Syndication Agents



CITIBANK, N.A., SOCIÉTÉ GÉNÉRALE, U.S. BANK NATIONAL ASSOCIATION and

UBS SECURITIES LLC

as Co-Documentation Agents



and



THE BANKS NAMED HEREIN

as Banks



J.P. MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES LLC



and



BARCLAYS CAPITAL

as Joint Lead Arrangers and Bookrunners



 









 





Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	ARTICLE I
	 	 	 	 
	 	 	DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 1.1
	 	Certain Defined Terms

	 	 	1	 
	Section 1.2
	 	Computation of Time Periods

	 	 	17	 
	Section 1.3
	 	Accounting Terms

	 	 	18	 
	Section 1.4
	 	Miscellaneous

	 	 	18	 
	Section 1.5
	 	Ratings

	 	 	18	 
	 	 	 
	 	 	 	 
	 	 	ARTICLE II
	 	 	 	 
	 	 	AMOUNT AND TERMS OF THE ADVANCES
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 2.1
	 	The Advances

	 	 	18	 
	Section 2.2
	 	Making the Advances

	 	 	19	 
	Section 2.3
	 	Fees

	 	 	20	 
	Section 2.4
	 	Repayment

	 	 	20	 
	Section 2.5
	 	Interest

	 	 	20	 
	Section 2.6
	 	Additional Interest on Eurodollar Advances

	 	 	21	 
	Section 2.7
	 	Interest Rate Determination and Protection

	 	 	21	 
	Section 2.8
	 	Voluntary Conversion of Borrowings; Continuation of Eurodollar Borrowings

	 	 	23	 
	Section 2.9
	 	Letters of Credit

	 	 	23	 
	Section 2.10
	 	Prepayments

	 	 	32	 
	Section 2.11
	 	Increased Costs; Capital Adequacy, Etc

	 	 	32	 
	Section 2.12
	 	Illegality

	 	 	34	 
	Section 2.13
	 	Payments and Computations

	 	 	34	 
	Section 2.14
	 	Taxes

	 	 	35	 
	Section 2.15
	 	Sharing of Payments, Etc

	 	 	39	 
	Section 2.16
	 	Ratable Reduction or Termination of the Commitments; Canadian Allocation of
Commitments; Sterling Allocation of Commitments

	 	 	40	 
	Section 2.17
	 	Non-Ratable Reduction or Termination of Commitments

	 	 	41	 
	Section 2.18
	 	Termination; Replacement of Bank

	 	 	41	 
	Section 2.19
	 	Defaulting Banks

	 	 	43	 
	Section 2.20
	 	Commitment Increase

	 	 	47	 
	Section 2.21
	 	Extension of Termination Date

	 	 	48	 
	Section 2.22
	 	Swingline Commitment

	 	 	49	 
	Section 2.23
	 	Procedure for Swingline Borrowing; Refunding of Swingline Loans

	 	 	50	 
	 	 	 
	 	 	 	 
	 	 	ARTICLE III
	 	 	 	 
	 	 	CONDITIONS TO ADVANCES
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 3.1
	 	Initial Conditions Precedent

	 	 	51	 
	Section 3.2
	 	Additional Conditions Precedent to Each Advance and L/C Credit Extension

	 	 	52	 
	 	 	 
	 	 	 	 
	 	 	ARTICLE IV
	 	 	 	 
	 	 	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 4.1
	 	Representations and Warranties of the Borrower

	 	 	53	 
	 	 	 
	 	 	 	 
	 	 	ARTICLE V
	 	 	 	 
	 	 	COVENANTS OF THE BORROWER
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 5.1
	 	Affirmative Covenants

	 	 	55	 
	Section 5.2
	 	Negative Covenants

	 	 	59	 






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	 	 	 	 	Page
	 	 	ARTICLE VI
	 	 	 	 
	 	 	EVENTS OF DEFAULT
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 6.1
	 	Events of Default

	 	 	61	 
	 	 	 
	 	 	 	 
	 	 	ARTICLE VII
	 	 	 	 
	 	 	THE AGENTS
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 7.1
	 	Authorization of the Agents

	 	 	64	 
	Section 7.2
	 	Delegation of Duties

	 	 	65	 
	Section 7.3
	 	Liability of the Agents

	 	 	65	 
	Section 7.4
	 	Reliance by Agents

	 	 	65	 
	Section 7.5
	 	Notice of Default

	 	 	66	 
	Section 7.6
	 	Credit Decision; Disclosure of Information by the Agents

	 	 	66	 
	Section 7.7
	 	Indemnification of the Administrative Agents

	 	 	66	 
	Section 7.8
	 	The Agents in their Respective Individual Capacities

	 	 	67	 
	Section 7.9
	 	Successor Agents

	 	 	67	 
	Section 7.10
	 	The Administrative Agent May File Proofs of Claim

	 	 	68	 
	Section 7.11
	 	Other Agents; Arrangers and Managers

	 	 	69	 
	 	 	 
	 	 	 	 
	 	 	ARTICLE VIII
	 	 	 	 
	 	 	MISCELLANEOUS
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 8.1
	 	Amendments, Etc

	 	 	69	 
	Section 8.2
	 	Notices, Etc

	 	 	70	 
	Section 8.3
	 	No Waiver; Remedies

	 	 	71	 
	Section 8.4
	 	Costs and Expenses

	 	 	71	 
	Section 8.5
	 	Payments Set Aside; Right of Set-Off

	 	 	73	 
	Section 8.6
	 	Assignments and Participations

	 	 	74	 
	Section 8.7
	 	Governing Law; Entire Agreement, Integration; Jurisdiction

	 	 	78	 
	Section 8.8
	 	Interest

	 	 	78	 
	Section 8.9
	 	Captions

	 	 	79	 
	Section 8.10
	 	Confidentiality

	 	 	79	 
	Section 8.11
	 	Survival; Term; Reinstatement

	 	 	79	 
	Section 8.12
	 	Severability

	 	 	80	 
	Section 8.13
	 	Time of the Essence

	 	 	80	 
	Section 8.14
	 	Execution in Counterparts

	 	 	80	 
	Section 8.15
	 	Effectiveness; Assignment by the Borrower

	 	 	80	 
	Section 8.16
	 	Tax Forms

	 	 	80	 
	Section 8.17
	 	Waiver of Right to Trial by Jury

	 	 	82	 
	Section 8.18
	 	USA Patriot Act Notice

	 	 	82	 
	Section 8.19
	 	Calculation of Dollar Equivalent Amounts

	 	 	83	 
	Section 8.20
	 	No Fiduciary Duty

	 	 	83	 






ii









 






Appendix 1 — Terms of Canadian Borrowings and Canadian Letters of Credit




	 	 	 	 	 

	 	 	ARTICLE IA
	 	 
	 	 	DEFINITIONS
	 	 
	 	 	 
	 	 
	Section 1A.1
	 	Certain Defined Terms
	 	 Appendix 1-1
	 	 	 
	 	 
	 	 	ARTICLE IIA
	 	 
	 	 	AMOUNT AND TERMS OF THE CANADIAN ADVANCES
	 	 
	 	 	 
	 	 
	Section 2A.1
	 	The Canadian Advances

	 	Appendix 1-6
	Section 2A.2
	 	Making the Canadian Advances

	 	Appendix 1-7
	Section 2A.3
	 	Fees

	 	Appendix 1-9
	Section 2A.4
	 	Repayment

	 	Appendix 1-9
	Section 2A.5
	 	Interest

	 	Appendix 1-9
	Section 2A.6
	 	Voluntary Conversion of Borrowings

	 	Appendix 1-10
	Section 2A.7
	 	Canadian Letters of Credit

	 	Appendix 1-11
	Section 2A.8
	 	Prepayments

	 	Appendix 1-19
	Section 2A.9
	 	Payments and Computations

	 	Appendix 1-19
	Section 2A.10
	 	Canadian Allocation and Reallocation of the Commitments

	 	Appendix 1-20
	Section 2A.11
	 	Canadian Bankers’ Acceptances

	 	Appendix 1-21
	Section 2A.12
	 	Currency Fluctuations

	 	Appendix 1-25
	Section 2A.13
	 	Currency Conversion and Currency Indemnity

	 	Appendix 1-26
	 	 	 
	 	 
	 	 	ARTICLE IIIA
	 	 
	 	 	ADDITIONAL CONDITIONS TO CANADIAN ADVANCES
	 	 
	 	 	 
	 	 
	Section 3A.1
	 	Additional Initial Conditions Precedent

	 	Appendix 1-27
	Section 3A.2
	 	Additional Conditions Precedent to Each Canadian Advance and
Canadian L/C Credit Extension

	 	Appendix 1-27






Appendix 2 — Terms of Sterling Borrowings and Sterling Letters of Credit




	 	 	 	 	 

	 	 	ARTICLE IB
	 	 
	 	 	DEFINITIONS
	 	 
	 	 	 
	 	 
	Section 1B.1
	 	Certain Defined Terms 
	 	Appendix 2-1
	 	 	 
	 	 
	 	 	ARTICLE IIB
	 	 
	 	 	AMOUNT AND TERMS OF THE STERLING ADVANCES
	 	 
	 	 	 
	 	 
	Section 2B.1
	 	The Sterling Advances

	 	Appendix 2-5
	Section 2B.2
	 	Making the Sterling Advances

	 	Appendix 2-6
	Section 2B.3
	 	Fees

	 	Appendix 2-7
	Section 2B.4
	 	Repayment

	 	Appendix 2-7
	Section 2B.5
	 	Interest

	 	Appendix 2-7
	Section 2B.6
	 	Additional Interest on Sterling Advances

	 	Appendix 2-8
	Section 2B.7
	 	Interest Rate Determination and Protection

	 	Appendix 2-8
	Section 2B.8
	 	Sterling Letters of Credit

	 	Appendix 2-10
	Section 2B.9
	 	Prepayments

	 	Appendix 2-18
	Section 2B.10
	 	Payments and Computations

	 	Appendix 2-18
	Section 2B.11
	 	Sterling Allocation and Reallocation of the Commitments

	 	Appendix 2-19






iii









 






	 	 	 	 	 

	Section 2B.12
	 	Currency Fluctuations

	 	Appendix 2-19
	Section 2B.13
	 	Currency Conversion and Currency Indemnity

	 	Appendix 2-20
	 	 	ARTICLE IIIB
	 	 
	 	 	ADDITIONAL CONDITIONS TO STERLING ADVANCES
	 	 
	 	 	 
	 	 
	Section 3B.1
	 	Additional Initial Conditions Precedent

	 	Appendix 2-21
	Section 3B.2
	 	Additional Conditions Precedent to Each Sterling Advance and
Sterling L/C Credit Extension

	 	Appendix 2-21






	 	 	 

	SCHEDULES AND EXHIBITS
	 	 	 

	Domestic Facility:
	 	 	 

	Schedule I
	 	Facility Fee and Applicable Margins

	Schedule II
	 	Banks, Commitments, Pro Rata Shares and Administrative Information

	Schedule III
	 	Outstanding Letters of Credit

	Schedule IV
	 	Swingline Commitments

	 	 	 

	Exhibit A -
	 	Form of Note

	Exhibit B -
	 	Form of Notice of Borrowing

	Exhibit C -
	 	Form of Opinion of Fulbright & Jaworski LLP, Counsel to the Borrower

	Exhibit D -
	 	Form of Opinion of Senior Vice President and General Counsel of the Borrower

	Exhibit E -
	 	Form of Notice of Conversion

	Exhibit F -
	 	Terms of Negative Pledge

	Exhibit G -
	 	Form of Assignment and Assumption

	Exhibit H -
	 	Form of Notice of Commitment Increase

	 	 	 

	Canadian Facility:
	 	 

	 	 	 

	Exhibit 1-A -
	 	Form of Canadian Note

	Exhibit 1-B -
	 	Form of Canadian Notice of Borrowing

	Exhibit 1-C -
	 	Form of Opinion of Bennett Jones, LLP, Counsel to the Canadian Borrower

	Exhibit 1-D-
	 	Form of Canadian Notice of Conversion

	Exhibit 1-E-
	 	Form of Canadian Guaranty

	 	 	 

	Sterling Facility:
	 	 

	 	 	 

	Exhibit 2-A -
	 	Form of Sterling Note

	Exhibit 2-B -
	 	Form of Sterling Notice of Borrowing

	Exhibit 2-C -
	 	Form of UK Guaranty

	Exhibit 2-D -
	 	Form of Opinion of Bond Pearce LLP, Counsel to the UK Borrower








iv











 





REVOLVING CREDIT AGREEMENT




Dated as of September 10, 2010



     EOG Resources, Inc., a Delaware corporation, the Banks, Bank of America, N.A., as
Administrative Agent for the Banks, JPMorgan Chase Bank, N.A. and Barclays Capital, as
Co-Syndication Agents, and Citibank, N.A., Société Générale, U.S. Bank National Association
and UBS Securities LLC, as co-documentation agents, agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     Section 1.1 Certain Defined Terms. Unless otherwise expressly provided in this
Agreement (without regard to Appendix 1 and Appendix 2 hereto), capitalized terms used herein which
are defined in Appendix 1 or Appendix 2 hereto have the meanings therein defined. As used in this
Agreement, the following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the terms defined):



     “2007 Tax Act” has the meaning specified in the definition of the term “UK Tax Act”.



     “2010 Tax Act” has the meaning specified in the definition of the term “UK Tax Act”.



     “Adjusted Eurodollar Rate” means the Eurodollar Rate, as adjusted for statutory
reserve requirements for Eurocurrency liabilities.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under this Agreement, together with any successor thereto pursuant to Section 7.9.



     “Advance” means an advance by a Bank to the Borrower pursuant to Article II (as
divided or combined from time to time as contemplated in the definition herein of
“Borrowing”), and refers to a Base Rate Advance or a Eurodollar Advance (each of which
shall be a “Type” of Advance).



     “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. “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.



     “Agent” means any of the Administrative Agent, the Canadian Administrative Agent
and/or the UK Administrative Agent, as the context requires.



     “Agent-Related Persons” means each Agent, together with its Affiliates, and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.



     “Agreement” means this Revolving Credit Agreement, as the same may from time to time
be amended, modified, restated, or replaced from time to time, including, for the avoidance of
doubt, each Appendix hereto.



 









 





     “Alternative Currency” means each of the Canadian Dollar, Sterling, and each other
currency (other than Dollars) that may be approved hereunder.



     “AML Legislation” has the meaning given to it in Section 8.18.



     “Applicable Lending Office” means, with respect to each Bank, such Bank’s Domestic
Lending Office in the case of a Base Rate Advance and such Bank’s Eurodollar Lending Office in the
case of a Eurodollar Advance.



     “Applicable Margin” means, for each Rating Level, (i) the percentage set forth
adjacent to the respective captioned terms “Applicable Margin-Base Rate” and “Applicable
Margin-Non-Base Rate”, as each of the foregoing is set forth in Schedule I, and for any day
for each Base Rate Advance, for any Interest Period for each Eurodollar Advance, for any Sterling
Interest Period for each Sterling Advance, or with respect to any Canadian Bankers’ Acceptance
accepted by any Canadian Bank at any time, as the case may be, the percentage per annum applicable
on such day for such Base Rate Advance, or to such Interest Period for such Eurodollar Advance,
such Sterling Interest Period for such Sterling Advance or at such times with respect to such
Canadian Bankers’ Acceptance, as the case may be, as shown in Schedule I and (ii) being
based on the Rating Level, which for the purposes of determining such respective Applicable Margins
shall be the Rating Level in effect on the first day of such quarter for such Base Rate Advance,
the first day of such Interest Period or Sterling Interest Period, as applicable, or on the
corresponding day that such Canadian Bankers’ Acceptances are accepted by the Canadian Banks, as
the case may be.



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



     “Attorney Costs” means and includes all reasonable fees, expenses and disbursements of
any law firm or other external counsel.



     “Bank of America” means Bank of America, N.A., a national banking association, and any
successor thereto.



     “Bankruptcy Code” means Title 11 of the United States Code, as now or hereafter in
effect, or any successor thereto.



     “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding
or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person by a governmental
authority or instrumentality thereof, provided, further, that such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets
or permit such Person (or such governmental authority or instrumentality) to reject, repudiate,
disavow or disaffirm any contracts or agreements made by such Person.



2









 





     “Banks” means each Person a signatory to the Base Agreement, and shall include any
Person that becomes a Bank pursuant to Section 2.18, Section 2.19 or Section 8.6, in each case,
however, so long as it shall hold a Commitment.



     “Barclays” means Barclays Bank PLC and any successor thereto.



     “Barclays Capital” means Barclays Capital, the investment banking division of
Barclays, and any successor thereto.



     “Base Agreement” means the physical portion of this Agreement excluding each Joinder
to Credit Agreement and each Appendix.



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



     “Base Rate Advance” means an Advance which bears interest as provided in Section
2.5(a).



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



     “Borrower” means EOG Resources, Inc., a Delaware corporation, and any successor
thereto pursuant to Section 5.2(e).



     “Borrowing” means a borrowing hereunder consisting of Advances of the same Type made
on the same day by the Banks pursuant hereto and, in the case of Eurodollar Advances, having the
same Interest Period; provided that (a) all Base Rate Advances outstanding at any time
shall thereafter be deemed to be one Borrowing, and (b) subject to the limitations in Section 2.2
as to the number of permitted Interest Periods and subject to the provisions of Sections 2.7,
2.8(c) and 2.12 on the last day of an Interest Period for a Borrowing comprised of Eurodollar
Advances, such Borrowing may be divided ratably to form multiple Borrowings comprised of Eurodollar
Advances (with the result that each Bank’s Advance as a part of each such multiple Borrowing is
proportionately the same as its Advance as a part of such divided Borrowing) or combined with all
or a ratable portion of the Base Rate Advances or all or a ratable portion of one or more other
Borrowings, the Interest Period for which also ends on such day, to form a new Borrowing comprised
of Eurodollar Advances, such division or combination to be made by notice from the Borrower given
to the Administrative Agent not later than 11:00 A.M. on the third Business Day prior to the
proposed division or combination specifying the date of such division or combination (which shall
be a Business Day) and all other relevant information (such as the Borrowings to be divided or
combined, the respective amounts of the Borrowings resulting from any such division, the relevant
Interest Periods, the amount of the Base Rate Advances or other Borrowings to be so combined and
such other information as the Administrative Agent may request), but in no event shall any
Borrowing resulting from, or remaining after, any such



3









 




division or combination be less than $5,000,000, and in all cases each Bank’s Advance as a part of each such combined, resultant or
remaining Borrowing shall be proportionately the same as its Advances as a part of the relevant
Borrowings prior to such division or combination and each combined, resultant or remaining Borrowing shall be in an integral multiple of $1,000,000.
Each Borrowing comprised of a Type of Advance shall be that “Type” of Borrowing.




     “Business Day” means (a) any day of the year except Saturday, Sunday and any day on
which banks are required or authorized to close in Houston, Texas, New York, New York, or the state
in which the Payment Office is located, and (b) if the applicable Business Day relates to any
Eurodollar Advances, any day which is a “Business Day” described in clause (a) and which is also a
day for trading by and between banks in the applicable interbank Eurodollar market.



     “Cash Collateralize” has the meaning specified in Section 2.9(g).



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended from time to time, set forth at 42 U.S.C. §§9601 et seq (1988), state and
local analogs and all rules and regulations promulgated thereunder, in each case as now or
hereafter in effect.



     “Change of Control” means any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group
shall be deemed to have “beneficial ownership” of all securities that such person or group has the
right to acquire (such right, an “option right”), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 30% or more of the
equity securities of the Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all
such securities that such person or group has the right to acquire pursuant to any option right).



     “CI Bank” has the meaning specified in Section 2.20(a).



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the
Treasury regulations promulgated thereunder, or any successor Federal tax code or regulations, and
any reference to any statutory provision of the Code shall be deemed to be a reference to any
successor provision or provisions.



     “Commitment” means, as to each Bank, its obligation to (a) make Advances to the
Borrower pursuant to Section 2.1, (b) purchase participations in L/C Obligations pursuant to
Section 2.9(c) and (c) make Refunded Swingline Loans and purchase participations in Swingline Loans
pursuant to Section 2.22, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Bank’s name on Schedule II (including after any revision
thereof under Section 2.20(e)) or in the Assignment and Assumption pursuant to which such Bank
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement; provided, that:




     (a) during a Canadian Allocation Period, the Commitment of any Bank that is, or has a
branch or Affiliate that is, a Canadian Bank shall be reduced by the Canadian Commitment of
such Canadian Bank; and



4









 






     (b) during a Sterling Allocation Period, the Commitment of any Bank that is, or has a
branch or Affiliate that is, a UK Bank shall be reduced by the Sterling Commitment of such
UK Bank.



     “Commitment Increase” has the meaning specified in Section 2.20(a).



     “Commitment Increase Effective Date” has the meaning specified in Section 2.20(b).



     “Consenting Banks” has the meaning specified in Section 2.21(b).



     “Consolidated” refers to the consolidation of the accounts of the Borrower and its
Subsidiaries in accordance with GAAP.



     “Consolidated Net Worth” means at any date the Consolidated stockholders’ equity of
the Borrower and its Consolidated Subsidiaries.



     “Convert”, “Conversion” and “Converted” each refers to a conversion of
Advances or a Borrowing of one Type into Advances or a Borrowing, as the case may be, of another
Type pursuant to Section 2.7, Section 2.8(a) or Section 2.11(b).



     “Credit Exposure” as applied to each Bank shall mean (i) at any time prior to the
termination of the Commitments, the Pro Rata Share of such Bank of the Total Committed Amount
multiplied by the Total Committed Amount and (ii) at any time after the termination, in whole, of
the Commitments, the principal balance of the outstanding Advances, the Swingline Exposure and
participation interest in L/C Obligations of such Bank.



     “Debt” of any Person means, at any date, without duplication, (a) obligations for the
repayment of money borrowed which (i) are evidenced by bonds, notes, debentures, loan agreements,
credit agreements or similar instruments or agreements and (ii) are or should be shown on a balance
sheet as debt in accordance with GAAP, (b) obligations as lessee under leases which, in accordance
with GAAP, are capital leases (and monetary obligations under so-called synthetic or off-balance
sheet leases), (c) all obligations of such Person to deliver commodities, goods or services,
including hydrocarbons, in consideration of one or more advance payments, other than gas balancing
arrangements, take or pay arrangements or other similar arrangements in each case in the ordinary
course of business, (d) the undischarged balance of any production payment created by such Person
or for the creation of which such Person directly or indirectly received payment, and (e)
guaranties of payment or collection of any obligations described in clauses (a) through (d) of
other Persons, provided, that clauses (a) through (d) include, in the case of obligations
of the Borrower or any Subsidiary, only such obligations as are or should be shown as debt,
deferred revenues (in the case of clause (d)) or capital lease liabilities on a Consolidated
balance sheet in accordance with GAAP; provided, further, that none of the
following shall constitute Debt: (A) transfers of accounts receivable pursuant to a receivables
purchase facility considered as a sale under GAAP (and indemnification, recourse or repurchase
obligations thereunder as are reasonable given market standards for transactions of similar type)
and (B) the liability of any Person as a general partner of a partnership for Debt of such
partnership, if the partnership is not a Subsidiary of such Person.



     “Default” means any event or circumstance which, with the giving of notice, lapse of
time or otherwise, would constitute an Event of Default.



5









 





     “Defaulting Bank” means (i) any Bank, Canadian Bank or UK Bank, as the case may be,
that has (a) failed to fund any portion of its Advances, Canadian Advances or Sterling Advances, as
the case may be, or participations in Letters of Credit, Canadian Letters of Credit or Sterling
Letters of Credit, as the case may be, or Swingline Loans, as applicable (and for purposes of this
definition, each such funding obligation, as the context shall require, a “funding
obligation”), within three (3) Business Days following the date required to be funded by it
hereunder, (b) notified the Borrower and the Administrative Agent in writing that it does not
intend to or is unable to comply with any of its funding obligations under this Agreement or has
made a public statement to the effect that it does not intend to or is unable to comply with its
funding obligations under this Agreement, (c) failed, within three Business Days after request by
the Administrative Agent or the Borrower, to confirm, in writing, (1) that it will comply with the
terms of this Agreement relating to its prospective funding obligations hereunder, unless the
subject of a good-faith dispute, and (2) that it is financially able and capable to meet such
funding obligations timely and fully, without regard to the existence of any good faith dispute,
(d) otherwise failed to pay over to the Administrative Agent, the Canadian Administrative Agent or
the UK Administrative Agent, as the case may be, or any other Bank, Canadian Bank or UK Bank, as
the case may be, any other amount required to be paid by it hereunder within three Business Days
following the date when due, unless the subject of a good-faith dispute or (e) become, or whose
Parent has become, the subject of a Bankruptcy Event and (ii) any of the Administrative Agent, the
Canadian Administrative Agent or the UK Administrative Agent, as the case may be, that is or
becomes a Defaulting Bank pursuant to any sub-clause of the preceding clause (i), whether by virtue
of being a Bank, a Canadian Bank or a UK Bank or, if not a Bank, Canadian Bank or UK Bank, by
virtue of the application to it (or, in respect to sub-clause (e) above, its Parent) of the
circumstances or events described therein.



     “Dollar”, “dollar” or “$” mean lawful money of the United States.



     “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 any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time equal to the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.



     “Domestic Lending Office” means, with respect to any Bank, the office of such Bank
specified as its “Domestic Lending Office” under its name on Schedule II or in the
Assignment and Assumption or other document pursuant to which it became a party hereto as
contemplated by Section 2.18, Section 2.19 or Section 8.6, or such other office of such Bank as
such Bank may from time to time specify to the Borrower and the Administrative Agent.



     “Eligible Assignee” has the meaning specified in Section 8.6(g).



     “Environment” has the meaning specified in 42 U.S.C. §9601(8) (1988).



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Obligors or any of their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Protection Statute, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the



6









 




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.




     “Environmental Protection Statute” means any law, statute, ordinance, rule,
regulation, order, decision, decree, judgment, permit, license, authorization or agreement (all as
amended from time to time) arising from, in connection with, or relating to the pollution,
protection or regulation of the Environment or the protection or regulation of health or safety,
whether the foregoing are required or promulgated by any government or agency or other authority of
or in the United States (whether local, state, or federal) or any foreign country or subdivision
thereof, including without limitation, CERCLA, RCRA and other laws, statutes, ordinances, rules and
regulations relating to the disposal, removal, remediation, production, storing, refining,
handling, transferring, processing, recycling or transporting of or exposure to any material or
substance, wherever located, and any rule, regulation or decision issued or promulgated in
connection with such laws, statutes, ordinances, rules or regulations by any government, agency or
other authority of or in the United States (whether local, state or federal) or of any foreign
country or subdivision thereof, in each case as now or hereafter in effect.



     “EPA” means the United States Environmental Protection Agency, or any successor
thereto.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any successor statute of similar import, together with the regulations
thereunder, as in effect from time to time.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) which is a
member of a group of which the Borrower is a member and which is under common control within the
meaning of the regulations under Section 414 of the Code.



     “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of
the Federal Reserve Board, as in effect from time to time.



     “Eurodollar Advance” means an Advance which bears interest as provided in Section
2.5(b).



     “Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Advances.



     “Eurodollar Lending Office” means, with respect to any Bank, the office of such Bank
specified as its “Eurodollar Lending Office” under its name on Schedule II or in the
Assignment and Assumption or other document pursuant to which it became a party hereto as
contemplated by Section 2.18, Section 2.19 or Section 8.6, or such other office of such Bank as
such Bank may from time to time specify to the Borrower and the Administrative Agent.



     “Eurodollar Rate” means:




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



7









 







of such Interest Period) with a term equivalent to such Interest Period, or (ii) if the
rate referenced in the preceding clause (i) does not appear on such page or service or such
page or service shall not be available, the rate per annum equal to the rate reasonably
determined by the Administrative Agent to be the offered rate on such other page or other
service 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 a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or (iii) if the rates
referenced in the preceding clauses (i) and (ii) are not available, then, the rate per annum
reasonably determined by the Administrative Agent to be the rate of interest 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 Advance being made, continued or converted and
with a term equivalent to such Interest Period would be offered by the Administrative
Agent’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period; and




     (b) for any interest calculation with respect to a Base Rate Advance on any date, the
rate per annum equal to (i) BBA LIBOR, as published by Reuters (or such other commercially
available source providing quotations of BBA LIBOR as may be reasonably designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, determined
two Business Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day, or (ii) if the rate referenced
in the preceding clause (i) does not appear on such page or service or such page or service
shall not be available, the rate per annum equal to the rate reasonably determined by the
Administrative Agent to be the offered rate on such other page or other service 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 a term equivalent to
one month, determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or (iii) if such rate is not available at such
time for any reason, the rate per annum reasonably determined by the Administrative Agent to
be the rate at which deposits in Dollars for delivery on the date of determination in same
day funds in the approximate amount of the Base Rate Advance being made and with a term
equal to one month would be offered by the Administrative Agent’s London Branch to major
banks in the London interbank Eurodollar market at their request at the date and time of
determination.



     “Events of Default” has the meaning specified in Section 6.1.



     “Extension Effective Date” has the meaning specified in Section 2.21(b).



     “FATCA” means Sections 1471 through 1474 of the Code and any regulations or official
interpretations thereof.



     “FDIC” means the Federal Deposit Insurance Corporation, or any federal agency or
authority of the United States from time to time succeeding to its function.



     “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



8









 




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




     “Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or
any federal agency or authority of the United States from time to time succeeding to its function.



     “Foreign Bank” has the meaning specified in Section 8.16(a).



     “GAAP” means accounting principles generally accepted in the United States consistent
with those applied in the preparation of the audited consolidated financial statements referred to
in Section 4.1(d).



     “Hazardous Materials” means (a) any substance or material identified as a hazardous
substance pursuant to CERCLA; (b) any substance or material regulated as a hazardous or solid waste
pursuant to RCRA; (c) any other material or substance regulated under any Environmental Protection
Statute; and (d) all pollutants, contaminants, toxic substances, radioactive materials, refined
products, natural gas liquids, crude oil, petroleum and petroleum products, polychlorinated
biphenyls and asbestos.



     “Highest Lawful Rate” means, on any day and with respect to each Total Facility Bank,
as the case may be, the maximum non-usurious rate of interest that: (a) with respect to the
Borrower, such Bank is permitted under Federal, New York or other applicable law to contract for,
charge, receive, take or reserve for with respect to obligations of the Borrower hereunder, stated
as a rate per annum; (b) with respect to the Canadian Borrower, such Canadian Bank is permitted
under Federal, New York, Canadian, or other applicable law to contract for, charge, receive, take
or reserve for with respect to obligations of the Canadian Borrower hereunder, stated as a rate per
annum; or (c) with respect to the UK Borrower, such UK Bank is permitted under Federal, New York,
UK or other applicable law to contract for, charge, receive, take or reserve for with respect to
obligations of the UK Borrower hereunder, stated as a rate per annum. All determinations herein of
the Highest Lawful Rate, or of any interest rate determined by reference to the Highest Lawful
Rate, shall be made separately for each Total Facility Bank, as the case may be, as appropriate to
assure that the Loan Documents are not construed to obligate any Person to pay interest to any
Total Facility Bank, as the case may be, at a rate in excess of the Highest Lawful Rate applicable
to it.



     “Honor Date” has the meaning specified in Section 2.9(c)(i).



     “ICC” has the meaning specified in Section 2.9(h).



     “Indemnified Liabilities” has the meaning specified in Section 8.4(c).



     “Indenture” means that certain Indenture dated as of September 1, 1991 between the
Borrower, as issuer, and The Bank of New York Mellon Trust Company, N.A. (as successor in



9









 




interest to JPMorgan Chase Bank, N.A. (formerly, Texas Commerce Bank National Association)),
as Trustee, without giving effect to any amendment, modification or discharge thereof.




     “Insufficiency” means, with respect to any Plan, the amount, if any, by which the
present value of the accrued benefits under such Plan exceeds the fair market value of the assets
of such Plan allocable to such benefits.



     “Interest Period” means, with respect to each Eurodollar Advance, in each case
comprising part of the same Borrowing, the period commencing on the date of such Advance or the
date of the Conversion of any Advance into (or a division or combination of any Borrowing resulting
in) such an Advance and ending on the last day of the period selected by the Borrower pursuant to
the provisions below and, thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below except that any Interest Period for Eurodollar Advances
which commences on any day for which there is no numerically corresponding day in the appropriate
subsequent calendar month shall end on the last Business Day of the appropriate subsequent calendar
month. The duration of each such Interest Period shall be one, two, three or six months, in each
case as the Borrower may, upon notice received by the Administrative Agent not later than 11:00
A.M. on the third Business Day prior to the first day of such Interest Period, select;
provided, however, that:




     (a) Interest Periods commencing on the same date for Advances comprising part of the
same Borrowing shall be of the same duration;




     (b) whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, in the case of any Interest Period for a
Eurodollar Advance, that if such extension would cause the last day of such Interest Period
to occur in the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and




     (c) no Interest Period may end after the Termination Date.



     “ISP” has the meaning specified in Section 2.9(h).



     “Issuer” means any L/C Issuer, any Canadian L/C Issuer and/or any Sterling L/C Issuer,
as the context requires.



     “Issuer Document” means with respect to any Letter of Credit, each of the Letter of
Credit Application entered into by the Borrower, and each other document, agreement and instrument
entered into by the L/C Issuer and the Borrower (or any one or more Subsidiaries) or executed by
the Borrower or any one or more Subsidiaries in favor of the L/C Issuer and relating to such Letter
of Credit.



     “JPMorgan” means JPMorgan Chase Bank, N.A., a national banking association, and any
successor thereto.



10









 





     “L/C Advance” means, with respect to each Bank, such Bank’s funding of its
participation in any Unreimbursed Amount in accordance with its Pro Rata Share pursuant to Section
2.9(c)(iii).



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, the renewal or increase of the amount thereof, or
the amendment or other modification thereof.



     “L/C Fee Rate” means at any time with respect to any Letter of Credit, Canadian Letter
of Credit or Sterling Letter of Credit issued hereunder, a percentage per annum equal to the
Applicable Margin then in effect.



     “L/C Issuer” means either JPMorgan, Bank of America or Barclays in its capacity as
issuer of Letters of Credit hereunder, any other Bank that may become a Letter of Credit issuer as
mutually agreed to by the Borrower, such Bank and the Administrative Agent, or any successor issuer
of Letters of Credit hereunder; provided that Barclays will only be an L/C Issuer with
respect to standby Letters of Credit; and provided further that no L/C Issuer will be
required to issue Letters of Credit in an aggregate principal amount greater than one-third (1/3)
of the Total Committed Amount (or such greater amount as may be agreed to by an L/C Issuer).



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus (without duplication)
the aggregate of all Unreimbursed Amounts, including all L/C Advances. 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 2.9(n). 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.



     “Letter of Credit” means any letter of credit issued hereunder by an L/C Issuer, as
the same may be amended, extended, renewed or otherwise modified from time to time. A Letter of
Credit may be a commercial letter of credit or a standby 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 an L/C Issuer, with such
amendments thereto as the Borrower may reasonably request and acceptable to an L/C Issuer to avoid
any conflict between it and this Agreement.



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



     “Loan Document” means this Agreement, each Note, each Letter of Credit Application,
each Letter of Credit, each Notice of Borrowing, each Canadian Note, each Canadian Bankers’
Acceptance, the Canadian Guaranty, each Canadian Letter of Credit Application, each Canadian Letter
of Credit, each Canadian Notice of Borrowing, each Sterling Note, the UK Guaranty, each Sterling
Letter of Credit Application, each Sterling Letter of Credit, each Sterling Notice of Borrowing and
each other document or instrument executed and delivered in connection with this Agreement.



11









 





     “Majority Banks” means, subject to Section 2.19(b) and at any relevant time of
determination, all Banks and, if during a Canadian Allocation Period or Sterling Allocation Period,
as the case may be, all other Total Facility Banks in the aggregate having in the aggregate more
than 50% of the Total Facility Amount, or, if the Total Facility Commitment has been terminated
pursuant to Section 6.1, Total Facility Banks in the aggregate holding in the aggregate more than
50% of the Total Facility Outstandings.



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



     “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or accrued an obligation to
make contributions.



     “Multiple Employer Plan” means an employee benefit plan, other than a Multiemployer
Plan, subject to Title IV of ERISA to which the Borrower or any ERISA Affiliate, and more than one
employer other than the Borrower or an ERISA Affiliate, is making or accruing an obligation to make
contributions or, in the event that any such plan has been terminated, to which the Borrower or any
ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan
years preceding the date of termination of such plan.



     “New Funds Amount” has the meaning specified in Section 2.20(d).



     “Note” means, to the extent requested by any Bank, a promissory note of the Borrower
payable to the order of such Bank, in substantially the form of Exhibit A, evidencing the
aggregate indebtedness of the Borrower to such Bank resulting from the Advances owed to such Bank.



     “Notice of Borrowing” has the meaning specified in Section 2.2.



     “Notice of Commitment Increase” has the meaning specified in Section 2.20(b).



     “Obligor” means the Borrower, the Canadian Borrower or the UK Borrower, or any of them
as the context requires.



     “Other Taxes” has the meaning specified in Section 2.14(c).



     “Parent” means, with respect to any Bank, Canadian Bank or UK Bank or any of the
Administrative Agent, the Canadian Administrative Agent or the UK Administrative Agent, as the case
may be, any Person as to which such Bank, Canadian Bank, UK Bank, Administrative Agent, Canadian
Administrative Agent or UK Administrative Agent is, directly or indirectly, a subsidiary.



     “Payment Office” means the office of the Administrative Agent located at 901 Main
Street, Dallas, Texas 75202-3714 or such other office as the Administrative Agent may designate by
written notice to the other parties hereto.



     “PBGC” means the Pension Benefit Guaranty Corporation, or any federal agency or
authority of the United States from time to time succeeding to its function.



12









 





     “Person” means an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, firm or
other entity, or a government or any political subdivision or agency, department or instrumentality
thereof.



     “Plan” means an employee benefit plan (other than a Multiemployer Plan) which is (or,
in the event that any such plan has been terminated within five years after a transaction described
in Section 4069 of ERISA, was) maintained for employees of the Borrower or any ERISA Affiliate and
covered by Title IV of ERISA.



     “Prescribed Forms” means such duly executed form(s) or statement(s), including the
forms described in Sections 8.16(a) and (b), and in such number of copies, which may, from time to
time, be prescribed by law and which, pursuant to applicable provisions of (a) an income tax treaty
between the United States and the country of residence of the Bank providing the form(s) or
statement(s), (b) the Code, or (c) any applicable rule or regulation under the Code or the tax law
of the applicable jurisdiction, permit the Borrower to make payments hereunder for the account of
such Bank free of deduction or withholding of income or similar taxes (except for any deduction or
withholding of income or similar taxes as a result of any change in or in the interpretation of any
such treaty, the Code or any such rule or regulation).



     “Principal Subsidiary” means (a) EOG Resources Trinidad Limited, (b) the Canadian
Borrower, during any Canadian Allocation Period, (c) the UK Borrower, during any Sterling
Allocation Period and (d) any other Subsidiary having total assets in excess of $200,000,000,
excluding (i) intercompany loans and advances to and from the Borrower and its Subsidiaries, (ii)
investments in Subsidiaries of such Subsidiary, and (iii) equity interests in Subsidiaries of such
Subsidiary. For purposes of this definition, total assets shall be determined based on the most
recent quarterly or annual financial statements available prior to such determination.



     “Pro Rata Share” means, with respect to each Bank:




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




     (b) upon the termination, in whole, of the Commitments pursuant to the terms of this
Agreement, a fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is:




the sum of




     (i) the outstanding Advances of such Bank plus




     (ii) an amount equal to (A) (1) the outstanding Advances of such Bank, divided by (2)
the aggregate outstanding Advances of all Banks, times (B) the sum of (1) all outstanding
L/C Obligations plus (2) the outstanding Swingline Loans, and




the denominator of which is the Total Outstanding Amount.



13









 




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




     “Rating Level” means the applicable category of rating level contained in Schedule
I which is based on the rating of the Borrower’s senior unsecured long-term debt as classified
by Moody’s or Standard & Poor’s, or both of them, if applicable.



     “RCRA” means the Resource Conservation Act of 1976, as amended from time to time, set
forth at 42 U.S.C. §§ 6901 et seq (1988), state and local analogs and all rules and regulations
promulgated thereunder, in each case as now or hereafter in effect.



     “Reducing Percentage Bank” has the meaning specified in Section 2.20(d).



     “Reduction Amount” has the meaning specified in Section 2.20(d).



     “Refunded Swingline Loans” has the meaning specified in Section 2.23(b).



     “Reg U Limited Assets” means assets that are subject to any arrangement (as
contemplated by Regulation U) with any Bank or the Administrative Agent (a) that restricts the
right or ability of the Borrower or (to the extent relevant to the compliance with Regulation U or
Regulation X by any of the Banks or the Borrower in connection with this Agreement or any of the
Advances) its Subsidiaries to sell, pledge or otherwise dispose of (within the meaning of
Regulation U) such assets or (b) that provides that the exercise of such right is or may be cause
for accelerating the maturity of all or any portion of the Advances or any other amount payable
hereunder or under such arrangement.



     “Register” has the meaning specified in Section 8.6(c).



     “Regulation U” means Regulation U of the Federal Reserve Board, as the same is from
time to time in effect, and all rulings and interpretations thereunder or thereof.



     “Regulation X” means Regulation X of the Federal Reserve Board, as the same is from
time to time in effect, and all rulings and interpretations thereunder or thereof.



     “Responsible Officer” of a Person means such Person’s chief executive officer,
president, chief financial officer, vice president-finance, treasurer or assistant treasurer.
Unless otherwise specified, all references herein to a “Responsible Officer” shall refer to a
Responsible Officer of the Borrower.



     “Revaluation Date” means (a) with respect to any Advance, each of the following: (i)
each date of a Borrowing of a Eurodollar Advance denominated in either Canadian Dollars or
Sterling, (ii) each date of a continuation of a Eurodollar Advance denominated in either Canadian
Dollars or Sterling hereunder and (iii) such additional dates as the Administrative Agent shall
determine or the Majority Banks shall require, in each instance for the purpose of calculating the
amount of availability of the respective commitments hereunder or the Total Facility Outstandings
(or any component thereof) as a result of fluctuations in the relevant currency exchange rates,
upon prior written notice to the Borrower; and (b) with respect to any Letter of Credit, each of
the following: (i) each date of issuance of a Letter of Credit denominated in either Canadian
Dollars or Sterling, (ii) each date of an amendment of any such Letter of Credit having the effect
of increasing the amount thereof (solely with respect to the



14









 




increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit
denominated in either Canadian Dollars or Sterling and (iv) such additional dates as the
Administrative Agent or the L/C Issuer shall determine or the Majority Banks shall require, in each
instance for the purpose of calculating the amount of availability of the respective commitments
hereunder or the Total Facility Outstandings (or any component thereof) as a result of fluctuations
in the relevant currency exchange rates, upon prior written notice to the Borrower.




     “Scheduled Maturity Date” means the later to occur of (i) September 10, 2013, and (ii)
as to any Bank that has extended its Commitment pursuant to Section 2.21, the latest date to which
the Commitments have been extended pursuant to Section 2.21.



     “Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the
spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in an Alternative Currency and provided further that, in conjunction with each of
the proceeding determinations, the Borrower is provided a written description of the applicable
Spot Rate and the sources used to determine such rate.



     “Standard & Poor’s” and “S&P” each means Standard & Poor’s Ratings Group, Inc.
or any successor to the rating agency business thereof.



     “Subsidiary” means any corporation, partnership, joint venture or other entity (a) of
which more than 50% of the outstanding capital stock or other equity interests having ordinary
voting power (irrespective of whether or not at the time capital stock or other equity interest of
any other class or classes of such corporation, partnership, joint venture or other entity shall or
might have voting power upon the occurrence of any contingency) is at the time directly or
indirectly owned by the Borrower and (b) which is a Consolidated Subsidiary in accordance with
GAAP; provided, that the definition of “Subsidiary” in Exhibit F shall apply in
Section 5.2(a) only.



     “Successor Agent” has the meaning specified in Section 7.9.



     “Swingline Commitment” means the obligation of the Swingline Lender to make its
Swingline Loans pursuant to Section 2.22 in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite the Swingline Lender’s name on Schedule IV.



     “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Bank at any time shall be
its Pro Rata Share of all Swingline Loans outstanding at such time.



     “Swingline Lender” means Bank of America, in its capacity as a lender of Swingline
Loans.



15









 





     “Swingline Loans” has the meaning specified in Section 2.22.



     “Swingline Participation Amount” has the meaning specified in Section 2.23(c).



     “Swingline Rate” means, for any day, a variable per annum rate equal to (a) the “ASK”
rate for over-night Federal funds as published by Reuters on the date the Borrower requests a
Swingline Loan hereunder and on each day thereafter that such Swingline Loan is outstanding;
provided, however, if such rate is not available at such time for any reason, then
the “Swingline Rate” shall be, for any day, the rate per annum reasonably determined by the
Swingline Lender to be the rate at which deposits in Dollars in same day funds in the approximate
amount of the Swing Line Loan by the Swingline Lender would be offered for overnight borrowings by
the Swingline Lender’s London Branch to major banks in the London interbank Eurodollar market at
their request at approximately 11:00 a.m. (London time) on the date the Borrower requests a
Swingline Loan hereunder and on each day thereafter that such Swingline Loan is outstanding;
plus (b) the then applicable Applicable Margin for Eurodollar Advances. The Administrative
Agent’s internal records of applicable interest rates shall be determinative in the absence of
manifest error.



     “Syndication Agents” means, at each relevant time of determination and unless such
designation has not been theretofore terminated or otherwise is no longer then in effect,
collectively, JPMorgan and Barclays Capital (however, for purposes of Section 7.9 only, rather than
Barclays Capital, shall mean Barclays), and in lieu of, or in addition to, any of them, such other
financial institution or institutions as shall then be so designated as a “Syndication Agent” in
connection with this Agreement.



     “Taxes” has the meaning specified in Section 2.14.



     “Termination Date” means, the earlier of (i) the Scheduled Maturity Date and (ii) the
date of termination in whole of the Total Facility Amount pursuant to Section 2.16 or Section 6.1.



     “Termination Event” means (a) a “reportable event”, as such term is described in
Section 4043 of ERISA (other than a “reportable event” not subject to the provision for 30-day
notice to the PBGC), or an event described in Section 4062(e) of ERISA, or (b) the withdrawal of
the Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it
was a “substantial employer”, as such term is defined in Section 4001(a)(2) of ERISA, or the
incurrence of liability by the Borrower or any ERISA Affiliate under Section 4064 of ERISA upon the
termination of a Multiple Employer Plan, or (c) the distribution of a notice of intent to terminate
a Plan pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (d) the institution of proceedings to terminate a Plan
by the PBGC under Section 4042 of ERISA, or (e) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.



     “Total Capitalization” means, at any time, the sum (without duplication) of (a) Total
Debt plus (b) Consolidated Net Worth less any amount thereof attributable to “minority interests”
(as defined below). For the purpose of this definition, “minority interests” means any investment
or interest of the Borrower in any corporation, partnership or other entity to the extent that the
total amount thereof owned by the Borrower (directly or indirectly) constitutes 50% or less of all
outstanding interests or investments in such corporation, partnership or entity.



16









 





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



     “Total Debt” means, at any time, all Consolidated Debt of the Borrower and its
Consolidated Subsidiaries.



     “Total Facility Advances” means Advances, Canadian Advances and Sterling Advances.



     “Total Facility Amount” means, at any relevant time of determination, the sum of (i)
the Total Committed Amount, (ii) if during a Canadian Allocation Period, the then applicable
Canadian Total Committed Amount and (iii) if during a Sterling Allocation Period, the then
applicable Sterling Total Committed Amount.



     “Total Facility Banks” means, at any relevant time of determination, all Banks holding
a Commitment, all Canadian Banks holding a Canadian Commitment and all UK Banks holding a Sterling
Commitment.



     “Total Facility Commitment” means, at any relevant time of determination, the sum of
(i) the Commitments, (ii) the Canadian Commitments and (iii) the Sterling Commitments, in each case
then in effect.



     “Total Facility Outstandings” means the sum of (i) the Total Outstanding Amount, (ii)
the Canadian Total Outstanding Amount and (iii) the Sterling Total Outstanding Amount.



     “Total Outstanding Amount” means, at any time, the sum of (a) the outstanding
Advances, (b) the outstanding L/C Obligations and (c) the outstanding Swingline Loans.



     “Type” has the meaning specified in the definition of the term “Advance”.



     “UK” means the United Kingdom of Great Britain and Northern Ireland.



     “UK Double Taxation Treaty” shall mean any convention between the government of the
United Kingdom and any other government for the avoidance of double taxation and the prevention of
fiscal evasion with respect to taxes on income and capital gains.



     “UK Tax Act” means, collectively, the United Kingdom Income Tax Act 2007 (the
“2007 Tax Act”) and Corporation Tax Act 2010 (the “2010 Tax Act”), each as amended
from time to time, or any successor statutes, together with all regulations and interpretations
thereof or thereunder by the United Kingdom Inland Revenue (or any successor).



     “Unreimbursed Amount” has the meaning set forth in Section 2.9(c)(i).



     “Withdrawal Liability” shall have the meaning given such term under Part I of Subtitle
E of Title IV of ERISA.



     Section 1.2 Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each means “to but excluding”. Unless otherwise
indicated, all references to a particular time are references to Houston, Texas time.



17









 





     Section 1.3 Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with, and certificates of compliance for the financial covenant
shall be based on, GAAP; provided, however, the financial statements and reports
required pursuant to Section 5.1(a)(i) and (xii) shall be prepared in accordance with generally
accepted accounting principles in effect at the time of application thereof except to the extent
stated therein.



     Section 1.4 Miscellaneous. The words “hereof”, “herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article, Section, Schedule and Exhibit references are
to Articles and Sections of and Schedules and Exhibits to this Agreement, in each case as then
amended, revised or otherwise modified and then in effect, unless otherwise specified. The term
“including” shall mean “including, without limitation,” and the term “or” is not exclusive. The
term “United States” when used in any Loan Document shall refer to and mean the United States of
America.



     Section 1.5 Ratings. A rating, whether public or private, by Standard & Poor’s or
Moody’s shall be deemed to be in effect on the date of announcement or publication by Standard &
Poor’s or Moody’s, as the case may be, of such rating or, in the absence of such announcement or
publication, on the effective date of such rating and will remain in effect until the date when any
change in such rating is deemed to be in effect. In the event any of the rating categories used by
Moody’s or Standard & Poor’s is revised or designated differently (such as by changing letter
designations to different letter designations or to numerical designations), the references herein
to such rating shall be changed to the revised or redesignated rating for which the standards are
closest to, but not lower than, the standards at the date hereof for the rating which has been
revised or redesignated. Long-term debt supported by a letter of credit, guaranty, insurance or
other similar credit enhancement mechanism shall not be considered as senior unsecured long-term
debt.



ARTICLE II

AMOUNT AND TERMS OF THE ADVANCES




     Section 2.1 The Advances. Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make one or more Advances as part of a Borrowing to the Borrower from
time to time on any Business Day during the period from the date hereof until the Termination Date
in an aggregate amount not to exceed at any time outstanding, such Bank’s Commitment minus the sum
of (a) such Bank’s Pro Rata Share of outstanding L/C Obligations plus (b) such Bank’s Pro Rata
Share of outstanding Swingline Loans. Each Borrowing (other than a Borrowing or deemed Borrowing
under Section 2.9(c)(ii) to reimburse an L/C Issuer for any Unreimbursed Amount) shall be in an
aggregate amount not less than $5,000,000, shall be in an integral multiple of $1,000,000 and
shall, when made, consist of Advances of the same Type having (in the case of a Borrowing comprised
of Eurodollar Advances) the same Interest Period, made on the same day by the Banks ratably
according to their respective Commitments (excluding, with respect to any Borrowing or deemed
Borrowing under Section 2.9(c)(ii), the Pro Rata Share of any Defaulting Bank). Within the limits
of each Bank’s Commitment, the Borrower may borrow, prepay pursuant to Section 2.10 and reborrow
under this Section 2.1. Subject to the terms and conditions hereof, more than one Borrowing may be
made on a Business Day (including, for example, a Borrowing comprised of Eurodollar Advances having
one Interest Period and another Borrowing comprised of Eurodollar Advances having a different
Interest Period).



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     Section 2.2 Making the Advances. (a) Each Borrowing shall be made on notice, given
not later than 11:00 A.M. (i) in the case of a proposed Borrowing comprised of Eurodollar Advances,
at least three Business Days prior to the date of the proposed Borrowing, and (ii) in the case of a
proposed Borrowing comprised of Base Rate Advances, on the day of the proposed Borrowing, by the
Borrower to the Administrative Agent, which shall give to each Bank prompt notice thereof by
telecopy. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telecopy,
confirmed immediately in writing, in substantially the form of Exhibit B, duly signed by a
Responsible Officer, specifying therein the requested (A) date of such Borrowing, (B) Type of
Advances comprising such Borrowing, (C) aggregate amount of such Borrowing, and (D) in the case of
a Borrowing comprised of Eurodollar Advances, initial Interest Period for each such Advance,
provided that the Borrower may not specify Eurodollar Advances for any Borrowing if, after
giving effect to such Borrowing, Eurodollar Advances having more than ten (10) different Interest
Periods shall be outstanding. In the case of a proposed Borrowing comprised of Eurodollar
Advances, the Administrative Agent shall promptly notify each Bank and the Borrower of the
applicable interest rate under Section 2.5(b). Each Bank shall, before 11:00 A.M. (1:00 P.M. in
the case of a Borrowing comprised of Base Rate Advances) on the date of such Borrowing, make
available for the account of its Applicable Lending Office to the Administrative Agent at its
Payment Office, in same day funds, such Bank’s ratable portion of such Borrowing. After the
Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will make such funds available to the Borrower at
the Administrative Agent’s aforesaid address.



          (b) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Borrowing which the related Notice of Borrowing specifies is to be comprised of Eurodollar
Advances, the Borrower shall, subject to Section 8.8, indemnify each Bank against any loss, cost or
expense incurred by such Bank as a result of any failure to fulfill on or before the date specified
in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III
or to make the Borrowing specified in such Notice of Borrowing on the date specified, including any
loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Bank to fund the Advance to be made by
such Bank as part of such Borrowing when such Advance, as a result of such failure, is not made on
such date.




          (c) Unless the Administrative Agent shall have received notice from a Bank prior to the time
it is required to make available its ratable portion of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank’s ratable portion of such Borrowing, the
Administrative Agent may assume that such Bank has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this
Section 2.2 and the Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such Bank shall not
have so made such ratable portion available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of
the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and
(ii) in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s
Advance as part of such Borrowing for purposes of this Agreement.







19









 








          (d) The failure of any Bank to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make
the Advance to be made by such other Bank on the date of any Borrowing.




     Section 2.3 Fees.



          (a) Facility Fee. Subject to Section 8.8, the Borrower agrees to pay without
duplication to each Bank a facility fee on the average daily amount of such Bank’s Commitment,
whether or not used, from the closing date hereof until the Termination Date. The facility fee is
due on the last Business Day of each March, June, September and December during the term of such
Bank’s Commitment, commencing September 30, 2010, and on the date such Bank’s Commitment is
terminated. The rate per annum of the facility fee for each calendar quarter shall be determined
as provided in Schedule I based on the Rating Level in effect on the first day of such
quarter. The Borrower may at its option pay such facility fee together with any Canadian facility
fee owing to the Canadian Banks pursuant to Section 2A.3(a) and any Sterling facility fee owing to
the UK Banks pursuant to Section 2B.3(a) pursuant to a single payment to Administrative Agent for
the benefit of the Banks, the Canadian Banks and the UK Banks; provided, the Borrower shall
so specify to the Administrative Agent that such payment is with respect to the facility fee
hereunder and such Canadian facility fee and such Sterling facility fee, as appropriate.




          (b) Administrative Agent’s Fee. Subject to Section 8.8, the Borrower shall pay to the
Administrative Agent such fees as may be separately agreed to by it and the Administrative Agent.




     Section 2.4 Repayment. The Borrower shall repay the unpaid principal amount of each
Advance owed to each Bank on the Termination Date.



     Section 2.5 Interest. Subject to Section 8.8, the Borrower shall pay interest on the
unpaid principal amount of each Advance owed to each Bank from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:



          (a) Base Rate Advances. During such periods as such Advance is a Base Rate Advance, a
rate per annum equal at all times to the sum of the Base Rate plus the Applicable Margin in effect
from time to time, due quarterly on the last Business Day of each March, June, September and
December, commencing September 30, 2010, during such periods and on the date such Base Rate Advance
shall be Converted (in whole or in part), changed (in whole or in part) as a result of any division
or combination of any Borrowing, or paid in full; provided that any such Advance not paid
when due shall bear interest on the principal amount thereof from time to time outstanding, payable
upon demand, until paid in full at a rate per annum equal at all such times to 2% above the Base
Rate in effect from time to time.




          (b) Eurodollar Advances. During such periods as such Advance is a Eurodollar Advance,
a rate per annum equal at all times during each Interest Period for such Advance to the sum of the
Eurodollar Rate for such Interest Period for such Advance plus the Applicable Margin per annum for
such Interest Period, due on the last day of such Interest Period and, if such Interest Period has
a duration of more than three months, on the day which occurs during such Interest Period three
months from the first day of such Interest Period (each Eurodollar Advance to bear interest from
and including the first day of the Interest Period for






20









 







such Advance to (but not including) the last day of such Interest Period); provided
that any such Advance not paid when due shall bear interest on the principal amount thereof from
time to time outstanding, payable upon demand, until paid in full at a rate per annum equal at all
such times to the greater of (x) 2% above the Base Rate in effect from time to time and (y) 2%
above the rate per annum required to be paid on such Advance immediately prior to the date on which
such Event of Default occurred.




          (c) Other Obligations. If any amount payable by the Borrower (other than any Advance)
under any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount from time to time outstanding
shall thereafter bear interest on the principal amount thereof from time to time outstanding,
payable upon demand, until paid in full, at a fluctuating interest rate per annum at all such times
equal to 2% above the Base Rate in effect from time to time.




     Section 2.6 Additional Interest on Eurodollar Advances. If any Bank is required under
regulations of the Federal Reserve Board to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, and if as a result thereof there is an
increase in the cost to such Bank of agreeing to make or making, funding or maintaining Eurodollar
Advances, the Borrower shall, subject to Section 8.8, from time to time, within 20 Business Days
following its receipt of the certificate hereinbelow referenced (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such Bank additional
amounts, as additional interest hereunder, sufficient to compensate such Bank for such increased
cost. A certificate in reasonable detail as to the basis for and the amount of such increased
cost, and certifying that such costs are generally being charged by it to other similarly situated
borrowers under similar credit facilities shall be submitted to the Borrower and the Administrative
Agent by such Bank, shall be conclusive and binding for all purposes, absent manifest error;
provided, however, no Bank shall be permitted to recover increased costs incurred
or accrued pursuant to this Section 2.6 more than 180 days prior to the date it sends such
certificate to the Borrower; provided further that, if any such requirement (or
change in requirement) giving rise to such increased costs is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect thereof.



     Section 2.7 Interest Rate Determination and Protection. (a) If, prior to the
commencement of any selected Interest Period for a Eurodollar Advance, the Administrative Agent is
unable to obtain timely information for determining the Eurodollar Rate for such Interest Period:



               (i) the Administrative Agent shall forthwith notify the Borrower and the Banks that the
interest rate cannot be determined for such Interest Period,



               (ii) each such Advance for which such Interest Period was selected will, on the last day of
the then existing Interest Period therefor, either (A) Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate Advance) or (B) continue as one
or more Eurodollar Advances of Interest Periods not affected by such notice of the Majority Banks,
as selected by the Borrower, and



               (iii) the obligation of the Banks to make, or to Convert Advances or Borrowings into, or to
make divisions or combinations of Borrowings resulting in, Eurodollar Advances or Eurodollar
Borrowings of such Interest Periods shall be suspended until the



21









 




Administrative Agent shall notify the Borrower and the Banks that the circumstances causing
such suspension no longer exist.




          (b) If, with respect to any Eurodollar Advances, the Majority Banks notify the Administrative
Agent that the applicable interest rate for any Interest Period for such Advances will not
adequately reflect the cost to such Majority Banks of making, funding or maintaining their
respective portions of such Eurodollar Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Banks, whereupon




               (i) each such Advance will, on the last day of the then existing Interest Period therefor,
either (A) Convert into a Base Rate Advance (or, if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance) or (B) continue as one or more Eurodollar Advances of Interest
Periods not affected by such notice of the Majority Banks, as selected by the Borrower, and



               (ii) the obligation of the Banks to make, or to Convert Advances or Borrowings into, or to
make divisions or combinations of Borrowings resulting in, Eurodollar Advances or Eurodollar
Borrowings of such Interest Periods shall be suspended until the Administrative Agent shall notify
the Borrower and the Banks that the circumstances causing such suspension no longer exist.



          (c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.1 or fails to give a timely Notice of Conversion with respect to any
Eurodollar Advances in accordance with the provisions contained in Section 2.8(a), the
Administrative Agent will forthwith so notify the Borrower and the Banks and such Advances will
automatically, on the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.




          (d) If the aggregate unpaid principal amount of Advances comprising any Eurodollar Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than $5,000,000, such Advances
shall automatically Convert, on the last day of the then existing Interest Period for such
Advances, into Base Rate Advances, unless the Borrower has elected to continue such Advances as
Eurodollar Advances by selecting a new Interest Period therefor in accordance with the provisions
hereof commencing on such day and the sum of the outstanding principal amount of such Advances plus
the outstanding principal amount of each other Borrowing that is being Converted into, or continued
as, a Eurodollar Borrowing on such day with the same Interest Period as such Advances is at least
$5,000,000.




          (e) Any Bank may, if it so elects, fulfill its Commitment as to any Eurodollar Advance by
causing a branch, foreign or otherwise, or Affiliate of such Bank to make such Advance and may
transfer and carry such Advance at, to or for the account of any branch office or Affiliate of such
Bank; provided that in such event, for the purposes of this Agreement, such Advance shall
be deemed to have been made by such Bank and the obligation of the Borrower to repay such Advance
shall nevertheless be to such Bank and shall be deemed to be held by such Bank, to the extent of
such Advance, for the account of such branch or Affiliate; provided further that
for U.S. federal income tax purposes if such branch or Affiliate is the beneficial owner of such
interest, or if such Bank is regarded as acting as an intermediary for such branch or Affiliate,
then such Bank, or such branch or Affiliate, shall provide to the Borrower and the






22









 







Administrative Agent the required forms and documentation as set forth in Section 8.16(a)(i)
or (ii), as appropriate.




     Section 2.8 Voluntary Conversion of Borrowings; Continuation of Eurodollar Borrowings.
(a) The Borrower may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (i) in the case of a proposed Conversion into a Eurodollar Borrowing, on the third
Business Day prior to the date of the proposed Conversion, and (ii) in the case of a proposed
Conversion into a Base Rate Borrowing, on the date of the proposed Conversion, and subject to the
limitations in Section 2.2 as to the number of permitted Interest Periods and subject to the
provisions of Sections 2.7, 2.8(c)and 2.12, Convert all or any portion of a Borrowing of one Type
into a Borrowing of another Type; provided, however, that any Conversion of any
Eurodollar Borrowing shall be made on, and only on, the last day of an Interest Period for such
Eurodollar Borrowing. Each such notice of a Conversion (a “Notice of Conversion”) shall be
by telecopy, confirmed immediately in writing, in substantially the form of Exhibit E,
duly signed by a Responsible Officer, and shall, within the restrictions specified above, specify
(x) the date of such Conversion, (y) the Borrowing (or identified portion thereof) to be Converted
and the Type into which it is to be Converted, and (z) if such Conversion is into a Eurodollar
Borrowing, the duration of the Interest Period for each Advance comprising such Borrowing.



          (b) The Borrower may continue all or any portion of any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period that complies with the requirements set forth in the
definition herein of “Interest Period,” by giving notice of such Interest Period as set forth in
such definition, subject to the limitations in Section 2.2 as to the number of permitted Interest
Periods and subject to the provisions of Sections 2.7, 2.8(c) and 2.12.




          (c) All Borrowings, Conversions and continuations under this Agreement shall be effected in a
manner that (i) treats all Banks ratably (including, for example, effecting Conversions of any
portion of a Borrowing in a manner that results in each Bank retaining its same ratable percentage
of both the Converted portion and the remaining portion not Converted), and (ii) results in each
Borrowing (including, in the case of any Conversion of a portion of a Borrowing, both the Converted
portion and the remaining portion not Converted) being in an amount not less than $5,000,000 and in
an integral multiple of $1,000,000. Upon Conversion of any Borrowing, or portion thereof, into a
particular Type, all Advances comprising such Borrowing or portion thereof, as the case may be,
will be deemed Converted into Advances of such Type.




     Section 2.9 Letters of Credit.



          (a) The Letter of Credit Commitment.




               (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in
reliance upon the agreements of the other Banks set forth in this Section 2.9, (1) from time to
time on any Business Day prior to the Letter of Credit Expiration Date, to issue Letters of Credit
for the account of the Borrower for any general corporate purpose of the Borrower and its
Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Banks
severally agree to participate in Letters of Credit issued for the account of the Borrower;
provided that (i) no L/C Issuer shall be obligated to make any L/C Credit Extension



23









 




with respect to any Letter of Credit if the aggregate amount of Letters of Credit, Canadian
Letters of Credit and Sterling Letters of Credit issued by it and its Affiliates would exceed
one-third (1/3) of the Total Committed Amount (or such greater amount as may be agreed to by an L/C
Issuer), and (ii) no L/C Issuer shall be obligated to issue Letters of Credit and no Bank shall be
obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension the
Total Facility Outstandings would exceed the Total Facility Amount. Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.




               (ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:



                    (A) any order, judgment or decree of any governmental body, agency or official or arbitrator
shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of
Credit, or any law, rule, regulation or order applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any governmental body, agency or official
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
date hereof, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the date hereof and which such L/C Issuer in good faith deems material to it;



                    (B) subject to Section 2.9(b)(iii), the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance or last renewal, unless a majority of the
Banks (such majority determined in relation to their respective Commitments, if the Commitments are
then in effect, and if not so in effect, then determined in relation to the then Total Outstanding
Amount) has approved such expiry date;



                    (C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Banks have approved such expiry date;



                    (D) the issuance of such Letter of Credit would violate one or more reasonable and customary
commercial banking policies of such L/C Issuer generally applicable to the issuance of letters of
credit and applied by such L/C Issuer to other similarly situated borrowers under similar credit
facilities;



                    (E) such Letter of Credit is in an initial amount less than $100,000, in the case of a
commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit (or, as to
Letters of Credit denominated in a currency other than Dollars, the respective currency equivalent
thereof as reasonably determined by such L/C Issuer), or is to be denominated in a currency other
than Dollars, Canadian Dollars, Euros, British Pounds Sterling, Swiss Francs or Japanese Yen; or



                    (F) it is not then required to issue a Letter of Credit pursuant to Section 2.19(e).



24









 





               (iii) No L/C Issuer shall be under any obligation to amend, extend, renew or otherwise modify
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, extended, renewed or modified form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed amendment, extension, renewal
or other modification to such Letter of Credit.



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




               (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of
the Borrower delivered to the relevant 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. Such Letter of Credit Application must be received by the relevant L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and
time as requested by the Borrower and as the relevant L/C Issuer may agree in a particular instance
in its 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 relevant 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 relevant L/C Issuer may 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 relevant L/C Issuer (1) the Letter of Credit to be amended; (2)
the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the
proposed amendment; and (4) such other matters as the relevant L/C Issuer may require.



               (ii) Promptly after receipt of any Letter of Credit Application, the relevant 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 Application from the Borrower and, if not, the
relevant L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the
relevant L/C Issuer of confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the terms and
conditions hereof, the relevant L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower or enter into the applicable amendment, as the case may be, in each
case in accordance with the relevant L/C Issuer’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Bank shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the relevant L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such Bank’s Pro Rata
Share times the amount of such Letter of Credit.



               (iii) If the Borrower so requests in any applicable Letter of Credit Application, the relevant
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided
that any such Auto-Renewal Letter of Credit must permit the relevant L/C Issuer to prevent any such
renewal at least once in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Nonrenewal Notice Date”) in each such twelve-month period to be agreed



25









 




upon at the time such Letter of Credit is issued. Unless otherwise directed by the relevant
L/C Issuer, the Borrower shall not be required to make a specific request to the relevant L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Banks
shall be deemed to have authorized (but may not require) the relevant L/C Issuer to permit the
renewal of such Letter of Credit at any time prior to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the relevant L/C Issuer shall not
permit any such renewal if (A) the relevant L/C Issuer has determined that it would have no
obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof
(by reason of the provisions of Section 2.9(a)(ii) or otherwise), or (B) it has received notice
(which may be by telephone or in writing) on or before the day that is two Business Days before the
Nonrenewal Notice Date (1) from the Administrative Agent that the Majority Banks have elected not
to permit such renewal or (2) from the Administrative Agent, any Bank or the Borrower that one or
more of the applicable conditions specified in Section 3.2 is not then satisfied.




               (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the relevant L/C
Issuer will also deliver to the 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) On the date of any payment by any L/C Issuer under any Letter of Credit (each such date,
an “Honor Date”), the relevant L/C Issuer shall notify the Borrower and the Administrative
Agent of such payment. If the relevant L/C Issuer shall give such notice prior to 11:00 a.m. on the
Honor Date, the Borrower shall reimburse the relevant L/C Issuer by 11:00 a.m. on the Honor Date
through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower
fails to reimburse the relevant L/C Issuer by 11:00 a.m. on the Honor Date, the Administrative
Agent shall promptly notify each Bank of the Honor Date, the amount of the unreimbursed drawing
(the “Unreimbursed Amount”), and the amount of such Bank’s Pro Rata Share thereof. In such
event, the Borrower shall be deemed to have requested a Borrowing of Base Rate Advances 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 2.1 for the principal amount of Base Rate Advances, but
otherwise subject to Section 2.1 and subject to compliance with the conditions set forth in Section
3.2 (other than (i) the delivery of a Notice of Borrowing and (ii) the absence of an event that
would constitute an Event of Default but for the requirement of time elapse, which is based upon
the Borrower’s failure to fully and timely reimburse for such drawing). Any notice given by any
L/C Issuer or the Administrative Agent pursuant to this Section 2.9(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 Bank (including the Bank acting as L/C Issuer) shall upon any notice pursuant to
Section 2.9(c)(i) make funds available to the Administrative Agent for the account of the relevant
L/C Issuer at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount not later than 1:00 p.m. on the Honor Date specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.9(c)(iii), each Bank that
so makes funds available shall be deemed to have made a Base Rate Advance subject to compliance
with the conditions set forth in Section 3.2 (other than (i) the delivery of a Notice of Borrowing
and (ii) the absence of an event that would constitute an Event of Default but for the requirement
of time elapse, which is based upon the Borrower’s



26









 




failure to fully and timely reimburse for such drawing) to the Borrower in such amount and the
corresponding Unreimbursed Amount shall be deemed refinanced. The Administrative Agent shall remit
the funds so received to the relevant L/C Issuer.




               (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing or a
deemed Borrowing under Section 2.9(c)(i) or (ii) because the conditions set forth in Section 3.2
and not excused under Section 2.9(c)(i) or Section 2.9(c)(ii) cannot be satisfied on the Honor
Date, then (A) the relevant L/C Issuer will notify the Borrower of the amount of such Unreimbursed
Amount that has not been refinanced and (B) such Unreimbursed Amount that is not so refinanced
shall (1) bear interest on the amount thereof from time to time outstanding at a rate per annum
equal to 2% above the Base Rate in effect from time to time and (2) shall be due and payable on the
15th day following the Borrower’s receipt of such notice from such L/C Issuer. In such event, each
Bank’s payment to the Administrative Agent for the account of the relevant L/C Issuer pursuant to
Section 2.9(c)(ii) shall be payment in respect of its participation in such Unreimbursed Amount and
shall constitute an L/C Advance from such Bank in satisfaction of its participation obligation
under this Section 2.9.



               (iv) Until each Bank funds its Advance or L/C Advance pursuant to this Section 2.9(c) to
reimburse the relevant L/C Issuer for any amount drawn under any Letter of Credit, interest in
respect of such Bank’s Pro Rata Share of such amount shall be solely for the account of the
relevant L/C Issuer.



               (v) Each Bank’s obligation to reimburse the relevant L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.9(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 Bank may have against the relevant L/C Issuer, the 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. No such
making of a reimbursement to an L/C Issuer shall constitute a Borrowing if the Borrower is unable
to satisfy the conditions set forth in Section 3.2 (other than (i) the delivery of a Notice of
Borrowing and (ii) the absence of an event that would constitute an Event of Default but for the
requirement of time elapse, which is based upon the Borrower’s failure to fully and timely
reimburse for such drawing) and no such making of a reimbursement shall relieve or otherwise impair
the obligation of the Borrower to reimburse the relevant L/C Issuer for the amount of any payment
made by the relevant L/C Issuer under any Letter of Credit, together with interest as provided in
Section 2.9(c).



               (vi) If any Bank fails to make available to the Administrative Agent for the account of an L/C
Issuer any amount required to be paid by such Bank pursuant to the foregoing provisions of this
Section 2.9(c) by the time specified in Section 2.9(c)(ii), the relevant L/C Issuer shall be
entitled to recover from such Bank (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 relevant L/C Issuer at a rate per annum equal to
the Federal Funds Rate from time to time in effect. A certificate of an L/C Issuer submitted to
any Bank (through the Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.



27









 





          (d) Repayment of Participations.




               (i) At any time after an L/C Issuer has made a payment under any Letter of Credit and has
received from any Bank such Bank’s L/C Advance in respect of such payment in accordance with
Section 2.9(c), if the Administrative Agent receives for the account of the relevant L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from
the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Bank its Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Bank’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 an L/C Issuer
pursuant to Section 2.9(c)(i) is required to be returned under any of the circumstances described
in Section 8.5(a) (including pursuant to any settlement entered into by the relevant L/C Issuer in
its discretion), each Bank shall pay to the Administrative Agent for the account of the relevant
L/C Issuer its Pro Rata Share 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 Bank, at a rate per annum
equal to the Federal Funds Rate from time to time in effect.



          (e) Obligations Absolute. The obligation of the Borrower to reimburse the relevant
L/C Issuer for each drawing under each Letter of Credit shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:




               (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;



               (ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee may be acting), any 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 relevant 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 relevant 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 the
Bankruptcy Code or any other law relating to bankruptcy, insolvency or reorganization or relief of
debtors; or



28









 





               (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 Borrower.



     The 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 the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the relevant L/C Issuer.
The Borrower shall be conclusively deemed to have waived any such claim against an L/C Issuer and
its correspondents unless such notice is given as aforesaid.



          (f) Role of L/C Issuer. Each Bank and the Borrower agree that, in paying any drawing
under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document. None of any L/C Issuer, any Agent-Related Person
nor any of the respective correspondents, participants or assignees of an L/C Issuer shall be
liable to any Bank for (i) any action taken or omitted in connection herewith at the request or
with the approval of the Banks or the Majority Banks, as applicable; (ii) any action taken or
omitted unless a court of competent jurisdiction determines by a final, non-appealable judgment
that the taking or omitting of such action constituted 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 Letter of Credit Application. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of any L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants or assignees of an L/C
Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v)
of Section 2.9(e); provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against an L/C Issuer, and an L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
indirect, special, punitive, consequential or exemplary, damages suffered by the Borrower or its
Subsidiaries which the Borrower proves were caused by (A) an L/C Issuer’s willful misconduct or
gross negligence or (B) an 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 and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, an 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 no L/C Issuer shall be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.




          (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if an L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an Unreimbursed Amount, or (ii) if, as of the Letter of Credit Expiration Date, any
Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, and in each
case so long as such Unreimbursed Amount or Letter of Credit remains outstanding, the Borrower
shall immediately Cash Collateralize such then outstanding L/C Obligations (in an amount equal to
such outstanding L/C Obligations determined as of the date






29









 







of such Unreimbursed Amount or the Letter of Credit Expiration Date, as the case may be). For
purposes hereof, “Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the relevant L/C Issuer and the Banks, as collateral for
the L/C Obligations, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the relevant L/C Issuer (which documents are
hereby consented to by the Banks). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of any L/C Issuer and the
Banks, a security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing, which security interest shall be deemed automatically terminated and
such collateral subject to the Borrower’s instruction on return, upon such L/C Obligations no
longer being outstanding. Cash collateral shall be maintained in a blocked, non-interest bearing
deposit account at and subject to the control of the Administrative Agent.




          (h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by an L/C
Issuer and the Borrower, when a Letter of Credit is issued (i) the rules of 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, as the case may be, the
“ISP”) shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the International
Chamber of Commerce (the “ICC”) at the time of issuance (including, if in effect at each
relevant time, the ICC decision published by the Commission on Banking Technique and Practice on
April 6, 1998 regarding the European single currency (euro)) shall apply to each commercial Letter
of Credit.




          (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Bank in accordance with its Pro Rata Share, a Letter of Credit fee in Dollars for
each Letter of Credit equal to the L/C Fee Rate times the daily maximum amount available to
be drawn under such Letter of Credit, it being agreed that with respect to any Letter of Credit
that, by its terms or the terms of the related Letter of Credit Application or any other document,
agreement or instrument related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time. Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable on the first
Business Day after the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. The L/C Fee Rate for each calendar quarter shall be determined as
provided in Schedule I based on the Rating Level in effect on each applicable day of such
quarter.




          (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the relevant L/C Issuer for its own account a fronting fee in
Dollars with respect to each Letter of Credit equal to 0.20% per annum times the daily maximum
amount available to be drawn under such Letter of Credit, it being agreed that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides
for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect
to all such increases, whether or not such maximum stated amount is in effect at such time;
provided, further, that with respect to any outstanding Letter of Credit that, by
its terms or the terms of any Issuer Document related thereto, provides for one or more automatic
reductions in the stated amount thereof, the amount of such Letter of Credit shall be deemed to






30









 







be the Dollar Equivalent of the amount available to be drawn under such Letter of Credit after
giving effect to all such reductions that have theretofore occurred and are in effect at the
relevant time of determination. Such fronting fee shall be computed on a quarterly basis in
arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of
each March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. In addition, the Borrower shall pay directly to the relevant L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges of the relevant 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.




          (k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.




          (l) Currency Indemnity




               (i) The Borrower shall reimburse an L/C Issuer pursuant to Section 2.9(c)(i) in the currency
(the “Agreed Currency”) in which the Letter of Credit under which the relevant L/C Issuer
made payment was issued. If any payment is received on account of any Letter of Credit in any
currency (the “Other Currency”) other than the Agreed Currency (whether voluntarily,
pursuant to the Borrower or an Unreimbursed Amount, or pursuant to an order or judgment or the
enforcement thereof or the realization of any security or the liquidation of the Borrower or
otherwise howsoever), such payment shall constitute a discharge of the liability of the Borrower
hereunder and under the other Loan Documents in respect thereof only to the extent of the amount of
Agreed Currency which the relevant L/C Issuer is able to purchase with the amount of the Other
Currency received by it on the Business Day next following such receipt in accordance with its
normal procedures and after deducting any premium and costs of exchange.



               (ii) If, for the purpose of obtaining or enforcing judgment in any court in any jurisdiction,
it becomes necessary to convert into a particular currency (the “Judgment Currency”) any
amount due in the Agreed Currency, then the conversion shall be made on the basis of the rate of
exchange prevailing on the next Business Day following the date such judgment is given and in any
event the Borrower shall be obligated to pay the relevant L/C Issuer any deficiency in accordance
with Section 2.9(l)(iii). For the foregoing purposes “rate of exchange” means the rate at which an
L/C Issuer, in accordance with its normal banking procedures is able on the relevant date to
purchase the Agreed Currency with the Judgment Currency after deducting any premium and costs of
exchange.



               (iii) If an L/C Issuer receives any payment or payments on account of the liability of the
Borrower hereunder pursuant to any judgment or order in any Other Currency, and the amount of the
Agreed Currency which the relevant L/C Issuer is able to purchase on the Business Day next
following such receipt with the proceeds of such payment or payments in accordance with its normal
procedures and after deducting any premiums and costs of exchange is less than the amount of the
Agreed Currency due in respect of such liabilities immediately prior to such judgment or order,
then the Borrower on demand shall, and the Borrower hereby agrees to, indemnify and save the
relevant L/C Issuer harmless from and against any loss, cost or expense arising out of or in
connection with such deficiency. The agreement of indemnity



31









 




provided for in this Section 2.9(l)(iii) shall constitute an obligation separate and
independent from all other obligations contained in this Agreement, shall give rise to a separate
and independent cause of action, shall apply irrespective of any indulgence granted an L/C Issuer,
Administrative Agent or Bank, or any of them from time to time, and shall continue in full force
and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due
hereunder or under any judgment or order.




          (m) Outstanding Letters of Credit. On the date hereof, each Letter of Credit listed
on Schedule III shall be deemed to have been issued under this Agreement by JPMorgan, as an L/C
Issuer, Bank of America, as an L/C Issuer, or Barclays, as an L/C Issuer, as specified on Schedule
III, without payment of any fees otherwise due upon the issuance of a Letter of Credit, and
JPMorgan, Bank of America and Barclays as L/C Issuers, shall be deemed, without further action by
any party hereto, to have sold to each Bank, and each Bank shall be deemed, without further action
by any party hereto, to have purchased from JPMorgan, Bank of America or Barclays as L/C Issuers, a
participation, to the extent of such Bank’s Pro Rata Share, in such Letters of Credit.




          (n) Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of
such Letter of Credit in effect at such time; provided, however, that with respect
to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto,
provides for one or more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time; provided, further, that with respect to any
outstanding Letter of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic reductions in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the Dollar Equivalent of the amount available to be
drawn under such Letter of Credit after giving effect to all such reductions that have theretofore
occurred and are in effect at the relevant time of determination.




     Section 2.10 Prepayments. The Borrower may (a) in respect of Eurodollar Advances,
upon at least three Business Days’ notice, and (b) in respect of Base Rate Advances, upon notice by
11:00 A.M. on the day of the proposed prepayment, to the Administrative Agent (which shall promptly
notify each Bank) stating the proposed date and aggregate principal amount of the prepayment and
the Types of Advances to be prepaid, and in the case of Eurodollar Advances, the specific Borrowing
or Borrowings pursuant to which made, and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part of the same Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment on the principal
amount prepaid without premium or penalty; provided, however, that each partial
prepayment shall be in an aggregate principal amount not less than $5,000,000, and provided
further, that if the Borrower prepays any Eurodollar Advance on any day other than the last
day of an Interest Period therefor, the Borrower shall compensate the Banks pursuant to Section
8.4(b).



     Section 2.11 Increased Costs; Capital Adequacy, Etc. (a) Subject to Section 8.8, if,
due to either (i) the introduction of or any change in or in the interpretation of any law or
regulation by any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, in each case after the date of this Agreement, or (ii)
the compliance with any guideline or request from any governmental authority, central bank or



32









 




comparable agency (whether or not having the force of law) in each case made or issued after
the date of this Agreement, there shall be any increase in the cost to any Bank of agreeing to make
or making, funding or maintaining Eurodollar Advances (other than increased costs described in
Section 2.6 or in clause (c) below), the Borrower shall from time to time, within 20 Business Days
following its receipt of the certificate herein referenced (with a copy of such certificate from
the requesting Bank to the Administrative Agent), pay to the Administrative Agent for the account
of such Bank additional amounts sufficient to compensate such Bank for such increased cost. A
certificate in reasonable detail stating the basis for and the amount of such increased cost,
showing in reasonable detail the calculation of such additional amounts as shall be required to
compensate it for the increased costs to it as a result of such events and certifying that such
costs are generally being charged by it to other similarly situated borrowers under similar credit
facilities shall be submitted to the Borrower and the Administrative Agent by such Bank, which
certificate shall be conclusive and binding for all purposes, absent manifest error. Promptly
after any Bank becomes aware of any such introduction, change or proposed compliance, such Bank
shall notify the Borrower thereof. No Bank shall be permitted to recover increased costs incurred
or accrued pursuant to this Section 2.11(a) more than 180 days prior to the date it sends the
certificate to the Borrower which is referred to in this Section 2.11(a); provided,
however, that if any such introduction, change, interpretation, guideline or request
referred to above giving rise to such increased costs is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect thereof. For the
purposes of this Section 2.11, the Dodd-Frank Wall Street Reform and Consumer Protection Act and
all rules, regulations, orders, requests, guidelines or directives in connection therewith are
deemed to have been adopted and gone into effect after the date of this Agreement.




          (b) If the Borrower so notifies the Administrative Agent of any increased cost pursuant to the
provisions of Section 2.11, the Borrower shall have the right to Convert all Advances of the Type
affected by such increased cost of all Banks then outstanding into Advances of another Type in
accordance with Section 2.8 and, additionally, reimburse such Bank for such increased cost in
accordance with Section 2.11.




          (c) If any Total Facility Bank shall have determined that, after the date hereof, the adoption
of any applicable law, rule, regulation or treaty regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or administration
thereof, in each case after the date hereof, or compliance by any such Total Facility Bank (or its
lending office) with any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency (except to the extent such
request or directive arises as a result of the individual creditworthiness of such Total Facility
Bank, in each case made or issued after the date hereof), has or would have the effect of
increasing the amount of capital required or expected to be maintained as a result of its
Commitment, Canadian Commitment or Sterling Commitment hereunder, such Total Facility Bank shall
have the right to give prompt written notice thereof to the Borrower with a copy to the
Administrative Agent, which notice shall show in reasonable detail the calculation of such
additional amounts as shall be required to compensate it for the increased cost to it as a result
of such increase in capital and shall certify that such costs are generally being charged by it to
other similarly situated borrowers under similar credit facilities, which notice shall be
conclusive and binding for all purposes, absent manifest error, although the failure to give any
such notice shall not, unless such notice fails to set forth the information required above or
except as otherwise expressly provided in Section 2.18(a), release or diminish any of the
Borrower’s obligations to






33









 







pay additional amounts pursuant to Section 2.18(a). No Total Facility Bank shall be permitted
to recover increased costs incurred or accrued pursuant to this Section 2.11(c) more than 180 days
prior to the date it sends the certificate to the Borrower which is referred to in this Section
2.11(c); provided, however, that if any such adoption or change in any applicable
law, rule, regulation or treaty, or any request or directive, giving rise to such increased costs
is retroactive, then the 180-day period referred to above shall be extended to include the period
of retroactive effect thereof.




          (d) Each Total Facility Bank shall use its reasonable efforts (consistent with its internal
policies and legal and regulatory restrictions) to select a jurisdiction for its Applicable Lending
Office, Canadian Lending Office or UK Lending Office, as appropriate, or change the jurisdiction of
its Applicable Lending Office, Canadian Lending Office or UK Lending Office, as the case may be, so
as to avoid the imposition of any increased costs under Section 2.6 or this Section 2.11 or to
eliminate the amount of any such increased cost which may thereafter accrue; provided that
no such selection or change of the jurisdiction for its Applicable Lending Office, Canadian Lending
Office or UK Lending Office shall be made if, in the reasonable judgment of such Total Facility
Bank, such selection or change would be disadvantageous to it.




     Section 2.12 Illegality. Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of or compliance with any law or
regulation, in each case after the date hereof, shall make it unlawful, or any governmental
authority, central bank or comparable agency shall, after the date hereof, assert that it is
unlawful, for any Total Facility Bank or its Eurodollar Lending Office to perform its respective
obligations hereunder to make Eurodollar Advances or Sterling Advances or to continue to fund or
maintain Eurodollar Advances or Sterling Advances hereunder, or the introduction of or any change
in or in the interpretation of or compliance with any law or regulation, in each case after the
date hereof, shall make it unlawful, or any governmental authority, central bank or comparable
agency shall, after the date hereof, assert that it is unlawful, for any Canadian Bank or its
Canadian Lending Office to make Canadian Prime Rate Advances or accept and purchase Canadian
Bankers’ Acceptances, then, on notice thereof and demand therefor by such Total Facility Bank to
the Borrower through the Administrative Agent, (a) the obligation of such Bank to make, or to
Convert Advances or Borrowings into, or to make divisions or combinations of Borrowings resulting
in, Eurodollar Advances or Eurodollar Borrowings, or, if applicable, the obligation of such
Canadian Banks to make Canadian Prime Rate Advances or to accept and purchase Canadian Bankers’
Acceptances, or, if applicable, the obligation of such UK Banks to make Sterling Advances, shall
terminate, as the case may be, and (b) if then required by the provisions of such event, (i) the
Borrower shall forthwith Convert all affected Eurodollar Advances of all Banks then outstanding
into Advances of another Type in accordance with Section 2.8 (other than the requirement that
Conversions be made only on the last day of an Interest Period), (ii) the Canadian Borrower shall
forthwith terminate the Canadian Commitments and prepay all such Canadian Prime Rate Advances and
Canadian Bankers’ Acceptances or (iii) the UK Borrower shall forthwith terminate the Sterling
Commitments and prepay all such Sterling Advances, as applicable.



     Section 2.13 Payments and Computations. (a) The Borrower shall make each payment
under any Loan Document not later than 11:00 A.M. on the day when due in dollars to the
Administrative Agent at its Payment Office in same day funds without setoff, deduction or
counterclaim. The Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or facility fees ratably (other than amounts
payable pursuant to Section 2.6, 2.11, 2.14, 2.17 or 8.4(b)) to the Banks (decreased, as to any



34









 




Bank, for any taxes withheld in respect of such Bank as contemplated by Section 2.14(b)) for
the account of their respective Applicable Lending Offices, and like funds relating to the payment
of any other amount payable to any Bank to such Bank for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this Agreement.




          (b) All computations of interest based on the Base Rate (except during such times as the Base
Rate is determined pursuant to clause (a) of the definition thereof) shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and, subject to
Section 8.8, all computations of interest based on the Eurodollar Rate, the Federal Funds Rate or,
during such times as the Base Rate is determined pursuant to clause (a) of the definition thereof,
the Base Rate and all computations of facility fees shall be made by the Administrative Agent, and
all computations of interest pursuant to Section 2.6 shall be made by a Bank, on the basis of a
year of 360 days, in each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or facility fees are payable. Each
determination by the Administrative Agent (or, in the case of Section 2.6, by a Bank) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.




          (c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided, however, if such extension would cause
payment of interest on or principal of Eurodollar Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.




          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Banks hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower shall not have so made such payment
in full to the Administrative Agent, each Bank shall, subject to Section 8.8, repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such Bank until the
earlier of (i) the date such Bank repays such amount to the Administrative Agent and (ii) the date
two Business Days after the date such amount is so distributed, at the Federal Funds Rate and
thereafter until the date such Bank repays such amount to the Administrative Agent at the Federal
Funds Rate plus 2%.




     Section 2.14 Taxes. (a) Subject to Section 8.8, any and all payments by the Obligors
hereunder or under the Notes, the Canadian Notes or the Sterling Notes shall be made, in accordance
with Section 2.13 with respect to payments made by the Borrower under the Notes, Section 2B.10 with
respect to payments made by the UK Borrower under the Sterling Notes and 2A.9 with respect to
payments made by the Canadian Borrower under the Canadian Notes, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, charges, fees,
duties or withholdings, and all liabilities with respect thereto, excluding, in the case of
each Bank, Canadian Bank or UK Bank and the Administrative Agent, the Canadian Administrative Agent
or the UK Administrative Agent, (i) taxes imposed on its income, profits or capital, (ii) franchise
taxes imposed on it by the jurisdiction under the laws of which (or by a jurisdiction under the
laws of a political subdivision of which) such Bank,



35









 




Canadian Bank or UK Bank or the Administrative Agent, the Canadian Administrative Agent or the
UK Administrative Agent, as the case may be, is organized or any political subdivision thereof and,
in the case of each Bank, each Canadian Bank and each UK Bank, franchise taxes imposed on it by the
jurisdiction of such Bank’s Applicable Lending Office, such Canadian Bank’s Canadian Lending Office
or such UK Bank’s UK Lending Office or any political subdivision thereof, (iii) branch profit taxes
imposed by the United States of America or any similar taxes imposed by any other jurisdiction in
which an Obligor is located or described in the preceding clause (ii), (iv) any withholding taxes
imposed by Canada by virtue of a Canadian Bank not dealing at “arm’s length,” within the meaning of
the applicable taxing legislation, with the Canadian Borrower, (v) any withholding taxes imposed by
the United States of America, Canada or the UK if and to the extent that such taxes (A) shall be in
effect and shall be applicable on the date hereof (or with respect to any entity that becomes a
Bank, a Canadian Bank or a UK Bank after the date hereof, on the date such entity becomes a Bank, a
Canadian Bank or a UK Bank) to payments to be made to such Bank, Canadian Bank or UK Bank or the
Administrative Agent, the Canadian Administrative Agent or the UK Administrative Agent or (B) are
attributable to such Bank’s, Canadian Bank’s or UK Bank’s failure to comply with Section 2.14(g),
(vi) any United States federal withholding taxes imposed as a result of a Bank, Canadian Bank or UK
Bank failing to comply with the requirements of FATCA to establish and maintain an exemption from
withholding thereunder, and (vii) due to the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the interpretation or
administration thereof after the date hereof, withholding taxes in respect of any principal,
interest, fees or other amounts paid or payable by the Canadian Borrower to or for the account of
any Canadian Bank under this Agreement or any other Loan Document which the Canadian Borrower is
required to withhold and remit in respect of any principal, interest, fees or other amounts paid or
payable by the Canadian Borrower to or for the account of any Canadian Bank under this Agreement or
any other Loan Document (all such non-excluded taxes, levies, imposts, deductions, charges, fees,
duties, withholdings and liabilities being hereinafter referred to as “Taxes”). Subject to
Section 8.8, if any Obligor shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note, Canadian Note or Sterling Note or Canadian Bankers’
Acceptance to any Bank, Canadian Bank or UK Bank or the Administrative Agent, the Canadian
Administrative Agent or the UK Administrative Agent, (x) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.14) such Bank, Canadian Bank or UK Bank or the
Administrative Agent, the Canadian Administrative Agent or the UK Administrative Agent, as the case
may be, receives an amount equal to the sum it would have received had no such deductions been
made, (y) the relevant Obligor shall make such deductions and (z) such Obligor shall pay the full
amount deducted to the relevant taxation authority or other authority in accordance with applicable
law.




          (b) Notwithstanding anything to the contrary contained in this Agreement, each Obligor and
each Agent shall be entitled, to the extent it is required to do so by law, to deduct or withhold
income or other similar taxes imposed by the United States of America, Canada or the UK from
interest, fees or other amounts payable hereunder for the account of any Bank, Canadian Bank or UK
Bank (without obligation of the payment by such Obligor of increased amounts to such Bank, Canadian
Bank or UK Bank pursuant to Section 2.14(a)) except there shall be no deduction or withholding of
income or other similar taxes:







36









 








               (i) with respect to the Commitments, the Advances and the Letters of Credit, from such amounts
payable to a Bank that has the Prescribed Forms on file with the Borrower and the Administrative
Agent for the applicable year to the extent deduction or withholding of such taxes is not required
as a result of the filing of such Prescribed Forms, and



               (ii) with respect to the Sterling Commitments, the Sterling Advances and the Sterling Letters
of Credit, from amounts payable to a UK Bank who satisfied the requirements set forth in Section
2.14(f)(iii);


provided that if the Borrower shall so deduct or withhold any such taxes, it shall provide
a statement (in the form required by applicable law) to the Administrative Agent and such Bank,
Canadian Bank or UK Bank, setting forth the amount of such taxes so deducted or withheld, the
applicable rate and any other information or documentation which such Bank, Canadian Bank or UK
Bank or the applicable Agent may reasonably request for assisting such Bank, Canadian Bank or UK
Bank or the applicable Agent to obtain any allowable credits or deductions for the taxes so
deducted or withheld in the jurisdiction or jurisdictions in which such Bank, Canadian Bank or UK
Bank is subject to tax.




          (c) In addition, subject to Section 8.8, the Obligors agree to pay or reimburse any present or
future stamp or documentary taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or under the Notes, the Canadian Notes or the Sterling
Notes, respectively, or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes, the Canadian Notes or the Sterling Notes, respectively
(hereinafter referred to as “Other Taxes”).




          (d) The Borrower, to the fullest extent permitted by law, will indemnify each Total Facility
Bank and each Agent for the full amount of Taxes or Other Taxes paid by such Total Facility Bank or
Agent, as the case may be, and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 45 days from the date such Total
Facility Bank or Agent, as the case may be, makes written demand therefor from the Borrower and
provides the Borrower a reasonably detailed written explanation of the nature and amount of such
claim, together with copies of all demands and other communications received by such Total Facility
Bank or Agent, as the case may be, from related taxing authorities. No Total Facility Bank nor any
Agent shall be indemnified for Taxes or Other Taxes (i) incurred or accrued more than 180 days
prior to the date that such Bank, Canadian Bank, UK Bank or such Agent notifies the Borrower
thereof or (ii) arising out of a failure by a Total Facility Bank or any Agent to provide the
Prescribed Forms or other comparable document prescribed by any applicable law to the applicable
Obligor and the Administrative Agent; provided, however, that any such adoption,
change, change in interpretation or administration referred to in this Section 2.14 giving rise to
such Taxes or Other Taxes is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.




          (e) Within 45 days after the date of any payment of Taxes by or at the direction of any
Obligor (or, in the case of clause (i) of this Section 2.14(e), within 10 Business Days after the
Borrower has received a receipt from the relevant taxing authority), the Borrower will furnish to
the Administrative Agent (and the Canadian Administrative Agent and the UK Administrative Agent, if
appropriate), at the relevant address referred to in Section 8.2, (i) the original or a certified
copy of a receipt evidencing payment thereof if the relevant taxing






37









 







authority provides a receipt or (ii) if the relevant taxing authority does not provide a
receipt, other reasonable evidence of payment thereof. Should any Total Facility Bank or any Agent
ever receive any refund, credit or deduction from any taxing authority to which it would not be
entitled but for the payment by such Obligor of Taxes or Other Taxes as required by this Section
2.14 (it being understood that the decision as to whether or not to claim, and if claimed, as to
the amount of any such refund, credit or deduction shall be made by such Person in its sole
discretion), such Person, as the case may be, thereupon shall repay to such Obligor, as
appropriate, an amount with respect to such refund, credit or deduction equal to any net reduction
in taxes actually obtained by such Person, as the case may be, and determined by it, as the case
may be, to be attributable to such refund, credit or deduction.




          (f) (i) Each Bank shall use its reasonable efforts (consistent with its internal policies and
legal and regulatory restrictions) to select a jurisdiction for its Applicable Lending Office, or
change the jurisdiction of its Applicable Lending Office, as the case may be, so as to avoid the
imposition of any Taxes or Other Taxes or to eliminate the amount of any such additional amounts
which may thereafter accrue; provided that no such selection or change of the jurisdiction for its
Applicable Lending Office shall be made if, in the reasonable judgment of such Bank, such selection
or change would be disadvantageous to such Bank.




               (ii) Each Canadian Bank shall use its reasonable efforts (consistent with its internal
policies and legal and regulatory restrictions) to select a jurisdiction for its Canadian Lending
Office, as appropriate, or change the jurisdiction of its Canadian Lending Office, as the case may
be, so as to avoid the imposition of any Taxes or Other Taxes or to eliminate the amount of any
such additional amounts which may thereafter accrue; provided that no such selection or
change of the jurisdiction for its Canadian Lending Office shall be made if, in the reasonable
judgment of such Canadian Bank, such selection or change would be disadvantageous to such Bank or
Canadian Bank.



               (iii) Each UK Bank represents and warrants to the Borrower and the UK Borrower and the UK
Administrative Agent that at all times that it is a UK Bank, either (A) it (or any lending office,
branch, permanent establishment or Affiliate through which it performs any of its obligations or
exercises any of its rights, in each case under the Loan Documents) is a Person resident in the UK
for UK tax purposes and is beneficially entitled to interest payable to it or (B) it (or any
lending office or Affiliate through which it performs any of its obligations or exercises any of
its rights, in each case under the Loan Documents) is a “bank”, as defined for the purpose of
Section 879 of the 2007 Tax Act, that has permission under Part 4 of the Financial Services and
Markets Act 2000 to accept deposits (as set out in Section 1120 of the 2010 Tax Act), is
beneficially entitled to the interest and is within the charge to UK corporation tax thereon or (C)
it (or any lending office, branch, permanent establishment or Affiliate through which it performs
any of its obligations or exercises any of its rights, in each case under the Loan Documents) is a
Person who is resident (as such term is defined in the appropriate UK Double Taxation Treaty) in a
country with which the UK has an appropriate UK Double Taxation Treaty giving residents of that
country full exemption from UK taxation on interest where such Person has provided the appropriate
authorization from HM Revenue & Customs to the UK Borrower and the UK Administrative Agent. Not in
derogation of the foregoing representation and warranty, but in furtherance thereof, each UK Bank
shall use its reasonable efforts (consistent with its internal policies and legal and regulatory
restrictions) to select a jurisdiction for its UK Lending Office, as appropriate, or change the
jurisdiction of its UK Lending Office, as the case may be, so as to avoid the imposition of any
Taxes or Other Taxes or to eliminate the amount of any such additional amounts which may thereafter
accrue; provided that no such selection or



38









 




change of the jurisdiction for its UK Lending Office shall be made if, in the reasonable
judgment of such UK Bank, such selection or change would be disadvantageous to such UK Bank.




          (g) Each Total Facility Bank also agrees to deliver to the Borrower, the Canadian Borrower or
the UK Borrower, as appropriate, and to the relevant Agent such forms or documentation, including
the Prescribed Forms referred to in Section 8.16, as may at any time be required in order to
confirm or maintain in effect its entitlement to exemption from United States, Canadian or UK
withholding tax, as the case may be, on any payments hereunder, provided that, at the
relevant time, applicable laws permit such Total Facility Bank to do so.




          (h) In the case of a Bank that would be subject to withholding tax imposed by FATCA on
payments made on account of any obligation of the Borrower hereunder if such Bank fails to comply
with the applicable reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Code, as applicable), such Bank, as the case may be, shall provide such
documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Code) and such additional documentation reasonably requested by the Bank as may be necessary
for the Bank to comply with its obligations under FATCA, to determine that such Bank, as the case
may be, has complied with such Bank’s obligations under FATCA or to determine the amount to deduct
and withhold from any such payments.




     Without prejudice to the survival of any other agreement of the Obligors hereunder, but
subject to the expiration of any applicable statute of limitations, the agreements and obligations
of the Obligors contained in this Section 2.14 shall survive the payment in full of principal and
interest hereunder and under the Notes, the Canadian Notes, the Sterling Notes and the Canadian
Bankers’ Acceptances.



     Section 2.15 Sharing of Payments, Etc. If, other than as provided elsewhere herein,
any Total Facility Bank shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the Total Outstanding Amount, the
Canadian Total Outstanding Amount or the Sterling Total Outstanding Amount, as the case may be,
made by it (other than pursuant to Section 2.6, 2.11, 2.14, 2.17, 2.18 or 8.4(b)) in excess of its
ratable share of payments on account of the Total Outstanding Amount, the Canadian Total
Outstanding Amount or the Sterling Total Outstanding Amount, obtained by all Total Facility Banks
with respect to the Total Outstanding Amount, the Canadian Total Outstanding Amount or the Sterling
Total Outstanding Amount, as applicable, such Total Facility Bank receiving a greater proportion of
the payments shall forthwith purchase from the applicable Total Facility Banks participations in
the Total Outstanding Amount, the Canadian Total Outstanding Amount or the Sterling Total
Outstanding Amount made by them as shall be necessary to cause such purchasing Total Facility Bank
to share the excess payment ratably with each of them, provided, however, that if all or
any portion of such excess payment is thereafter recovered from such purchasing Total Facility
Bank, such purchase from each Total Facility Bank shall be rescinded and such Total Facility Bank
shall repay to the purchasing Total Facility Bank the purchase price to the extent of its ratable
share (according to the proportion of (a) the amount of the participation purchased from such Total
Facility Bank as a result of such excess payment to (b) the total amount of such excess payment) of
such recovery together with an amount equal to such Total Facility Bank’s ratable share (according
to the proportion of (i) the amount of such Total Facility Bank’s required repayment to (ii) the
total amount so recovered from the purchasing Total Facility Bank) of any interest or other amount
paid or payable by the purchasing Total Facility Bank in respect of the total amount so recovered.
Each Obligor agrees that any Total Facility Bank so purchasing a participation from another Total
Facility Bank



39









 




pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as if such Total
Facility Bank were its direct creditor in the amount of such participation.




     Section 2.16 Ratable Reduction or Termination of the Commitments; Canadian Allocation of
Commitments; Sterling Allocation of Commitments. (a) The Borrower shall have the right, upon
at least three Business Days’ notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the Banks; provided
that each partial reduction shall be in the aggregate amount of at least $10,000,000;
provided, further, no such termination or reduction shall reduce the Total
Committed Amount to an amount less than the Total Outstanding Amount. Any reduction or termination
of any Commitment (whether pursuant to this Section 2.16, Section 2.17 or Section 2.18) shall be
irrevocable, and any such termination shall automatically terminate such Bank’s or its Affiliate’s
Canadian Allocated Commitment or Sterling Allocated Commitment (if any). Upon and at all times
after any Commitment of any Bank is terminated in whole pursuant to any provision of this
Agreement, such Commitment (and related Canadian Allocated Commitment, Canadian Commitment,
Sterling Allocated Commitment or Sterling Commitment, if any) shall be zero and such Bank shall
have no further obligation to make any Advances or purchase participations in L/C Obligations, nor
shall such Bank or any Canadian or UK branch or Affiliate have any further obligation as a Canadian
Bank or UK Bank, as the case may be, to make any Canadian Advances or UK Advances, as the case may
be, or purchase participations in Canadian L/C Obligations or Sterling L/C Obligations.



          (b) Pursuant to and as set forth in Section 2A.10, the Borrower shall have the right to
allocate a portion of the Total Committed Amount as the Canadian Allocated Total Commitment;
provided that no Canadian Bank shall have a Canadian Allocated Commitment of more than US
$25,000,000.00, unless such Canadian Bank and Borrower shall otherwise agree. Upon any such
allocation, and until such Canadian Allocation Period is terminated in whole, the provisions set
forth in Appendix 1 shall be effective for all purposes with respect thereto and hereto. So long
as no Canadian Allocation Period exists, the Borrower may at any time permanently terminate its
right to allocate a portion of the Total Committed Amount as the Canadian Allocated Total
Commitment, at which time the obligations of the Canadian Borrower hereunder and the Canadian
Guaranty shall automatically terminate, and thereafter no Bank nor its Canadian branch or Affiliate
shall have any Canadian Allocated Commitment, nor shall any Canadian bank have any Canadian
Commitment.




          (c) Pursuant to and as set forth in Section 2B.11 the Borrower shall have the right to
allocate a portion of the Total Committed Amount as the Sterling Allocated Total Commitment;
provided that no Sterling Bank shall have a Sterling Allocated Commitment of more than US
$25,000,000.00, unless such Sterling Bank and Borrower shall otherwise agree. Upon any such
allocation, and until such Sterling Allocation Period is terminated, the provisions set forth in
Appendix 2 shall be effective for all purposes with respect thereto and hereto. So long as no
Sterling Allocation Period exists, the Borrower may at any time permanently terminate its right to
allocate a portion of the Total Committed Amount as the Sterling Allocated Total Commitment, at
which time the obligations of the UK Borrower hereunder and the UK Guaranty shall automatically
terminate, and thereafter no Bank nor its UK branch or Affiliate shall have any Sterling Allocated
Commitment, nor shall any UK Bank have any Sterling Commitment.







40









 








     Section 2.17 Non-Ratable Reduction or Termination of Commitments. The Borrower shall
have the right, without the consent of any Bank, but subject to the approval of the Administrative
Agent (which consent shall not be unreasonably withheld), to reduce in part or to terminate in
whole the Commitment of one or more Banks non-ratably, provided that (a) on the effective
date of any such reduction or termination (i) there are no amounts outstanding under any of the
Notes, and if such Bank or any of its Affiliates is (A) a Canadian Bank, there are no amounts
outstanding under any of the Canadian Notes, or (B) a UK Bank, there are no amounts outstanding
under any of the Sterling Notes, (ii) no Event of Default or event which would constitute an Event
of Default but for the requirement that notice be given or time elapse or both, shall have occurred
and be continuing, (iii) the senior unsecured long-term debt of the Borrower is rated BBB- or
better by Standard & Poor’s or Baa3 or better by Moody’s, and (iv) the Borrower shall pay to any
Bank whose Commitment is terminated all amounts owed by the Borrower to such Bank under this
Agreement (including accrued facility fees), (b) the aggregate amount of each non-ratable reduction
shall be at least $10,000,000, and (c) the aggregate amount of all such non-ratable reductions and
terminations of Commitments since the date of this Agreement shall not exceed $25,000,000. The
Borrower shall give the Administrative Agent at least three Business Days’ notice of the Borrower’s
intention to reduce or terminate any Commitment pursuant to this Section 2.17.



     Section 2.18 Termination; Replacement of Bank.



          (a) Each Bank, Canadian Bank and UK Bank agrees that, upon Borrower’s receipt of the notice
and certificate specified in Section 2.11(c) or making a claim under Section 2.14, at the request
of the Borrower, it will promptly enter into good faith negotiations with the Borrower with respect
to the method of reimbursement or payment for the costs or other amounts specified in such notice.
No later than 20 Business Days after the date of the giving of any such notice, and assuming the
Bank, Canadian Bank or UK Bank giving same has made itself available for the aforesaid good faith
negotiations, the Borrower shall have the option, to be exercised in writing, to (i) subject to
Section 8.8, compensate such Bank, Canadian Bank or UK Bank for the specified costs or other
amounts on the basis, if any, negotiated between it and the Borrower, (ii) terminate such Bank’s
Commitment or such Canadian Bank’s Canadian Commitment or such UK Bank’s Sterling Commitment to the
extent, and on the terms and conditions, specified in Section 2.18(b) or (iii) replace such Bank,
Canadian Bank or UK Bank, as applicable, with another commercial bank or other financial
institution to the extent, and on the terms and conditions, specified in Section 2.18(c);
provided that if the Borrower fails to so exercise either of options (ii) or (iii), it
shall be deemed to have agreed to reimburse such Bank, Canadian Bank or UK Bank from time to time
as herein provided the costs or other amounts specified in its notice and certificate delivered
pursuant to Section 2.11(c). Notwithstanding the foregoing, the Borrower shall not be obligated to
reimburse any Bank, Canadian Bank or UK Bank pursuant to this or Section 2.18(b)or (c) for any
costs or other amounts under Section 2.11(c) or Section 2.14 incurred or accruing more than 180
days prior to the date on which it gave the written notice and certificate specified in Section
2.11(c) or Section 2.14, as the case may be; provided, however that such 180-day
period shall be subject to the provisos at the end of each of Section 2.11(c) and Section 2.14(d).




          (b) In the event that the Borrower has given notice to a Bank, Canadian Bank or UK Bank
pursuant to Section 2.18(a) that it elects to terminate such Bank’s Commitment, such Canadian
Bank’s Canadian Commitment or such UK Bank’s Sterling Commitment (a copy of which notice shall be
sent to the Administrative Agent who will promptly notify each Total Facility Bank), such
termination shall become effective 20 Business Days thereafter unless such






41









 







Bank, Canadian Bank or UK Bank withdraws its request for costs or other amounts. On the date
of the termination of the Commitment of any Bank or the Canadian Commitment of any Canadian Bank or
the Sterling Commitment of any UK Bank pursuant to this Section 2.18(b), (i) the Borrower shall
deliver notice of the effectiveness of such termination to such Bank, Canadian Bank or UK Bank and
to the Administrative Agent, (ii) the Borrower shall pay all amounts owed by the Borrower to such
Bank, Canadian Bank or UK Bank under this Agreement or under the Note payable to it by such Bank
(and the Canadian Borrower shall pay all amounts owed by it to any such Canadian Bank under this
Agreement or under any Canadian Bankers’ Acceptance or Note payable to such Canadian Bank and the
UK Borrower shall pay all amounts owed by it to any such UK Bank under this Agreement or under any
Sterling Note payable to such UK Bank) (including principal of and interest on the Advances,
Canadian Advances or Sterling Advances owed to such Bank, Canadian Bank or UK Bank, accrued
facility fees and amounts specified in its notice and certificate delivered pursuant to Section
2.11(c) or Section 2.14 with respect to the period prior to such termination) and (iii) upon the
occurrence of the events set forth in clauses (i) and (ii), such Bank, Canadian Bank or UK Bank
shall cease to be a “Bank”, a “Canadian Bank” or a “UK Bank” hereunder for all purposes except for
rights under Sections 2.6, 2.11, 2.14 and 8.4 arising out of events and occurrences before or
concurrently with its ceasing to be a “Bank”, “Canadian Bank” or “UK Bank” hereunder. The Borrower
may elect to terminate a Bank’s Commitment, a Canadian Bank’s Canadian Commitment or a UK Bank’s
Sterling Commitment pursuant to Section 2.18(a) only if at such time:




          (i) no Event of Default is then in existence or would be in existence but for requirement that
notice be given or time elapse or both; and




          (ii) the Borrower has elected, or is then electing, to terminate the Commitments, Canadian
Commitments or Sterling Commitments of all Banks, Canadian Banks or UK Banks, as the case may be,
which have made similar requests for costs or other similar amounts under Section 2.11(c) or under
Section 2.14, which requests have not been withdrawn, provided, that requests may be
determined by the Borrower to be dissimilar based on the negotiation of materially dissimilar rates
of compensation under clause (i) of Section 2.11.




          (c) In the event that any Bank, Canadian Bank or UK Bank (i) shall claim payment of any
additional amounts pursuant to Section 2.6, Section 2.11, Section 2.12 or Section 2.18(a) or (b),
(ii) exercises its option pursuant to Section 2.18(a)(iii), (iii) makes a claim under Section 2.14,
(iv) does not consent to the extension of the Termination Date pursuant to Section 2.21, or (v) any
Bank, Canadian Bank or UK Bank becomes a Defaulting Bank then the Borrower shall have the right,
exercisable at its option, to replace such Bank, Canadian Bank or UK Bank with another commercial
bank or other financial institution, including any then existing Bank, Canadian Bank or UK Bank, as
the case may be; provided that such replacement commercial bank or other financial
institution, (i) if it is not a Bank, Canadian Bank or UK Bank, shall be reasonably acceptable to
the Administrative Agent and if it is replacing a Bank, reasonably acceptable to each L/C Issuer,
if it is replacing a Canadian Bank, reasonably acceptable to each Canadian L/C Issuer and if it is
replacing a UK Bank, reasonably acceptable to each Sterling L/C Issuer, as the case may be, (ii)
shall unconditionally offer in writing (with a copy to the Administrative Agent) to purchase all of
such Bank’s, Canadian Bank’s or UK Bank’s rights and assume all of such Bank’s, Canadian Bank’s or
UK Bank’s obligations hereunder and interest in the Advances, Canadian Advances or Sterling
Advances owing to such Bank, Canadian Bank or UK Bank, and the Note, Canadian Note or Sterling Note
held by such Bank, Canadian Bank or UK Bank without recourse at the principal amount of such Note,
Canadian Note or Sterling Note plus interest accrued thereon, and accrued facility fees, to the






42









 







date of such purchase on a date therein specified, and (iii) shall execute and deliver to the
Administrative Agent a document satisfactory to the Administrative Agent pursuant to which such
replacement commercial bank or other financial institution becomes a party hereto with a
Commitment, Canadian Commitment or Sterling Commitment equal to that of the Bank, Canadian Bank or
UK Bank being replaced (plus, if such replacement commercial bank or other financial institution is
already a Bank, Canadian Bank or UK Bank, the amount of its Commitment, Canadian Commitment or
Sterling Commitment prior to such replacement), which document, if such replacement commercial bank
or other financial institution is not already a Bank, Canadian Bank or UK Bank, shall (among other
matters) specify the Domestic Lending Office and Eurodollar Lending Office, or Canadian Lending
Office and UK Lending Office, of such replacement commercial bank or other financial institution;
provided, further, that no Bank nor any Canadian Bank or UK Bank shall have any obligation
to increase its Commitment, Canadian Commitment or Sterling Commitment or otherwise to replace, in
whole or in part, any Bank, Canadian Bank or UK Bank. Upon satisfaction of the requirements set
forth in the first sentence of this Section 2.18(c), acceptance of such offer to purchase by the
Bank, Canadian Bank or UK Bank to be replaced, payment to such Bank, Canadian Bank or UK Bank of
the purchase price in immediately available funds, and the payment by the Borrower of all requested
costs accruing to the date of purchase which the Borrower is obligated to pay under Section 8.4 and
all other amounts owed by such Obligor to such Bank, Canadian Bank or UK Bank (other than the
principal of and interest on the Advances, Canadian Advances or Sterling Advances of such Bank,
Canadian Bank or UK Bank, and accrued facility fees, purchased by the replacement commercial bank
or other financial institution), the replacement commercial bank or other financial institution
shall constitute a “Bank”, “Canadian Bank” or “UK Bank” hereunder, as the
case may be, with a Commitment, Canadian Commitment or Sterling Commitment as so specified and the
Bank, Canadian Bank being so replaced shall no longer constitute a “Bank”, “Canadian Bank” or “UK
Bank” hereunder, as the case may be, and its Commitment, Canadian Commitment or Sterling Commitment
shall be deemed terminated, except that the rights under Sections 2.6, 2.11, 2.14 and 8.4 of the
Bank, Canadian Bank or UK Bank being so replaced shall continue with respect to events or
occurrences before or concurrently with its ceasing to be a “Bank”, “Canadian Bank” or “UK Bank”
hereunder. If, however, (x) a Bank, Canadian Bank or UK Bank accepts such an offer and such
commercial bank or other financial institution fails to purchase such rights and interest on such
specified date in accordance with the terms of such offer, the Borrower shall continue to be
obligated to pay the increased costs to such Bank, Canadian Bank or UK Bank pursuant to Section
2.11 or the additional amounts pursuant to Section 2.14, as the case may be, or (y) the Bank,
Canadian Bank or UK Bank proposed to be replaced fails to accept such purchase offer, the Borrower
shall not be obligated to pay to such Bank, Canadian Bank or UK Bank such increased costs or
additional amounts incurred or accrued from and after the date of such purchase offer.




     Section 2.19 Defaulting Banks. Notwithstanding any provision of any Loan Document to
the contrary, if any Bank, Canadian Bank or UK Bank, as the case may be (and for purposes of this
Section 2.19, each such Person, as the context may require, an “Applicable Bank”), becomes
a Defaulting Bank, then the following provisions shall apply for so long as such Applicable Bank is
a Defaulting Bank:



          (a) Facility Fees. Facility fees shall cease to accrue on the unfunded portion of the
Commitment of such Defaulting Bank pursuant to Section 2.3; provided that, to the
extent Advances made by such Defaulting Bank are repaid by the Borrower, no fees shall accrue on
that portion of such Defaulting Bank’s Commitment corresponding to such repaid amount.







43









 








          (b) Amendments, Waivers, Etc. The Commitment, the Canadian Commitment or the Sterling
Commitment, as the case may be (and for purposes of this Section 2.19, each such commitment, as the
context shall require, an “Applicable Commitment”), and Credit Exposure of such Defaulting Bank
shall not be included in determining whether all Banks, the Total Facility Banks, the Majority
Banks, the Canadian Majority Banks or the UK Majority Banks, as applicable, have taken or may take
any action hereunder (including any consent to any amendment or waiver pursuant to Section 8.1);
provided that any waiver, amendment or modification (i) requiring the consent of all Total Facility
Banks or each affected Total Facility Bank which by its terms directly affects such Defaulting Bank
differently than other affected Total Facility banks, or (ii) under Section 8.1(d) (only with
respect to such Defaulting Bank’s commitments and other funding obligations hereunder), (e) (except
with respect to amounts as contemplated under this Section 2.19) or (f) (except with respect to
amounts as contemplated under this Section 2.19 and in respect of extensions of the Termination
Date pursuant to Section 2.21), shall in each case require the consent of such Defaulting Bank
(other than the termination of any Defaulting Bank’s Commitment, Canadian Commitment or Sterling
Commitment, as the case may be).




          (c) Exposure Reallocation. If any Swingline Exposure or L/C Obligations, Canadian L/C
Obligations or Sterling L/C Obligations, as the case may be (and for purposes of this Section 2.19,
each such type of obligations, as the context shall require, an “Applicable L/C
Obligation”), exist at the time an Applicable Bank becomes a Defaulting Bank then:




               (i) all or any part of the Swingline Exposure and Applicable L/C Obligations of such
Defaulting Bank shall be reallocated among the respective Applicable Banks that are then
non-Defaulting Banks in accordance with their respective Pro Rata Shares, Canadian Pro Rata Shares
or Sterling Pro Rata Shares, as the case may be (and for purposes of this Section 2.19, each such
type of pro rata share, as the context shall require, an “Applicable Pro Rata Share”) (for
the purposes of such reallocation, the Defaulting Bank’s Applicable Commitment shall be disregarded
from all Applicable Commitments in determining such non-Defaulting Banks’ respective Applicable Pro
Rata Share) but only to the extent (x) the sum of the Total Outstanding Amount attributable to all
such non-Defaulting Banks plus such Defaulting Bank’s Swingline Exposure and Applicable L/C
Obligations, as the case may be, does not exceed the total of all such non-Defaulting Banks’
Applicable Commitments, (y) the conditions set forth in Section 3.2(a) are satisfied at such time
and (z) sum of the Total Outstanding Amount attributable to each non-Defaulting Bank plus its
reallocated share of such Defaulting Bank’s Swingline Exposure and Applicable L/C Obligation, as
the case may be, does not exceed such non-Defaulting Bank’s Applicable Commitments;



               (ii) if the reallocation described in clause (c)(i) above cannot, or can only partially, be
effected, then within three (3) Business Days following the Borrower’s receipt of notice from the
Administrative Agent (x) first, the Borrower shall prepay such Swingline Exposure of such
Defaulting Bank (without obligation to prepay the Swingline Exposure of any other Applicable Bank
that is not then a Defaulting Bank) and (y) second, the applicable Obligor shall Cash
Collateralize such Defaulting Bank’s Applicable L/C Obligations (after giving effect to any partial
reallocation pursuant to clause (c)(i) above) in accordance with the procedures set forth in
Section 2.9(g), 2A.7(g) or 2B.8(g), as the case may be, for so long as such Applicable L/C
Obligation is outstanding;



               (iii) if an Obligor Cash Collateralizes any portion of such Defaulting Bank’s Applicable L/C
Obligation pursuant to this Section 2.19, then such Obligor shall not be



44









 




required to pay any fees to such Defaulting Bank pursuant to Section 2.9(i), 2A.7(i) or
2B.8(i), as the case may be, with respect to such Defaulting Bank’s Applicable L/C Obligations
during the period such Defaulting Bank’s Applicable L/C Obligation is Cash Collateralized, and no
such fees shall accrue during such period;




               (iv) if the Applicable L/C Obligations of the Applicable Banks that are then non-Defaulting
Banks are reallocated pursuant to above clause (c)(i), then the fees payable to such non-Defaulting
Banks pursuant to Section 2.9(i), 2A.7(i) or 2B.8(i), as the case may be, shall be adjusted in
accordance with such non-Defaulting Banks’ Applicable Pro Rata Shares; and



               (v) if any Defaulting Bank’s Applicable L/C Obligation is neither Cash Collateralized nor
reallocated pursuant to this Section 2.19, then, without prejudice to any rights or remedies of the
L/C Issuer, Canadian L/C Issuer or Sterling L/C Issuer, as the case maybe (and for purposes of this
Section 2.19, each such letter-of-credit issuer, as the context shall require, an “Applicable
L/C Issuer”) or any other Applicable Bank hereunder, all facility fees that otherwise would
have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting
Bank’s Applicable Commitment that was utilized by such Applicable L/C Obligation) and letter of
credit fees payable under Section 2.9(i), 2A.7(i) or 2B.8(i), as the case may be, with respect to
such Defaulting Bank’s Applicable L/C Obligation shall be payable to the Applicable L/C Issuer
until such Applicable L/C Obligation is Cash Collateralized or reallocated.



          (d) Reallocation of Payments. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent, Canadian Administrative Agent or UK Administrative
Agent, as the case may be (and for purposes of this Section 2.19, each such agent, as the context
shall require, an “Applicable Agent”) for the account of a Defaulting Bank (whether
voluntary or mandatory, at maturity, pursuant to Article VI or otherwise, and including any amounts
made available to the Applicable Agent by that Defaulting Bank pursuant to Section 8.5), shall be
applied at such time or times as may be determined by the Administrative Agent as follows:




               (i) first, to the payment of any amounts owing by that Defaulting Bank to each Applicable
Agent hereunder;



               (ii) second, to the payment on a pro rata basis of any amounts owing by that Defaulting Bank
to the Applicable L/C Issuer or Swingline Lender hereunder;



               (iii) third, if so determined by the Administrative Agent or requested by an Applicable L/C
Issuer or Swingline Lender, to be held as cash collateral for existing or future funding
obligations of that Defaulting Bank of any participation in any Swingline Loan or Letter of Credit,
Canadian Letter of Credit or Sterling Letter of Credit, as the case may be (and for purposes of
this Section 2.19, each such type of letter of credit, as the context shall require, an
“Applicable Letter of Credit”);



               (iv) fourth, as the Borrower may request (so long as no Default or Event of Default exists),
to the funding of any credit extension in respect of which that Defaulting Bank has failed to fund
its portion thereof as required by this Agreement, as determined by the Administrative Agent;




45












 





               (v) fifth, if so determined by the Administrative Agent and the Borrower, to be held in
a non-interest bearing deposit account and released in order to satisfy funding and participation
obligations of that Defaulting Bank under this Agreement;



               (vi) sixth, to the payment of any amounts owing to the Applicable Banks, the Applicable L/C
Issuers or Swingline Lender as a result of that Defaulting Bank’s breach of its obligations under
this Agreement;



               (vii) seventh, so long as no Default or Event of Default exists, to the payment of any amounts
owing to any Obligor as a result of that Defaulting Bank’s breach of its obligations under this
Agreement; and



               (viii) eighth, to that Defaulting Bank or as otherwise directed by a court of competent
jurisdiction; provided that, with respect to this clause eighth, if (x) such payment is a payment
of the principal amount of any loans or Applicable L/C Obligations in respect of which that
Defaulting Bank has not fully funded its appropriate share and (y) such loans or obligations were
made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment
shall be applied solely to pay the loans of, and such obligations owed to, all respective
non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any loans of, or
such obligations owed to, that Defaulting Bank.



Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied
(or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this
Section 2.19(d) shall be deemed paid to and redirected by that Defaulting Bank, and each Applicable
Bank irrevocably consents hereto.



          (e) Swingline Loans and Letters of Credit. So long as any Applicable Bank is a
Defaulting Bank, the Swingline Lender shall not be required to fund any Swingline Loan, and so long
as any Applicable Bank is a Defaulting Bank, no Applicable L/C Issuer shall be required to issue,
amend or increase any Applicable Letter of Credit with respect to which such Defaulting Bank has an
Applicable Commitment, unless it is satisfied that the related exposure will be 100% covered by the
Applicable Commitments of the respective non-Defaulting Banks or cash collateral provided by or on
behalf of the applicable Obligor in accordance with Section 2.19(c), and participating interests in
any such newly issued or increased Applicable Letter of Credit or newly made Swingline Loan shall
be allocated among the respective non-Defaulting Banks in a manner consistent with Section 2.9(c),
2A.7(c) or 2B.8(c), as the case may be (and Defaulting Bank shall not participate therein).


          (f) Reinstatement as a Non-Defaulting Bank. If the Administrative Agent, the
Borrower, the Swingline Lender and the Applicable L/C Issuers each agrees in writing that a Person
then a Defaulting Bank has adequately remedied all matters that caused, are then causing, such
Person to be a Defaulting Bank, then the Swingline Exposure and exposure with respect to all
Applicable Letters of Credit of all respective Applicable Banks shall be readjusted to reflect the
inclusion of such Person’s Applicable Commitments, and on such date such Person shall purchase at
par such of the loans of the other respective Applicable Banks (other than Swingline Loans) as the
Administrative Agent shall determine may be necessary in order for such Person to hold such loans
in accordance with its Applicable Pro Rata Share.


          (g) Rights and Remedies against a Defaulting Bank. The rights and remedies against,
and with respect to, a Defaulting Bank under this Section 2.19 are in addition to, and



46









 








cumulative and not in limitation of, all other rights and remedies that each Applicable Agent,
Applicable Bank, Applicable L/C Issuer, the Borrower or any other Obligor may, at any time,
have against, or with respect to, such Defaulting Bank.




     Section 2.20 Commitment Increase.


          (a) Subject to the terms and conditions set forth herein, the Borrower shall have the right,
without the consent of the Banks but with the prior approval of the Administrative Agent and each
L/C Issuer (such approval not to be unreasonably withheld or delayed), to cause from time to time
and at any time an increase in the Commitments of the Banks (a “Commitment Increase”) by
adding to this Agreement one or more additional financial institutions that is not already a Bank
hereunder (each a “CI Bank”) or by allowing one or more existing Banks to increase their
respective Commitments; provided, however that (i) no Event of Default shall have
occurred which is then continuing, (ii) no such Commitment Increase shall cause the Total Facility
Amount to exceed $1,500,000,000, (iii) no Bank’s Commitment shall be increased without such Bank’s
prior written consent (which consent may be given or withheld in such Bank’s sole and absolute
discretion), and (iv) if, on the effective date of such increase, any Advances have been made, then
the Borrower shall be obligated to pay any breakage fees or costs in connection with the
reallocation of such outstanding Advances.


          (b) Any Commitment Increase shall be requested by written notice from the Borrower to the
Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit H
attached hereto. Each such Notice of Commitment Increase shall specify (i) the proposed effective
date of such Commitment Increase, which date shall be no earlier than five (5) Business Days after
receipt by the Administrative Agent of such Notice of Commitment Increase, (ii) the amount of the
requested Commitment Increase, (iii) the identity of each CI Bank or Bank (or any combination
thereof) that has agreed in writing to increase its Commitment hereunder and (iv) the amount of the
respective Commitments of the then existing Banks and the CI Banks from and after the Commitment
Increase Effective Date (as defined below). If the Administrative Agent and, if then an L/C
Issuer, JPMorgan, Bank of America or Barclays approve such CI Bank (such approval not to be
unreasonably withheld or delayed) and consent to such Commitment Increase (such consent not to be
unreasonably withheld or delayed), all such Persons shall execute a counterpart to the Notice of
Commitment Increase and such Commitment Increase shall be effective on the proposed effective date
set forth in the Notice of Commitment Increase or on another date agreed to by the Administrative
Agent and the Borrower (such date referred to as the “Commitment Increase Effective Date”).


          (c) On each Commitment Increase Effective Date, to the extent that there are Advances
outstanding as of such date, (i) each CI Bank shall, by wire transfer of immediately available
funds, deliver to the Administrative Agent such CI Bank’s New Funds Amount (as defined below),
which amount, for each such CI Bank, shall constitute Advances made by such CI Bank to the Borrower
pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Administrative
Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage
Bank (as defined below) its Reduction Amount (as defined below), which amount, for each such
Reducing Percentage Bank (as defined below), shall constitute a prepayment by the Borrower pursuant
to Section 2.10, ratably in accordance with the respective principal amounts thereof, of the
principal amounts of all then outstanding Advances of such Reducing Percentage Bank, and (iii) the
Borrower shall be responsible to pay to each Bank any breakage fees or costs in connection with the
reallocation of any outstanding Advances.



47









 







          (d) For purposes of this Section 2.20 and Exhibit H, the following defined terms shall
have the following meanings: (i) “New Funds Amount” means the amount equal to the product
of a Bank’s increased Commitment or a CI Bank’s Commitment (as applicable) represented as a
percentage of the Total Facility Amount after giving effect to the Commitment Increase, times the
aggregate principal amount of the outstanding Advances immediately prior to giving effect to the
Commitment Increase, if any, as of a Commitment Increase Effective Date (without regard to any
increase in the aggregate principal amount of Advances as a result of borrowings made after giving
effect to the Commitment Increase on such Commitment Increase Effective Date); (ii) “Reducing
Percentage Bank” means each then existing Bank immediately prior to giving effect to the
Commitment Increase that does not increase its respective Commitment as a result of the Commitment
Increase and whose Pro Rata Share of the Commitments shall be reduced after giving effect to such
Commitment Increase; and (iii) “Reduction Amount” means the amount by which a Reducing
Percentage Bank’s outstanding Advances decrease as of a Commitment Increase Effective Date (without
regard to the effect of any borrowings made on such Commitment Increase Effective Date after giving
effect to the Commitment Increase).


          (e) Each Commitment Increase shall become effective on its Commitment Increase Effective Date
and upon such effectiveness (i) the Administrative Agent shall record in the register each then CI
Bank’s information as provided in the Notice of Commitment Increase and pursuant to an
administrative questionnaire satisfactory to the Administrative Agent that shall be executed and
delivered by each CI Bank to the Administrative Agent on or before the Commitment Increase
Effective Date, (ii) Schedule II hereof shall be amended and restated to set forth all
Banks (including any CI Banks) that will be Banks hereunder after giving effect to such Commitment
Increase (which shall be set forth in Annex I to the applicable Notice of Commitment
Increase) and the Administrative Agent shall distribute to each Bank (including each CI Bank) a
copy of such amended and restated Schedule I, and (iii) each CI Bank identified on the
Notice of Commitment Increase for such Commitment Increase shall be a “Bank” for all purposes under
this Agreement.


          (f) Any Commitment Increase or portion thereof may be designated as Canadian Allocated
Commitments and/or Sterling Allocated Commitments subject to (i) the receipt of commitments from
Canadian Banks or UK Banks to accept such additional Commitments and (ii) the prior approval of the
Canadian L/C Issuer and/or the Sterling L/C Issuer, as the case may be, such approval not to be
unreasonably withheld or delayed.



     Section 2.21 Extension of Termination Date.


          (a) Not earlier than 60 days prior to, nor later than 30 days prior to, each anniversary of
the date hereof, the Borrower may, upon notice to the Administrative Agent (which shall promptly
notify the Banks), request a one-year extension of the Termination Date provided that the
Borrower may not exercise this right more than two times prior to the Termination Date. Within 15
days of delivery of such notice, each Bank shall notify the Administrative Agent whether or not it
consents to such extension (which consent may be given or withheld in such Bank’s sole and absolute
discretion). Any Bank not responding within the above time period shall be deemed not to have
consented to such extension. The Administrative Agent shall promptly notify the Borrower and the
Banks of the Banks’ responses.


          (b) The Termination Date shall be extended only if the Majority Banks (calculated excluding
any Defaulting Bank and prior to giving effect to any replacements of



48









 








Banks permitted herein) (each such Bank a “Consenting Bank”) have consented thereto.
If so extended, the Termination Date, as to the Consenting Banks and as to any Person replacing a
Bank that does not consent to an extension (that so agrees upon becoming such a replacement), shall
be extended to the same date in the following year, effective as of the Termination Date then in
effect (such existing Termination Date being the “Extension Effective Date”). The
Administrative Agent and the Borrower shall promptly confirm to the Banks such extension and the
Extension Effective Date. As a condition precedent to such extension, the Borrower shall deliver
to the Administrative Agent a certificate of the Borrower dated as of the Extension Effective Date
(in sufficient copies for each Bank) signed by a Responsible Officer of the Borrower (i) certifying
and attaching the resolutions adopted by the Borrower approving or consenting to such extension or
confirming that those previously delivered pursuant to Section 3.1 remain in full force and effect
and have not been amended or rescinded, as the case may be, and (ii) certifying that, (A) before
and after giving effect to such extension, the representations and warranties contained in Article
IV made by it are true and correct on and as of the Extension Effective Date, except to the extent
that such representations and warranties specifically refer to an earlier date, (B) before and
after giving effect to such extension no Event of Default exists or will exist, and (C) since (1)
the most immediately preceding March 31 or (2) the filing of a Form 8-K pertaining to any such type
of event which was filed after such March 31 and prior to the date 30 days preceding such Extension
Effectiveness Date, whichever shall later occur, there has not occurred an event, development or
circumstance that has had or would reasonably be expected to have, a material adverse effect on the
consolidated financial position or consolidated results of operations of the Borrower and its
Subsidiaries taken as a whole.



          (c) If any Bank does not consent to the extension of the Termination Date as provided in this
Section 2.21(c), the Borrower shall have the right to replace such Bank in accordance with Section
2.18(c). For the avoidance of doubt, in the event such non-consenting Bank is not replaced, the
Termination Date with respect to that Bank shall not be extended.



     Section 2.22 Swingline Commitment.


          (a) Subject to the terms and conditions hereof, the Swingline Lender agrees to make a portion
of the credit otherwise available to the Borrower under the Commitments from time to time until the
Termination Date by making swing line loans (“Swingline Loans”) to the Borrower;
provided that (i) the aggregate outstanding principal amount of Swingline Loans owed to the
Swingline Lender at any time shall not exceed its Swingline Commitment then in effect
(notwithstanding that the outstanding Swingline Loans owed to the Swingline Lender at any time,
when aggregated with the Swingline Lender’s other outstanding Advances, may exceed its Swingline
Commitment then in effect) and (ii) the Borrower shall not request, and the Swingline Lender shall
not make, any Swingline Loan if, after giving effect to the making of such Swingline Loan, the
aggregate amount (without duplication) of the Advances, the Swingline Loans and the L/C Obligations
would exceed the Total Committed Amount. Prior to the Termination Date, the Borrower may use the
Swingline Commitment by borrowing, repaying (in whole or part) and reborrowing, all in accordance
with the terms and conditions hereof. The Borrower may prepay Swingline Loans at any time upon
notice to the Swingline Lender by 11:00 A.M. on the day of the proposed prepayment stating the
proposed date and aggregate principal amount to be prepaid.


          (b) The Borrower shall repay to the Swingline Lender the then unpaid principal amount of each
Swingline Loan made by the Swingline Lender on the earlier of (i) the Termination Date and (ii) the
first date after such Swingline Loan is made that is the 15th or last



49









 








day of a calendar month and is at least two Business Days after such Swingline Loan is made;
provided that on each date that an Advance is borrowed, the Borrower shall repay all Swingline
Loans then outstanding. The unpaid principal amount of each Swingline Loan shall bear interest at
the per annum rate equal to the Swingline Rate in effect from time to time plus the Applicable
Margin for Eurodollar Advances.



          (c) The obligation of the Swingline Lender to make Swingline Loans to the Borrower is subject
to the same conditions precedent for the making of Advances under Section 3.2, other than
compliance with Section 2.2(a), as referred to in said Section 3.2.



     Section 2.23 Procedure for Swingline Borrowing; Refunding of Swingline Loans.


          (a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give
irrevocable telephonic notice to the Administrative Agent and the Swingline Lender, confirmed
promptly in writing (which telephonic notice must be received by the Swingline Lender not later
than 2:30 P.M., New York City time, on the proposed date Swingline Loans are requested to be made),
specifying (i) the amount to be borrowed and (ii) the requested date such Swingline Loans are to be
advanced (which shall be a Business Day). Each borrowing under the Swingline Commitment shall be
in an amount equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof. As soon as
such funds are available, but in any event not later than 4:00 P.M., New York City time, on the
date such Swingline Loans are requested to be advanced pursuant to the Borrower’s corresponding
written confirmation referenced above, the Swingline Lender shall make available to the
Administrative Agent at the Payment Office an amount in immediately available funds equal to the
amount of the Swingline Loans to be made by the Swingline Lender. The Administrative Agent shall
make the proceeds of such Swingline Loan available to the Borrower at the aforesaid address in
immediately available funds as soon as such funds are available, but in any event not later than
3:00 P.M., New York City time, on the date such Swingline Loans are requested to be advanced
pursuant to the Borrower’s corresponding written confirmation.


          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender
to so act on its behalf), on one Business Day’s prior notice to the Administrative Agent and each
Bank, with copy to the Borrower, given by the Swingline Lender no later than 12:00 Noon, New York
City time, request each Bank to make, and each Bank hereby agrees to make, an Advance, in an amount
equal to such Bank’s Pro Rata Share of the aggregate amount of the Swingline Lender’s Swingline
Loans (the “Refunded Swingline Loans”) outstanding on the date of such notice, to repay the
Swingline Lender. Each Bank shall make the amount of such Advance available to the Administrative
Agent at the Payment Office in immediately available funds, not later than 10:00 A.M., New York
City time, one Business Day after the date of such notice. The proceeds of such Advances shall be
immediately made available by the Administrative Agent to the Swingline Lender for application by
it to the repayment of the Refunded Swingline Loans.


          (c) If prior to the time an Advance would have otherwise been made pursuant to Section
2.23(b), one of the events described in Section 6.1(e) shall have occurred and be continuing with
respect to the Borrower or any Principal Subsidiary or if for any other reason, as determined by
the Swingline Lender in its sole discretion, Advances may not be made as contemplated by Section
2.23(b), each Bank shall, on the date such Advance was to have been made pursuant to the notice
referred to in Section 2.23(b), purchase for cash an undivided



50









 








participating interest in the then outstanding Swingline Loans by paying to the Swingline
Lender an amount (the “Swingline Participation Amount”) equal to (i) such Bank’s Pro Rata
Share times (ii) the sum of the aggregate principal amount of Swingline Loans then outstanding to
the Swingline Lender that were to have been repaid with such Advances.



          (d) Whenever, at any time after the Swingline Lender has received from any Bank such Bank’s
Swingline Participation Amount, the Swingline Lender receives any payment on account of outstanding
Swingline Loans, the Swingline Lender will distribute to such Bank its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Bank’s participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Bank’s pro rata portion of such payment if such
payment is not sufficient to pay the principal of and interest on all Swingline Loans then due);
provided, however, that in the event that such payment received by the Swingline Lender is required
to be returned, such Bank will return to the Swingline Lender any portion thereof previously
distributed to it by the Swingline Lender.


          (e) Each Bank’s obligation to make the Advances referred to in Section 2.23(b) and to purchase
participating interests pursuant to Section 2.23(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Bank or the Borrower may have against the Swingline Lender, the Borrower or
any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of
Default or the failure to satisfy any of the other conditions specified in Section 3.2, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this
Agreement or any other Loan Document by the Borrower, any other Obligor or any other Bank or (v)
any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.



ARTICLE III

CONDITIONS TO ADVANCES




     Section 3.1 Initial Conditions Precedent. The obligation of each Bank to make
Advances and the obligation of the L/C Issuers to issue Letters of Credit, pursuant to the terms
and conditions of this Agreement, is subject to the conditions precedent that the Administrative
Agent shall have received the following, each dated on or before the date hereof, in form and
substance satisfactory to the Administrative Agent:


          (a) This Agreement, executed by the Borrower and each Bank, and, to the extent requested by
any Bank, an executed Note payable to the order of such Bank, respectively.


          (b) Certified copies of the resolutions of the Board of Directors of the Borrower approving
this Agreement, each Note, each Letter of Credit Application, each Letter of Credit and each Notice
of Borrowing, and of all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to each such Loan Document and certified copies of the restated
certificate of incorporation and bylaws of the Borrower.


          (c) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the Borrower authorized to sign each Loan Document to
which it is a party and the other documents to be delivered hereunder.



51









 







          (d) A favorable opinion of Fulbright & Jaworski L.L.P., counsel for the Borrower, to be
delivered to, and for the benefit of, the Banks and the Administrative Agent, at the express
instruction of the Borrower, substantially in the form of Exhibit C and as to such other
matters as any Bank through the Administrative Agent may reasonably request.


          (e) A favorable opinion of Frederick J. Plaeger, II, Senior Vice President and General Counsel
of the Borrower, to be delivered to, and for the benefit of, the Banks and the Administrative
Agent, at the express instruction of the Borrower, in substantially the form of Exhibit D
and as to such other matters as any Bank through the Administrative Agent may reasonably request.


          (f) A certificate of a Responsible Officer of the Borrower certifying (i) there has not
occurred a material adverse change since December 31, 2009 in the consolidated financial condition
of the Borrower and its Subsidiaries taken as a whole, (ii) there has not occurred a material
adverse change since June 30, 2010 in the business, assets, liabilities (actual or contingent),
operations or condition (other than financial) of the Borrower and its Subsidiaries taken as a
whole, and (iii) compliance with the financial covenant set forth in Section 5.2(c) as of June 30,
2010.


          (g) All documentation required to comply with all “know-your-client” requirements under AML
Legislation in relation to each Obligor and this Agreement, as determined by each Total Facility
Bank in respect of such Total Facility Bank’s compliance, acting reasonably.



     Section 3.2 Additional Conditions Precedent to Each Advance and L/C Credit Extension.
The obligation of each Bank to make any Advance and the obligation of the L/C Issuers to make any
L/C Credit Extension shall be subject to the additional conditions precedent that on the date of
such Advance or L/C Credit Extension (a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing or Letter of Credit Application, as the case may be,
and the acceptance by the Borrower of the proceeds of such Advance or such L/C Credit Extension, as
the case may be, shall constitute a representation and warranty by the Borrower that on the date of
such Advance or L/C Credit Extension such statements are true):



               (i) The representations and warranties contained in Section 4.1 of this Agreement are correct
on and as of the date of such Advance or L/C Credit Extension (other than those representations and
warranties that expressly speak solely as of an earlier date, which remain correct as of such
earlier date), before and after giving effect to such Advance and the Borrowing of which such
Advance is a part or such L/C Credit Extension and to the application of the proceeds therefrom, as
though made on and as of such date, and



               (ii) No event has occurred and is continuing, or would result from such Advance or the
Borrowing of which such Advance is a part or such L/C Credit Extension or from the application of
the proceeds therefrom, which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both;



and (b) the Administrative Agent shall have received the Notice of Borrowing required by Section
2.2 or the Letter of Credit Application required by Section 2.9(b)(i) and such other approvals,
opinions or documents as any Bank through the Administrative Agent may reasonably request.




52









 








ARTICLE IV

REPRESENTATIONS AND WARRANTIES




     Section 4.1 Representations and Warranties of the Borrower. The Borrower represents
and warrants to the Total Facility Banks as follows:


          (a) The Borrower and each Principal Subsidiary are duly organized or validly formed, validly
existing and (if applicable) in good standing, in each case under the laws of its jurisdiction of
incorporation or formation. The Borrower and each Principal Subsidiary have all requisite powers
and all material governmental licenses, authorizations, consents and approvals required in each
case to carry on its business as now conducted.


          (b) The execution, delivery and performance by each of the Obligors of each Loan Document to
which it is or will be a party: (i) are within its corporate or equivalent powers, (ii) have been
duly authorized by all necessary corporate or equivalent action of each such Obligor, (iii)
require, in respect of each such Obligor, no action by or in respect of, or filing with, any
governmental body, agency or official and (iv) do not contravene, or constitute a default under,
any provision of law or regulation (including Regulation X and Regulation U) applicable to it or
the restated certificate of incorporation or by-laws of the Borrower or the articles of
incorporation or by-laws of the Canadian Borrower or the memorandum and articles of association of
the UK Borrower or except as disclosed to the Administrative Agent pursuant to this Agreement, any
material judgment, injunction, order, decree or agreement binding upon it or result in the creation
or imposition of any lien, security interest or other charge or encumbrance on any material asset
of the Borrower or any of its Subsidiaries (“material” for the purposes of this representation
meaning creating a liability of $50,000,000 or more).


          (c) This Agreement and each Note are, and each other Loan Document to which any Obligor is or
will be a party, when executed and delivered in accordance with this Agreement will be, the legal,
valid and binding obligation of such Obligor, to the extent a party thereto, enforceable against
it, as the case may be, in accordance with their respective terms, except as the enforceability
thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and by general principles of
equity.


          (d) The audited consolidated balance sheet of the Borrower and its Subsidiaries as of December
31, 2009 and the related audited consolidated statements of income, cash flows and changes in
stockholders’ equity accounts for the fiscal year then ended and the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of June 30, 2010, and the related unaudited
consolidated statements of income and cash flows for the fiscal quarter then ended, in each case as
filed with the Securities and Exchange Commission in its Form 10-K for the year ended December 31,
2009 and Form 10-Q for the quarter ended June 30, 2010, respectively, fairly present, in conformity
with GAAP except as otherwise expressly noted therein, the consolidated financial position of the
Borrower and its Subsidiaries as of such dates and their consolidated results of operations and
changes in financial position for such fiscal periods, subject (in the case of the unaudited
balance sheet and statements) to changes resulting from audit and normal year-end adjustments. As
of June 30, 2010, the Borrower was in compliance with the financial covenant set forth in Sections
5.2(c).


          (e) From December 31, 2009 to the date of this Agreement, there has been no material adverse
change in the consolidated financial condition of the Borrower and its



53









 








Subsidiaries, considered as a whole; from June 30, 2010 to the date of this Agreement, there
has been no material adverse change in the business, assets, liabilities (actual or contingent),
operations or condition (other than financial) of the Borrower and its Subsidiaries considered as a
whole.



          (f) Except as disclosed in the Borrower’s Form 10-K for the year ended December 31, 2009 or
the Borrower’s Form 10-Q for the quarter ended June 30, 2010 in each case, as filed with the
Securities and Exchange Commission prior to the date hereof, or as otherwise disclosed to the
Administrative Agent pursuant to this Agreement, there is no action, suit or proceeding pending
against the Borrower or any of its Subsidiaries, or to the knowledge of the Borrower threatened
against the Borrower or any of its Subsidiaries, before any court or arbitrator or any governmental
body, agency or official in which there is a reasonable possibility of an adverse decision which
could materially adversely affect the consolidated financial position or consolidated results of
operations of the Borrower and its Subsidiaries taken as a whole or which in any manner draws into
question the validity of this Agreement or any other Loan Document to which the Borrower is or will
be a party.


          (g) Except as disclosed to the Administrative Agent pursuant to this Agreement, no Termination
Event has occurred or is reasonably expected to occur with respect to any Plan for which an
Insufficiency in excess of $50,000,000 exists. Except as disclosed to the Administrative Agent
pursuant to this Agreement, neither the Borrower nor any ERISA Affiliate has received any
notification (or has knowledge of any reason to expect) that any Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA, for which a
Withdrawal Liability in excess of $50,000,000 exists.


          (h) United States federal income tax returns of the Borrower and its Subsidiaries have been
closed through the fiscal year ended December 31, 2004 or such subsequent date as disclosed to the
Administrative Agent pursuant to this Agreement. The Borrower and its Subsidiaries have filed or
caused to be filed all United States federal income tax returns and all other material domestic tax
returns which to the knowledge of the Borrower are due prior to the date of this Agreement
(considering any extensions filed by the Borrower and its Subsidiaries) required to be filed by
them and have paid or provided for the payment, before the same become delinquent, of all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower or any Subsidiary,
other than those taxes contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of taxes are, in the
opinion of the Borrower, adequate to the extent required by GAAP.


          (i) Neither the Borrower nor any Subsidiary is an “investment company” within the meaning of
the Investment Company Act of 1940, as amended.


          (j) [Reserved]


          (k) Following application of the proceeds of each Advance, no more than 25% of the value of
the Reg U Limited Assets of the Borrower will consist of margin stock (as defined in Regulation U)
and, to the extent relevant to the compliance with Regulation U or Regulation X by any of the Banks
or the Borrower in connection with this Agreement or any of the Advances, no more than 25% of the
value of the Reg U Limited Assets of the Borrower and its Subsidiaries on a consolidated basis will
consist of margin stock (as defined in Regulation U).



54









 







          (l) Except as disclosed to the Administrative Agent pursuant to this Agreement, the Borrower
and each of its Subsidiaries are in compliance in all respects with all laws, rules, regulations
and orders applicable to each of them (including applicable laws, rules, regulations and orders
pertaining to ERISA and applicable Environmental Protection Statutes), except to the extent that
failure to comply with such laws, rules, regulations and orders could not reasonably be expected to
have a material adverse effect on the consolidated financial position or consolidated results of
operations of the Borrower and its Subsidiaries taken as a whole. Except as disclosed to the
Administrative Agent pursuant to this Agreement, there is (i) no presently outstanding allegation
by government officials or other third parties that the Borrower or any of its Subsidiaries or any
of their respective properties is now, or at any time prior to the date hereof was, in violation of
any applicable Environmental Protection Statute, (ii) no administrative or judicial proceeding
presently pending against the Borrower or any of its Subsidiaries or against any of their
respective properties pursuant to any Environmental Protection Statute, and (iii) no claim
presently outstanding against the Borrower or any of its Subsidiaries or against any of their
respective properties, businesses or operations which was asserted pursuant to any applicable
Environmental Protection Statute that, in the case of all matters described in clauses (i), (ii) or
(iii) above in the aggregate, could reasonably be expected to have a material adverse effect on the
consolidated financial position or consolidated results of operations of the Borrower and its
Subsidiaries taken as a whole. Except as disclosed to the Administrative Agent pursuant to this
Agreement, there are no facts or conditions or circumstances known to the Borrower that the
Borrower reasonably believes could form the basis for any action, lawsuit, claim or proceeding
(regulatory or otherwise) involving the Borrower or any of its Subsidiaries or their respective
past or present properties, businesses or operations relating to the Environment or environmental
matters, including any action, lawsuit, claim or proceeding arising from past or present practices
or operations asserted under any Environmental Protection Statute, that in the aggregate could
reasonably be expected to have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Borrower and its Subsidiaries taken as a whole.


          (m) No information (other than Projections) furnished to the Administrative Agent or any Bank
by the Borrower in connection with its entering into or becoming a party to any Loan Document or
the preparation or negotiation of any Loan Document, to the best of the Borrower’s knowledge, is
incomplete or incorrect in any material respect, and no such information contained, as of the date
of delivery thereof to the Administrative Agent or such Bank, as the case may be, any untrue
statement of a material fact or omitted to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not misleading, as of
such date, when taken as a whole. All such information consisting of financial projections, oil
and gas reserves estimates and projections and other information identified by the Borrower as
estimates or projections (collectively, “Projections”) have been prepared by the Borrower
in good faith based on assumptions the Borrower believed to be reasonable.



ARTICLE V

COVENANTS OF THE BORROWER




     Section 5.1 Affirmative Covenants. The Borrower covenants and agrees that so long as
any Bank shall have any Commitment hereunder, the Borrower will:


          (a) Reporting Requirements. Furnish to each Bank:



55









 








               (i) (A) promptly after the sending or filing thereof, a copy of each of the Borrower’s reports
on Form 8-K (or any comparable form), (B) promptly after the filing or sending thereof, and in any
event within 50 days after the end of each of the first three fiscal quarters of each fiscal year
of the Borrower, a copy of the Borrower’s report on Form 10-Q (or any comparable form) for such
quarter, which report will include the Borrower’s quarterly unaudited consolidated financial
statements as of the end of and for such quarter, and (C) promptly after the filing or sending
thereof, and in any event within 90 days after the end of each fiscal year of the Borrower, a copy
of the Borrower’s report on Form 10-K (or any comparable form) for such year, which report will
include the Borrower’s annual audited consolidated financial statements as of the end of and for
such year;



               (ii) promptly following the delivery of each of the annual or quarterly financial reports
referred to in clause (i) above, but in any event within 10 Business Days thereafter, a certificate
of a Responsible Officer of the Borrower in a form acceptable to the Administrative Agent (A)
setting forth in reasonable detail the calculations required to establish whether the Borrower was
in compliance with the requirement (to the extent applicable) of Section 5.2(c) on the date of the
financial statements contained in such report, and (B) stating whether there exists on the date of
such certificate any Event of Default or event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default, and, if so, setting forth the details thereof and
the action which the Borrower has taken and proposes to take with respect thereto;



               (iii) as soon as is possible and in any event within five days after a change in, or issuance
of, any rating of any of the Borrower’s senior unsecured long-term debt by Standard & Poor’s or
Moody’s which causes a change in the applicable Rating Level, notice of such change;



               (iv) as soon as possible and in any event within five days after an executive officer of the
Borrower having obtained knowledge thereof, notice of the occurrence of any Event of Default or any
event which, with the giving of notice or lapse of time, or both, would constitute an Event of
Default, continuing on the date of such notice, and a statement of a Responsible Officer of the
Borrower setting forth details of such Event of Default or event and the action which the Borrower
has taken and proposes to take with respect thereto;



               (v) as soon as possible and in any event (A) within 30 Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that any Termination Event described in clause (a) of
the definition of Termination Event with respect to any Plan for which an Insufficiency in excess
of $50,000,000 exists, has occurred and (B) within 10 Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that any other Termination Event with respect to any Plan for
which an Insufficiency in excess of $50,000,000 exists, has occurred or is reasonably expected to
occur, a statement of a Responsible Officer of the Borrower describing such Termination Event and
the action, if any, which the Borrower or such ERISA Affiliate proposes to take with respect
thereto;



               (vi) promptly and in any event within five Business Days after receipt thereof by the Borrower
or any ERISA Affiliate, copies of each notice received by the Borrower or any ERISA Affiliate from
the PBGC stating its intention to terminate any Plan for which an Insufficiency in excess of
$50,000,000 exists or to have a trustee appointed to administer any Plan for which an Insufficiency
in excess of $50,000,000 exists;



56









 





               (vii) promptly and in any event within five Business Days after receipt thereof by the
Borrower or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice
received by the Borrower or any ERISA Affiliate indicating liability in excess of $50,000,000
incurred or expected to be incurred by the Borrower or any ERISA Affiliate in connection with (A)
the imposition of a Withdrawal Liability by a Multiemployer Plan, (B) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of
ERISA, or (C) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA;



               (viii) promptly, and in any event within five Business Days after an executive officer of the
Borrower having obtained knowledge thereof, notice of the filing of any litigation against the
Borrower or any of the Principal Subsidiaries which, if adversely determined to the Borrower or
such Principal Subsidiary, could reasonably be expected to have a material adverse effect on the
consolidated financial position or consolidated results of operations of the Borrower and its
Subsidiaries taken as a whole, setting forth the material details of such litigation;



               (ix) promptly, and in any event within five Business Days after an executive officer of the
Borrower having obtained knowledge thereof, notice of the filing of any governmental proceedings
against the Borrower or any of the Principal Subsidiaries which, if adversely determined to the
Borrower or such Principal Subsidiary, could reasonably be expected to have a material adverse
effect on the consolidated financial position or consolidated results of operations of the Borrower
and its Subsidiaries taken as a whole, setting forth the material details of such proceeding;



               (x) promptly upon the receipt thereof by the Borrower or any Subsidiary, a copy of any form of
notice, complaint, request for information under CERCLA or summons or citation received from the
EPA, or any other domestic or foreign governmental agency or instrumentality, federal, state or
local, in any way concerning any action or omission on the part of the Borrower or any of its
present or former Subsidiaries in connection with Hazardous Materials or the Environment if the
amount involved could reasonably be expected to result in a liability of the Borrower or any
Subsidiary in excess of $75,000,000 in the aggregate, or concerning the filing of a lien on or
against any property of the Borrower or any Subsidiary if such lien could reasonably be expected to
secure a liability of the Borrower or any Subsidiary in excess of $75,000,000; and



               (xi) such other information respecting the consolidated financial position or consolidated
results of operations (including an annual report or reports on oil and gas reserves of the
Borrower and its Subsidiaries) of the Borrower that any Bank through the Administrative Agent may
from time to time reasonably request.



Documents required to be delivered pursuant to Section 5.1(a)(i), (a)(iv) or (a)(xi) (to the extent
any such documents are included in materials otherwise filed with the Securities and Exchange
Commission) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto,
on the Borrower’s website on the Internet at the website address listed in Section 8.2 or (ii) on
which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another
relevant website, if any, to which each Bank and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent), whichever shall
first occur; provided that: the Borrower shall notify (which may be by facsimile




57









 








or electronic mail) the Administrative Agent of the posting of any such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to deliver paper copies
of the certificates required by Section 5.1(a)(ii) to the Administrative Agent, and such delivery
shall be deemed a delivery thereof to each of the Banks. Except for such certificates, the
Administrative Agent shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Bank shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.



          (b) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply,
with all applicable laws, rules, regulations and orders (including applicable laws, rules,
regulations and orders pertaining to ERISA and applicable Environmental Protection Statutes) to the
extent noncompliance therewith would have a material adverse effect on the Borrower and its
Subsidiaries taken as a whole.


          (c) Use of Proceeds. Use the proceeds of each Advance and Letter of Credit for
general corporate purposes of the Borrower and its Subsidiaries, including to refinance bank debt,
provide liquidity for the Borrower’s commercial paper program, finance working capital and other
general corporate purposes (and cause the Canadian Borrower and the UK Borrower to use the proceeds
of each Canadian Advance and each Canadian Letter of Credit or each Sterling Advance or Sterling
Letter of Credit, as applicable, for such general corporate purposes, including to finance working
capital). However, no part of the proceeds of the Advances or Letters of Credit (or any Canadian
Advances or Sterling Advances or Canadian Letters of Credit or Sterling Letters of Credit) shall be
used for any purpose not permitted by Section 5.2(g).


          (d) Maintenance of Insurance. Maintain, and cause each of the Principal Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in similar businesses
and owning similar properties as the Borrower or such Principal Subsidiary, provided, that
self-insurance by the Borrower or any such Principal Subsidiary shall not be deemed a violation of
this covenant to the extent that companies engaged in similar businesses and owning similar
properties as the Borrower or such Principal Subsidiary self-insure. The Borrower may maintain the
Principal Subsidiaries’ insurance on behalf of them.


          (e) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause each
of the Principal Subsidiaries to preserve and maintain, its corporate existence, rights (charter
and statutory), and franchises; provided, however, that this Section 5.1(e) shall
not apply to any transactions permitted by Section 5.2(d) or (e) and shall not prevent the
termination of existence, rights and franchises of any Principal Subsidiary (other than the
Canadian Borrower during any Canadian Allocation Period, and the UK Borrower during any Sterling
Allocation Period) pursuant to any merger or consolidation to which such Principal Subsidiary is a
party, and provided, further, that the Borrower or any Principal Subsidiary shall
not be required to preserve any right or franchise if the Borrower or such Principal Subsidiary
shall determine that the preservation thereof is no longer desirable in the conduct of the business
of the Borrower or such Principal Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Banks.


          (f) Visitation Rights. At any reasonable time and from time to time, after reasonable
notice, permit the Administrative Agent or any of the Banks or any agents or representatives
thereof to examine the records and books of account of, and visit the properties



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of, the Borrower and any of the Principal Subsidiaries and to discuss the affairs, finances
and accounts of the Borrower and any of the Principal Subsidiaries with any of the officers or
directors of the Borrower.



          (g) Payment of Taxes, Etc. Pay and discharge, and cause each of the Principal
Subsidiaries to pay and discharge, before the same shall become delinquent (after taking into
account any extensions filed), all taxes, assessments, governmental charges and like governmental
levies imposed upon it or upon its income, profits or property, except where failure to pay such
taxes, assessments, charges and levies could not reasonably be expected to have a material adverse
effect on the consolidated financial position or consolidated results of operations of the Borrower
and its Subsidiaries considered as a whole; provided, that neither the Borrower nor any
Principal Subsidiary shall be required by this Section 5.1(g) to pay and discharge any such tax,
assessment, charge or levy which is being contested in good faith and, if required by such contest.
by appropriate proceedings and with respect to which reserves in conformity with GAAP have been
provided.



     Section 5.2 Negative Covenants. So long as any Bank shall have any Commitment
hereunder, the Borrower will not at any time:


          (a) Negative Pledge. Fail to perform and observe any term, covenant or agreement
contained in Section 1007 of the Indenture (as modified for purposes hereof as set forth in this
Section 5.2(a)). For purposes of this Section 5.2(a), Section 1007 and the definitions of all
terms defined in the Indenture and used in or otherwise applicable to such Section 1007 are set
forth on Exhibit F and are hereby incorporated in this Agreement by reference as if such
provisions and definitions were set forth in full herein; provided, however, that
solely for purposes of this Section 5.2(a), the word “Securities” used in the Indenture
shall mean the Notes, the word “Company” used therein shall mean the Borrower, the phrases
“the last paragraph of Section 1007” and “Section 1007” used therein shall mean
this Section 5.2(a), the word “Trustee” as used therein shall mean the Administrative
Agent, the phrase “Board of Directors” used in the Indenture shall mean the management of
the Borrower, the phrase “Section 301” used therein shall mean Section 301 of the Indenture,
Section 301 of the Indenture shall not apply to any Note, and the phrase “so long as any of the
Securities are outstanding” used therein shall mean so long as any Note shall remain unpaid or
any Bank shall have any Commitment hereunder.


          (b) Transactions with Affiliates. Enter into any material transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than
on fair and reasonable terms no less favorable to the Borrower than would be obtainable by the
Borrower at the time in a comparable arm’s length transaction with a Person other than an
Affiliate, provided that the foregoing restriction shall not apply to any of the following:
(i) transactions between or among the Borrower and any of its wholly-owned Subsidiaries; (ii)
transactions involving the purchase or sale of crude oil, natural gas and other hydrocarbons, in
the ordinary course of business, so long as such transactions are priced in line with industry
accepted benchmark prices and the pricing of such transactions are equivalent to the pricing of
comparable transactions with unrelated third parties; (iii) any employment, equity award, equity
option or equity appreciation agreement or plan, agreement or other similar compensation plan or
arrangement; (iv) the performance of any agreement in effect on the Closing Date; (v) loans or
advances to officers, directors and employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures and other purposes; (vi) maintenance of customary benefit
programs or arrangements for employees, officers or directors, including vacation plans,



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health and life insurance plans, deferred compensation plans and retirement or savings plans
and similar plans; (vii) fees and compensation paid to, and indemnity provided on behalf of,
officers, directors, employees or consultants in their capacity as such; and (viii) sales of equity
interests of the Borrower to its Affiliates.



          (c) Total Debt to Capitalization. As of the end of any fiscal quarter of the
Borrower, have a ratio of (i) Total Debt to (ii) Total Capitalization greater than 0.65 to 1.00.


          (d) Disposition of Assets. Lease, sell, transfer or otherwise dispose of, voluntarily
or involuntarily, all or substantially all of its assets.


          (e) Mergers, Etc. Merge, consolidate or amalgamate with or into, any Person (or,
during any Canadian Allocation Period or any Sterling Allocation Period, permit the Canadian
Borrower or the UK Borrower to amalgamate with or into, any Person), unless (i) the Borrower (or,
with respect to such amalgamation to which the Canadian Borrower is a party, the Canadian Borrower
or, with respect to such amalgamation to which the UK Borrower is a party, the UK Borrower) is the
survivor, or (ii) (A) with respect to the Borrower, the surviving Person, if not the Borrower, is
organized under the laws of the United States or a state thereof and has a Rating Level of Rating
Level IV or higher, (B) with respect to the Canadian Borrower, the continuing Person is organized
under the laws of Canada or any province thereof, and in each case, assumes by agreement or
operation of law all obligations of the Canadian Borrower under this Agreement (and, in respect of
any such amalgamation described in clause (ii)(B), the Borrower shall ratify its obligations under
the Canadian Guaranty), or (C) with respect to the UK Borrower, the continuing Person is organized
under the laws of the United Kingdom, and in each case, assumes by agreement or operation of law
all obligations of UK Borrower under this Agreement (and, in respect of any such amalgamation
described in clause (ii)(C), the Borrower shall ratify its obligations under the UK Guaranty);
provided, in each case under clause (i) or (ii), that both immediately before and after
giving effect to such proposed transaction, no Event of Default or event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default exists, or would exist
or result.


          (f) Compliance with ERISA. (i) Terminate, or permit any ERISA Affiliate to terminate,
any Plan so as to result in any liability in excess of $50,000,000 of the Borrower or any ERISA
Affiliate to the PBGC, or (ii) permit circumstances which give rise to a Termination Event
described in clauses (b), (d) or (e) of the definition of Termination Event with respect to a Plan
so as to result in any liability in excess of $50,000,000 of the Borrower or any ERISA Affiliate to
the PBGC.


          (g) Use of Proceeds. Use the proceeds of any Advance or Letter of Credit for any
purpose other than for general corporate purposes of the Borrower or its Subsidiaries (including to
refinance certain bank debt, provide liquidity for the Borrower’s commercial paper program, finance
working capital and other general corporate purposes) (or permit the Canadian Borrower or the UK
Borrower to use the proceeds of any Canadian Advance or Sterling Advance or Canadian Letter of
Credit or Sterling Letter of Credit for any purpose other than for such general corporate purposes,
including to finance working capital), or use, or permit any Subsidiary to use, any such proceeds
(i) in any manner that violates or results in any violation of any law or regulation, or (ii)
except with respect to such share exchange, to purchase or carry any margin stock (as defined in
Regulation U) or to extend credit to others for the purpose of purchasing or carrying any margin
stock (as defined in Regulation U).



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ARTICLE VI

EVENTS OF DEFAULT




     Section 6.1 Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:


          (a) The Borrower shall fail to pay (i) (A) any Unreimbursed Amount, Canadian Unreimbursed
Amount or Sterling Unreimbursed Amount remaining outstanding and due and payable pursuant to
Sections 2.9(c)(iii), 2A.7(c)(iii) and 2B.8(c)(iii), respectively, (B) any principal on any Note,
or (C) any principal on any Swingline Loan, in each case when due and payable or (ii) any interest
on (A) any Note or (B) any Swingline Loan, in each case for more than five days after such interest
becomes due and payable or (iii) any facility fee set forth in Section 2.3 or 2A.3 or 2B.3 or any
other amount due hereunder for more than 15 days after such fee or other amount becomes due and
payable;


or the Canadian Borrower shall fail to pay (i) any principal on any Canadian Note when due and
payable or (ii) any interest on any Canadian Note for more than five days after such interest
becomes due and payable or (iii) any other amount owed by it and due hereunder for more than 15
days after such other amount becomes due and payable;


or the UK Borrower shall fail to pay (i) any principal on any Sterling Note when due and payable or
(ii) any interest on any Sterling Note for more than five days after such interest becomes due and
payable or (iii) any other amount owed by it and due hereunder for more than 15 days after such
other amount becomes due and payable; or


          (b) Any representation or warranty made by any Obligor (or any of their respective officers)
(including representations and warranties deemed made pursuant to Section 3.2) under or in
connection with any Loan Document shall prove to have been incorrect in any material respect when
made or deemed made; or


          (c) The Borrower shall fail to perform or observe any term, covenant or agreement contained in
Section 5.2, or any Obligor shall fail to perform or observe any other term, covenant or agreement
contained in any Loan Document, in each case on its part required to be performed or observed by it
if, in the case of such other term, covenant or agreement, such failure shall remain unremedied for
30 days after written notice thereof shall have been given to the Borrower by the Administrative
Agent at the request of any Bank; or


          (d) The Borrower or any Principal Subsidiary shall (i) fail to pay any principal of or premium
or interest on any Debt (other than Debt described in clause (e) of the definition of Debt) which
is outstanding in the principal amount of at least $100,000,000 in the aggregate, of the Borrower
or such Principal Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist under any agreement
or instrument relating to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or condition is to
accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required prepayment or as a result of
the giving of notice of a voluntary prepayment), prior to the



61









 








stated maturity thereof, or (ii) with respect to Debt described in clause (e) of the
definition of Debt, fail to pay any such Debt which is outstanding in the principal amount of at
least $100,000,000 in the aggregate, of the Borrower or such Principal Subsidiary (as the case may
be), when the same becomes due and payable, and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Debt; or



          (e) The Borrower or any Principal Subsidiary shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any Principal Subsidiary seeking to adjudicate it as bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it), shall remain
undismissed or unstayed for a period of 60 days; or the Borrower or any Principal Subsidiary shall
take any corporate action to authorize any of the actions set forth above in this subsection (e);
or


          (f) Any judgment, decree or order for the payment of money in excess of $100,000,000 shall be
rendered against the Borrower or any Principal Subsidiary and shall remain unsatisfied and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment, decree or
order or (ii) there shall be any period longer than (A) 60 consecutive days or (B) such longer
period as allowed by applicable law during which a stay of enforcement of such judgment, decree or
order, by reason of a pending appeal or otherwise, shall not be in effect; or


          (g) Any Termination Event as defined in clauses (b), (d) or (e) of the definition thereof with
respect to a Plan shall have occurred and, 30 days after notice thereof shall have been given to
the Borrower by the Administrative Agent, (i) such Termination Event shall still exist and (ii) the
sum (determined as of the date of occurrence of such Termination Event) of the liabilities to the
PBGC resulting from all such Termination Events is equal to or greater than $100,000,000; or


          (h) The Borrower or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date of such notification), exceeds
$100,000,000 or requires payments exceeding $50,000,000 in any year; or


          (i) The Borrower or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA Affiliates to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years which include the
date hereof by an amount exceeding $50,000,000; or



62









 







          (j) Any provision requiring the payment of principal, interest or fees by an Obligor, or other
material provision, of any Loan Document, after its execution and delivery hereunder, for any
reason is not or ceases to be legal, valid and binding, or the Borrower or, during any Canadian
Allocation Period, the Borrower or the Canadian Borrower, or, during any Sterling Allocation
Period, the Borrower or the UK Borrower, shall so state in writing, in each case other than in
accordance with the express provisions of any Loan Document or as the appropriate parties may
otherwise agree under Section 8.1; or


          (k) Any Change of Control shall occur;



then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower, declare the obligation of each Bank to
make Advances and the obligation of the L/C Issuers to issue Letters of Credit to be suspended or
terminated (as so notified by the Administrative Agent), whereupon the same shall forthwith be
suspended or terminated, as applicable (at which time pursuant to such notice the obligations of
each Canadian Bank to make Canadian Advances and each UK Bank to make Sterling Advances and the
obligation of each Canadian L/C Issuer to issue Canadian Letters of Credit and each Sterling L/C
Issuer to issue Sterling Letters of Credit shall automatically terminate or be suspended, as
applicable), (ii) shall at the request, or may with the consent, of the Majority Banks, by notice
to the Borrower, require the Borrower to Cash Collateralize the L/C Obligations (in an amount up to
the outstanding L/C Obligations), Canadian Cash Collateralize the Canadian L/C Obligations (in an
amount up to the outstanding Canadian L/C Obligations) and Sterling Cash Collateralize the Sterling
L/C Obligations (in an amount up to the outstanding Sterling L/C Obligations), and (iii) shall at
the request, or may with the consent, of the Majority Banks, by notice to the Borrower, declare the
principal balance of the Total Outstanding Amount, the Canadian Total Outstanding Amount, the
Sterling Total Outstanding Amount, or any combination of the foregoing, or the Total Facility
Outstandings, as the case may be, all interest accrued thereon and all other related accrued
amounts payable under this Agreement (including Appendices 1 and 2 hereto, as the case may be) to
be forthwith due and payable, whereupon the principal balance thereof, all such accrued interest
and all such accrued amounts shall become and be forthwith due and payable, without presentment,
demand, protest, notice of intent to accelerate or further notice of any kind, all of which are, to
the extent permitted by law, hereby expressly waived by each Obligor; provided,
however, that




               (A) in the event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Bankruptcy Code the obligation of each Bank to make its Advances and the
obligation of each L/C Issuer to issue Letters of Credit, shall automatically be terminated and the
principal balance of the Total Outstanding Amount, all such accrued interest and all such accrued
amounts shall automatically become and be due and payable, without presentment, demand, protest,
notice of intent to accelerate or any notice of any kind, all of which are, to the extent permitted
by law, hereby expressly waived by the Borrower;



               (B) in the event of an actual or deemed entry of an order for relief with respect to the
Canadian Borrower under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors
Arrangements Act (Canada) or the Winding-up Act (Canada) the obligation of each Canadian Bank to
make its Canadian Advances or accept Canadian Bankers’ Acceptances and the obligation of each
Canadian L/C Issuer to issue Canadian Letters of Credit, shall automatically be terminated and the
principal balance of the Canadian Total Outstanding Amount, all such accrued interest and all such
accrued amounts shall automatically become and be due and payable, without presentment, demand,
protest, notice of intent to accelerate or any



63









 





notice of any kind, all of which are, to the extent permitted by law, hereby expressly waived
by the Canadian Borrower; and




               (C) in the event of an actual or deemed entry of an order for relief with respect to the UK
Borrower under the Insolvency Act (UK) or under any similar laws the obligation of each UK Bank to
make its Sterling Advances and the obligation of each Sterling L/C Issuer to issue Sterling Letters
of Credit, shall automatically be terminated and the principal balance of the Sterling Total
Outstanding Amount, all such accrued interest and all such accrued amounts shall automatically
become and be due and payable, without presentment, demand, protest, notice of intent to accelerate
or any notice of any kind, all of which are, to the extent permitted by law, hereby expressly
waived by the UK Borrower.



ARTICLE VII

THE AGENTS




     Section 7.1 Authorization of the Agents.


          (a) Each Bank hereby irrevocably appoints, designates and authorizes the Administrative Agent,
each Canadian Bank hereby irrevocably appoints, designates and authorizes the Canadian
Administrative Agent, and each UK Bank hereby irrevocably appoints, designates and authorizes the
UK Administrative Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall any Agent have or be deemed to
have any fiduciary relationship with any Total Facility Bank or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent. Without limiting the
generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to the Administrative Agent, the Canadian Administrative Agent and the UK
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law, rule, regulation or order.
Instead, such term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties.


          (b) Each L/C Issuer, Canadian L/C Issuer and Sterling L/C Issuer shall act on behalf of the
Banks, Canadian Banks and UK Banks, respectively, with respect to any Letters of Credit, Canadian
Letters of Credit or Sterling Letters of Credit issued by it and the documents associated
therewith, and each Issuer shall have all of the benefits and immunities (i) provided to the Agents
in this Article VII with respect to any acts taken or omissions suffered by such Issuer in
connection with Letters of Credit, Canadian Letters of Credit or Sterling Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit, Canadian Letters of Credit and Sterling Letters of Credit as
fully as if the terms “Administrative Agent”, “Canadian Administrative Agent” and “UK
Administrative Agent” as used in this Article VII and in the definition of “Agent-Related Person”
included the Issuers with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the Issuers.



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     Section 7.2 Delegation of Duties. Each Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact, and
shall be entitled to advice of counsel and other consultants or experts concerning all matters
pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct
of such agent or attorney-in-fact. The exculpatory provisions of this Article shall apply to any
such sub agent to the same extent applicable to each Agent for whom it executes duties and shall
apply to its activities performed in executing duties of the respective Agent.



     Section 7.3 Liability of the Agents. No Agent-Related Person, L/C Issuer or any Bank
shall (a) be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct in connection with its duties expressly
set forth herein), or (b) be responsible in any manner to any Total Facility Bank or participant
for any recital, statement, representation or warranty made by any Obligor or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by any Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure of any Obligor or
any other party to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Total Facility Bank or participant to
ascertain or to inquire as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or
records of the Obligors or any Affiliate thereof.



     Section 7.4 Reliance by Agents.


          (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any
writing, communication, signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to each Obligor), independent accountants and other experts selected by
it. Each Agent shall be fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the Majority Banks (or, with
respect to (i) the Canadian Advances and Canadian Letters of Credit and amounts due with respect
thereto, the Canadian Majority Banks and (ii) with respect to the Sterling Advances and Sterling
Letters of Credit and amounts due with respect thereto, the UK Majority Banks) as it deems
appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Total
Facility Banks, against any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Majority Banks (or, with respect to (i) the Canadian Advances and
Canadian Letters of Credit and amounts due with respect thereto, the Canadian Majority Banks and
(ii) with respect to the Sterling Advances and Sterling Letters of Credit and amounts due with
respect thereto, the UK Majority Banks) (or such greater number of Banks, Canadian Banks or the UK
Banks as may be expressly required hereby in any instance) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all Total Facility Banks.



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          (b) For purposes of determining compliance with the conditions specified in Section 3.1, each
Total Facility Bank 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 Bank, Canadian Bank or UK Bank
unless the relevant Agent, as appropriate, shall have received notice from such Bank, Canadian Bank
or UK Bank prior to the date hereof specifying its objection thereto.



     Section 7.5 Notice of Default. No Agent shall be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to (i) the Administrative Agent for the account of the Banks,
(ii) to the Canadian Administrative Agent for the account of the Canadian Banks or (iii) to the UK
Administrative Agent for the account of the UK Banks, unless such Agent shall have received written
notice referring to this Agreement, describing such Default and stating that such notice is a
“notice of default.” The Administrative Agent will notify the Total Facility Banks of its receipt
of any such notice. Each Agent shall take such action with respect to such Default as may be
directed by the Majority Banks, the Canadian Majority Banks or the UK Majority Banks, as the case
may be in accordance with Article VI; provided, however, that unless and until such
Agent has received any such direction, such Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it shall deem advisable
or in the best interest of the Total Facility Banks.



     Section 7.6 Credit Decision; Disclosure of Information by the Agents. Each Total
Facility Bank acknowledges that no Agent-Related Person has made any representation or warranty to
it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any
assignment or review of the affairs of the Obligors or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any Total Facility Bank as
to any matter, including whether Agent-Related Persons have disclosed material information in their
possession. Each Total Facility Bank represents to the Agents that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the Obligors and their
respective Subsidiaries, and all applicable bank or other regulatory laws. rules, regulations or
orders relating to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Obligors. Each Total Facility Bank also represents that
it will, independently and without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition and creditworthiness
of the Obligors. Except for notices, reports and other documents expressly required to be
furnished to the Total Facility Banks by the Agents herein, no Agent shall have any duty or
responsibility to provide any Total Facility Bank with any credit or other information concerning
the business, prospects, operations, property, financial and other condition or creditworthiness of
the Obligors or any of their respective Affiliates which may come into the possession of any
Agent-Related Person.



     Section 7.7 Indemnification of the Administrative Agents. Whether or not the
transactions contemplated hereby are consummated, the Banks, the Canadian Banks and the UK Banks
shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by



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or on behalf of the Obligors and without limiting the obligation of the Obligors to do so),
pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it, other than with respect to arrangement or other fees payable solely to
the arrangers for procuring the credit facility; provided, however, that no Total
Facility Bank shall be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Agent-Related Person’s own gross negligence or
willful misconduct; provided, however, that no action taken in accordance with the
directions of the Majority Banks or, with respect to (a) the Canadian Advances and Canadian L/C
Obligations, the Canadian Majority Banks and (b) with respect to the Sterling Advances and Sterling
L/C Obligations, the UK Majority Banks shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing, each Total Facility
Bank shall reimburse the Agents upon demand for its ratable share of any costs or out-of-pocket
expenses (including Attorney Costs) incurred by such Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that such Agent is not reimbursed for such expenses by or on
behalf of any Obligor. The undertaking in this Section shall survive termination of the
Commitments, the Canadian Commitments, the Sterling Commitments, the payment of all Advances,
Canadian Advances and Sterling Advances and all other sums payable hereunder or under any other
Loan Document, and the resignation of any Agent.




     Section 7.8 The Agents in their Respective Individual Capacities. Any Agent and its
Affiliates may make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Obligors and their respective Affiliates as though it were
not an Agent, an Issuer hereunder and without notice to or consent of the Total Facility Banks.
The Total Facility Banks acknowledge that, pursuant to such activities, any Agent or its Affiliates
may receive information regarding the Obligors or their respective Affiliates (including
information that may be subject to confidentiality obligations in favor of an Obligor or such
Affiliate) and acknowledge that no Agent shall be under any obligation to provide such information
to them. With respect to its Advances, Canadian Advances and Sterling Advances, each Agent shall
have the same rights and powers under this Agreement as any other Total Facility Bank and may
exercise such rights and powers as though it were not an Agent or an Issuer, and the terms “Bank”,
“Banks”, “Canadian Bank”, “Canadian Banks”, “UK Bank” and “UK Banks” include each Agent in its
individual capacity.



     Section 7.9 Successor Agents. Any Agent may resign as an Agent upon 30 days’ notice
to the Total Facility Banks and the Borrower. If an Agent resigns under this Agreement, the
Majority Banks shall appoint from among the Banks a successor administrative agent for the Banks,
the Canadian Majority Banks shall appoint from among the Canadian Banks a successor Canadian
administrative agent for the Canadian Banks and the UK Majority Banks shall appoint from among the
UK Banks a successor UK administrative agent for the UK Banks, which successor shall be consented
to by the Borrower at all times other than during the existence of an Event of Default (which
consent of the Borrower shall not be unreasonably withheld or delayed). If no successor is
appointed prior to the effective date of the resignation, the relevant resigning Agent may appoint,
as the case may be, after consulting with the Banks, the Canadian Banks, the UK Banks and Borrower,
a successor Agent, as the case may be, from among the Banks,



67









 





Canadian Banks or UK Banks, as the case may be. Upon the acceptance of its appointment as
successor hereunder, the Person acting as such successor shall succeed to all the rights, powers
and duties of the retiring Agent, and the retiring Agent’s appointment, powers and duties as Agent
shall be terminated, and without any other or further act or deed on the part of any Person. After
any retiring Agent’s resignation hereunder, the provisions of this Article VII and Section 8.4
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement. If no successor agent has accepted appointment by the date which is 30
days following an Agent’s notice of resignation, the retiring Agent’s resignation shall
nevertheless thereupon become effective and the Banks, Canadian Banks or UK Banks shall perform all
of the duties of the Agent hereunder until such time, if any, as the Majority Banks (or the
Canadian Majority Banks or UK Majority Banks) appoint a successor agent as provided for above. If
any of the Administrative Agent, the Canadian Administrative Agent or the UK Administrative Agent
becomes a Defaulting Bank, then the Borrower may remove such Agent from its role as Agent and, as
applicable, as an L/C Issuer and Bank, upon at least ten (10) Business Days prior written notice to
such Agent and to each of the Syndication Agents; provided that (i) such notice shall
provide that the effectiveness of such removal shall be contingent upon an appointment of a
successor administrative agent, which shall be one of JPMorgan or Barclays (such appointed
successor agent, a “Successor Agent”); (ii) such appointment shall be accepted by the
Successor Agent, in its sole discretion and in writing, within five (5) calendar days after
delivery of a copy of such notice to such Successor Agent and the other Successor Agent and, if
such acceptance is not obtained within such time period, the other Successor Agent, in its sole
discretion, shall have until the expiration of such notice period to accept, in writing, the role
of successor administrative agent (for the avoidance of doubt, no Successor Agent will be required
to accept the role of successor administrative agent if it, in its sole discretion, chooses not to
do so), provided, however, that if (A) each Successor Agent is also a Defaulting
Bank, (B) neither Successor Agent is a Bank hereunder or (C) neither Successor Agent accepts the
role of successor administrative agent within the time periods provided for in this clause (ii),
the Borrower shall appoint from among the Banks a successor administrative agent for the Banks, the
Canadian Borrower shall appoint from among the Canadian Banks a successor Canadian Administrative
Agent for the Canadian Banks and the UK Borrower shall appoint from among the UK Banks a successor
UK Administrative Agent for the UK Banks, which successor shall be consented to by the Majority
Banks, the Canadian Majority Banks or the UK Majority Banks, as applicable (which consent shall not
be unreasonably withheld or delayed); (iii) prior to the effectiveness of such removal, the
Borrower shall have replaced such Defaulting Bank or terminated its Commitment and, if applicable,
its Canadian Commitment or UK Commitment, in each case, as contemplated by Section 2.18(b),
replaced such Defaulting Bank as Swingline Lender and Cash Collateralized or replaced all Letters
of Credit, Canadian Letters of Credit and Sterling Letters of Credit issued by such Defaulting Bank
in its capacity as an L/C Issuer, Canadian L/C Issuer or Sterling L/C Issuer and (iv) such
Defaulting Bank shall otherwise be subject to the provisions of 2.19.




     Section 7.10 The Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to an Obligor, the Administrative
Agent (irrespective of whether the principal of any Advance, Canadian Advance, Sterling Advance,
L/C Obligation, Canadian L/C Obligation or Sterling L/C Obligation shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on such Obligor) shall be entitled and empowered, by intervention
in such proceeding or otherwise.



68









 




          (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Advances, Canadian Advances, Sterling Advances, L/C Obligations, Canadian
L/C Obligations, Sterling L/C Obligations and all other indebtedness and liabilities that are owing
by such Obligor under the Loan Documents and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Banks, the Canadian Banks, the UK Banks
and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Banks, the Canadian Banks, the UK Banks and any Agent and their
respective agents and counsel and all other amounts due the Banks, the Canadian Banks, the UK Banks
and any Agent under Section 2.3, Section 2.9(i) and (j), and Section 2A.7(i) and (j)) 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 Bank, each Canadian Bank and each UK
Bank to make such payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Banks, the Canadian Banks or the
UK Banks, as the case may be, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.3 and 8.4(a).




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Total Facility Bank any plan of reorganization,
arrangement, adjustment or composition affecting the outstanding Advances, L/C Obligations,
Canadian Advances, Canadian L/C Obligations, Sterling Advances, Sterling L/C Obligations or other
indebtedness or liabilities of an Obligor under the Loan Documents, or the rights of any Total
Facility Bank or to authorize the Administrative Agent to vote in respect of the claim of any Total
Facility Bank in any such proceeding.



     Section 7.11 Other Agents; Arrangers and Managers. None of the Banks or other Persons
identified on the facing page or signature pages of this Agreement as a “syndication agent,”
“documentation agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger” or
“co-arranger” shall have any right, power, obligation, liability, responsibility or duty under this
Agreement other than, in the case of such Banks, those applicable to all Banks as such. Without
limiting the foregoing, none of the Banks or other Persons so identified shall have or be deemed to
have any fiduciary relationship with any Bank, Canadian Bank or UK Banks. Each Bank, Canadian Bank
and UK Bank acknowledges that it has not relied, and will not rely, on any of the Banks or other
Persons so identified in deciding to enter into this Agreement or in taking or not taking action
hereunder (including for the avoidance of doubt, the Appendices hereto).



ARTICLE VIII

MISCELLANEOUS




     Section 8.1 Amendments, Etc. No amendment or waiver of any provision of any Loan
Document, nor consent to any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Majority Banks (or (i) with respect to
amendments and waivers of provisions that relate only to the Canadian facility provided for in, and
contemplated by, Appendix I to the Base Agreement, the approval of the



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Canadian Majority Banks or (ii) with respect to amendments and waivers of provisions that
related only to the Sterling facility provided for in, and contemplated by, Appendix II to the Base
Agreement, the approval of the UK Majority Banks), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall, unless in writing
and signed by each Total Facility Bank (or with respect to amendments and waivers of provisions
that relate only to the Canadian facility or the Sterling facility, the approval of each Canadian
Bank or UK Bank, as applicable) directly affected thereby, do any of the following (with respect to
such Total Facility Bank, Canadian Bank or UK Bank (as applicable) that is not in agreement
therewith): (a) waive any of the conditions specified in Article III, (b) waive any of the
conditions specified in Appendix 1 hereto, (c) waive any of the conditions specified in Appendix 2
hereto, (d) increase such Total Facility Bank’s Commitment, Canadian Bank’s Canadian Commitment or
UK Bank’s Sterling Commitment (as applicable) or subject it to any additional obligations, (e)
forgive or reduce the principal of, or interest on, the Total Facility Outstandings or any fees or
other amounts payable hereunder to such Total Facility Bank, (f) postpone any date fixed for any
payment of principal of, or interest on, the Total Facility Outstandings or any fees or other
amounts payable hereunder, (g) take any action which requires the consent of such Total Facility
Bank before it is applicable to such Total Facility Bank pursuant to the terms of any Loan
Document, (h) change the percentage of the Commitments or of the aggregate unpaid principal amount
of the Notes which shall be required for the Banks or any of them to take any action under any Loan
Document or (i) amend this Section 8.1; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by any Agent or any Issuer in addition to the
Total Facility Banks required above to take such action, affect the rights or duties of such Agent
or such Issuer under any Loan Document. Notwithstanding anything to the contrary herein, this
Section 8.1, in respect of a Defaulting Bank, shall be subject to Section 2.19.




     Section 8.2 Notices, Etc. All notices and other communications provided for hereunder
shall be in writing (including telecopier communication) and mailed, telecopied or delivered, if to
any Obligor, to the Borrower at its address or telecopier numbers set forth below:



	 	 	 	 	 

	 	 	EOG Resources, Inc.
	 	 	1111 Bagby, Sky Lobby 2
	 	 	Houston, Texas 77002
	 	 	Attention: Helen Y. Lim, Vice President and Treasurer
	 	 	Telephone No.: 713-651-6612
	 	 	Telecopier Nos. (communications must be sent to
	 

	 	both these numbers):
	 	713-651-6980
	 

	 	 	 	713-651-6613
	 	 	Website: eogresources.com






if to any Bank, at its Domestic Lending Office; if to the Administrative Agent, except as provided
in Sections 2.2 and 2.8 (in which case notice shall be sent to the address listed in Exhibits
B and E, unless the Administrative Agent designates a different address as provided
below), at its address or telecopier number set forth below:




Bank of America, N.A.

Credit Services — Servicing Dallas

Bank of America Plaza

901 Main St



70









 









Dallas, Texas 75202-3714

Attention: Eric Flores

Telephone No.: 214.209.0203

Telecopier No.: 972.913.3466



or, as to the Borrower or the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall be effective, if mailed, two
Business Days after deposit in the mails; if sent by overnight courier, one Business Day after
delivery to the courier company; and if sent by telecopier, when received by the receiving
telecopier equipment, respectively; provided, however, that (a) notices and
communications to the Administrative Agent shall not be effective until received by the
Administrative Agent and (b) telecopied notices received by any party after its normal business
hours (or on a day other than a Business Day) shall be effective on the next Business Day. The
notices contemplated by the definitions of “Borrowing” and “Interest Period” and by Section 2.8 may
be combined in one notice, if all required information is provided in the combined notice and the
combined notice meets the requirements as to timeliness set forth in each definition and Section to
which the combined notice pertains. Each Agent and the Total Facility Banks shall be entitled to
reasonably rely and act upon any notices (including telephonic Notices of Borrowing, Canadian
Notices of Borrowing or UK Notices of Borrowing) purportedly given by or on behalf of any Obligor
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 Obligor shall indemnify
each Agent-Related Person and each Total Facility Bank from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by or on
behalf of such Obligor; provided, such indemnity shall not be available to the extent such
losses, costs, expenses or liabilities result from the gross negligence or willful misconduct of
such indemnitee. All telephonic notices to and other communications between any parties hereto may
be recorded by any party to such communication, and each of the parties hereto hereby consents to
such recording by any other party hereto. Any disclosure or notice received by the Administrative
Agent pursuant to Sections 4.1(f), (g), (l) or 5.1(a) hereof will be posted to Intralinks by the
Administrative Agent.




     Section 8.3 No Waiver; Remedies. No failure on the part of any Total Facility Bank or
any Agent to exercise, and no delay in exercising, and no course of dealing with respect to, any
right under any Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided in the Loan Documents are cumulative and not exclusive of any
remedies provided by law or in equity.



     Section 8.4 Costs and Expenses.


          (a) The Borrower agrees (i) to pay or reimburse each Agent for all reasonable costs and
expenses incurred in connection with the preparation, negotiation and execution of this Agreement
and the other Loan Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (ii) to pay or reimburse each Agent and each Total
Facility Bank for all costs and expenses incurred in



71









 








connection with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such costs and expenses
incurred during any “workout” or restructuring in respect hereof and during any legal proceeding,
including any proceeding under the Bankruptcy Code or any other law relating to bankruptcy,
insolvency or reorganization or relief of debtors), including all Attorney Costs; provided
that a Defaulting Bank will not be reimbursed for its costs and expenses related to the
replacement of such Defaulting Bank pursuant to Section 2.18(c) or other matters incidental
thereto.



          (b) If any payment or purchase of principal of, or Conversion of, any Eurodollar Advance or
Eurodollar Borrowing is made other than on the last day of an Interest Period relating to such
Advance, as a result of a payment, purchase or Conversion pursuant to Sections 2.10, 2.11, 2.12 or
2.18 or acceleration of the maturity of the Total Facility Outstandings pursuant to Section 6.1 or
for any other reason, the Borrower, subject to Section 8.8, shall, upon demand by any Total
Facility Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Person any amounts required to compensate it for any additional
losses, costs or expenses which it may reasonably incur as a result of such payment, purchase or
Conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Person to fund or maintain such Advance. A certificate in reasonable detail as to
the basis for and the amount of such loss, costs or expense, submitted to the Borrower and the
Administrative Agent by such Person, shall be conclusive and binding for all purposes, absent
manifest error.


          (c) Whether or not the transactions contemplated hereby are consummated, the Borrower shall
indemnify and hold harmless each Agent-Related Person, each Total Facility Bank, each Total
Facility Bank acting as an Issuer and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the “Indemnitees”) from and against any
and all liabilities, obligations, losses (other than losses for anticipated profits), damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by
or asserted against any such Indemnitee (other than by any other Indemnitee) in any way relating to
or arising out of or in connection with (i) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (ii) any Commitment, Canadian Commitment, Sterling Commitment, Advance,
Canadian Advance, Sterling Advance, Letter of Credit, Canadian Letter of Credit or Sterling Letter
of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any Issuer
to honor a demand for payment under a Letter of Credit, Canadian Letter of Credit or Sterling
Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit, Canadian Letter of Credit or Sterling Letter of Credit),
or (iii) any actual or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by any Obligor or any Environmental Liability related in
any way to any Obligor or any Subsidiary of the Borrower, 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 (including any investigation of, preparation for, or defense of
any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether
any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”), IN ALL CASES,



72









 








WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE NEGLIGENCE OF THE
INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements 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 Indemnitee. No Indemnitee shall be liable for any damages arising from
the use by others of any information or other materials obtained through IntraLinks or other
similar information transmission systems in connection with this Agreement, provided such
Indemnitee has taken and maintains commercially reasonable efforts and controls to safeguard the
use and access of such material and information, nor shall any Indemnitee have any liability for
any indirect, special, punitive or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or therewith (whether before
or after the date hereof).



          (d) All amounts due under this Section 8.4 shall be payable within 20 Business Days after the
Borrower’s receipt of a reasonably detailed invoice therefor. The agreements in this Section shall
survive the resignation of the any Agent, the replacement of any Total Facility Bank, the
termination of the Commitments, and the repayment, satisfaction or discharge of all sums payable
hereunder or under any other Loan Document.



     Section 8.5 Payments Set Aside; Right of Set-Off.


          (a) To the extent that any payment by or on behalf of any Obligor under this Agreement or a
Person entitled to under this Agreement 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 to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under the Bankruptcy Code or any other laws relating to bankruptcy,
insolvency or reorganization or relief of debtors or otherwise, then (i) 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 (ii) each Total Facility Bank severally agrees to pay to the relevant Agent, as the
case may be, upon demand its applicable share of any amount so recovered from or repaid, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.


          (b) Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by Section 6.1 to authorize the
Administrative Agent to declare the Notes, the Canadian Notes and the Sterling Notes due and
payable pursuant to the provisions of Section 6.1, each Total Facility Bank is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at any time held and
other indebtedness, whether or not such obligations may be unmatured, at any time owing by such
Total Facility Bank to or for the credit or the account of the relevant Obligor against any and all
of the obligations of such Obligor now or hereafter existing under this Agreement and the Note,
Canadian Note, Sterling Note or any Canadian Bankers’ Acceptances held by such Total Facility Bank,
irrespective of whether or not the Administrative Agent or such Bank, or the Canadian
Administrative Agent or such Canadian Bank or the UK Administrative Agent or such UK Bank, as the
case may be, shall have made any demand under this Agreement or such Note, Canadian Note, Sterling
Note or Canadian Bankers’ Acceptance ; provided, that in the event that any Defaulting Bank
shall exercise any such right of setoff, (x) all amounts so set



73









 








off shall be paid over immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.19 and, pending such payment, shall be segregated by
such Defaulting Bank from its other funds and deemed held in trust for the benefit of the
Administrative Agent, the Banks, Canadian Banks, the UK Banks and each Obligor as herein provided,
and (y) such Defaulting Bank shall promptly provide to the Administrative Agent a statement
describing in reasonable detail the obligations owing to such Defaulting Bank as to which it
exercised such right of setoff. Each Bank, each Canadian Bank and each UK Bank agrees promptly to
notify the Borrower after any such set-off and application made by such Bank, Canadian Bank or UK
Bank; provided that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank, each Canadian Bank and each UK Bank under this
Section 8.5(b) are in addition to other rights and remedies (including other rights of set-off)
which such Bank, Canadian Bank or UK Bank may have.




     Section 8.6 Assignments and Participations.


          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that no Obligor
may assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Bank then committed to make advances or extend letters of credit to it
(other than an assignment effectuated by a merger or consolidation permitted by Section 5.2(e) to
the surviving Person referred to herein). No Total Facility Bank may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) or (h) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any 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 Indemnitees) any legal or equitable right, remedy or claim under or by reason of this
Agreement.


          (b) Any Bank may at any time assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its Commitment and the
Advances at the time owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Bank’s Commitment and the Advances at the time owing
to it, the aggregate amount of the Commitment (which for this purpose includes Advances outstanding
thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding
balance of the Advances of the assigning Bank 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 $10,000,000 (or its remaining commitments, if
less) unless each of the Administrative Agent and each L/C Issuer and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consent (each such consent
not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Bank’s rights and obligations under this
Agreement with respect to the Advances or the Commitment assigned; (iii) if (A) such assigning Bank
or its Canadian branch or Affiliate is a Canadian Bank and has a Canadian Allocated Commitment or
(B) such assigning Bank or its UK branch or Affiliate is a UK Bank and has a Sterling Allocated
Commitment, then each such assigning



74









 








Bank’s assignment, partial or entire, must be accompanied by a corresponding and proportionate
assignment of the related Canadian Allocated Commitment of such Canadian Bank or the related
Sterling Allocated Commitment of such UK Bank and such UK Bank must be able to make, and shall
make, the representation and warranty in Section 2.14(f)(iii); (iv) (A) any assignment of a
Commitment must be approved by the Administrative Agent and each L/C Issuer, (B) any assignment of
a Canadian Allocated Commitment must be approved by the Canadian Agent and each Canadian L/C
Issuer, and (C) any assignment of a Sterling Allocated Commitment must be approved by the UK
Administrative Agent and each Sterling L/C Issuer, in each case, (1) such approval not to be
unreasonably withheld, delayed or conditioned and (2) unless the Person that is the proposed
assignee is itself a Bank or an Affiliate of a Bank (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); (v) if such Bank’s Canadian Pro Rata Share is greater
than zero, such assignee or its Affiliate deals at “arm’s length,” within the meaning of the
applicable taxing legislation, with the Canadian Borrower, and (vi) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 and the Eligible Assignee, if it shall not be a Bank,
shall deliver to the Administrative Agent an administrative questionnaire and shall deliver to the
Borrower, all relevant information for notices under the Loan Documents to such assignee. 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
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Bank, a Canadian
Bank or a UK Bank, as the case may be, under this Agreement, and the assigning Bank 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 Bank’s rights and obligations under this Agreement, such Bank shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.11, 2.14, and 8.4 with
respect to facts and circumstances occurring while such Person was a Bank, Canadian Bank or UK
Bank, as the case may be, as applicable, prior to the effective date of such assignment). Upon
request, any Obligor (at its expense) shall execute and deliver a Note, Canadian Note or Sterling
Note, as applicable, to the assignee Bank, Canadian Bank or UK Bank, as applicable. Any assignment
or transfer by a Bank of rights or obligations under this Agreement that does not comply with this
subsection (b) shall be null and void.



          (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it. The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, the Canadian Administrative Agent, acting solely for this purpose as an agent of the
Canadian Borrower, and the UK Administrative Agent, acting solely for this purpose as an agent of
the UK Borrower, shall each maintain, a register for the recordation of the names and addresses of
the Banks, Canadian Banks or UK Banks, respectively, and the Commitments, Canadian Allocated
Commitments and Sterling Allocated Commitments of, and principal amounts of the Advances and L/C
Obligations owing to, each Bank and the principal amounts of the Canadian Advances and Canadian L/C
Obligations owing to, each Canadian Bank, and the principal amounts of the Sterling Advances and
Sterling L/C Obligations owing to, each UK Bank pursuant to the terms hereof from time to time
(each, a “Register”). The entries in the Registers shall be conclusive, absent manifest
error, and the Obligors, the Administrative Agent, the Canadian Administrative Agent, the UK
Administrative Agent and the Banks, the Canadian Banks and the UK Banks may treat each Person whose
name is recorded in a Register pursuant




75











 




to the terms hereof as a Bank, Canadian Bank or UK Bank, as the case may be, hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. Each Register shall be
available for inspection by the Borrower and any Bank, at any reasonable time and from time to time
upon reasonable prior notice.




          (d) Any Bank, Canadian Bank or UK Bank may at any time, without the consent of, or notice to,
the Obligors or the Administrative Agent, the Canadian Administrative Agent or the UK
Administrative Agent, sell participations to any Person (other than a natural person or the
Obligors or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Bank’s, Canadian Bank’s or UK Bank’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment, Canadian Allocated Commitment or Sterling
Allocated Commitment and/or the Advances, Canadian Advances or Sterling Advances (including such
Bank’s, Canadian Bank’s or UK Bank’s participations in L/C Obligations, Canadian L/C Obligations or
Sterling L/C Obligations, respectively) owing to it); provided that (i) such Bank’s, such
Canadian Bank’s or such UK Bank’s obligations under this Agreement shall remain unchanged, (ii)
such Bank, such Canadian Bank or such UK Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Obligors, the Administrative Agent,
the Canadian Administrative Agent, the UK Administrative Agent and the other Banks, Canadian Banks
and UK Banks shall continue to deal solely and directly with such Bank, such Canadian Bank or such
UK Bank in connection with such Bank’s, such Canadian Bank’s or such UK Bank’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Bank, a Canadian
Bank or a UK Bank sells such a participation shall provide that such Bank, Canadian Bank or UK Bank
shall retain the sole right to enforce, and to participate in any related decision 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 Bank, such Canadian Bank
or such UK Bank will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in clause (b), (c), (d), (e) or (f) of the first proviso to Section
8.1 that directly affects such Participant. Subject to subsection (e) of this Section, each
Obligor agrees that each Participant shall be entitled to the benefits of Sections 2.11, 2.14, and
8.4(b) if it actually incurs any loss or expense pursuant to such sections, and then, solely to the
same extent as if it were the Bank, Canadian Bank or UK Bank from which it 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 8.5(b) as though it were a Bank,
a Canadian Bank or a UK Bank, provided such Participant agrees to be subject to Section
2.15 as though it were a Bank, a Canadian Bank or a UK Bank.




          (e) A Participant shall not be entitled to receive any greater payment under Section 2.6,
Section 2.7, Section 2.11, Section 2.14 or Section 8.4(b) than the applicable Bank, Canadian Bank
or UK Bank would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the Borrower’s,
the Canadian Borrower’s or the UK Borrower’s prior written consent, as the case may be. A
Participant that would be a Foreign Bank if it were a Bank shall not be entitled to the benefits of
Section 2.14 unless the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Sections 2.14, 2.15 and 8.16 as
though it were a Bank.




          (f) Any Bank, Canadian Bank or UK Bank 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, Canadian Note or
Sterling Note, if any) to secure obligations of such Bank, such Canadian Bank






76









 







or such UK Bank to a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Bank, such Canadian Bank or such UK Bank from any of its obligations hereunder
or substitute any such pledgee or assignee for such Bank, Canadian Bank or UK Bank as a party
hereto.




          (g) As used herein, the following terms have the following meanings:





     “Eligible Assignee” means (a) a Bank; (b) an Affiliate of a Bank; (c) an
Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the
Administrative Agent and the L/C Issuers, and (ii) unless an Event of Default has occurred
and is continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not
include (i) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (ii) any
Defaulting Bank.




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




     “Approved Fund” means any Fund (that, so long as no Event of Default has
occurred and is continuing, is approved by the Borrower, such approval not to be
unreasonably withheld) that is administered or managed by (a) a Bank, (b) an Affiliate of a
Bank or (c) an entity or an Affiliate of an entity that administers or manages a Bank.



          (h) Notwithstanding anything to the contrary contained herein, any Bank that is a Fund may
create a security interest in all or any portion of the Advances owing to it and the Note, if any,
held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities; provided, so long as no Event of Default has
occurred and is continuing, such security interest is approved by the Borrower, such approval not
to be unreasonably withheld; provided, further, that unless and until such trustee
actually becomes a Bank in compliance with the other provisions of this Section 8.6, (i) no such
pledge shall release the pledging Bank from any of its obligations under the Loan Documents and
(ii) such trustee shall not be entitled to exercise any of the rights of a Bank under the Loan
Documents even though such trustee may have acquired ownership rights with respect to the pledged
interest through foreclosure or otherwise.




          (i) Notwithstanding anything to the contrary contained herein, if at any time any Bank assigns
all of its Commitment and Total Outstanding Amount pursuant to subsection (b) above and such Bank
is an Issuer (or if (A) such assigning Bank or its Canadian branch or Affiliate is a Canadian Bank
and such Canadian Bank is an Issuer or (B) such assigning Bank or its UK branch or Affiliate is a
UK Bank and such UK Bank is an Issuer) then, such Bank may, upon 30 days’ notice to the Borrower
and the Banks, resign as such Issuer. In the event of any such resignation, the Borrower shall be
entitled to appoint from among the Total Facility Banks one or more successor Issuers hereunder (as
the case may be); provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of such Bank, Canadian Bank or UK Bank, as the case may
be. If a Total Facility Bank resigns as an Issuer, it shall retain all the rights and obligations
of such Issuer hereunder with respect to all Letters of Credit, Canadian Letters of Credit or
Sterling Letters of Credit (as applicable) outstanding as of the effective date of its resignation
and all L/C Obligations, Canadian L/C Obligations or Sterling L/C Obligations (as applicable) with
respect thereto.







77









 








     Section 8.7 Governing Law; Entire Agreement; Integration; Jurisdiction.



          (a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes, the other Loan Documents and any related
fee letters signed by the Borrower comprise the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersede all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this Agreement and those of
any other Loan Document, the provisions of this Agreement shall control; provided that the
inclusion of supplemental rights or remedies in favor of any Agent or any Total Facility Bank in
any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.




          (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN MANHATTAN, NEW YORK CITY OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT OR ANY JOINDER AGREEMENT, EACH PARTY, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED
BY THE LAW OF SUCH STATE.




     Section 8.8 Interest. Notwithstanding anything to the contrary contained in any Loan
Document, the interest contracted for, charged, received, reserved, taken or paid under the Loan
Documents shall not exceed the Highest Lawful Rate. If the Administrative Agent, the Canadian
Administrative Agent, the UK Administrative Agent or any Bank, any Canadian Bank or any UK Bank
shall contract for, charge, take, reserve or receive interest in an amount or at a rate that
exceeds the Highest Lawful Rate, the excess interest shall be applied to the principal of the
Advances, the Canadian Advances or the Sterling Advances, as applicable, and if such excess exceeds
such unpaid principal, such interest shall be refunded to the relevant Obligor. In determining
whether the interest contracted for, charged, received, reserved, taken or paid by any Agent or a
Bank, a Canadian Bank or a UK Bank exceeds the Highest Lawful Rate, such Person may, to the extent
permitted by applicable law, rule, regulation or order (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 amounts payable hereunder and
under the other Loan Documents.


In no event shall the aggregate “interest” (as defined in section 347 of the Criminal Code
(Canada)) payable hereunder with respect to the Canadian Advances and Canadian Letters of Credit
exceed the maximum effective annual rate of interest on the “credit advanced” (as defined in that
section) permitted under that section and, if any payment, collection or demand pursuant






78









 







to this Agreement in respect of “interest” (as defined in that section) is determined to be
contrary to the provisions of that section, such payment, collection or demand shall be deemed to
have been made by mutual mistake of the Canadian Borrower, the Canadian Administrative Agent and
Canadian Banks and the amount of such excess payment or collection shall be refunded to the
Canadian Borrower. For purposes hereof, the effective annual rate of interest shall be determined
in accordance with generally accepted actuarial practices and principles over the term applicable
to the Canadian Advances and Canadian Letters of Credit on the basis of annual compounding of the
lawfully permitted rate of interest and, in the event of dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by Canadian Administrative Agent shall be prima facie
evidence, for the purposes of such determination.



The provisions of this Section 8.8 shall govern and control over every other provision of any other
Loan Document which conflicts or is inconsistent with this Section, even if such provision declares
that it shall control or govern.




     Section 8.9 Captions. Captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the interpretation of any
provision of this Agreement.



     Section 8.10 Confidentiality. Each Total Facility Bank agrees that it will use
reasonable efforts not to disclose without the prior consent of the Borrower (other than to its
employees, auditors or counsel, to another Total Facility Bank, or to such Total Facility Bank’s
own holding or parent company and its Affiliates, in each case if the disclosing Total Facility
Bank or its holding or parent company in its sole discretion determines that any such party should
have access to such information, each of whom shall be instructed and shall agree to maintain such
information confidential) any information with respect to the Borrower or its Subsidiaries which is
furnished pursuant to this Agreement or any other Loan Document and which is designated by the
Borrower to the Total Facility Banks in writing as confidential; provided that any Total
Facility Bank may disclose any such information (a) as has become generally available to the
public, (b) as may be required or appropriate in any report, statement or testimony submitted to
any municipal, state or federal regulatory body having or claiming to have jurisdiction over such
Total Facility Bank or its Affiliates or to the Federal Reserve Board or the FDIC or similar
organizations (whether in the United States or elsewhere), (c) as may be required or appropriate in
response to any summons or subpoena or in connection with any litigation, (d) in order to comply
with any law, order, regulation or ruling applicable to such Total Facility Bank, and (e) to any
assignee, participant, prospective assignee or prospective participant or to any direct contractual
counterparties (or the professional advisors thereto) to any swap or derivative transaction to
which the Borrower is a counterparty with respect to the Borrower’s obligations hereunder, if such
assignee, participant, prospective assignee, prospective participant, counterparty or advisor
agrees to be bound by this Section 8.10.



     Section 8.11 Survival; Term; Reinstatement. In addition to the other provisions of
this Agreement expressly stated to survive the termination of this Agreement, the obligations of
the Borrower under Sections 2.6, 2.11, 2.14, 2.18 and 8.4 and the last sentence of this Section
8.11 and the obligations of the Total Facility Banks under Section 2.14(e) and Section 8.10 shall
survive the termination of this Agreement. The Borrower agrees that if at any time all or any part
of any payment previously applied by any Bank to any Advance or other sum hereunder is or must be
returned by or recovered from such Bank for any reason (including the order of any bankruptcy
court), the Loan Documents shall automatically be reinstated to the same effect as if the prior
application had not been made, and the Borrower hereby agrees to indemnify such



79









 




Bank against, and to save and hold such Bank harmless from, any required return by or recovery
from such Bank of any such payment.




     Section 8.12 Severability. Whenever possible, each provision of the Loan Documents
shall be interpreted in such manner as to be effective and valid under applicable law. If any
provision of any Loan Document shall be invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the remaining provisions of such Loan
Document shall not be affected or impaired thereby.



     Section 8.13 Time of the Essence. Time is of the essence of the Loan Documents.



     Section 8.14 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Loan Documents may be transmitted and/or signed by facsimile or other
electronic format. 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 parties hereto. Each Agent may also require that any such documents and signatures be
confirmed by a manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any facsimile document
or signature.



     Section 8.15 Effectiveness; Assignment by the Borrower. This Agreement shall become
effective when it shall have been executed and delivered by the Borrower and the Administrative
Agent and when the Administrative Agent shall have, as to each Bank, Canadian Bank and UK Bank,
either received a copy of a signature page hereof executed by such Person or been notified by such
Person that such Person has executed it and thereafter shall be binding upon and inure to the
benefit of and be enforceable by the Borrower, the Administrative Agent and each Bank, Canadian
Bank or UK Bank, and their respective successors and permitted assigns.



     Section 8.16 Tax Forms.



          (a) (i) Concurrent with the execution of any Note or Assignment and Assumption, as applicable,
each Bank that is not a “United States person” within the meaning of Section 7701(a)(30) of the
Code (a “Foreign Bank”) shall, in accordance with the applicable U.S. Treasury Regulations,
deliver to each of the Borrower and the Administrative Agent, a duly signed completed copy of
either IRS Form W-8BEN or any successor thereto (relating to such Foreign Bank and indicating
whether such Foreign Bank is entitled to an exemption from, or reduction of, withholding tax on any
or all payments to be made to such Foreign Bank by the Borrower pursuant to this Agreement) or IRS
Form W-8ECI or any successor thereto (relating to any or all payments to be made to such Foreign
Bank by the Borrower pursuant to this Agreement) to certify to the Borrower and the Administrative
Agent that such Foreign Bank is entitled to an exemption from, or reduction of, U.S. withholding
tax, including any exemption pursuant to Section 881(c) of the Code. Thereafter and from time to
time, each such Foreign Bank shall (A) promptly submit to each of the Borrower and the
Administrative Agent, respectively, such additional duly completed and signed copies of such forms
(or such successor forms as shall be adopted from time to time by the relevant United States taxing
authorities) as may be reasonably requested by the Borrower or the Administrative Agent or as may
then be available or required under then current United States laws and regulations to entitle it
to an






80









 







exemption from or reduction of, United States withholding taxes in respect of any or all
payments to be made to such Foreign Bank by the Borrower pursuant to this Agreement, (B) promptly
notify the Borrower and the Administrative Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction, and (C) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably
necessary (including the re-designation of its Applicable Lending Office) to avoid any requirement
of applicable laws, rules, regulations or orders that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Bank.




               (ii) Each Foreign Bank, to the extent it does not act or ceases to act for its own account
with respect to any portion of any sums paid or payable to such Bank under any of the Loan
Documents (for example, in the case of a typical participation by such Bank), shall deliver to each
of the Borrower and the Administrative Agent on the date when such Foreign Bank ceases to act for
its own account with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Borrower or the Administrative Agent (in the
reasonable exercise of its discretion), (A) a duly signed completed copy of the forms or statements
required to be provided by such Bank as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Bank acts for its own account that is not subject to
U.S. withholding tax, and (B) a duly signed completed copy of IRS Form W-8IMY (or any successor
thereto), together with any information such Bank chooses to transmit with such form, and any other
certificate or statement of exemption required under the Code, including Form W-8BEN or Form W-8ECI
from the Person for whom the Bank is acting as an intermediary, to establish that such Bank is not
acting for its own account with respect to a portion of any such sums payable to such Bank.
Thereafter and from time to time, each such Foreign Bank shall (A) promptly submit to each of the
Borrower and the Administrative Agent, respectively, such additional duly completed and signed
copies of such form (or such successor form as shall be adopted from time to time by the relevant
United States taxing authorities) as may be reasonably requested by the Borrower or the
Administrative Agent or as may then be available or required under then current United States laws
and regulations, (B) promptly notify the Borrower and the Administrative Agent of any change in
circumstances which would modify or render invalid any information provided on such form, and (C)
take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of
such Bank, and as may be reasonably necessary (including the redesignation of its Applicable
Lending Office) to avoid any requirement of applicable laws, rules, regulations or orders that the
Borrower make any deduction or withholding for taxes from amounts payable to such Foreign Bank.



               (iii) The Borrower shall not be required to pay any additional amount to any Foreign Bank
under Section 2.14, (A) with respect to any Taxes required to be deducted or withheld on the basis
of the information, certificates or statements of exemption such Bank transmits with an IRS Form
W-8IMY pursuant to this Section 8.16(a) or (B) if such Bank shall have failed to satisfy the
foregoing provisions of this Section 8.16(a); provided that if such Bank shall have
satisfied the requirements of this Section 8.16(a), nothing in this Section 8.16(a) shall relieve
the Borrower of its obligation to pay any amounts pursuant to Section 2.14 in the event that, as a
result of any change in any applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application thereof, such Bank is no longer
properly entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Bank or other Person for the account of which such Bank receives



81









 




any sums payable under any of the Loan Documents is not subject to withholding or is subject
to withholding at a reduced rate.




               (iv) The Administrative Agent may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Loan Documents with respect to which the
Borrower is not required to pay additional amounts under this Section 8.16(a).



          (b) Concurrent with the execution of any Note or any Assignment and Assumption, each Bank that
is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to
the Borrower and the Administrative Agent two duly signed completed copies of IRS Form W-9. If
such Bank fails to deliver such forms, then the Borrower or the Administrative Agent may withhold
(and the Borrower shall have no obligation to pay additional amounts under Section 2.14) with
respect to any payment to such Bank in an amount equivalent to the applicable back-up withholding
tax imposed by the Code, without reduction.




          (c) If any governmental authority, central bank or comparable agency asserts that the Borrower
or the Administrative Agent did not properly withhold or backup withhold, as the case may be, any
tax or other amount from payments made to or for the account of any Bank, such Bank shall indemnify
the Borrower or the Administrative Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to the Borrower or the Administrative Agent
under this Section, and costs and expenses (including Attorney Costs) of the Borrower or the
Administrative Agent. The obligation of the Banks under this Section shall survive the termination
of the Commitments, repayment of all amounts payable hereunder and under the other Loan Documents
and the resignation of the Administrative Agent.




     Section 8.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



     Section 8.18 USA Patriot Act Notice. Each Total Facility Bank hereby notifies each
Obligor that pursuant to the requirements of (i) the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), (ii) the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act (Canada) and (iii) any other applicable anti-money laundering, anti-terrorist
financing and “know your client” applicable laws (collectively, including any published or publicly
available guidelines or orders thereunder, the “AML Legislation”), it is or from time to
time shall be required to obtain, verify and record information that identifies each Obligor, which
information includes the name and address of each Obligor and other information that will



82









 




allow such Total Facility Bank to identify each Obligor in accordance with the AML Legislation
(including, if applicable, information regarding such Person’s directors, authorized signing
officers, or other Persons in control of each such Person) (such required information with respect
to the Obligors, the “AML Obligors Information”). Each Obligor shall provide such
information and take such actions reasonably related to the AML Obligors Information as, in each
case, are commercially reasonable and reasonably requested by any Total Facility Bank in order to
assist such Total Facility Bank in maintaining compliance with AML Legislation in relation to the
Obligors and this Agreement.




     Section 8.19 Calculation of Dollar Equivalent Amounts. For all purposes of this
Agreement, where it becomes necessary to calculate the amount of availability of the Commitments,
the Canadian Allocated Commitments or the Sterling Allocated Commitments, or the Total Facility
Outstandings or any component thereof, by determining the Dollar amount of any of the foregoing
denominated or outstanding in either Canadian Dollars or Sterling, such amount shall be determined
by converting any amounts denominated or outstanding in Canadian Dollars or Sterling into Dollars
by using the Spot Rate (determined in respect of the most recent Revaluation Date).



     Section 8.20 No Fiduciary Duty. The Administrative Agent, the Canadian Administrative
Agent, the UK Administrative Agent, each Bank, each Canadian Bank, each UK Bank and each of their
respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may
have economic interests that conflict with those of Borrower, the Canadian Borrower, and the UK
Borrower (collectively, solely for purposes of this paragraph, the “Debtors”) and each of their
stockholders and their Affiliates. Each Debtor agrees that nothing in the Loan Documents or
otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between any Lender, on the one hand, and any Debtor, its stockholders or its
Affiliates, on the other. The Debtors acknowledge and agree that (i) the transactions contemplated
by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are
arm’s-length commercial transactions between the Lenders, on the one hand, and the Debtors, on the
other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has
assumed an advisory or fiduciary responsibility in favor of any Debtor, its stockholders or its
Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or
remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender
has advised, is currently advising or will advise any Debtor, its stockholders or its Affiliates on
other matters) or any other obligation to any Debtor except the obligations expressly set forth in
the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or
fiduciary of any Debtor, its management, stockholders, creditors or any other Person. Each Debtor
acknowledges and agrees that such Debtor has consulted its own legal and financial advisors to the
extent it deemed appropriate and that it is responsible for making its own independent judgment
with respect to such transactions and the process leading thereto. Each Debtor agrees that it will
not claim that any Lender has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to such Debtor, in connection with such transaction or the process
leading thereto.



[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]




83









 





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



	 	 	 	 	 
	 	EOG RESOURCES, INC., Borrower

 	 
	 	By:  	/s/ Helen Y. Lim
 	 
	 	 	Helen Y. Lim 	 
	 	 	Vice President and Treasurer 	 
	 



[conformed signature pages of other parties intentionally omitted]




Signature Page to Credit Agreement





 









 








JOINDER TO CREDIT AGREEMENT BY CANADIAN BORROWER



This Joinder to Credit Agreement (this “Joinder”) is executed as of September 10, 2010 by
the undersigned for the benefit of the Canadian Administrative Agent, each Canadian L/C Issuer and
the Canadian Banks under that certain Revolving Credit Agreement (the “Agreement”) of even
date herewith among EOG Resources, Inc., Bank of America, N.A., as Administrative Agent, and the
Banks, Canadian Banks and UK Banks a party thereto. Capitalized terms used and not defined herein
shall have the meanings given in the Agreement.



In consideration of the premises and the mutual covenants and agreements contained in the
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Canadian Banks to extend credit to the Canadian
Borrower under the Agreement, the undersigned hereby (i) executes and delivers this Joinder, (ii)
joins the Agreement as the Canadian Borrower, (iii) confirms, represents and warrants to the
Administrative Agent, the Canadian Administrative Agent and each Canadian Bank that all of the
representations and warranties of the Canadian Borrower set forth in the Agreement and the other
Loan Documents are true and correct at and as of the date hereof and after giving effect hereto,
and (iv) ratifies and confirms in all respects, all obligations and covenants of the Canadian
Borrower under the Agreement, and confirms that all such obligations and covenants are and shall
remain in full force and effect.



Any reference to the Agreement in any Loan Document shall be deemed to be a reference to the
Agreement as modified by this Joinder. The execution, delivery and effectiveness of this Joinder
shall not operate as a waiver of any right, power or remedy of Administrative Agent, Canadian
Administrative Agent, any Bank or any Canadian Bank under the Agreement or any other Loan Document
nor constitute a waiver of any provision of the Agreement or any other Loan Document.



This Joinder shall take effect upon its execution and delivery by the undersigned. All
representations and warranties herein of the Canadian Borrower shall survive the execution and
delivery of this Joinder, and the making or granting of the Canadian Advances, and shall further
survive until all of the Canadian Advances and Canadian L/C Obligations are paid in full.



THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. This Joinder is a Loan Document, and all provisions in the Agreement pertaining to Loan
Documents shall apply hereto.






 









 







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




	 	 	 	 	 
	 	EOG RESOURCES CANADA INC., Canadian Borrower

 	 
	 	By:  	/s/ Helen Y. Lim
 	 
	 	 	Helen Y. Lim 	 
	 	 	Vice President and Treasurer 	 
	 



Signature Page to Canadian Joinder







 









 








JOINDER TO CREDIT AGREEMENT BY UK BORROWER



This Joinder to Credit Agreement (this “Joinder”) is executed as of September 10, 2010 by
the undersigned for the benefit of the UK Administrative Agent, each Sterling L/C Issuer and the UK
Banks under that certain Revolving Credit Agreement (the “Agreement”) of even date herewith
among EOG Resources, Inc., Bank of America, N.A., as Administrative Agent and L/C Issuer, and the
Banks, Canadian Banks and UK Banks a party thereto. Capitalized terms used and not defined herein
shall have the meanings given in the Agreement.



In consideration of the premises and the mutual covenants and agreements contained in the
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in order to induce the UK Banks to extend credit to the UK Borrower under
the Agreement, the undersigned hereby (i) executes and delivers this Joinder, (ii) joins the
Agreement as the UK Borrower, (iii) confirms, represents and warrants to the Administrative Agent,
the UK Administrative Agent and each UK Bank that all of the representations and warranties of the
UK Borrower set forth in the Agreement and the other Loan Documents are true and correct at and as
of the date hereof and after giving effect hereto, and (iv) ratifies and confirms in all respects,
all obligations and covenants of the UK Borrower under the Agreement, and confirms that all such
obligations and covenants are and shall remain in full force and effect.



Any reference to the Agreement in any Loan Document shall be deemed to be a reference to the
Agreement as modified by this Joinder. The execution, delivery and effectiveness of this Joinder
shall not operate as a waiver of any right, power or remedy of the Administrative Agent, UK
Administrative Agent, any Bank or any UK Bank under the Agreement or any other Loan Document nor
constitute a waiver of any provision of the Agreement or any other Loan Document.



This Joinder shall take effect upon its execution and delivery by the undersigned. All
representations and warranties herein of the UK Borrower shall survive the execution and delivery
of this Joinder, and the making or granting of the Sterling Advances, and shall further survive
until all of the Sterling Advances and Sterling L/C Obligations are paid in full.



THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. This Joinder is a Loan Document, and all provisions in the Agreement pertaining to Loan
Documents shall apply hereto.






 









 







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




	 	 	 	 	 
	 	EOG RESOURCES UNITED KINGDOM LIMITED, UK Borrower

 	 
	 	By:  	/s/ Helen Y. Lim
 	 
	 	 	Helen Y. Lim 	 
	 	 	Director 	 
	 



Signature Page to UK Joinder







 









 








APPENDIX 1




TERMS OF CANADIAN BORROWINGS AND CANADIAN LETTERS OF CREDIT



ARTICLE IA

DEFINITIONS




     Section 1A.1 Certain Defined Terms. As used in this Appendix 1, terms defined in the
Agreement or Appendix 2 and not otherwise defined herein shall have the same meanings when used in
this Appendix, and the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and the plural forms of the terms defined):



     “Canadian Administrative Agent” means Bank of America, acting through its Toronto
Branch, together with any successor thereto pursuant to Section 7.9.



     “Canadian Advance” means an advance by a Canadian Bank to the Canadian Borrower
(including Canadian BA Equivalent Loans by a Non-BA Bank) or the acceptance or purchase of Canadian
Bankers’ Acceptances issued by the Canadian Borrower with the same maturity date pursuant to
Article IIA (as divided or combined from time to time as contemplated in the definition herein of
“Canadian Borrowing”), and refers to a Canadian Prime Rate Advance and to the issuance and purchase
of Canadian Bankers’ Acceptances (each of which shall be a “Canadian Type” of Canadian
Advance).



     “Canadian Allocated Commitment” means, as to each Bank, its or its Canadian branch’s
or Affiliate’s Canadian Pro Rata Share as set forth opposite such Bank’s or Canadian branch’s or
Affiliate’s name on Schedule II (including after any revision thereof under Section 2.20(e)
and Section 2.20(f)) or in the Assignment and Assumption pursuant to which such Bank or Canadian
branch or Affiliate becomes a party hereto, as applicable, of the Canadian Allocated Total
Commitment.



     “Canadian Allocated Maximum Total Commitment” means the aggregate maximum Canadian
Allocated Commitments of all Canadian Banks or their Canadian branch or Affiliate as set forth
opposite such Bank’s or Canadian branch’s or Affiliate’s name on Schedule II (including
after any revision thereof under Section 2.20(e) and Section 2.20(f)) or in the Assignment and
Assumption pursuant to which such Bank or Canadian branch or Affiliate becomes a party hereto, as
applicable.



     “Canadian Allocation Period” means any time during which either (a) the Borrower has
allocated any portion of the Commitments as the Canadian Allocated Total Commitment pursuant to
Section 2A.10 or (b) the Canadian Total Outstanding Amount exceeds zero.



     “Canadian Allocated Total Commitment” means the aggregate amount of the Commitments
allocated by the Borrower from time to time as the Canadian Allocated Total Commitment pursuant to
Section 2A.10, not to exceed the Canadian Allocated Maximum Total Commitment.



     “Canadian BA Discount Rate” means, (a) in respect of a Canadian BA being accepted by a
Canadian Bank on any date, (i) for a Canadian Bank that is listed in Schedule I to the Bank Act
(Canada), the average bankers’ acceptance rate as quoted on Reuters CDOR page (or such other page
as may, from time to time, replace such page on that service for the purpose of displaying



Appendix 1 - 1









 




quotations for bankers’ acceptances accepted by leading Canadian financial institutions) at
approximately 11:00 a.m. on such drawdown date for bankers’ acceptances having a comparable
maturity date as the maturity date of such Canadian 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 Canadian Administrative Agent by the Canadian Schedule I BA
Reference Banks as of 11:00 a.m. on such drawdown date for bankers’ acceptances having a comparable
maturity date as the maturity date of such Canadian BA; (ii) for a Canadian Bank that is listed in
Schedule II to the Bank Act (Canada), the rate established by the Canadian Administrative Agent to
be the lesser of (A) the CDOR Rate plus one-tenth of one percent (0.1%) per annum; and (B) the
average of the bankers’ acceptance rates (expressed to five decimal places) as quoted to the
Canadian Administrative Agent by the Canadian Schedule II BA Reference Banks as of 11:00 a.m. on
such drawdown date for bankers’ acceptances having a comparable maturity date as the maturity date
of such Canadian BA; and (iii) for a Canadian Bank that is listed in Schedule III to the Bank Act
(Canada), the rate established by the Canadian Administrative Agent to be the lesser of (A) the
CDOR Rate plus one-tenth of one percent (0.1%) per annum; and (B) the average of the bankers’
acceptance rates (expressed to five decimal places) as quoted to the Canadian Administrative Agent
by the Canadian Schedule III BA Reference Banks as of 11:00 a.m. on such drawdown date for bankers’
acceptances having a comparable maturity date as the maturity date of such Canadian BA; or (b) in
respect of a Non-BA Bank advancing a Canadian BA Equivalent Loan, the lesser of (i) the CDOR Rate
plus one-tenth of one percent (0.10%) per annum and (ii) the average of the per annum rates
established by the Canadian Administrative Agent on such drawdown date pursuant to the preceding
clauses (i) and (ii), whether or not such rates were then actually utilized.




     “Canadian BA Equivalent Loan” shall mean an advance provided hereunder by a Non-BA
Bank pursuant to Section 2A.2(b) in lieu of accepting a Canadian Bankers’ Acceptance.



     “Canadian Bank” means each Bank or its Canadian branch or Affiliate with a Canadian
Commitment from time to time hereunder.



     “Canadian Bankers’ Acceptance” or “Canadian BA” means a Canadian Dollar draft
of Canadian Borrower, in form acceptable to the accepting Canadian Bank, for a term selected by
Canadian Borrower of either 30, 60, 90 or 180 days (as reduced or extended by the accepting
Canadian Bank, acting reasonably, to allow the maturity thereof to fall on a Canadian Business Day)
payable in Canada.



     “Canadian Borrower” means, until the termination of the Borrower’s right to allocate a
portion of the Total Committed Amount as the Canadian Allocated Total Commitment, EOG Resources
Canada Inc., an Alberta corporation.



     “Canadian Borrowing” means a borrowing hereunder consisting of Canadian Advances of
the same Canadian Type made (or accepted or purchased, as applicable) on the same day by the
Canadian Banks pursuant hereto; provided that (i) all Canadian Prime Rate Advances
outstanding at any time shall thereafter be deemed to be one Canadian Borrowing, and (ii) subject
to the provisions hereof, such Canadian Borrowing may be divided ratably to form multiple Canadian
Borrowings (with the result that each Canadian Bank’s Canadian Advance as a part of each such
multiple Canadian Borrowing is proportionately the same as its Canadian Advance as a part of such
divided Canadian Borrowing) or combined with all or a ratable portion of one or more other Canadian
Borrowings to form a new Canadian Borrowing, such division or combination to be made by notice from
the Canadian Borrower given to the Canadian



Appendix 1 - 2









 




Administrative Agent not later than 11:00 A.M. on the third Canadian Business Day prior to the
proposed division or combination specifying the date of such division or combination (which shall
be a Canadian Business Day) and all other relevant information (such as the Canadian Borrowings to
be divided or combined, the respective amounts of the Canadian Borrowings resulting from any such
division, the relevant maturity date(s), the amount of the Canadian Prime Rate Advances or other
Borrowings to be so combined and such other information as the Canadian Administrative Agent may
request), but in no event shall any Canadian Borrowing resulting from, or remaining after, any such
division or combination be less than C$5,000,000 or shall any Canadian Bankers’ Acceptance or
Canadian BA Equivalent Loan be less than C$100,000 (and in multiples of C$100,000 for any amounts
in excess thereof), and in all cases each Canadian Bank’s Canadian Advance as a part of each such
combined, resultant or remaining Canadian Borrowing shall be proportionately the same as its
Canadian Advances as a part of the relevant Borrowings prior to such division or combination and
each combined, resultant or remaining Canadian Borrowing shall be in an integral multiple of
C$1,000,000. Each Canadian Borrowing comprised of a Canadian Type of Canadian Advances shall be
that “Canadian Type” of Canadian Borrowing.




     “Canadian Business Day” means any day of the year except Saturday, Sunday and any day
on which banks are required or authorized to close in Houston, Texas or the province in which the
Canadian Administrative Agent’s Canadian Payment Office is located.



     “Canadian Cash Collateralize” has the meaning specified in Section 2A.7(g).



     “Canadian Commitment” means, as to each Canadian Bank, its obligation during a
Canadian Allocation Period to (a) make Canadian Advances to the Canadian Borrower pursuant to
Section 2A.1, and (b) purchase participations in Canadian L/C Obligations pursuant to Section
2A.7(c), in an aggregate principal amount at any one time outstanding not to exceed in such period
the lesser of (i) such Canadian Bank’s Canadian Allocated Commitment and (ii) such Canadian Bank’s
pro rata share of the Canadian Allocated Total Commitment for such period, such pro rata share
being a fraction whose numerator is such Canadian Bank’s Canadian Allocated Commitment and whose
denominator is the Canadian Allocated Maximum Total Commitment.



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



	 	 	 	 	 	 	 	 	 

	 	 	 	Face Amount	 	 
	 

	 	 	1	+ (Rate x Term)	 		 	 
	 

	 	 	 	365	 	 	 	 





(where “Face Amount” is the principal amount of the Canadian Bankers’ Acceptance being purchased,
“Rate” is the Canadian BA Discount Rate expressed as a decimal (to five decimal places) on the day
of purchase or advance and “Term” is the number of days in the term of the Canadian Bankers’
Acceptance.)




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



     “Canadian Guaranty” means the Guaranty made by the Borrower in favor of the Canadian
Administrative Agent on behalf of the Canadian Banks, substantially in the form of Exhibit
1-E.



Appendix 1 - 3









 





     “Canadian L/C Advance” means, with respect to each Canadian Bank, such Canadian Bank’s
funding of its participation in any Canadian Unreimbursed Amount in accordance with its Canadian
Pro Rata Share.



     “Canadian L/C Credit Extension” means, with respect to any Canadian Letter of Credit,
the issuance thereof or extension of the expiry date thereof, the renewal or increase of the amount
thereof, or the amendment or other modification thereof.



     “Canadian L/C Issuer” means each of JPMorgan, Bank of America and The Bank of Nova
Scotia, in its capacity as an issuer of Canadian Letters of Credit hereunder, and any other
Canadian Bank that may become a Canadian Letter of Credit issuer as mutually agreed to by the
Canadian Borrower, such Canadian Bank and the Canadian Administrative Agent, or any successor
issuer of Canadian Letters of Credit hereunder.



     “Canadian L/C Obligations” means, as at any date of determination, the aggregate
undrawn amount of all outstanding Canadian Letters of Credit plus (without duplication) the
aggregate outstanding amount of all Canadian Unreimbursed Amounts and Canadian L/C Advances.



     “Canadian Lending Office” means, as to any Canadian Bank, the office or offices of
such Canadian Bank under its name on Schedule II or in the Assignment and Assumption or
other document pursuant to which it became a party hereto as contemplated by Section 2.18 or
Section 8.6, or such other office of such Canadian Bank as such Canadian Bank may from time to time
specify to the Canadian Borrower and the Canadian Administrative Agent.



     “Canadian Letter of Credit” means any letter of credit issued hereunder by a Canadian
L/C Issuer as the same may be amended, extended, renewed or otherwise modified from time to time.
A Canadian Letter of Credit may be a commercial letter of credit or a standby letter of credit.



     “Canadian Letter of Credit Application” means an application and agreement for the
issuance or amendment of a Canadian Letter of Credit in the form from time to time in use by a
Canadian L/C Issuer, with such amendments thereto as the Canadian Borrower may reasonably request
and acceptable to a Canadian L/C Issuer to avoid any conflict between it and the Agreement.



     “Canadian Majority Banks” means at any time Canadian Banks having more than 50% of the
Canadian Total Committed Amount, or, if the Commitments have been terminated pursuant to Section
6.1, Canadian Banks holding in the aggregate more than 50% of the Canadian Total Outstanding
Amount, with the aggregate amount of each Canadian Bank’s risk participation and funded
participation in Canadian L/C Obligations being deemed “held” by such Canadian Bank for purposes of
this definition.



     “Canadian Net Proceeds” means with respect to any Canadian Bankers’ Acceptance or
Canadian BA Equivalent Loan, the Canadian Discount Proceeds less the amount equal to the applicable
Canadian stamping fee payable with respect thereto pursuant to Section 2A.3(c).



     “Canadian Note” means a promissory note made by the Canadian Borrower in favor of a
Canadian Bank evidencing Canadian Borrowings made by such Canadian Bank, substantially in the form
of Exhibit 1-A.



Appendix 1 - 4









 





     “Canadian Notice of Borrowing” has the meaning given to such term in Section 2A.2.



     “Canadian Payment Office” means Bank of America, Simcoe Plaza 200 Front Street West,
Suite 2700, Toronto, Ontario, ON M5V 3K2, Canada, Attention: Loans Department, or such other office
as the Canadian Administrative Agent may designate by written notice to the other parties hereto.



     “Canadian Prime Rate” means for any day a fluctuating rate per annum equal to the
higher of (a) the Canadian BA Discount Rate for the Canadian Administrative Agent, acting through
its Toronto branch, for Canadian Bankers’ Acceptances having a maturity of thirty days plus the
Applicable Margin, and (b) the rate of interest in effect for such day as publicly announced from
time to time by the Canadian Administrative Agent, acting through its Toronto branch, as its
“reference rate” for Canadian Dollar commercial loans made to a Person in Canada. The “reference
rate” is a rate set by the Canadian Administrative Agent based upon various factors including the
Canadian Administrative Agent’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by the Canadian Administrative Agent
shall take effect at the opening of business on the day specified in the public announcement of
such change.



     “Canadian Prime Rate Advance” means a Canadian Advance that bears interest at the
Canadian Prime Rate.



     “Canadian Pro Rata Share” means:



     (a) at any time the Commitments remain outstanding and not during a Canadian Allocation
Period, with respect to each Bank, the percentage set forth adjacent to such Bank’s or Canadian
branch’s or Affiliate’s name on Schedule II and under the caption “Canadian Pro Rata Share”
or in the Assignment and Assumption pursuant to which such Bank or Canadian branch or Affiliate
becomes a party hereto;



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



     (c) upon the termination of the Commitments pursuant to Section 6.1, with respect to each
Canadian Bank, a fraction (expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is:


the sum of




          (i) the outstanding Canadian Advances of such Canadian Bank plus




          (ii) an amount equal to (A) the outstanding Canadian Advances of such Canadian Bank
divided by (B) the aggregate outstanding Canadian Advances of all Canadian Banks
times (C) all outstanding Canadian L/C Obligations, and



the denominator of which is the Canadian Total Outstanding Amount.







Appendix 1 - 5









 







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




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



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



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



     “Canadian Stamping Fee Rate” means with respect to any Canadian Bankers’ Acceptance
accepted by any Canadian Bank or any Canadian BA Equivalent Loan advanced by any Non-BA Bank at any
time, a percentage per annum equal to the Applicable Margin then in effect; provided that if an
Event of Default has occurred and is continuing, the Canadian Stamping Fee Rate shall be increased
by 2% per annum.



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



     “Canadian Total Outstanding Amount” means, at any time, the sum of (a) the outstanding
Canadian Advances at such time plus (b) the outstanding Canadian L/C Obligations.



     “Canadian Unreimbursed Amount” has the meaning set forth in Section 2A.7(c)(i).



     “Convert”, “Conversion” and “Converted” each refers to a conversion of
Canadian Advances or a Canadian Borrowing of one Canadian Type into Canadian Advances or a Canadian
Borrowing, as the case may be, of another Canadian Type pursuant to the provisions hereof.



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



ARTICLE IIA

AMOUNT AND TERMS OF THE CANADIAN ADVANCES



     Section 2A.1 The Canadian Advances. Each Canadian Bank severally agrees, on the terms
and conditions hereinafter set forth, to make one or more Canadian Advances as part of a Canadian
Borrowing to the Canadian Borrower from time to time on any Canadian Business Day during the period
from the date hereof until the Termination Date in an aggregate amount not to exceed at any time
outstanding (a) such Canadian Bank’s Canadian Commitment minus (b) such



Appendix 1 - 6









 




Canadian Bank’s Canadian Pro Rata Share of outstanding Canadian L/C Obligations. Each
Canadian Borrowing (other than a Canadian Borrowing or deemed Canadian Borrowing under Section
2A.7(c)(ii) to reimburse a Canadian L/C Issuer for any Canadian Unreimbursed Amount) shall be in an
aggregate amount not less than C$5,000,000, shall be in an integral multiple of C$1,000,000 and
shall, when made, consist of Canadian Advances of the same Canadian Type, made on the same day by
the Canadian Banks ratably according to their respective Canadian Commitments (excluding, with
respect to any Canadian Borrowing or deemed Canadian Borrowing under Section 2A.7(c)(ii), the
Canadian Pro Rata Share of any Canadian Bank upon it becoming a Defaulting Bank) and the face
amount of each Canadian Bankers’ Acceptance or Canadian BA Equivalent Loan shall be in a principal
amount of C$100,000 or a whole multiple of C$100,000 in excess thereof. Within the limits of each
Canadian Bank’s Canadian Commitment, the Canadian Borrower may borrow, prepay pursuant to Section
2A.8 and reborrow under this Section 2A.1. Subject to the terms and conditions hereof, more than
one Canadian Borrowing may be made on a Canadian Business Day.




     Section 2A.2 Making the Canadian Advances. Subject to Section 2A.2(b), (a)
each Canadian Borrowing shall be made on notice, given not later than 11:00 A.M. (x) in the case of
a proposed Canadian Borrowing comprised of Canadian Bankers’ Acceptances, at least three Canadian
Business Days prior to the date of the proposed Canadian Borrowing, and (y) in the case of a
proposed Canadian Borrowing comprised of Canadian Prime Rate Advances, on the day of the proposed
Canadian Borrowing, by the Canadian Borrower to the Canadian Administrative Agent, which shall give
to each Canadian Bank prompt notice thereof by telecopy. Each such notice of a Canadian Borrowing
(a “Canadian Notice of Borrowing”) shall be by telecopy, confirmed immediately in writing,
in substantially the form of Exhibit 1-B, duly signed by a Responsible Officer of the
Canadian Borrower and specifying therein (1) the requested date of such Canadian Borrowing, (2)
whether the Canadian Borrower is requesting a Canadian Prime Rate Advance or a Canadian Borrowing
by way of Canadian Bankers’ Acceptances, (3) the aggregate amount of such Canadian Borrowing, and
(4) if applicable, the maturity date of Canadian Bankers’ Acceptances to be issued, rolled over or
advanced (which shall be a Canadian Business Day), provided that the Canadian Borrower may
not specify Canadian Bankers’ Acceptances for any Canadian Borrowing if, after giving effect to
such Canadian Borrowing, Canadian Bankers’ Acceptances having more than five different maturity
dates shall be outstanding without the consent of Canadian Majority Banks. If the Canadian
Borrower requests a Canadian Borrowing of, conversion to, or rollover of Canadian Bankers’
Acceptances in any such Canadian Notice of Borrowing, but fails to specify a maturity date
therefor, it will be deemed to have specified Canadian Bankers’ Acceptances with a 30-day term.
Each Canadian Bank shall, before 11:00 A.M. (1:00 P.M. in the case of a Canadian Borrowing
comprised of Canadian Prime Rate Advances) on the date of such Canadian Borrowing, (i) make
available for the account of its Canadian Lending Office to the Canadian Administrative Agent at
its Canadian Payment Office, in same day funds, such Canadian Bank’s ratable portion of such
Canadian Borrowing or (ii) accept drafts of Canadian Bankers’ Acceptances. After the Canadian
Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article IIIA, the Canadian Administrative Agent will make such funds available to the
Canadian Borrower at the Canadian Administrative Agent’s aforesaid address.



     (b) Notwithstanding Sections 2A.2(a) and 2A.11, each Non-BA Bank will, in lieu
of accepting a Canadian Bankers’ Acceptance on the date of any Canadian Borrowing by way of
Canadian Bankers’ Acceptances, make a Canadian BA Equivalent Loan. The amount of each Canadian BA
Equivalent Loan shall be equal to the Canadian Discount Proceeds (with reference



Appendix 1 - 7









 




to the applicable Canadian BA Discount Rate applicable to such Non-BA Bank) which would be
realized from a hypothetical sale of those Canadian Bankers’ Acceptances which, but for this
subsection, would have been sold to such Non-BA Bank. Concurrent with the making of a Canadian BA
Equivalent Loan, each Non-BA Bank shall be entitled to deduct therefrom an amount equal to the
applicable fee pursuant to Section 2A.3(b) which, but for this Section 2A.2(b),
such Non-BA Bank would otherwise be entitled to receive in connection with its acceptance of
Canadian Bankers’ Acceptances. Any Canadian BA Equivalent Loan shall be made on the relevant date
of any Borrowing by way of Canadian Bankers’ Acceptances, and shall remain outstanding for the term
of the corresponding Canadian Bankers’ Acceptance. On the maturity date of the corresponding
Canadian Bankers’ Acceptance, such Canadian BA Equivalent Loan shall be repaid in an amount equal
to the face amount of a draft that would have been accepted by such Non-BA Bank if such Non-BA Bank
had accepted and purchased a Canadian Bankers’ Acceptance hereunder. Each Canadian BA Equivalent
Loan made pursuant to this subsection shall be deemed to be a Canadian Bankers’ Acceptance accepted
and purchased by such Non-BA Bank pursuant to the terms hereof, and except in this subsection, any
reference to a Canadian Bankers’ Acceptance shall include such Canadian BA Equivalent Loan.




     (c) Each Canadian Notice of Borrowing shall be irrevocable and binding on the Canadian
Borrower.



     (d) Unless the Canadian Administrative Agent shall have received notice from a Canadian Bank
prior to the date of any Canadian Borrowing that such Canadian Bank will not make available to the
Canadian Administrative Agent such Canadian Bank’s ratable portion of such Canadian Borrowing, the
Canadian Administrative Agent may assume that such Canadian Bank has made such portion available to
the Canadian Administrative Agent on the date of such Canadian Borrowing in accordance with
subsection (a) of this Section 2A.2 and the Canadian Administrative Agent may, in reliance upon
such assumption, make available to the Canadian Borrower on such date a corresponding amount. If
and to the extent that such Canadian Bank shall not have so made such ratable portion available to
the Canadian Administrative Agent, such Canadian Bank and the Canadian Borrower severally agree to
repay to the Canadian Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available to the Canadian
Borrower until the date such amount is repaid to the Canadian Administrative Agent, at (1) in the
case of the Canadian Borrower, the interest rate applicable at the time to Canadian Advances
comprising such Canadian Borrowing and (2) in the case of such Canadian Bank, the Canadian Prime
Rate. If such Canadian Bank shall repay to the Canadian Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Canadian Bank’s Canadian Advance as part of
such Canadian Borrowing for purposes of this Agreement.



     (e) The failure of any Canadian Bank to make the Canadian Advance to be made by it as part of
any Canadian Borrowing shall not relieve any other Canadian Bank of its obligation, if any,
hereunder to make its Canadian Advance on the date of such Canadian Borrowing, but no Canadian Bank
shall be responsible for the failure of any other Canadian Bank to make the Canadian Advance to be
made by such other Canadian Bank on the date of any Canadian Borrowing.



     (f) The Canadian Administrative Agent shall promptly notify the Canadian Borrower and the
Canadian Banks of the Canadian BA Discount Rate applicable to any Canadian Bankers’ Acceptances
upon determination thereof. The determination of the Canadian BA Discount Rate by the Canadian
Administrative Agent shall be conclusive in the absence of manifest error.



Appendix 1 - 8









 





     Section 2A.3. Fees. (a) Canadian Facility Fee. Subject to Section 8.8, the
Borrower agrees to pay to the Canadian Administrative Agent, for the account of each Canadian Bank,
a Canadian facility fee on the average daily amount of such Canadian Bank’s Canadian Allocated
Commitment, whether or not used, during any Canadian Allocation Period. The Canadian facility fee
is due on the last Canadian Business Day of each March, June, September and December during any
Canadian Allocation Period and on the last day of each Canadian Allocation Period, and on the date
such Canadian Bank’s Canadian Allocated Commitment is terminated. The rate per annum of the
Canadian facility fee for each calendar quarter shall be determined as provided in Schedule
I based on the Rating Level in effect on the first day of such quarter. As provided in Section
2.3, the Borrower may at its option pay such Canadian facility fee together with any facility fee
owing to the Banks pursuant to Section 2.3(a) pursuant to a single payment to the Administrative
Agent for the benefit of the Banks and the Canadian Banks, respectively; provided, the
Borrower shall so specify to the Administrative Agent that such payment is with respect to both the
Canadian facility fee hereunder and such facility fee.



     (b) Canadian Stamping Fee. Subject to Section 8.8, in consideration of each Canadian
Bank’s commitment to accept or participate in Canadian Bankers’ Acceptances under this Agreement,
the Canadian Borrower will pay to Canadian Administrative Agent for the account of each Canadian
Bank the Canadian Stamping Fee Rate multiplied by the face amount of each Canadian Bankers’
Acceptance accepted by such Canadian Bank under this Agreement calculated for the number of days in
the term of such Canadian Bankers’ Acceptance. Such fee shall be due and payable on the date on
which such Canadian Bankers’ Acceptances are accepted and if such Canadian Bank is purchasing such
Canadian Bankers’ Acceptance, such fee shall be deducted from the Canadian Discount Proceeds paid
to the Canadian Borrower.



     Section 2A.4. Repayment. The Canadian Borrower shall repay the unpaid principal
amount of Canadian Advance owed to each Canadian Bank in accordance with the Canadian Note to the
order of such Canadian Bank. All Canadian Advances shall be due and payable on the Termination
Date.



     Section 2A.5. Interest. (a) Subject to Section 8.8, the Canadian Borrower shall pay
interest on the unpaid principal amount of each Canadian Prime Rate Advance owed to each Canadian
Bank from the date of such Canadian Prime Rate Advance until such principal amount shall be paid in
full, at a rate per annum equal at all times to the Canadian Prime Rate in effect from time to
time, due quarterly on the last Canadian Business Day of each March, June, September and December
during such periods and on the date such Canadian Prime Rate Advance shall be Converted (in whole
or in part), changed (in whole or in part) as a result of any division or combination of any
Canadian Borrowing, or paid in full; provided that any such Canadian Prime Rate Advance not
paid when due shall bear interest on the principal amount thereof from time to time outstanding,
payable upon demand, until paid in full at a rate per annum equal at all such times to 2% above the
Canadian Prime Rate in effect from time to time.



     (b) Other Canadian Obligations. If any amount payable by the Canadian Borrower (other
than principal in respect of any Canadian Advance), including Canadian Bankers’ Acceptances, under
any Loan Document is not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount from time to time outstanding shall
thereafter bear interest on the principal amount thereof from time to time outstanding, payable
upon demand, until paid in full, at a fluctuating interest rate per annum at all such times equal
to 2% above the Canadian Prime Rate in effect from time to time.



Appendix 1 - 9









 





     (c) For the purposes of the Interest Act (Canada), whenever interest payable pursuant to this
Agreement with respect to the Canadian Advances, Canadian L/C Obligations and other amounts payable
hereunder or under the other Loan Documents with respect thereto is calculated on the basis of a
period other than a calendar year (the “Interest Period”), each rate of interest determined
pursuant to such calculation expressed as an annual rate is equivalent to such rate as so
determined multiplied by the actual number of days in the calendar year in which the same is to be
ascertained and divided by the number of days in the Interest Period.



     (d) To the extent permitted by law, the provisions of the Judgment Interest Act (Alberta)
R.S.A. 2000 C.J-1 shall not apply to the Loan Documents and are hereby expressly waived by Canadian
Borrower.



     (e) 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 with respect to the
Canadian Advances, Canadian L/C Obligations and other amounts payable hereunder or under the other
Loan Documents with respect thereto, and the rates of interest stipulated in this Agreement are
intended to be nominal rates and not effective rates or yields.



     Section 2A.6. Voluntary Conversion of Borrowings. (a) The Canadian Borrower may on
any Canadian Business Day, upon notice given to the Canadian Administrative Agent not later than
11:00 A.M. on the third Canadian Business Day prior to the date of the proposed Conversion, and
subject to the other limitations set forth herein, Convert all or any portion of a Canadian
Borrowing of one Canadian Type into a Canadian Borrowing of another Canadian Type. Each such
notice of a Conversion (a “Canadian Notice of Conversion”) shall be duly signed by a
Responsible Officer, be by telecopy, confirmed immediately in writing, in substantially the form of
Exhibit 1-D, and shall, within the restrictions specified above, specify (1) the date of
such Conversion, (2) the Canadian Borrowing (or identified portion thereof) to be Converted and the
Canadian Type into which it is to be Converted, and (3) if such Conversion is into Canadian
Bankers’ Acceptances, the maturity date of Canadian Bankers’ Acceptances to be issued or rolled
over (which shall be a Canadian Business Day).



     (b) Except as otherwise provided herein, a Canadian Bankers’ Acceptance may be rolled over or
Converted only on its maturity date. During the existence of a Default, no Canadian Borrowings may
be requested as or Converted to, and no Canadian Bankers’ Acceptances may be rolled over as new
Canadian Bankers’ Acceptances without the consent of Canadian Majority Banks.



     (c) All Canadian Borrowings, Conversions and continuations under this Agreement shall be
effected in a manner that (i) treats all Canadian Banks ratably (including, for example, effecting
Conversions of any portion of a Canadian Borrowing in a manner that results in each Canadian Bank
retaining its same ratable percentage of both the Converted portion and the remaining portion not
Converted), and (ii) results in each Canadian Borrowing (including, in the case of any Conversion
of a portion of a Canadian Borrowing, both the Converted portion and the remaining portion not
Converted) being in an amount not less than C$5,000,000 and in an integral multiple of C$1,000,000
and, if applicable, the face amount of each Canadian Bankers’ Acceptance being in a principal
amount of C$100,000 or a whole multiple of C$100,000 in excess thereof. Upon Conversion of any
Canadian Borrowing, or portion thereof, into a particular Canadian Type, all Canadian Advances
comprising such Canadian Borrowing or portion thereof, as the case may be, will be deemed Converted
into Canadian Advances of such Canadian Type.



Appendix 1 - 10









 





     Section 2A.7. Canadian Letters of Credit.



     (a) The Canadian Letter of Credit Commitment.



     (i) Subject to the terms and conditions set forth herein, (A) each Canadian L/C Issuer agrees,
in reliance upon the agreements of the other Canadian Banks set forth in this Section 2A.7, (1)
from time to time on any Canadian Business Day prior to the Letter of Credit Expiration Date, to
issue Canadian Letters of Credit for the account of the Canadian Borrower, and to amend or renew
Canadian Letters of Credit previously issued by it, in accordance with subsection (b) below, and
(2) to honor drafts under the Canadian Letters of Credit; and (B) the Canadian Banks severally
agree to participate in Canadian Letters of Credit issued for the account of the Canadian Borrower;
provided that (i) no Canadian L/C Issuer shall be obligated to make any Canadian L/C Credit
Extension with respect to any Canadian Letter of Credit if the aggregate outstanding amount of
Letters of Credit, Canadian Letters of Credit and Sterling Letters of Credit issued by it hereunder
would exceed one-third (1/3) of the Total Committed Amount, (ii) no Canadian L/C Issuer shall be
obligated to make any Canadian L/C Credit Extension with respect to any Canadian Letter of Credit
if the aggregate outstanding amount of Canadian Letters of Credit issued by it hereunder would
exceed an amount equal to the product of (x) the Canadian Allocated Maximum Total Commitment
times (y) a fraction, the numerator of which is one (1), and the denominator of which, at
each relevant time of determination, is the then total number of Canadian L/C Issuers, and (iii) no
Canadian L/C Issuer shall be obligated to issue Canadian Letters of Credit and no Canadian Bank
shall be obligated to participate in any Canadian Letter of Credit if as of the date of such
Canadian L/C Credit Extension, (x) the Canadian Total Outstanding Amount would exceed the Canadian
Allocated Total Commitment or (y) the outstanding Canadian Borrowings of any Canadian Bank,
plus such Canadian Bank’s Canadian Pro Rata Share of the outstanding Canadian L/C
Obligations would exceed such Canadian Bank’s Canadian Commitment. 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
foregoing period, obtain Canadian Letters of Credit to replace Canadian Letters of Credit that have
expired or that have been drawn upon and reimbursed



     (ii) No Canadian L/C Issuer shall be under any obligation to issue any Canadian Letter of
Credit if:



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



Appendix 1 - 11









 






     (B) subject to Section 2A.7(b)(iii), the expiry date of such requested Canadian Letter of
Credit would occur more than twelve months after the date of issuance or last renewal, unless the
Canadian Majority Banks have approved such expiry date;



     (C) the expiry date of such requested Canadian Letter of Credit would occur after the Letter
of Credit Expiration Date, unless all the Canadian Banks have approved such expiry date;



     (D) the issuance of such Canadian Letter of Credit would violate one or more reasonable and
customary commercial banking policies of such Canadian L/C Issuer generally applicable to the
issuance of letters of credit and applied by such Canadian L/C Issuer to other similarly situated
borrowers under similar credit facilities; or



     (E) such Canadian Letter of Credit is in an initial amount less than $100,000 (or C$100,000),
in the case of a commercial Canadian Letter of Credit, or $500,000 (or C$500,000), in the case of a
standby Canadian Letter of Credit, or is to be denominated in a currency other than Dollars or
Canadian Dollars.



     (iii) No Canadian L/C Issuer shall be under any obligation to amend, extend, renew or
otherwise modify any Canadian Letter of Credit if (A) such Canadian L/C Issuer would have no
obligation at such time to issue such Canadian Letter of Credit in its amended, extended, renewed
or modified form under the terms hereof, or (B) the beneficiary of such Canadian Letter of Credit
does not accept the proposed amendment, extension, renewal or modification to such Canadian Letter
of Credit.



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



     (i) Each Canadian Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Canadian Borrower delivered to the relevant Canadian L/C Issuer (with a copy to the
Canadian Administrative Agent) in the form of a Canadian Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Canadian Borrower. Such
Canadian Letter of Credit Application must be received by the relevant Canadian L/C Issuer and the
Canadian Administrative Agent not later than 11:00 a.m. at least two Canadian Business Days (or
such later date and time as requested by the Canadian Borrower and as the relevant Canadian L/C
Issuer may agree in a particular instance in its 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 Canadian Letter of Credit, such Canadian Letter of Credit Application shall specify in form and
detail satisfactory to the relevant Canadian L/C Issuer: (A) the proposed issuance date of the
requested Canadian Letter of Credit (which shall be a Canadian 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 relevant Canadian L/C Issuer may require. In the case of a request for
an amendment of any outstanding Canadian Letter of Credit, such Canadian Letter of Credit
Application shall specify in form and detail satisfactory to the relevant Canadian L/C Issuer (1)
the Canadian Letter of Credit to be amended; (2) the proposed date of amendment thereof (which
shall be a Canadian Business Day); (3) the nature of the proposed amendment; and (4) such other
matters as the relevant Canadian L/C Issuer may require.




Appendix 1 - 12











 





     (ii) Promptly after receipt of any Canadian Letter of Credit Application, the relevant
Canadian L/C Issuer will confirm with the Canadian Administrative Agent (by telephone or in
writing) that the Canadian Administrative Agent has received a copy of such Canadian Letter of
Credit Application from the Canadian Borrower and, if not, the relevant Canadian L/C Issuer will
provide the Canadian Administrative Agent with a copy thereof. Upon receipt by the relevant
Canadian L/C Issuer of confirmation from the Canadian Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms
and conditions hereof, such Canadian L/C Issuer shall, on the requested date, issue a Canadian
Letter of Credit for the account of the Canadian Borrower or enter into the applicable amendment,
as the case may be, in each case in accordance with the relevant Canadian L/C Issuer’s usual and
customary business practices. Immediately upon the issuance of each Canadian Letter of Credit,
each Canadian Bank shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the relevant Canadian L/C Issuer a risk participation in such Canadian Letter of
Credit in an amount equal to the product of such Canadian Bank’s Canadian Pro Rata Share times the
amount of such Canadian Letter of Credit.



     (iii) If the Canadian Borrower so requests in any applicable Canadian Letter of Credit
Application, the relevant Canadian L/C Issuer may, in its sole and absolute discretion, agree to
issue a Canadian Letter of Credit that has automatic renewal provisions (each, a “Canadian
Auto-Renewal Letter of Credit”); provided that any such Canadian Auto-Renewal Letter of Credit
must permit the relevant Canadian L/C Issuer to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such Canadian Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Canadian Nonrenewal
Notice Date”) in each such twelve-month period to be agreed upon at the time such Canadian
Letter of Credit is issued. Unless otherwise directed by the relevant Canadian L/C Issuer, the
Canadian Borrower shall not be required to make a specific request to the relevant Canadian L/C
Issuer for any such renewal. Once a Canadian Auto-Renewal Letter of Credit has been issued, the
Canadian Banks shall be deemed to have authorized (but may not require) the relevant Canadian L/C
Issuer to permit the renewal of such Canadian Letter of Credit at any time prior to an expiry date
not later than the Letter of Credit Expiration Date; provided, however, that the
relevant Canadian L/C Issuer shall not permit any such renewal if the relevant Canadian L/C Issuer
has determined that it would have no obligation at such time to issue such Canadian Letter of
Credit in its renewed form under the terms hereof (by reason of the provisions of Section
2A.7(a)(ii) or otherwise), or it has received notice (which may be by telephone or in writing) on
or before the day that is two Canadian Business Days before the Canadian Nonrenewal Notice Date (1)
from the Canadian Administrative Agent that the Canadian Majority Banks have elected not to permit
such renewal or (2) from the Canadian Administrative Agent, any Canadian Bank or the Canadian
Borrower that one or more of the applicable conditions specified in Section 3A.2 is not then
satisfied. If a Default or Event of Default has occurred and is continuing immediately prior to the
Letter of Credit Expiration Date, such Canadian Auto-Renewal Letter of Credit shall not be renewed.



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



Appendix 1 - 13









 





     (c) Drawings and Reimbursements; Funding of Participations.



     (i) On the date of any payment by any Canadian L/C Issuer under any Canadian Letter of Credit
(each such date, a “Canadian Honor Date”), the relevant Canadian L/C Issuer shall notify
the Canadian Borrower and the Canadian Administrative Agent of such payment. If the relevant
Canadian L/C Issuer shall give such notice prior to 11:00 a.m. on the Canadian Honor Date, by not
later than 11:00 a.m. on the Canadian Honor Date, the Canadian Borrower shall reimburse the
relevant Canadian L/C Issuer through the Canadian Administrative Agent in an amount equal to the
amount of such drawing; otherwise, the Canadian Borrower shall reimburse the relevant Canadian L/C
Issuer through the Canadian Administrative Agent in an amount equal to the amount of such drawing
by 11:00 a.m. on the Canadian Business Day following the Canadian Honor Date. If the Canadian
Borrower fails to reimburse the relevant Canadian L/C Issuer as required by the foregoing, the
Canadian Administrative Agent shall promptly notify each Canadian Bank of the Canadian Honor Date,
the amount of the unreimbursed drawing (the “Canadian Unreimbursed Amount”), and the amount
of such Canadian Bank’s Canadian Pro Rata Share thereof. In such event, the Canadian Borrower
shall be deemed to have requested a Canadian Borrowing of Canadian Prime Rate Advances to be
disbursed on the Canadian Honor Date in an amount equal to the Canadian Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2A.1 for the principal amount of
Canadian Prime Rate Advances, but subject to compliance with the conditions set forth in Section
3A.2 (other than (i) the delivery of a Canadian Notice of Borrowing and (ii) the absence of a
Default which is based upon the Canadian Borrower’s failure to fully and timely reimburse for such
drawing). Any notice given by any Canadian L/C Issuer or the Canadian Administrative Agent
pursuant to this Section 2A.7(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 Canadian Bank (including the Canadian Bank acting as the relevant Canadian L/C
Issuer) shall upon receipt of any notice from the Canadian Administrative Agent pursuant to Section
2A.7(c)(i) make funds available to the Canadian Administrative Agent for the account of the
relevant Canadian L/C Issuer at the Canadian Administrative Agent’s office in an amount equal to
its Canadian Pro Rata Share of the Canadian Unreimbursed Amount not later than 12:00 p.m. on the
Canadian Honor Date specified in such notice by the Canadian Administrative Agent, whereupon,
subject to the provisions of Section 2A.7(c)(iii), each Canadian Bank that so makes funds available
shall be deemed to have made a Canadian Prime Rate Advance subject to compliance with the
conditions set forth in Section 3A.2 (other than (i) the delivery of a Canadian Notice of Borrowing
and (ii) the absence of a Default which is based upon the Canadian Borrower’s failure to fully and
timely reimburse for such drawing) to the Canadian Borrower in such amount and the corresponding
Canadian Unreimbursed Amount shall be deemed refinanced. The Canadian Administrative Agent shall
remit the funds so received to the relevant Canadian L/C Issuer.



     (iii) With respect to any Canadian Unreimbursed Amount that is not fully refinanced by a
Canadian Borrowing or a deemed Canadian Borrowing under Section 2A.7(c)(i) or (ii) because the
conditions set forth in Section 3A.2 and not excused under Section 2A.7(c)(i) or (ii) cannot be
satisfied on the Canadian Honor Date, then (A) the relevant Canadian L/C Issuer will notify the
Borrower of such event and the amount of such Canadian Unreimbursed Amount that has not been
refinanced and (B) such Canadian Unreimbursed Amount that is not so refinanced (1) shall thereafter
bear interest on the amount thereof from time to time outstanding at a rate per annum equal to 2%
above the Canadian Prime Rate in effect from time to time and (2) shall be due and payable on the
15th day following the Canadian Borrower’s receipt of such notice from



Appendix 1-14









 




such Canadian L/C Issuer. In such event, each Canadian Bank’s payment to the Canadian
Administrative Agent for the account of the relevant Canadian L/C Issuer pursuant to Section
2A.7(c)(ii) shall be payment in respect of its participation in such Canadian Unreimbursed Amount
and shall constitute a Canadian L/C Advance from such Canadian Bank in satisfaction of its
participation obligation under this Section 2A.7.




     (iv) Until each Canadian Bank funds its Canadian Advance or Canadian L/C Advance pursuant to
this Section 2A.7(c) to reimburse the relevant Canadian L/C Issuer for any amount drawn under any
Canadian Letter of Credit, interest in respect of such Canadian Bank’s Canadian Pro Rata Share of
such amount shall be solely for the account of the relevant Canadian L/C Issuer.



     (v) Each Canadian Bank’s obligation to reimburse the relevant Canadian L/C Issuer for amounts
drawn under Canadian Letters of Credit, as contemplated by this Section 2A.7(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 Canadian Bank may have against the
relevant Canadian L/C Issuer, the Canadian 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. No such making of a reimbursement to a Canadian
L/C Issuer shall constitute a Canadian Borrowing if the Canadian Borrower is unable to satisfy the
conditions set forth in Section 3A.2 (other than (i) delivery by the Canadian Borrower of a
Canadian Notice of Borrowing and (ii) the absence of a Default which is based upon the Canadian
Borrower’s failure to fully and timely reimburse for such drawing) and no such making of a
reimbursement shall relieve or otherwise impair the obligation of the Canadian Borrower to
reimburse the relevant L/C Issuer for the amount of any payment made by the relevant Canadian L/C
Issuer under any Canadian Letter of Credit, together with interest as provided in Section 2A.7(c).



     (vi) If any Canadian Bank fails to make available to the Canadian Administrative Agent for the
account of a Canadian L/C Issuer any amount required to be paid by such Canadian Bank pursuant to
the foregoing provisions of this Section 2A.7(c) by the time specified in Section 2A.7(c)(ii), the
relevant Canadian L/C Issuer shall be entitled to recover from such Canadian Bank (acting through
the Canadian Administrative Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such payment is immediately available
to the relevant Canadian L/C Issuer at a rate per annum equal to the Canadian Prime Rate from time
to time in effect. A certificate of a Canadian L/C Issuer submitted to any Canadian Bank (through
the Canadian 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 a Canadian L/C Issuer has made a payment under any Canadian Letter of
Credit and has received from any Canadian Bank such Canadian Bank’s Canadian L/C Advance in respect
of such payment in accordance with Section 2A.7(c), if the Canadian Administrative Agent receives
for the account of the relevant Canadian L/C Issuer any payment in respect of the related Canadian
Unreimbursed Amount or interest thereon (whether directly from the Canadian Borrower or otherwise,
including proceeds of Canadian Cash Collateral applied thereto by the Canadian Administrative
Agent), the Canadian Administrative Agent will distribute to such Canadian Bank its Canadian Pro
Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Canadian Bank’s



Appendix 1 - 15









 




Canadian L/C Advance was outstanding) in the same funds as those received by the Canadian
Administrative Agent.




     (ii) If any payment received by the Canadian Administrative Agent for the account of a
Canadian L/C Issuer pursuant to Section 2A.7(c)(i) is required to be returned under any of the
circumstances described in Section 8.5(a) (including pursuant to any settlement entered into by the
relevant Canadian L/C Issuer in its discretion), each Canadian Bank shall pay to the Canadian
Administrative Agent for the account of the relevant Canadian L/C Issuer its Canadian Pro Rata
Share thereof on demand of the Canadian Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned by such Canadian Bank, at a rate per annum equal
to the Canadian Prime Rate from time to time in effect.



     (e) Obligations Absolute. The obligation of the Canadian Borrower to reimburse the
relevant Canadian L/C Issuer for each drawing under each Canadian Letter of Credit shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:



     (i) any lack of validity or enforceability of such Canadian Letter of Credit, this Agreement,
or any other agreement or instrument relating thereto;



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



     (iv) any payment by the relevant Canadian L/C Issuer under such Canadian Letter of Credit
against presentation of a draft or certificate that does not strictly comply with the terms of such
Canadian Letter of Credit; or any payment made by the relevant Canadian L/C Issuer under such
Canadian 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 Canadian Letter of
Credit, including any arising in connection with any proceeding under the Bankruptcy and Insolvency
Act (Canada) or any other law relating to bankruptcy, insolvency or reorganization or relief of
debtors 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 Canadian Borrower.



     The Canadian Borrower shall promptly examine a copy of each Canadian Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the
Canadian Borrower’s instructions or other irregularity, the Canadian Borrower will immediately
notify the relevant Canadian L/C Issuer. The Canadian Borrower



Appendix 1 - 16









 




shall be conclusively deemed to have waived any such claim against a Canadian L/C Issuer and
its correspondents unless such notice is given as aforesaid.




     (f) Role of Canadian L/C Issuer. Each Canadian Bank and the Canadian Borrower agree
that, in paying any drawing under a Canadian Letter of Credit, no Canadian L/C Issuer shall have
any responsibility to obtain any document (other than documents purporting to be sight drafts,
certificates and other documents expressly required by the Canadian Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document. None of any Canadian L/C Issuer, any
Agent-Related Person nor any of the respective correspondents, participants or assignees of a
Canadian L/C Issuer shall be liable to any Canadian Bank for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Canadian Banks or the Canadian
Majority Banks, as applicable; (ii) any action taken or omitted unless a court of competent
jurisdiction determines by a final, non-appealable judgment that the taking or omitting of such
action constituted gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Canadian
Letter of Credit or Canadian Letter of Credit Application. The Canadian Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Canadian Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Canadian Borrower’s pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other agreement. None of any
Canadian L/C Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of a Canadian L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2A.7(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Canadian Borrower may have a
claim against a Canadian L/C Issuer, and a Canadian L/C Issuer may be liable to the Canadian
Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Canadian Borrower or its Subsidiaries which the Canadian
Borrower proves were caused by (A) a Canadian L/C Issuer’s willful misconduct or gross negligence
or (B) a Canadian L/C Issuer’s willful failure to pay under any Canadian Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Canadian Letter of Credit. In furtherance and not in limitation of
the foregoing, a Canadian 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 no Canadian L/C Issuer shall be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Canadian Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.



     (g) Canadian Cash Collateral. Upon the request of the Canadian Administrative Agent,
(i) if a Canadian L/C Issuer has honored any full or partial drawing request under any Canadian
Letter of Credit and such drawing has resulted in a Canadian Unreimbursed Amount, or (ii) if, as of
the Letter of Credit Expiration Date, any Canadian Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, and in each case so long as such Canadian Unreimbursed
Amount or Canadian Letter of Credit remains outstanding, the Canadian Borrower shall immediately
Canadian Cash Collateralize such then outstanding Canadian L/C Obligations (in an amount equal to
such outstanding L/C Obligations determined as of the date of such Canadian Unreimbursed Amount or
the Letter of Credit Expiration Date, as the case may be). For purposes hereof, “Canadian Cash
Collateralize” means to pledge and deposit with or



Appendix 1 - 17









 




deliver to the Canadian Administrative Agent, for the benefit of the relevant Canadian L/C
Issuer and the Canadian Banks, as collateral for such Canadian L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory to the Canadian
Administrative Agent and the relevant Canadian L/C Issuer (which documents are hereby consented to
by the Canadian Banks). Derivatives of such term have corresponding meanings. The Canadian
Borrower hereby grants to the Canadian Administrative Agent, for the benefit of any Canadian L/C
Issuer and the Canadian Banks, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing, which security interest shall be deemed
automatically terminated and such collateral subject to the Canadian Borrower’s instruction on
return, upon such Canadian L/C Obligations no longer being outstanding. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at the Canadian Administrative Agent.




     (h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by a Canadian
L/C Issuer and the Canadian Borrower, when a Canadian Letter of Credit is issued (i) the rules of
the ISP shall apply to each standby Canadian Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the ICC at the time of
issuance (including, if in effect at each relevant time, the ICC decision published by the
Commission on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each commercial Canadian Letter of Credit.



     (i) Canadian Letter of Credit Fees. The Canadian Borrower shall pay to the Canadian
Administrative Agent for the account of each Canadian Bank in accordance with its Canadian Pro Rata
Share, a Canadian Letter of Credit fee for each Canadian Letter of Credit equal to the L/C Fee Rate
times the daily maximum amount available to be drawn under such Canadian Letter of Credit,
it being agreed that with respect to any Canadian Letter of Credit that, by its terms or the terms
of the related Canadian Letter of Credit Application or any other document, agreement or instrument
related thereto, provides for one or more automatic increases in the stated amount thereof, the
amount of such Canadian Letter of Credit shall be deemed to be the maximum stated amount of such
Canadian Letter of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time. Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable on the first
Canadian Business Day after the end of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Canadian Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. The L/C Fee Rate for each calendar quarter shall
be determined as provided in Schedule I based on the Rating Level in effect on each
applicable day of such quarter.



     (j) Fronting Fee and Documentary and Processing Charges Payable to Canadian L/C
Issuer. The Canadian Borrower shall pay directly to a Canadian L/C Issuer for its own account
a fronting fee with respect to each Canadian Letter of Credit equal to 0.20% per annum times the
daily maximum amount available to be drawn under such Canadian Letter of Credit, it being agreed
that with respect to any Canadian Letter of Credit that, by its terms or the terms of the related
Canadian Letter of Credit Application or any other document, agreement or instrument related
thereto, provides for one or more automatic increases in the stated amount thereof, the amount of
such Canadian Letter of Credit shall be deemed to be the maximum stated amount of such Canadian
Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time. Such fronting fee shall be computed on a quarterly basis in
arrears. Such fronting fee shall be due and payable on the first Canadian Business Day after the
end of each March, June, September and December, commencing with



Appendix 1 - 18









 




the first such date to occur after the issuance of such Canadian Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. In addition, the Canadian Borrower
shall pay directly to a Canadian L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of such
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.




     (k) Conflict with Canadian Letter of Credit Application. In the event of any conflict
between the terms hereof and the terms of any Canadian Letter of Credit Application, the terms
hereof shall control.



     Section 2A.8. Prepayments. (a) The Canadian Borrower may (x) in respect of Canadian
Bankers’ Acceptances, upon at least three Canadian Business Days’ notice, and (y) in respect of
Canadian Prime Rate Advances, upon notice by 11:00 A.M. on the day of the proposed prepayment, to
the Canadian Administrative Agent (which shall promptly notify each Canadian Bank) stating the
proposed date and aggregate principal amount of the prepayment and the Canadian Types of Canadian
Advances to be prepaid, and if such notice is given the Canadian Borrower shall prepay the
outstanding principal amounts of the Canadian Advances comprising part of the same Canadian
Borrowing in whole or ratably in part, together, in the case of prepayment of Canadian Prime Rate
Advances, with accrued interest to the date of such prepayment on the principal amount prepaid
without premium or penalty; provided that (i) any prepayment of Canadian Bankers’ Acceptances shall
be in a principal amount of C$100,000 or a whole multiple of C$100,000 in excess thereof and shall
be made in accordance with Section 2A.11(e), and (ii) any prepayment of Canadian Prime Rate
Advances shall be in a principal amount of C$5,000,000 or a whole multiple of C$1,000,000 in excess
thereof, or, in each case, if less, the entire principal amount thereof then outstanding.



     (b) Subject to Section 2A.12, if for any reason the Canadian Total Outstanding Amount at any
time exceeds the Canadian Allocated Total Commitment then in effect, the Canadian Borrower shall
immediately prepay Canadian Borrowings, Canadian Bankers’ Acceptances and/or Canadian Cash
Collateralize the Canadian L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Canadian Borrower shall not be required to Canadian
Cash Collateralize the Canadian L/C Obligations pursuant to this Section 2A.8(b) unless after the
prepayment in full of the Canadian Borrowings and Canadian Bankers’ Acceptances the Canadian Total
Outstanding Amount exceeds the Canadian Allocated Total Commitment then in effect.



     Section 2A.9. Payments and Computations. (a) The Canadian Borrower shall make each
payment due from it under any Loan Document not later than 11:00 A.M. on the day when due in
Canadian Dollars to the Canadian Administrative Agent at its Payment Office in same day funds
without setoff, deduction or counterclaim except as may be permitted pursuant to Section 2.14. The
Canadian Administrative Agent will promptly thereafter cause to be distributed like funds relating
to the payment of principal, interest or other amounts due from it hereunder ratably to the
Canadian Banks (decreased, as to any Canadian Bank, for any taxes withheld in respect of such
Canadian Bank as contemplated by Section 2.14(b)) for the account of their respective Canadian
Lending Offices, and like funds relating to the payment of any other amount payable to any Canadian
Bank to such Canadian Bank for the account of its Canadian Lending Office, in each case to be
applied in accordance with the terms of this Agreement.



Appendix 1 - 19









 





     (b) All computations of interest based on the Canadian Prime Rate shall be made by the
Canadian Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, for
the actual number of days (including the first day but excluding the last day) occurring in the
period for which such interest is payable. Each determination by the Canadian Administrative Agent
of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest
error.



     (c) Whenever any payment hereunder or under the Canadian Notes shall be stated to be due on a
day other than a Canadian Business Day, such payment shall be made on the next succeeding Canadian
Business Day, and such extension of time shall in such case be included in the computation of
payment of any interest or fee, as the case may be, due hereunder.



     (d) Unless the Canadian Administrative Agent shall have received notice from the Canadian
Borrower prior to the date on which any payment is due from the Canadian Borrower to the Canadian
Banks hereunder that the Canadian Borrower will not make such payment in full, the Canadian
Administrative Agent may assume that the Canadian Borrower has made such payment in full to the
Canadian Administrative Agent on such date, and the Canadian Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Canadian Bank on such due date an amount
equal to the amount then due such Canadian Bank. If and to the extent the Canadian Borrower shall
not have so made such payment in full to the Canadian Administrative Agent, each Canadian Bank
shall, subject to Section 8.8, repay to the Canadian Administrative Agent forthwith on demand such
amount distributed to such Canadian Bank together with interest thereon, for each day from the date
such amount is distributed to such Canadian Bank until the earlier of (i) the date such Canadian
Bank repays such amount to the Canadian Administrative Agent and (ii) the date two Canadian
Business Days after the date such amount is so distributed, at the Canadian Prime Rate and
thereafter until the date such Canadian Bank repays such amount to the Canadian Administrative
Agent at the Canadian Prime Rate plus 2%.



     Section 2A.10. Canadian Allocation and Reallocation of the Commitments. Prior to any
termination by the Borrower pursuant to Section 2.16 of its right to allocate a portion of the
Total Committed Amount as the Canadian Allocated Total Commitment, the Borrower may by notice to
the Administrative Agent and the Canadian Administrative Agent allocate (or reallocate, if
previously allocated) a portion of the Commitments specified therein as the Canadian Allocated
Total Commitment; provided that (i) any such notice shall be received by the Administrative
Agent and Canadian Administrative Agent not later than 11:00 a.m. five Canadian Business Days prior
to the date such allocation or reallocation shall become effective, (ii) any such allocation or
reallocation shall be in an aggregate amount of $5,000,000 or any whole multiple in excess thereof,
not to exceed the Canadian Allocated Maximum Total Commitment, or shall be a reallocation to zero,
(iii) the Borrower shall not allocate or reallocate any portion of the Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder (a) the Total Outstanding Amount would
exceed the Total Committed Amount, (b) the Canadian Total Outstanding Amount would exceed the
Canadian Allocated Total Commitment, (c) the sum of such Bank’s outstanding Advances plus such
Bank’s Pro Rata Share of outstanding L/C Obligations would exceed such Bank’s Commitment; or (d)
the sum of such Canadian Bank’s outstanding Canadian Advances plus such Canadian Bank’s Pro Rata
Share of outstanding Canadian L/C Obligations would exceed such Canadian Bank’s Canadian
Commitment, and (v) the Borrower shall make no more than four allocations or reallocations of the
Commitments in any calendar year. The Administrative Agent will promptly notify the Banks or their
Canadian branches or Affiliates with Canadian Allocated Commitments of any such notice of
allocation or



Appendix 1 - 20









 




reallocation of the Commitments and the amount of their respective Canadian Allocated
Commitments, and shall notify all Banks of the Commitments and Canadian Allocated Total Commitment
upon the effectiveness of such allocation or reallocation.




     Section 2A.11. Canadian Bankers’ Acceptances.



     (a) Creation of Canadian Bankers’ Acceptances. Upon receipt of a Notice of Canadian
Borrowing requesting purchase or acceptance of Canadian Bankers’ Acceptances, and subject to the
provisions of this Agreement, each Canadian Bank shall accept, in accordance with its Canadian Pro
Rata Share of the requested Canadian Borrowing from time to time such Canadian Bankers’ Acceptances
as the Canadian Borrower shall request.



     (b) Terms of Acceptance by the Canadian Banks.



          (i) Delivery and Payment. Subject to Sections 2A.11(c) and 2A.11(d) and only if a
valid appointment pursuant to Section 2A.11(b)(v) is not in place, the Canadian Borrower shall
pre-sign and deliver to each Canadian Bank bankers’ acceptance drafts in sufficient quantity to
meet the Canadian Borrower’s requirements for anticipated Canadian Borrowings by way of Canadian
Bankers’ Acceptances. The Canadian Borrower shall, at its option, provide for payment to the
Canadian Administrative Agent for the benefit of Canadian Banks of each Canadian Bankers’
Acceptance on the date on which a Canadian Bankers’ Acceptance matures, either by payment of the
full face amount thereof or through utilization of a conversion to another Canadian Type of
Canadian Borrowing in accordance with this Agreement, or through a combination thereof. Canadian
Borrower waives presentment for payment of Canadian Bankers’ Acceptances by Canadian Banks and
shall not claim from Canadian Banks any days of grace for the payment at maturity of Canadian
Bankers’ Acceptances. Any amount owing by the Canadian Borrower in respect of any Canadian
Bankers’ Acceptance which is not paid in accordance with the foregoing, shall, as and from the date
on which such Canadian Bankers’ Acceptance matures, be deemed to be outstanding hereunder as a
Canadian Prime Rate Advance.




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




          (iii) Canadian Bankers’ Acceptances Purchased by Canadian Banks. Where the Canadian
Borrower so elects in the Notice of Canadian Borrowing or fails to elect to market such Canadian
Bankers’ Acceptances under Section 2A.11(b)(iv) in such notice, each Canadian Bank shall
purchase Canadian Bankers’ Acceptances accepted by it for an amount equal to the Canadian Discount
Proceeds.




          (iv) Marketing. Where the Canadian Borrower so elects in the Notice of Canadian
Borrowing in respect of a Canadian Advance, it shall be responsible for, and shall make its own
arrangements with respect to, the marketing of all (but not less than all) Canadian Bankers’
Acceptances issued in connection with such Canadian Advance.







Appendix 1 - 21









 








          (v) Power of Attorney. To facilitate the procedures contemplated in this Agreement,
the Canadian Borrower hereby appoints each Canadian Bank 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 Bank for Canadian Bankers’
Acceptances denominated in Canadian Dollars. Each Canadian Bankers’ Acceptance executed and
delivered by a Canadian Bank on behalf of the Canadian Borrower shall be as binding upon the
Canadian Borrower as if it had been executed and delivered by a Responsible Officer of the Canadian
Borrower. The foregoing appointment shall cease to be effective, in respect of any Canadian Bank
regarding the Canadian Borrower, three Canadian Business Days following receipt by such Canadian
Bank of a written notice from the Canadian Borrower revoking such appointment (which notice shall
be copied to the Canadian Administrative Agent); provided that any such revocation shall not affect
Canadian Bankers’ Acceptances previously executed and delivered by such Canadian Bank pursuant to
such appointment.




          (vi) Pro-Rata Treatment of Canadian Advances.




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



               (B) If during the term of any Canadian Bankers’ Acceptance accepted by a Canadian Bank
hereunder the Canadian Stamping Fee Rate changes as a result of a change in the Applicable Margin
or an Event of Default occurs and is continuing, the fee paid to such Canadian Bank by the Canadian
Borrower pursuant to Section 2A.3(c) (in this paragraph called the “Initial Fee”) with
respect to such Canadian Bankers’ Acceptance shall be recalculated based upon such change in the
Canadian Stamping Fee Rate or the existence of such Event of Default for the number of days during
the term of such Canadian Bankers’ Acceptance that such change is applicable or such Event of
Default exists. If such recalculated amount is in excess of the Initial Fee then the Canadian
Borrower shall pay to such Canadian Bank the amount of such excess, and if such recalculated amount
is less than the Initial Fee, then the amount of such reduction shall be credited to other amounts
payable by the Canadian Borrower to such Canadian Bank.



Appendix 1 - 22









 





     (c) General Procedures for Canadian Bankers’ Acceptances.



          (i) Marketing Notice. The Canadian Borrower may in a Notice of Canadian Borrowing
request a Canadian Borrowing by way of Canadian Bankers’ Acceptances and, if the Canadian Borrower
is responsible for marketing of such Canadian Bankers’ Acceptances under Section 2A.11(b)(iv), by
subsequent notice to the Canadian Administrative Agent provide the Canadian Administrative Agent,
which shall in turn notify each Canadian Bank, with information as to the discount proceeds payable
by the purchasers of the Canadian Bankers’ Acceptances and the party to whom delivery of the
Canadian Bankers’ Acceptances by each Canadian Bank is to be made against delivery to each Canadian
Bank of the applicable discount proceeds, but if it does not do so, the Canadian Borrower shall
initiate a telephone call to the Canadian Administrative Agent by 10:00 a.m. Toronto, Ontario time
on the date of advance, or the date of the conversion or rollover, as applicable, and provide such
information to the Canadian Administrative Agent. Such discount proceeds less the fee calculated
in accordance with Section 2A.3(b) shall promptly be delivered to the Canadian Agent. Any such
telephone advice shall be subject to Section 2A.2 and shall be confirmed by a written notice of the
Canadian Borrower to the Canadian Administrative Agent prior to 2:00 p.m. Toronto, Ontario time on
the same day.




          (ii) Rollover. In the case of a rollover of maturing Canadian Bankers’ Acceptances,
issued by a Canadian Bank, such Canadian Bank, in order to satisfy the continuing liability of the
Canadian Borrower to the Canadian Bank for the face amount of the maturing Canadian Bankers’
Acceptances issued by the Canadian Borrower, shall retain for its own account the Canadian Net
Proceeds of each new Canadian Bankers’ Acceptance issued by it in connection with such rollover;
and the Canadian Borrower shall, on the maturity date of the maturing Canadian Bankers’ Acceptances
issued by the Canadian Borrower, pay to the Canadian Administrative Agent for the benefit of
Canadian Banks an amount equal to the difference between the face amount of the maturing Canadian
Bankers’ Acceptances and the aggregate Canadian Net Proceeds of the new Canadian Bankers’
Acceptances.




          (iii) Conversion from Canadian Prime Rate Advances. In the case of a conversion from
a Canadian Prime Rate Advance into a Canadian Borrowing by way of Canadian Bankers’ Acceptances to
be accepted by a Canadian Bank pursuant to Sections 2A.11(a), (b) and (c), such Canadian Bank, in
order to satisfy the continuing liability of the Canadian Borrower to it for the principal amount
of the Canadian Prime Rate Advances owing by the Canadian Borrower being converted, shall retain
for its own account the Canadian Discount Proceeds of each new Canadian Bankers’ Acceptance issued
by it in connection with such conversion; and the Canadian Borrower shall, on the date of issuance
of the Canadian Bankers’ Acceptances, pay to the Canadian Administrative Agent for the benefit of
Canadian Banks an amount equal to the difference between the aggregate principal amount of the
Canadian Prime Rate Advances owing by the Canadian Borrower being converted owing to the Canadian
Banks and the aggregate Canadian Discount Proceeds of such Canadian Bankers’ Acceptances.




          (iv) Conversions to Canadian Prime Rate Advances. In the case of a conversion of a
Canadian Borrowing by way of Canadian Bankers’ Acceptances into Canadian Prime Rate Advances, each
Canadian Bank, in order to satisfy the liability of the Canadian Borrower to it for the face amount
of the maturing Canadian Bankers’ Acceptances, shall record the obligation of the Canadian Borrower
to it as a Canadian Prime Rate Advance, unless the Canadian Borrower provides for payment to the
Canadian Administrative Agent for the benefit of Canadian Banks of the face amount of the maturing
Canadian Bankers’ Acceptance in some other manner acceptable to Canadian Banks, including
conversion to another Canadian Type of Canadian Borrowing.







Appendix 1 - 23









 








          (v) Authorization. The Canadian Borrower hereby authorizes each Canadian Bank to
complete, stamp, hold, sell, rediscount or otherwise dispose of all Canadian Bankers’ Acceptances
accepted by it pursuant to this Section in accordance with the instructions provided by the
Canadian Borrower pursuant to Sections 2A.1 and 2A.2, as applicable.




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




     (d) Execution of Bankers’ Acceptances. The signatures of any authorized signatory on
Canadian Bankers’ Acceptances may, at the option of the Canadian Borrower, be reproduced in
facsimile and such Canadian Bankers’ Acceptances bearing such facsimile 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 Canadian Bankers’ Acceptance as a
signatory may no longer be an authorized signatory of the Canadian Borrower at the date of issuance
of a Canadian Bankers’ Acceptance, and notwithstanding that the signature affixed may be a
reproduction only, such signature shall nevertheless be valid and sufficient for all purposes as if
such authority had remained in force at the time of such issuance and as if such signature had been
manually applied, and any such Canadian Bankers’ Acceptance so signed shall be binding on the
Canadian Borrower.



     (e) Escrowed Funds. Upon the occurrence of an Event of Default and an acceleration of
the Canadian Advances under Section 6.1 or upon a prepayment permitted under Section 2A.8, the
Canadian Borrower shall forthwith pay to the Canadian Administrative Agent for deposit into an
escrow account maintained by and in the name of Canadian Administrative Agent for the benefit of
Canadian Banks in accordance with their Canadian Pro Rata Shares an amount equal to the Canadian
Banks’ maximum potential liability (as determined by the Canadian Administrative Agent) under then
outstanding Canadian Bankers’ Acceptances for the Canadian Borrower (the “Canadian Escrow Funds”).
The Canadian Escrow Funds shall be held by the Canadian Administrative Agent for set-off against
future amounts owing by the Canadian Borrower in respect to such Canadian Bankers’ Acceptances and
pending such application shall bear interest at the rate declared by the Canadian Administrative
Agent from time to time as that payable by it in respect of deposits for such amount and for such
period relative to the maturity date of the Canadian Bankers’ Acceptances, as applicable. If such
Event of Default is either waived or cured in compliance with the terms of this Agreement, then the
Canadian Escrow Funds, together with any accrued interest to the date of release, shall be
forthwith released to the Canadian Borrower.



     (f) Market Disruption: Notwithstanding anything to the contrary herein contained, if:



          (i) the Canadian Administrative Agent (acting reasonably), makes a determination, which
determination shall be conclusive and binding upon the Canadian Borrower, and notifies the Canadian
Borrower, that there no longer exists an active market for bankers’ acceptances accepted by the
Canadian Banks hereunder; or




          (ii) the Canadian Administrative Agent is advised by one or more Canadian Banks holding at
least 25% of the Canadian Total Committed Amount by written notice (each, a “BA Suspension
Notice”) that such Canadian Bank or Banks (acting reasonably) have






Appendix 1 - 24









 







determined that the Canadian BA Discount Rate will not or does not accurately reflect the
discount rate which would be applicable to a sale of Canadian Bankers’ Acceptances accepted by such
Canadian Banks in the market for the applicable term;



then the Canadian Administrative Agent shall promptly notify the Canadian Borrower and the Canadian
Banks of the occurrence of the events described in either clause (i) or (ii) above and that, as a
result:




          (A) the right of the Canadian Borrower to request Canadian Bankers’ Acceptances or Canadian BA
Equivalent Loans from any Canadian Bank hereunder has been suspended until the Canadian
Administrative Agent (acting reasonably) determines that the circumstances causing such suspension
no longer exist;




          (B) any outstanding Notice of Canadian Borrowing requesting a Canadian Advance by way of
Canadian Bankers’ Acceptances or Canadian BA Equivalent Loans hereunder has been deemed to be a
Notice of Canadian Borrowing requesting a Canadian Prime Rate Advance in the amount specified in
the original Notice of Canadian Borrowing;




          (C) any outstanding Canadian Notice of Conversion or Notice of Canadian Borrowing requesting a
Conversion of a Canadian Borrowing hereunder into a Canadian Borrowing by way of Canadian Bankers’
Acceptances or Canadian BA Equivalent Loans has been deemed to be a Canadian Notice of Conversion
requesting a Conversion of such Canadian Borrowing into a Canadian Prime Rate Advance; and




          (D) any outstanding Notice of Canadian Borrowing requesting a rollover of Canadian Bankers’
Acceptances or Canadian BA Equivalent Loans under such Credit Facility has been deemed to be a
Canadian Notice of Conversion requesting a Conversion of such Canadian Borrowing into a Canadian
Prime Rate Advance.



Upon the termination of any suspension described in clause (A) above or if the circumstances giving
rise to such suspension no longer exist, then the Canadian Administrative Agent shall promptly
notify the Canadian Borrower and the Canadian Banks. A BA Suspension Notice shall be effective upon
receipt of the same by the Canadian Administrative Agent if received prior to 10:00 a.m. on a
Canadian Business Day and, if not, then on the next following Canadian Business Day, except in
connection with a Canadian Notice of Borrowing or Canadian Notice of Conversion previously received
by the Canadian Administrative Agent, in which case the applicable BA Suspension Notice shall only
be effective with respect to such previously received Canadian Notice of Borrowing or Canadian
Notice of Conversion if received by the Canadian Administrative Agent prior to 10:00 a.m. two (2)
Canadian Business Days prior to the proposed drawdown date or rollover date or conversion date (as
applicable) applicable to such previously received Canadian Notice of Borrowing or Canadian Notice
of Conversion (as applicable).




     Section 2A.12. Currency Fluctuations. Notwithstanding any other provision of this
Agreement, the Canadian Administrative Agent shall have the right to calculate the Canadian Total
Outstanding Amount for all purposes including making a determination from time to time of the
available undrawn portion of the Canadian Total Committed Amount. If following such calculation,
the Canadian Administrative Agent determines that the Canadian Total Outstanding Amount is greater
than 105% of the Canadian Total Committed Amount at such time, then the Canadian Administrative
Agent shall so advise the Canadian Borrower and the Canadian Borrower shall following such advice
repay, on the later of (a) five Canadian Business Days after



Appendix 1 - 25









 




such advice and (b) the earlier of (i) the next date on which interest is payable by the
Canadian Borrower pursuant to Section 2A.5(a), and (ii) the next maturity date of any outstanding
Canadian Bankers’ Acceptance, an amount equal to the amount by which the Canadian Total Outstanding
Amount exceeds the Canadian Total Committed Amount, together with all accrued interest on the
amount so paid.




     Section 2A.13. Currency Conversion and Currency Indemnity. (a) The Canadian Borrower
shall make payment relative to any Canadian Advance or Canadian Letter of Credit in Canadian
Dollars. If any payment is received on account of any Canadian Advance or Canadian Letter of
Credit in any currency (the “Other Currency”) other than Canadian Dollars (whether
voluntarily, pursuant to any Conversion of a Canadian Borrowing or pursuant to an order or judgment
or the enforcement thereof or the realization of any security or the liquidation of the Canadian
Borrower or otherwise howsoever), such payment shall constitute a discharge of the liability of the
Canadian Borrower hereunder and under the other Loan Documents in respect thereof only to the
extent of the amount of Canadian Dollars which the Canadian Administrative Agent or relevant
Canadian Banks are able to purchase with the amount of the Other Currency received by it on the
Canadian Business Day next following such receipt in accordance with its normal procedures and
after deducting any premium and costs of exchange.



     (b) If, for the purpose of obtaining or enforcing judgment in any court in any jurisdiction,
it becomes necessary to convert into a particular currency (the “Judgment Currency”) any amount due
in Canadian Dollars, then the conversion shall be made on the basis of the rate of exchange
prevailing on the next Canadian Business Day following the date such judgment is given and in any
event the Canadian Borrower shall be obligated to pay the Canadian Administrative Agent or Canadian
Banks any deficiency in accordance with Section 2A.13(c). For the foregoing purposes “rate of
exchange” means the rate at which the Canadian Administrative Agent or relevant Canadian Banks, as
applicable, in accordance with their normal banking procedures are able on the relevant date to
purchase Canadian Dollars with the Judgment Currency after deducting any premium and costs of
exchange.



     (c) If the Canadian Administrative Agent or any Canadian Bank receives any payment or payments
on account of the liability of the Canadian Borrower hereunder pursuant to any judgment or order in
any Other Currency, and the amount of Canadian Dollars which the Canadian Administrative Agent or
relevant Canadian Bank is able to purchase on the Canadian Business Day next following such receipt
with the proceeds of such payment or payments in accordance with its normal procedures and after
deducting any premiums and costs of exchange is less than the amount of Canadian Dollars due in
respect of such liabilities immediately prior to such judgment or order, then the Canadian Borrower
shall, within five Canadian Business Days after demand, and the Canadian Borrower hereby agrees to,
indemnify and save the Canadian Administrative Agent or such Canadian Bank harmless from and
against any loss, cost or expense arising out of or in connection with such deficiency. The
agreement of indemnity provided for in this Section 2A.13(c) shall constitute an obligation
separate and independent from all other obligations contained in this Agreement, shall give rise to
a separate and independent cause of action, shall apply irrespective of any indulgence granted by
the Administrative Agent, Banks, Canadian Administrative Agent or Canadian Banks or any of them
from time to time, and shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum in respect of an amount due hereunder or under any judgment or order.



Appendix 1 - 26









 





ARTICLE IIIA

ADDITIONAL CONDITIONS TO CANADIAN ADVANCES




     Section 3A.1. Additional Initial Conditions Precedent. In addition to the
satisfaction of the conditions precedent set forth in Section 3.1 and Section 3B.1, the obligation
of each Canadian Bank to make Canadian Advances and the obligation of each Canadian L/C Issuer to
issue Canadian Letters of Credit pursuant to the terms and conditions of this Agreement is subject
to the additional condition precedent that the Canadian Administrative Agent shall have received
the following, each dated on or before the date hereof, in form and substance satisfactory to the
Canadian Administrative Agent:



     (a) An executed Joinder to the Agreement and the executed Canadian Notes payable to the order
of the Canadian Banks, respectively.



     (b) The executed Canadian Guaranty.



     (c) Certified copies of the resolutions of the Board of Directors of the Canadian Borrower
approving this Agreement, each Canadian Note and each Notice of Canadian Borrowing, and of all
documents evidencing other necessary corporate action and governmental approvals, if any, with
respect to each such Loan Document and certified copies of the certificate and articles of
incorporation and bylaws of the Canadian Borrower.



     (d) A certificate of the Secretary or an Assistant Secretary of the Canadian Borrower
certifying the names and true signatures of the officers of the Canadian Borrower authorized to
sign each Loan Document to which it is a party and the other documents to be delivered hereunder.



     (e) A favorable opinion of Bennett Jones LLP, counsel for the Canadian Borrower, to be
delivered to, and for the benefit of, the Canadian Banks and the Canadian Administrative Agent, at
the express instruction of the Borrower, substantially in the form of Exhibit 1-C and as to
such other matters as any Canadian Bank through the Canadian Administrative Agent may reasonably
request.



     (f) To the extent the items delivered on the Closing Date under Section 3.1(b), (c), (d) and
(e) do not address the Canadian Guaranty, the Borrower shall deliver each of the referenced
documents in form and substance satisfactory to the Canadian Administrative Agent.



     Section 3A.2. Additional Conditions Precedent to Each Canadian Advance and Canadian L/C
Credit Extension. The obligation of each Canadian Bank to make any Canadian Advance and the
obligation of each Canadian L/C Issuer to make any Canadian L/C Credit Extension shall be subject
to the additional conditions precedent that on the date of such Canadian Advance or Canadian L/C
Credit Extension: (a) each of the statements set forth in Section 3.2(i) and (ii) shall be true
(and each of the giving of the applicable Canadian Notice of Borrowing or Canadian Letter of Credit
Application and the acceptance by the Canadian Borrower of the proceeds of such Canadian Advance or
such Canadian L/C Credit Extension shall constitute a representation and warranty by the Borrower
that on the date of such Canadian Advance or Canadian L/C Credit Extension such statements are
true) (for purposes of the foregoing, each reference to “Advance”, “Borrowing” or “L/C Credit
Extension”, set forth in such Section 3.2(i) or (ii) shall be deemed to refer instead to such
requested Canadian Advance, Canadian Borrowing or Canadian L/C Credit Extension, respectively),
and (b) the Canadian Administrative Agent shall have received the Canadian Notice of Borrowing
required by Section 2A.2 or the Canadian Letter of Credit Application required by Section
2A.7(b)(i) and such other approvals, opinions or
documents as any Canadian Bank through the Canadian Administrative Agent may reasonably
request.



Appendix 1 - 27









 





APPENDIX 2




TERMS OF STERLING BORROWINGS AND STERLING LETTERS OF CREDIT




ARTICLE IB

DEFINITIONS




     Section 1B.1 Certain Defined Terms. As used in this Appendix 2, terms defined in the
Agreement or Appendix 1 and not otherwise defined herein shall have the same meanings when used in
this Appendix, and the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and the plural forms of the terms defined):



     “Sterling” means Great Britain Pounds Sterling and, when used in reference to any
Sterling Advance or Sterling Borrowing, indicates that such Sterling Advance, or the Sterling
Advances comprising such Sterling Borrowing, are denominated in Great Britain Pounds Sterling.



     “Sterling Advance” means an advance by a UK Bank to the UK Borrower pursuant to this
Appendix 2 (as divided or combined from time to time as contemplated in the definition herein of
“Sterling Borrowing”), which bears interest as provided in Section 2B.5.



     “Sterling Allocated Commitment” means, as to each Bank, its or its UK branch or
Affiliate’s Sterling Pro Rata Share as set forth opposite such Bank’s or UK branch’s or Affiliate’s
name on Schedule II (including any revision thereof under Section 2.20(e) and Section 2.20(f)) or
in the Assignment and Assumption pursuant to which such Bank or UK branch’s or Affiliate becomes a
party hereto, as applicable, of the Sterling Allocated Total Commitment.



     “Sterling Allocated Maximum Total Commitment” means the aggregate maximum Sterling
Allocated Commitments of all UK Banks or their respective UK branch or Affiliate as set forth on
Schedule II (including any revision thereof under Section 2.20(e) and Section 2.20(f)) or in the
Assignment and Assumption pursuant to which such Bank or UK branch or Affiliate becomes a party
hereto, as applicable.



     “Sterling Allocated Total Commitment” means the aggregate amount of the Commitments
allocated by the Borrower from time to time as the Sterling Allocated Total Commitment pursuant to
Section 2B.11, not to exceed the Sterling Allocated Maximum Total Commitment.



     “Sterling Allocation Period” means any time during which either (a) the Borrower has
allocated any portion of the Commitments as the Sterling Allocated Total Commitment pursuant to
Section 2B.11 or (b) the Sterling Total Outstanding Amount exceeds zero.



     “Sterling Borrowing” means a borrowing hereunder consisting of Sterling Advances
having the same Sterling Interest Period; provided that subject to the limitations in
Section 2B.2(a) as to the number of permitted Sterling Interest Periods and subject to the
provisions of Sections 2B.6, 2B.7 and 2B.8(c), on the last day of a Sterling Interest Period for a
Sterling Borrowing, such Sterling Borrowing may be divided ratably to form multiple Sterling
Borrowings (with the result that each UK Bank’s Sterling Advance as a part of each such multiple
Sterling Borrowing is proportionately the same as its Sterling Advance as a part of such



 









 




divided Sterling Borrowing) or combined with all or a ratable portion of one or more other
Sterling Borrowings, the Sterling Interest Period for which also ends on such day, to form a new
Sterling Borrowing, such division or combination to be made by notice from the UK Borrower given to
the UK Administrative Agent not later than 11:00 A.M. on the third UK Business Day prior to the
proposed division or combination specifying the date of such division or combination (which shall
be a UK Business Day) and all other relevant information (such as the Sterling Borrowings to be
divided or combined, the respective amounts of the Sterling Borrowings resulting from any such
division, the relevant Sterling Interest Periods and such other information as the UK
Administrative Agent may request), but in no event shall any Sterling Borrowing resulting from, or
remaining after, any such division or combination be less than £5,000,000, and in all cases each UK
Bank’s Sterling Advance as a part of each such combined, resultant or remaining Sterling Borrowing
shall be proportionately the same as its Sterling Advances as a part of the relevant Sterling
Borrowings prior to such division or combination and each combined, resultant or remaining Sterling
Borrowing shall be in an integral multiple of £1,000,000.




     “Sterling Cash Collateralize” has the meaning specified in Section 2B.8(g).



     “Sterling Commitment” means, as to each UK Bank, its obligation during a Sterling
Allocation Period to (a) make Sterling Advances to the UK Borrower pursuant to Section 2B.1, and
(b) purchase participations in Sterling L/C Obligations pursuant to Section 2B.8(c), in an
aggregate principal amount at any one time outstanding not to exceed in such period, the lesser of
(i) such UK Bank’s Sterling Allocated Commitment and (ii) such UK Bank’s Pro Rata Share of the
Sterling Allocated Total Commitment for such period, such Pro Rata Share being a fraction whose
numerator is such UK’s Bank’s Sterling Allocated Commitment and whose denominator is the Sterling
Allocated Maximum Total Commitment.



     “Sterling Interest Period” means, with respect to each Sterling Advance, in each case
comprising part of the same Sterling Borrowing, the period commencing on the date of such Sterling
Advance (or a division or combination of any Sterling Borrowing resulting in such a Sterling
Advance) and ending on the last day of the period selected by the UK Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last day of the
immediately preceding Sterling Interest Period and ending on the last day of the period selected by
the UK Borrower pursuant to the provisions below except that any Sterling Interest Period for
Sterling Advances which commences on any day for which there is no numerically corresponding day in
the appropriate subsequent calendar month shall end on the last UK Business Day of the appropriate
subsequent calendar month. The duration of each such Sterling Interest Period shall be one, two,
three or six months, in each case as the UK Borrower may, upon notice received by the UK
Administrative Agent not later than 11:00 A.M. on the third UK Business Day prior to the first day
of such Sterling Interest Period, select; provided, however, that:



     (a) Sterling Interest Periods commencing on the same date for Sterling Advances comprising
part of the same Sterling Borrowing shall be of the same duration;



     (b) whenever the last day of any Sterling Interest Period would otherwise occur on a day other
than a UK Business Day, the last day of such Sterling Interest Period shall be extended to occur on
the next succeeding UK Business Day, provided, in the case of any Sterling Interest Period for a
Sterling Advance, that if such extension would cause the last day of such Sterling



Appendix 2 - 2









 




Interest Period to occur in the next following calendar month, the last day of such Sterling
Interest Period shall occur on the next preceding UK Business Day; and




     (c) no Sterling Interest Period may end after the Termination Date.



     “Sterling L/C Advance” means, with respect to each UK Bank, such UK Bank’s funding of
its participation in any Sterling Unreimbursed Amount in accordance with its Sterling Pro Rata
Share.



     “Sterling L/C Credit Extension” means, with respect to any Sterling Letter of Credit,
the issuance thereof or extension of the expiry date thereof, the renewal or increase of the amount
thereof, or the amendment or other modification thereof.



     “Sterling L/C Issuer” means each of JPMorgan and Bank of America, in its capacity as
issuer of Sterling Letters of Credit hereunder, and any other UK Bank that may become a Sterling
Letter of Credit issuer as mutually agreed to by the UK Borrower, such UK Bank and the UK
Administrative Agent, or any successor issuer of Sterling Letters of Credit hereunder.



     “Sterling L/C Obligations” means, as at any date of determination, the aggregate
undrawn amount of all outstanding Sterling Letters of Credit (without duplication) plus the
aggregate outstanding amount of all Sterling Unreimbursed Amounts and Sterling L/C Advances.



     “Sterling Letter of Credit” means any letter of credit issued hereunder by a Sterling
L/C Issuer as the same may be amended, extended, renewed or otherwise modified from time to time.
A Sterling Letter of Credit may be a commercial letter of credit or a standby letter of credit.



     “Sterling Letter of Credit Application” means an application and agreement for the
issuance or amendment of a Sterling Letter of Credit in the form from time to time in use by a
Sterling L/C Issuer, with such amendments thereto as the UK Borrower may reasonably request and
acceptable to a Sterling L/C Issuer to avoid any conflict between it and the Agreement.



     “Sterling LIBO Rate” means, for any Sterling Interest Period with respect to any
Sterling Advance:



     (a) the rate per annum equal to the rate determined by the UK Administrative Agent to be the
offered rate that appears on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for deposits in Sterling
(for delivery on the first day of such Sterling Interest Period) with a term equivalent to such
Sterling Interest Period, determined as of approximately 11:00 a.m. (London time) on the first day
of such Sterling Interest Period, or



     (b) if the rate referenced in the preceding clause (a) does not appear on such page or service
or such page or service shall not be available, the rate per annum equal to the rate determined by
the UK Administrative Agent to be the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement Rate for deposits in Sterling
(for delivery on the first day of such Sterling Interest Period) with a term equivalent to such
Sterling Interest Period, determined as of approximately 11:00 a.m. (London time) on the first day
of such Sterling Interest Period, or



     (c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate
per annum reasonably determined by the UK Administrative Agent as the rate of interest at



Appendix 2 - 3









 




which deposits in Sterling for delivery on the first day of such Sterling Interest Period in
same day funds in the approximate amount of the Sterling Advance being made or continued with a
term equivalent to such Sterling Interest Period would be offered by the UK Administrative Agent’s
London Branch to major banks in the London interbank market at their request at approximately 11:00
a.m. (London time) on the first day of such Sterling Interest Period.




     “Sterling Note” means a promissory note made by the UK Borrower in favor of a UK Bank
evidencing Sterling Borrowings made by such UK Bank, substantially in the form of Exhibit 2-A.



     “Sterling Notice of Borrowing” has the meaning specified in Section 2B.2(a).



     “Sterling Pro Rata Share” means:



     (a) at any time the Commitments remain outstanding and not during a Sterling Allocation
Period, with respect to each Bank, the percentage set forth adjacent to such Bank’s or UK branch’s
or Affiliate’s name on Schedule II and under the caption “Sterling Pro Rata Share” or in the
Assignment and Assumption pursuant to which such Bank or UK branch or Affiliate becomes a party
hereto;



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



     (c) upon the termination of the Commitments pursuant to Section 6.1, with respect to each UK
Bank, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator
of which is:



     the sum of



     (i) the outstanding Sterling Advances of such UK Bank plus



     (ii) an amount equal to (A) the outstanding Sterling Advances of such UK Bank divided by (B)
the aggregate outstanding Sterling Advances of all UK Banks times (C) all outstanding Sterling L/C
Obligations, and



     the denominator of which is the Sterling Total Outstanding Amount.



     The initial Sterling Pro Rata Share of each Bank or its UK branch or Affiliate is set forth
opposite the name of such Bank on Schedule II or in the Assignment and Assumption pursuant to which
such Bank becomes a party hereto, as applicable.



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



     “Sterling Total Outstanding Amount” means, at any time, the sum of (a) the outstanding
Sterling Advances at such time plus (b) the outstanding Sterling L/C Obligations.



     “Sterling Unreimbursed Amount” has the meaning specified in Section 2B.8(c)(i).



Appendix 2 - 4









 





     “Substitute Basis” has the meaning specified in Section 2B.7(d).



     “UK Administrative Agent” means Bank of America acting through its London Branch,
together with any successor thereto pursuant to Section 7.9.



     “UK Bank” means each Bank or its UK branch or Affiliate with a Sterling Commitment
from time to time hereunder.



     “UK Borrower” means, until the termination of the Borrower’s right to allocate a
portion of the Total Committed Amount as the Sterling Allocated Total Commitment, EOG Resources
United Kingdom Limited.



     “UK Business Day” means any day of the year except Saturday, Sunday and any day on
which banks are required or authorized to close in Houston, Texas and London, England or such other
place in the United Kingdom which the UK Administrative Agent’s UK Payment Office is located.



     “UK Guaranty” means the Guaranty made by the Borrower in favor of the UK
Administrative Agent on behalf of the UK Banks, substantially in the form of Exhibit 2-C.



     “UK Lending Office” means, as to any UK Bank, the office or offices of such UK Bank
under its name on Schedule II or in the Assignment and Assumption or other document pursuant to
which it became a party hereto as contemplated by Section 2.18 or Section 8.6, or such other office
of such UK Bank as such UK Bank may from time to time specify to the UK Borrower and the UK
Administrative Agent.



     “UK Majority Banks” means at any time UK Banks having more than 50% of the Sterling
Allocated Total Commitment, or, if the Commitments have been terminated pursuant to Section 6.1, UK
Banks holding in the aggregate more than 50% of the Sterling Total Outstanding Amount, with the
aggregate amount of each UK Bank’s risk participation and funded participation in Sterling L/C
Obligations being deemed “held” by such UK Bank for purposes of this definition.



     “UK Payment Office” means Bank of America, 2 King Edward Street, London, England, EC1A
1HQ, or such other office as the UK Administrative Agent may designate by written notice to the
other parties hereto.



ARTICLE IIB




AMOUNT AND TERMS OF THE STERLING ADVANCES




     Section 2B.1 The Sterling Advances. Each UK Bank severally agrees, on the terms and
conditions hereinafter set forth, to make one or more Sterling Advances as part of a Sterling
Borrowing to the UK Borrower from time to time on any UK Business Day during the Sterling
Allocation Period in an aggregate amount not to exceed at any time outstanding (i) such UK Bank’s
Sterling Commitment minus (ii) such UK Bank’s Sterling Pro Rata Share of outstanding Sterling L/C
Obligations. Each Sterling Borrowing (other than a Sterling Borrowing or deemed Sterling Borrowing
under Section 2B.8 to reimburse a Sterling L/C Issuer for any Sterling Unreimbursed Amount) shall
be in an aggregate amount not less than £5,000,000, shall be in an integral multiple of £1,000,000
and shall, when made, consist of Sterling Advances having the same Sterling Interest Period, made
on the same day by the UK Banks ratably according to their



Appendix 2 - 5









 




respective Sterling Commitments. Within the limits of each UK Bank’s Sterling Commitment, the
UK Borrower may borrow, prepay pursuant to Section 2.9B(a) and reborrow under this Section 2B.1.
Subject to the terms and conditions hereof, more than one Sterling Borrowing may be made on a UK
Business Day (including, for example, a Sterling Borrowing having one Sterling Interest Period and
another Sterling Borrowing having a different Sterling Interest Period).




     Section 2B.2 Making the Sterling Advances.



     (a) Each Sterling Borrowing shall be made on notice, given not later than 11:00 A.M. at least
three UK Business Days prior to the date of the proposed Borrowing by the UK Borrower to the UK
Administrative Agent, which shall give to each UK Bank prompt notice thereof by telecopy. Each
such notice of a Sterling Borrowing (a “Sterling Notice of Borrowing”) shall be by
telecopy, confirmed immediately in writing, in substantially the form of Exhibit 2-B, duly signed
by a Responsible Officer, specifying therein the requested (A) date of such Sterling Borrowing, (B)
aggregate amount of such Sterling Borrowing, and (C) initial Sterling Interest Period for each such
Sterling Advance, provided that the UK Borrower may not specify Sterling Advances for any Sterling
Borrowing if, after giving effect to such UK Borrowing, Sterling Advances having more than four
different Sterling Interest Periods shall be outstanding. The UK Administrative Agent shall
promptly notify each UK Bank and the UK Borrower of the applicable interest rate under Section
2B.5. Each UK Bank shall, before 11:00 A.M. on the date of such Sterling Borrowing, make available
for the account of its Applicable Lending Office to the UK Administrative Agent at its UK Payment
Office, in same day funds, such UK Bank’s ratable portion of such Sterling Borrowing. After the UK
Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article IIIB, the UK Administrative Agent will make such funds available to the UK
Borrower at the UK Administrative Agent’s aforesaid address.



     (b) Unless the UK Administrative Agent shall have received notice from a UK Bank prior to the
date of any Sterling Borrowing that such UK Bank will not make available to the UK Administrative
Agent such UK Bank’s ratable portion of such Sterling Borrowing, the UK Administrative Agent may
assume that such UK Bank has made such portion available to the UK Administrative Agent on the date
of such Sterling Borrowing in accordance with subsection (a) of this Section 2B.2 and the UK
Administrative Agent may, in reliance upon such assumption, make available to the UK Borrower on
such date a corresponding amount. If and to the extent that such UK Bank shall not have so made
such ratable portion available to the UK Administrative Agent, such UK Bank and the UK Borrower
severally agree to repay to the UK Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is made available to
the UK Borrower until the date such amount is repaid to the UK Administrative Agent, at (i) in the
case of the UK Borrower, the Sterling LIBO Rate applicable at the time to Sterling Advances
comprising such Sterling Borrowing and (ii) in the case of such UK Bank, the Sterling LIBO Rate.
If such UK Bank shall repay to the UK Administrative Agent such corresponding amount, such amount
so repaid shall constitute such UK Bank’s Sterling Advance as part of such Sterling Borrowing for
purposes of this Agreement.



     (c) The failure of any UK Bank to make the Sterling Advance to be made by it as part of any
Sterling Borrowing shall not relieve any other UK Bank of its obligation, if any, hereunder to make
its Sterling Advance on the date of such Sterling Borrowing, but no UK Bank



Appendix 2 - 6









 




shall be responsible for the failure of any other UK Bank to make the Sterling Advance to be
made by such other UK Bank on the date of any Sterling Borrowing.




     Section 2B.3 Fees. Sterling Facility Fee. Subject to Section 8.8, the
Borrower agrees to pay to the UK Administrative Agent, for the account of each UK Bank, a Sterling
facility fee on the average daily amount of such UK Bank’s Sterling Allocated Commitment, whether
or not used, during any Sterling Allocation Period. The Sterling facility fee is due on the last
UK Business Day of each March, June, September and December during any Sterling Allocation Period
and on the last day of each Sterling Allocation Period, and on the date such UK Bank’s Sterling
Allocated Commitment is terminated. The rate per annum of the Sterling facility fee for each
calendar quarter shall be determined as provided in Schedule I based on the Rating Level in
effect on the first day of such quarter. As provided in Section 2.3, the Borrower may at its
option pay such Sterling facility fee together with any facility fee owing to the Banks pursuant to
Section 2.3 pursuant to a single payment to the Administrative Agent for the benefit of the UK
Banks; provided, the Borrower shall so specify to the Administrative Agent that such
payment is with respect to both the Sterling facility fee hereunder and such facility fee.



     Section 2B.4 Repayment. The UK Borrower shall repay the unpaid principal amount of
each Sterling Advance owed to each UK Bank on the Termination Date.



     Section 2B.5 Interest.



     (a) Subject to Section 8.8, the UK Borrower shall pay interest on the unpaid principal amount
of each Sterling Advance owed to each UK Bank from the date of such Sterling Advance until such
principal amount shall be paid in full, at a rate per annum equal at all times during each Sterling
Interest Period for such Sterling Advance to the sum of the Sterling LIBO Rate for such Sterling
Interest Period for such Sterling Advance plus the Applicable Margin per annum for such Sterling
Interest Period, due on the last day of such Sterling Interest Period and, if such Sterling
Interest Period has a duration of more than three months, on the day which occurs during such
Sterling Interest Period three months from the first day of such Sterling Interest Period (each
Sterling Advance to bear interest from and including the first day of the Sterling Interest Period
for such Sterling Advance to (but not including) the last day of such Sterling Interest Period);
provided that any such Sterling Advance not paid when due shall bear interest on the
principal amount thereof from time to time outstanding, payable upon demand, until paid in full at
a rate per annum equal at all such times to 2% above the rate per annum required to be paid on such
Sterling Advance immediately prior to the date on which such Sterling Advance was due.



     (b) If any amount payable by the UK Borrower (other than principal in respect of any Sterling
Advance) under any Loan Document is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, such amount from time to time
outstanding shall bear interest on the principal amount thereof from time to time outstanding,
payable upon demand, until paid in full at a rate per annum equal at all such times to the Sterling
LIBO Rate, plus the Applicable Margin, plus 2% per annum.



     (c) All interest under this Appendix 2 shall be computed on the basis of a year of 365 or 366
days, as applicable, and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).



Appendix 2 - 7









 





     Section 2B.6 Additional Interest on Sterling Advances. If any UK Bank is required
under regulations of the Bank of England, the Financial Services Authority of the United Kingdom,
the European Central Bank, the Governing Council thereof or the European System of Central Banks
(or any other governmental body, agency or official which replaces all or any of their respective
functions), in each case issued or promulgated after the date hereof, to maintain any special
deposit, cash ratio deposit or other reserves or charges with respect to liabilities or assets
consisting of or including “eligible liabilities”, and if as a result thereof there is an increase
in the cost to such UK Bank of agreeing to make or making, funding or maintaining Sterling
Advances, the UK Borrower shall, subject to Section 2.18 and Section 8.8, from time to time, within
20 Business Days following its receipt of the certificate hereinbelow referenced (with a copy of
such certificate to the UK Administrative Agent), pay to the UK Administrative Agent for the
account of such UK Bank additional amounts sufficient to compensate such UK Bank for such increased
cost. For purposes of this Section 2B.6, “eligible liabilities” shall have the meaning ascribed
such term to it by the Bank of England Act 1998 or by the Bank of England (as may be appropriate)
at the time of determination. A certificate in reasonable detail stating the basis for and the
amount of such increased cost, and certifying that such costs are generally being charged by it to
other similarly situated borrowers under similar credit facilities shall be submitted to the UK
Borrower and the UK Administrative Agent by such UK Bank, shall be conclusive and binding for all
purposes, absent manifest error. No Bank shall be permitted to recover costs incurred or accrued
pursuant to this Section 2B.6 more than 180 days prior to the date it sends the certificate to the
UK Borrower which is referred to in this Section 2B.6.



     Section 2B.7 Interest Rate Determination and Protection.



     (a) If, prior to the commencement of any selected Sterling Interest Periods in relation to any
requested Sterling Advances, the UK Administrative Agent is unable to obtain timely information for
determining the Sterling LIBO Rate for such period:



     (i) the UK Administrative Agent shall forthwith notify the UK Borrower and the UK Banks that
the Sterling LIBO Rate cannot be determined for such Sterling Interest Period;



     (ii) the obligation of the UK Banks to make Sterling Advances for such Sterling Interest
Periods shall be suspended until the UK Administrative Agent shall notify the Borrower and the UK
Banks that the circumstances causing such suspension no longer exist; and



     (iii) if a Substitute Basis can be established under Section 2B.7(b)(v), all such new Sterling
Advances for such Sterling Interest Periods shall bear interest on such Substituted Basis;
otherwise such Sterling Advances shall bear interest at the Sterling Default Rate.



     (b) If, with respect to any Sterling Advances, the UK Majority Banks notify the UK
Administrative Agent that the applicable interest rate for any requested Sterling Interest Period
for such Sterling Advances will not adequately and fairly reflect the cost to such UK Majority
Banks of making, funding or maintaining their respective Sterling Advances for such Sterling
Interest Period, the UK Administrative Agent shall forthwith so notify the UK Borrower and the UK
Banks, whereupon:



     (i) the UK Administrative Agent shall promptly give written notice of such determination or
notification to the UK Borrower and each of the UK Banks;



Appendix 2 - 8









 





     (ii) the obligation of the UK Banks to make Sterling Advances for such Sterling Interest
Periods shall be suspended until the UK Administrative Agent shall notify the UK Borrower and the
UK Banks that the circumstances causing such suspension no longer exist; and



     (iii) if a Substitute Basis can be established under Section 2B.7(b)(v), all such new Sterling
Advances for which such Sterling Interest Period otherwise would have been selected shall bear
interest on such Substituted Basis; otherwise such Sterling Advances shall be bear interest at the
Sterling Default Rate.



     (c) After the giving of any notice by the UK Administrative Agent pursuant to Section 2B.7(b),
no UK Bank shall be obliged to participate in the Sterling Advance to which such notification
relates unless such Sterling Advance is already then outstanding. The giving of any notice by the
UK Administrative Agent pursuant to Section 2B.7(b) shall not relieve any UK Bank of any obligation
it may have under this Agreement to make a Sterling Advance (including any Sterling Advance for
which a Notice of Sterling Borrowing was given prior to such notice by the UK Administrative
Agent).



     (d) During the period of 15 days after the giving of any notice by the UK Administrative Agent
pursuant to Section 2B.7(a) or (b), the UK Administrative Agent (in consultation with the UK Banks)
shall negotiate with the Borrower in good faith with a view to ascertaining whether a substituted
basis (a “Substitute Basis”) may be agreed for the making of further Sterling Advances by
the UK Banks to which such notice by the UK Administrative Agent related for the Sterling Interest
Period(s) applicable to those Sterling Advances. If a Substitute Basis is agreed by all the UK
Banks and the Borrower it shall apply in accordance with its terms from the commencement of such
Sterling Interest Period. The UK Administrative Agent shall not agree to any Substitute Basis on
behalf of any UK Bank without the prior consent of that UK Bank.



     (e) If a Substitute Basis is not so agreed by the Borrower and all the UK Banks by the end of
such 15 day period, each UK Bank’s Sterling Advance or Sterling Advances to which the notice by the
UK Administrative Agent related shall bear interest during the Sterling Interest Period(s) relative
thereto at the rate which is the sum of (a) the per annum rate certified by such UK Bank to be its
cost of funds (from such sources as it may reasonably select out of those sources then available to
it) for such Sterling Interest Period in relation to such Sterling Borrowing multiplied by a
fraction, the numerator for which is 1 and the denominator for which is 1 minus the then applicable
rate of any special deposit, cash ratio deposit or other reserves or charges with respect to
liabilities or assets consisting of or including “eligible liabilities” imposed by any governmental
or regulatory authority, plus (b) the Applicable Margin (such rate the “Sterling Default
Rate”).



     (f) So long as any Substitute Basis is in force or Section 2B.7(h) shall apply in relation to
any Sterling Borrowing, the UK Administrative Agent, in consultation with the Borrower and each UK
Bank shall from time to time, but not less often than monthly, review whether or not the
circumstances referred to in Section 2B.7(a) still prevail with a view to returning to the normal
interest provisions of this Agreement.



     (g) If the UK Borrower shall fail to select the duration of any Sterling Interest Period for
any Sterling Advances in accordance with the provisions contained in the definition of “Sterling
Interest Period” in Section 1B.1, the UK Administrative Agent will forthwith so notify




Appendix 2 - 9











 




the UK Borrower and the UK Banks and the UK Borrower shall be deemed to have selected a
Sterling Interest Period of one month duration.




     (h) Any UK Bank may, if it so elects, fulfill its Sterling Commitment as to any Sterling
Advance by causing a branch, foreign or otherwise, or Affiliate of such UK Bank to make such
Sterling Advance and may transfer and carry such Sterling Advance at, to or for the account of any
branch office or Affiliate of such UK Bank; provided that in such event, for the purposes
of this Agreement, such Sterling Advance shall be deemed to have been made by such Bank and the
obligation of the UK Borrower to repay such Sterling Advance shall nevertheless be to such Bank and
shall be deemed to be held by such UK Bank, to the extent of such Sterling Advance, for the account
of such branch or Affiliate; provided further that for UK tax purposes if such
branch or Affiliate is the beneficial owner of such interest, then the UK Bank, or such branch or
Affiliate, shall advise the UK Borrower that such branch or Affiliate is the beneficial owner of
such interest, and provide to the UK Borrower the forms, documentation or other information as set
forth in Section 2.14(g).



     Section 2B.8 Sterling Letters of Credit.



     (a) The Sterling Letter of Credit Commitment.



     (i) Subject to the terms and conditions set forth herein, (A) the Sterling L/C Issuer agrees,
in reliance upon the agreements of the other UK Banks set forth in this Section 2B.8, (1) from time
to time on any UK Business Day prior to the Letter of Credit Expiration Date, to issue Sterling
Letters of Credit for the account of the UK Borrower, and to amend or renew Sterling Letters of
Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts
under the Sterling Letters of Credit; and (B) the UK Banks severally agree to participate in
Sterling Letters of Credit issued for the account of the UK Borrower; provided that (i) no
Sterling L/C Issuer shall be obligated to make any Sterling L/C Credit Extension with respect to
any Sterling Letter of Credit if the aggregate outstanding amount of Sterling Letters of Credit,
Letters of Credit and Canadian Letters of Credit issued by it hereunder would exceed one-third
(1/3) of the Total Committed Amount, (ii) no Sterling L/C Issuer shall be obligated to make any
Sterling L/C Credit Extension with respect to any Sterling Letter of Credit if the aggregate
outstanding amount of Sterling Letters of Credit issued by it hereunder would exceed an amount
equal to the product of (x) the Sterling Allocated Maximum Total Commitment times (y) a
fraction, the numerator of which is one (1) and the denominator of which, at each relevant time of
determination, is the then total number of Sterling L/C Issuers, and (iii) no Sterling L/C Issuer
shall be obligated to issue Sterling Letters of Credit and no UK Bank shall be obligated to
participate in any Sterling Letter of Credit if as of the date of such Sterling L/C Credit
Extension, (x) the Sterling Total Outstanding Amount would exceed the Sterling Total Committed
Amount or (y) the aggregate outstanding Sterling Advances of any UK Bank, plus such UK Bank’s
Sterling Pro Rata Share of the outstanding Sterling L/C Obligations, would exceed such UK Bank’s
Sterling Commitment. Within the foregoing limits, and subject to the terms and conditions hereof,
the UK Borrower’s ability to obtain Sterling Letters of Credit shall be fully revolving, and
accordingly the UK Borrower may, during the foregoing period, obtain Sterling Letters of Credit to
replace Sterling Letters of Credit that have expired or that have been drawn upon and reimbursed.



     (ii) No Sterling L/C Issuer shall be under any obligation to issue any Sterling Letter of
Credit if:



Appendix 2 - 10









 






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




     (B) subject to Section 2B.8(b)(iii), the expiry date of such requested Sterling Letter
of Credit would occur more than twelve months after the date of issuance or last renewal,
unless the UK Majority Banks have approved such expiry date;




     (C) the expiry date of such requested Sterling Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the UK Banks have approved such expiry date;




     (D) the issuance of such Sterling Letter of Credit would violate one or more reasonable
and customary commercial banking policies of such Sterling L/C Issuer generally applicable
to the issuance of letters of credit and applied by such Sterling L/C Issuer to other
similarly situated borrowers under similar credit facilities; or




     (E) such Sterling Letter of Credit is in an initial amount less than $100,000, in the
case of a commercial Sterling Letter of Credit, or $500,000, in the case of a standby
Sterling Letter of Credit, or is to be denominated in a currency other than Dollars or
Sterling.



     (iii) No Sterling L/C Issuer shall be under any obligation to amend, extend, renew or
otherwise modify any Sterling Letter of Credit if (A) such Sterling L/C Issuer would have no
obligation at such time to issue such Sterling Letter of Credit in its amended, extended, renewed
or modified form under the terms hereof, or (B) the beneficiary of such Sterling Letter of Credit
does not accept the proposed amendment, extension, renewal or other modification to such Sterling
Letter of Credit.



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



     (i) Each Sterling Letter of Credit shall be issued or amended, as the case may be, upon the
request of the UK Borrower delivered to the relevant Sterling L/C Issuer (with a copy to the
Administrative Agent) in the form of a Sterling Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the UK Borrower. Such Sterling Letter of Credit
Application must be received by the relevant Sterling L/C Issuer and the UK Administrative Agent
not later than 11:00 a.m. at least two UK Business Days (or such later date and time as requested
by the UK Borrower and as the relevant Sterling L/C Issuer may agree in a particular instance in
its sole discretion) prior to the proposed issuance date or date of



Appendix 2 - 11









 




amendment, as the case may be. In the case of a request for an initial issuance of a Sterling
Letter of Credit, such Sterling Letter of Credit Application shall specify in form and detail
satisfactory to the relevant Sterling L/C Issuer: (A) the proposed issuance date of the requested
Sterling Letter of Credit (which shall be a UK 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 relevant Sterling L/C Issuer may require. In the case of a request for an
amendment of any outstanding Sterling Letter of Credit, such Sterling Letter of Credit Application
shall specify in form and detail satisfactory to the relevant Sterling L/C Issuer (1) the Sterling
Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a UK
Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the relevant
Sterling L/C Issuer may require.




     (ii) Promptly after receipt of any Sterling Letter of Credit Application, the relevant
Sterling L/C Issuer will confirm with the UK Administrative Agent (by telephone or in writing) that
the UK Administrative Agent has received a copy of such Sterling Letter of Credit Application from
the UK Borrower and, if not, the relevant Sterling L/C Issuer will provide the UK Administrative
Agent with a copy thereof. Upon receipt by the relevant Sterling L/C Issuer of confirmation from
the UK Administrative Agent that the requested issuance or amendment is permitted in accordance
with the terms hereof, then, subject to the terms and conditions hereof, the relevant Sterling L/C
Issuer shall, on the requested date, issue a Sterling Letter of Credit for the account of the UK
Borrower or enter into the applicable amendment, as the case may be, in each case in accordance
with the relevant Sterling L/C Issuer’s usual and customary business practices. Immediately upon
the issuance of each Sterling Letter of Credit, each UK Bank shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the relevant Sterling L/C Issuer a risk
participation in such Sterling Letter of Credit in an amount equal to the product of such UK Bank’s
Sterling Pro Rata Share times the amount of such Sterling Letter of Credit.



     (iii) If the UK Borrower so requests in any applicable Sterling Letter of Credit Application,
the relevant Sterling L/C Issuer may, in its sole and absolute discretion, agree to issue a
Sterling Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal
Sterling Letter of Credit”); provided that any such Auto-Renewal Sterling Letter of Credit must
permit the relevant Sterling L/C Issuer to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such Sterling Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Sterling Nonrenewal
Notice Date”) in each such twelve-month period to be agreed upon at the time such Sterling
Letter of Credit is issued. Unless otherwise directed by the relevant Sterling L/C Issuer, the UK
Borrower shall not be required to make a specific request to the relevant Sterling L/C Issuer for
any such renewal. Once an Auto-Renewal Sterling Letter of Credit has been issued, the UK Banks
shall be deemed to have authorized (but may not require) the relevant Sterling L/C Issuer to permit
the renewal of such Sterling Letter of Credit at any time prior to an expiry date not later than
the Letter of Credit Expiration Date; provided, however, that the relevant Sterling L/C Issuer
shall not permit any such renewal if (A) the relevant Sterling L/C Issuer has determined that it
would have no obligation at such time to issue such Sterling Letter of Credit in its renewed form
under the terms hereof (by reason of the provisions of Section 2B.8(a)(ii) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the day that is two UK
Business Days before the Nonrenewal Notice Date (1) from the UK Administrative Agent that



Appendix 2 - 12









 




the UK
Majority Banks have elected not to permit such renewal or (2) from the UK
Administrative Agent, any UK Bank or the UK Borrower that one or more of the applicable
conditions specified in Section 3B.2 is not then satisfied.




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



     (c) Drawings and Reimbursements; Funding of Participations.



     (i) On the date of any payment by any Sterling L/C Issuer under any Sterling Letter of Credit
(each such date, an “Sterling Honor Date”), the relevant Sterling L/C Issuer shall notify
the UK Borrower and the UK Administrative Agent of such payment. If the relevant Sterling L/C
Issuer shall give such notice prior to 11:00 a.m. on the Sterling Honor Date, by not later than
11:00 a.m. on the Sterling Honor Date, the UK Borrower shall reimburse the relevant Sterling L/C
Issuer through the UK Administrative Agent in an amount equal to the amount of such drawing. If
the UK Borrower fails to reimburse the relevant Sterling L/C Issuer by 11:00 a.m. on the Sterling
Honor Date, the UK Administrative Agent shall promptly notify each UK Bank of the Sterling Honor
Date, the amount of the unreimbursed drawing (the “Sterling Unreimbursed Amount”), and the
amount of such UK Bank’s Sterling Pro Rata Share thereof. In such event, the UK Borrower shall be
deemed to have requested a UK Borrowing of Sterling Advances with a seven day Sterling Interest
Period to be disbursed on the Sterling Honor Date in an amount equal to the Sterling Unreimbursed
Amount, but subject to compliance with the conditions set forth in Section 3.2B (other than (i) the
delivery of a Sterling Notice of Borrowing and (ii) the absence of an event that would constitute
an Event of Default but for the requirement of time elapse which is based upon the UK Borrower’s
failure to fully and timely reimburse for such drawing). Any notice given by any Sterling L/C
Issuer or the Administrative Agent pursuant to this Section 2B.8(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 UK Bank (including the UK Bank acting as Sterling L/C Issuer) shall upon any notice
pursuant to Section 2B.8(c)(i) make funds available to the UK Administrative Agent for the account
of the relevant Sterling L/C Issuer at the UK Administrative Agent’s Office in an amount equal to
its Sterling Pro Rata Share of the Sterling Unreimbursed Amount not later than 1:00 p.m. on the
Sterling Honor Date specified in such notice by the UK Administrative Agent, whereupon, subject to
the provisions of Section 2B.8(c)(iii), each UK Bank that so makes funds available shall be deemed
to have made a Sterling Advance with a seven day Sterling Interest Period subject to compliance
with the conditions set forth in Section 3.2 (other than (i) the delivery of a Sterling Notice of
Borrowing and (ii) the absence of an event that would constitute an Event of Default but for the
requirement of time elapse which is based upon the UK Borrower’s failure to fully and timely
reimburse for such drawing) to the UK Borrower in such amount and the corresponding Sterling
Unreimbursed Amount shall be deemed refinanced. The UK Administrative Agent shall remit the funds
so received to the relevant Sterling L/C Issuer.



     (iii) With respect to any Sterling Unreimbursed Amount that is not fully refinanced by a
Sterling Borrowing of Sterling Advances pursuant to a Sterling Borrowing under Section 2B.1 or a
deemed Sterling Borrowing under Section 2B.8(c)(i) or (ii) because the conditions set forth in
Section 3B.2 and not excused under Section 2B.8(c)(i) or (ii) cannot be satisfied on the Honor



Appendix  2 - 13









 




Date, then (A) the relevant Sterling L/C Issuer will notify the UK Borrower of such event and the
amount of such Sterling Unreimbursed Amount that has not been refinanced and (B) such Sterling
Unreimbursed Amount that is not so refinanced (1) shall thereafter bear interest on the amount
thereof from time to time outstanding at a rate per annum equal to 2% above the Sterling LIBO Rate
with a seven day Sterling Interest Period in effect from time to time and (2) shall be due and
payable on the 15th day following the UK Borrower’s receipt of such notice from such Sterling L/C
Issuer. In such event, each UK Bank’s payment to the UK Administrative Agent for the account of
the relevant Sterling L/C Issuer pursuant to Section 2B.8(c)(ii) shall be deemed payment in respect
of its participation in such Sterling Unreimbursed Amount and shall constitute a Sterling L/C
Advance from such UK Bank in satisfaction of its participation obligation under this Section 2B.8.




     (iv) Until each UK Bank funds its Sterling Advance or Sterling L/C Advance pursuant to this
Section 2B.8(c) to reimburse the relevant Sterling L/C Issuer for any amount drawn under any
Sterling Letter of Credit, interest in respect of such UK Bank’s Sterling Pro Rata Share of such
amount shall be solely for the account of the relevant Sterling L/C Issuer.



     (v) Each UK Bank’s obligation to reimburse the relevant Sterling L/C Issuer for amounts drawn
under Sterling Letters of Credit, as contemplated by this Section 2B.8(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 UK Bank may have against the relevant
Sterling L/C Issuer, the UK 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. No such making of a reimbursement to a Sterling L/C Issuer
shall constitute a Sterling Borrowing if the UK Borrower is unable to satisfy the conditions set
forth in Section 3.2 (other than (i) delivery by the UK Borrower of a Sterling Notice of Borrowing
and (ii) the absence of an event that would constitute an Event of Default but for the requirement
of time elapse which is based upon the UK Borrower’s failure to fully and timely reimburse for such
drawing) and no such making of a reimbursement shall relieve or otherwise impair the obligation of
the UK Borrower to reimburse the relevant Sterling L/C Issuer for the amount of any payment made by
the relevant Sterling L/C Issuer under any Sterling Letter of Credit, together with interest as
provided in Section 2B.8(c).



     (vi) If any UK Bank fails to make available to the UK Administrative Agent for the account of
a Sterling L/C Issuer any amount required to be paid by such UK Bank pursuant to the foregoing
provisions of this Section 2B.8(c) by the time specified in Section 2B.8(c)(ii), the relevant
Sterling L/C Issuer shall be entitled to recover from such UK Bank (acting through the UK
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 relevant
Sterling L/C Issuer at a rate per annum equal to the Sterling LIBO Rate from time to time in
effect. A certificate of a Sterling L/C Issuer submitted to any UK Bank (through the UK
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 a Sterling L/C Issuer has made a payment under any Sterling Letter of
Credit and has received from any UK Bank such UK Bank’s Sterling L/C Advance in respect of such
payment in accordance with Section 2B.8(c), if the UK Administrative Agent receives for the account
of the relevant Sterling L/C Issuer any payment in respect of the related



Appendix 2 - 14









 




Sterling Unreimbursed
Amount or interest thereon (whether directly from the UK Borrower or
otherwise, including proceeds of Sterling Cash Collateral applied thereto by the UK
Administrative Agent), the UK Administrative Agent will distribute to such UK Bank its Sterling Pro
Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such UK Bank’s Sterling L/C Advance was outstanding) in the same funds as
those received by the UK Administrative Agent.




     (ii) If any payment received by the UK Administrative Agent for the account of a Sterling L/C
Issuer pursuant to Section 2B.8(c)(i) is required to be returned under any of the circumstances
described in Section 8.5(a) (including pursuant to any settlement entered into by the relevant
Sterling L/C Issuer in its discretion), each UK Bank shall pay to the UK Administrative Agent for
the account of the relevant Sterling L/C Issuer its Sterling Pro Rata Share thereof on demand of
the UK Administrative Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such UK Bank, at a rate per annum equal to the Sterling LIBO Rate from time
to time in effect.



     (e) Obligations Absolute. The obligation of the UK Borrower to reimburse the relevant
Sterling L/C Issuer for each drawing under each Sterling Letter of Credit shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement (and this Appendix 2) under all circumstances, including the following:



     (i) any lack of validity or enforceability of such Sterling Letter of Credit, this Agreement,
or any other agreement or instrument relating thereto;



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



     (iv) any payment by the relevant Sterling L/C Issuer under such Sterling Letter of Credit
against presentation of a draft or certificate that does not strictly comply with the terms of such
Sterling Letter of Credit; or any payment made by the relevant Sterling L/C Issuer under such
Sterling 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 Sterling Letter of
Credit, including any arising in connection with any proceeding under the Bankruptcy Code or any
other law relating to bankruptcy, insolvency or reorganization or relief of debtors; 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 UK Borrower.



Appendix 2 - 15









 





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



     (f) Role of Sterling L/C Issuer. Each UK Bank and the UK Borrower agree that, in
paying any drawing under a Sterling Letter of Credit, no Sterling L/C Issuer shall have any
responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Sterling Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or delivering any such
document. None of any Sterling L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of a Sterling L/C Issuer shall be liable to any UK Bank
for (i) any action taken or omitted in connection herewith at the request or with the approval of
the UK Banks or the UK Majority Banks, as applicable; (ii) any action taken or omitted unless a
court of competent jurisdiction determines by a final, non-appealable judgment that the taking or
omitting of such action constituted gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or instrument related to any
Sterling Letter of Credit or Sterling Letter of Credit Application. The UK Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Sterling Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the UK Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None of any Sterling
L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or
assignees of a Sterling L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2B.8(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the UK Borrower may have a claim against a Sterling
L/C Issuer, and a Sterling L/C Issuer may be liable to the UK Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the UK
Borrower or its Subsidiaries which the UK Borrower proves were caused by (A) a Sterling L/C
Issuer’s willful misconduct or gross negligence or (B) a Sterling L/C Issuer’s willful failure to
pay under any Sterling Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a Sterling Letter of
Credit. In furtherance and not in limitation of the foregoing, a Sterling 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 no Sterling L/C Issuer
shall be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Sterling Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any
reason.



     (g) Sterling Cash Collateral. Upon the request of the UK Administrative Agent, (i) if
a Sterling L/C Issuer has honored any full or partial drawing request under any Sterling Letter of
Credit and such drawing has resulted in a Sterling Unreimbursed Amount, or (ii) if, as of the
Letter of Credit Expiration Date, any Sterling Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, and in each case so long as such Sterling Unreimbursed
Amount or Sterling Letter of Credit remains outstanding, the UK Borrower shall immediately Sterling
Cash Collateralize such then outstanding Sterling L/C Obligations (in an amount equal to such
outstanding Sterling L/C Obligations determined as of the date of such



Appendix 2 - 16









 




Sterling Unreimbursed Amount
or the Letter of Credit Expiration Date, as the case may be). For
purposes hereof, “Sterling Cash Collateralize” means to pledge and deposit with or
deliver to the UK Administrative Agent, for the benefit of the relevant Sterling L/C Issuer and the
UK Banks, as collateral for the Sterling L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the UK Administrative Agent and the relevant
Sterling L/C Issuer (which documents are hereby consented to by the UK Banks). Derivatives of such
term have corresponding meanings. The UK Borrower hereby grants to the UK Administrative Agent,
for the benefit of any Sterling L/C Issuer and the UK Banks, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing, which security
interest shall be deemed automatically terminated and such collateral subject to the UK Borrower’s
instruction on return, upon such Sterling L/C Obligations no longer being outstanding. Cash
collateral shall be maintained in blocked, non-interest bearing deposit accounts at the UK
Administrative Agent.




     (h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by a Sterling
L/C Issuer and the UK Borrower, when a Sterling Letter of Credit is issued (i) the rules of the ISP
shall apply to each standby Sterling Letter of Credit, and (ii) the rules of the Uniform Customs
and Practice for Documentary Credits, as most recently published by the ICC at the time of issuance
(including, if in effect at each relevant time, the ICC decision published by the Commission on
Banking Technique and Practice on April 6, 1998 regarding the European single currency (euro))
shall apply to each commercial Sterling Letter of Credit.



     (i) Sterling Letter of Credit Fees. The UK Borrower shall pay to the Administrative
Agent for the account of each UK Bank in accordance with its Sterling Pro Rata Share, a Sterling
Letter of Credit fee in Sterling for each Sterling Letter of Credit equal to the L/C Fee Rate times
the daily maximum amount available to be drawn under such Sterling Letter of Credit, it being
agreed that with respect to any Sterling Letter of Credit that, by its terms or the terms of the
related Sterling Letter of Credit Application or any other document, agreement or instrument
related thereto, provides for one or more automatic increases in the stated amount thereof, the
amount of such Sterling Letter of Credit shall be deemed to be the maximum stated amount of such
Sterling Letter of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time. Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable on the first UK
Business Day after the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Sterling Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. The L/C Fee Rate for each calendar quarter shall be
determined as provided in Schedule I based on the Rating Level in effect on each applicable day of
such quarter.



     (j) Fronting Fee and Documentary and Processing Charges Payable to Sterling L/C
Issuer. The UK Borrower shall pay directly to the relevant Sterling L/C Issuer for its own
account a fronting fee in Sterling with respect to each Sterling Letter of Credit equal to 0.20%
per annum times the daily maximum amount available to be drawn under such Sterling Letter of
Credit, it being agreed that with respect to any Sterling Letter of Credit that, by its terms or
the terms of the related Sterling Letter of Credit Application or any other document, agreement or
instrument related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Sterling Letter of Credit shall be deemed to be the maximum stated
amount of such Sterling Letter of Credit after giving effect to all such increases, whether or not
such maximum stated amount is in effect at such time. Such fronting fee shall be computed on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the first UK Business



Appendix 2 - 17









 




Day after the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Sterling Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. In addition, the UK Borrower shall pay directly
to the relevant Sterling L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges of the relevant Sterling
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.




     (k) Conflict with Sterling Letter of Credit Application. In the event of any conflict
between the terms hereof and the terms of any Sterling Letter of Credit Application, the terms
hereof shall control.



     Section 2B.9 Prepayments.



     (a) The UK Borrower may in respect of Sterling Advances, upon at least three UK Business Days’
notice to the Administrative Agent (which shall promptly notify each UK Bank) stating the proposed
date and aggregate principal amount of the prepayment and the Sterling Advances to be prepaid and
the specific Sterling Borrowing or Sterling Borrowings pursuant to which made, and if such notice
is given the UK Borrower shall, prepay the outstanding principal amounts of the Sterling Advances
comprising part of the same Sterling Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid without premium or penalty;
provided, however, that each partial prepayment shall be in an aggregate principal
amount not less than £5,000,000, and provided further, that if the UK Borrower prepays any Sterling
Advance on any day other than the last day of a Sterling Interest Period therefor, the Sterling
Borrower shall compensate the UK Banks pursuant to Section 8.4(b).



     (b) Subject to Section 2B.12, if for any reason the Sterling Total Outstanding Amount at any
time exceeds the Sterling Allocated Total Commitment then in effect, the UK Borrower shall
immediately prepay Sterling Advances and/or Sterling Cash Collateralize the Sterling L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the UK Borrower shall not be required to Sterling Cash Collateralize the Sterling L/C Obligations
pursuant to this Section 2B.9(b) unless after the prepayment in full of the Sterling Borrowings the
Sterling Total Outstanding Amount exceeds the Sterling Allocated Total Commitment then in effect.



     Section 2B.10 Payments and Computations.



     (a) The UK Borrower shall make each payment under any Loan Document due by it not later than
11:00 A.M. on the day when due in Sterling to the UK Administrative Agent at its UK Payment Office
in same day funds without setoff, deduction or counterclaim as may be permitted pursuant to Section
2.14. The UK Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or facility fees ratably to the UK Banks
(decreased, as to any Bank, for any taxes withheld in respect of such Bank as contemplated by
Section 2.14(b)) for the account of their respective UK Lending Offices, and like funds relating to
the payment of any other amount payable to any UK Bank to such UK Bank for the account of its UK
Lending Office, in each case to be applied in accordance with the terms of this Agreement.



Appendix 2 - 18









 





     (b) Whenever any payment hereunder or under the Sterling Notes shall be stated to be due on a
day other than a UK Business Day, such payment shall be made on the next succeeding
UK Business Day, and such extension of time shall in such case be included in the computation
of payment of interest or facility fee, as the case may be; provided, however, if
such extension would cause payment of interest on or principal of Sterling Advances to be made in
the next following calendar month, such payment shall be made on the next preceding UK Business
Day.



     (c) Unless the UK Administrative Agent shall have received notice from the UK Borrower prior
to the date on which any payment is due to the UK Banks hereunder that the UK Borrower will not
make such payment in full, the UK Administrative Agent may assume that the UK Borrower has made
such payment in full to the UK Administrative Agent on such date and the UK Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each UK Bank on such due date an
amount equal to the amount then due such UK Bank. If and to the extent the UK Borrower shall not
have so made such payment in full to the UK Administrative Agent, each UK Bank shall, subject to
Section 8.8, repay to the UK Administrative Agent forthwith on demand such amount distributed to
such UK Bank together with interest thereon, for each day from the date such amount is distributed
to such UK Bank until the earlier of (i) the date such UK Bank repays such amount to the UK
Administrative Agent and (ii) the date two UK Business Days after the date such amount is so
distributed, at the Sterling LIBO Rate and thereafter until the date such UK Bank repays such
amount to the UK Administrative Agent at the Sterling LIBO Rate plus 2%.



     Section 2B.11 Sterling Allocation and Reallocation of the Commitments.



     Prior to any termination by the Borrower pursuant to Section 2.16 of its right to allocate a
portion of the Total Committed Amount as the Sterling Allocated Total Commitment, the Borrower may
by notice to the Administrative Agent allocate (or reallocate, if previously allocated) a portion
of the Commitments specified therein as the Sterling Allocated Total Commitment; provided that (i)
any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five UK
Business Days prior to the date such allocation or reallocation shall become effective, (ii) any
such allocation or reallocation shall be in an aggregate amount of £5,000,000 or any whole multiple
in excess thereof, not to exceed the Sterling Allocated Maximum Total Commitment, or shall be a
reallocation to zero, (iii) the Borrower shall not allocate or reallocate any portion of the
Commitments if, after giving effect thereto and to any concurrent prepayments hereunder (a) the
Total Outstanding Amount would exceed the Total Committed Amount, (b) the Sterling Total
Outstanding Amount would exceed the Sterling Allocated Total Commitment, (c) the sum of such Bank’s
outstanding Advances plus such Bank’s Pro Rata Share of outstanding L/C Obligations would exceed
such Bank’s Commitment, or (d) the sum of such UK Bank’s outstanding Sterling Advances plus such UK
Bank’s Pro Rata Share of outstanding Sterling L/C Obligations would exceed such UK Bank’s Sterling
Commitment, and (iv) the Borrower shall make not more than four allocations or reallocations of the
Commitments in any calendar year. The Administrative Agent will promptly notify the Banks or their
UK branches or Affiliates with Sterling Allocated Commitments of any such notice of allocation or
reallocation of the Commitments and the amount of their respective Sterling Allocated Commitments,
and shall notify all Banks of the Commitments and Sterling Allocated Total Commitment upon the
effectiveness of such allocation or reallocation



     Section 2B.12 Currency Fluctuations. Notwithstanding any other provision of this
Agreement, the UK Administrative Agent shall have the right to calculate the Sterling Total
Outstanding Amount for all purposes including making a determination from time to time of the



Appendix 2 - 19









 




available undrawn portion of the Sterling Allocated Total Commitment. If following such
calculation, the UK Administrative Agent determines that the Sterling Total Outstanding
Amount is greater than 105% of the Sterling Allocated Total Commitment at such time, then the
UK Administrative Agent shall so advise the UK Borrower and the UK Borrower shall following such
advice repay, on the later of (a) five UK Business Days after such advice and the next date on
which interest is payable by the UK Borrower pursuant to Section 2B.5(a), an amount equal to the
amount by which the Sterling Total Outstanding Amount exceeds the Sterling Allocated Total
Commitment, together with all accrued interest on the amount so paid.




     Section 2B.13. Currency Conversion and Currency Indemnity. (a) The UK Borrower shall
make payment relative to any Sterling Advance or Sterling Letter of Credit in Sterling. If any
payment is received on account of any Sterling Advance or Sterling Letter of Credit in any currency
(the “Other Currency”) other than Sterling (whether voluntarily or pursuant to an order or
judgment or the enforcement thereof or the realization of any security or the liquidation of the UK
Borrower or otherwise howsoever), such payment shall constitute a discharge of the liability of the
UK Borrower hereunder and under the other Loan Documents in respect thereof only to the extent of
the amount of Sterling which the UK Administrative Agent or relevant UK Banks are able to purchase
with the amount of the Other Currency received by it on the UK Business Day next following such
receipt in accordance with its normal procedures and after deducting any premium and costs of
exchange.



     (b) If, for the purpose of obtaining or enforcing judgment in any court in any jurisdiction,
it becomes necessary to convert into a particular currency (the “Judgment Currency”) any
amount due in Sterling, then the conversion shall be made on the basis of the rate of exchange
prevailing on the next UK Business Day following the date such judgment is given and in any event
the UK Borrower shall be obligated to pay the UK Administrative Agent or UK Banks any deficiency in
accordance with Section 2B.13(c). For the foregoing purposes “rate of exchange” means the rate at
which the UK Administrative Agent or relevant UK Banks, as applicable, in accordance with their
normal banking procedures are able on the relevant date to purchase Sterling with the Judgment
Currency after deducting any premium and costs of exchange.



     (c) If the UK Administrative Agent or any UK Bank receives any payment or payments on account
of the liability of the UK Borrower hereunder pursuant to any judgment or order in any Other
Currency, and the amount of Sterling which the UK Administrative Agent or relevant UK Bank is able
to purchase on the UK Business Day next following such receipt with the proceeds of such payment or
payments in accordance with its normal procedures and after deducting any premiums and costs of
exchange is less than the amount of Sterling due in respect of such liabilities immediately prior
to such judgment or order, then the UK Borrower shall, within five UK Business Days after demand,
and the UK Borrower hereby agrees to, indemnify and save the UK Administrative Agent or such UK
Bank harmless from and against any loss, cost or expense arising out of or in connection with such
deficiency. The agreement of indemnity provided for in this Section 2B.13(c) shall constitute an
obligation separate and independent from all other obligations contained in this Agreement, shall
give rise to a separate and independent cause of action, shall apply irrespective of any indulgence
granted by any Agent or the UK Banks or any of them from time to time, and shall continue in full
force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount
due hereunder or under any judgment or order.



Appendix 2 - 20









 





ARTICLE IIIB




ADDITIONAL CONDITIONS PRECEDENT TO STERLING ADVANCES



     Section 3B.1 Additional Initial Conditions Precedent. In addition to the satisfaction
of the conditions precedent set forth in Section 3.1 and 3A.1, the obligation of each UK Bank to
make Sterling Advances and the obligation of each Sterling L/C Issuer to issue Sterling Letters of
Credit pursuant to the terms and conditions of this Agreement is subject to the additional
condition precedent that the UK Administrative Agent shall have received the following, each dated
on or before the date hereof, in form and substance satisfactory to the UK Administrative Agent:



     (a) An executed Joinder to the Agreement and the executed Sterling Notes payable to the order
of the UK Banks, respectively.



     (b) The executed UK Guaranty.



     (c) Certified copies of the resolutions of the Board of Directors of the UK Borrower approving
this Agreement, each Sterling Note and each Notice of Sterling Borrowing, and of all documents
evidencing other necessary corporate action and governmental approvals, if any, with respect to
each such Loan Document and certified copies of the restated certificate of incorporation and
bylaws of the UK Borrower.



     (d) A certificate of the Secretary or an Assistant Secretary of the UK Borrower certifying the
names and true signatures of the officers of the UK Borrower authorized to sign each Loan Document
to which it is a party and the other documents to be delivered hereunder.



     (e) A favorable opinion of Bond Pearce LLP, Solicitors, counsel for the UK Borrower, to be
delivered to, and for the benefit of, the UK Banks and the UK Administrative Agent, at the express
instruction of the Borrower, substantially in the form of Exhibit 2-D and as to such other
matters as any UK Bank through the UK Administrative Agent may reasonably request.



     (f) To the extent the items delivered on the Closing Date under Section 3.1(b), (c), (d) and
(e) do not address the UK Guaranty, the Borrower shall deliver each of the referenced documents in
form and substance satisfactory to the UK Administrative Agent.



     Section 3B.2 Additional Conditions Precedent to Each Sterling Advance and Sterling L/C
Credit Extension. The obligation of each UK Bank to make any Sterling Advance and the
obligation of each Sterling L/C Issuer to make any Sterling L/C Credit Extension shall be subject
to the additional conditions precedent that on the date of such Sterling Advance or Sterling L/C
Credit Extension: (a) each of the statements set forth in Section 3.2(i) and (ii) shall be true
(and each of the giving of the applicable Sterling Notice of Borrowing or Sterling Letter of Credit
Application and the acceptance by the UK Borrower of the proceeds of such Sterling Advance or such
Sterling L/C Credit Extension shall constitute a representation and warranty by the Borrower that
on the date of such Sterling Advance or Sterling L/C Credit Extension such statements are true)
(for purposes of the foregoing, each reference to “Advance”, “Borrowing” or “L/C Credit Extension”,
set forth in such Section 3.2(i) or (ii) shall be deemed to refer instead to such requested
Sterling Advance, Sterling Borrowing or Sterling L/C Credit Extension, respectively), and (b) the
UK Administrative Agent shall have received the Sterling Notice of Borrowing required by Section
2B.2 or the Sterling Letter of Credit Application required by Section 2B.8(b)(i) and such other
approvals, opinions or documents as any UK Bank through the UK Administrative Agent may reasonably
request.



Appendix 2 - 21









 





SCHEDULE I




FACILITY FEE AND APPLICABLE MARGIN



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Rating Level	 	 	Rating Level	 	 	Rating Level	 	 	Rating Level	 	 	Rating Level	 
	*RATING LEVELS	 	Level I	 	 	Level II	 	 	Level III	 	 	Level IV	 	 	Level V	 
	 	 	If the Borrower’s	 	 	 	 	 	 	 	 	 	 	 	If the Borrower’s	 
	 	 	senior unsecured	 	 	If the Borrower’s	 	 	If the Borrower’s	 	 	If the Borrower’s	 	 	senior unsecured	 
	 	 	long-term debt is	 	 	senior unsecured	 	 	senior unsecured	 	 	senior unsecured	 	 	long-term debt is	 
	 	 	rated A+ or higher	 	 	long-term debt is	 	 	long-term debt is	 	 	long-term debt is	 	 	rated BBB or lower	 
	 	 	by S&P or A1 or	 	 	rated A by S&P or	 	 	rated A- by S&P or	 	 	rated BBB+ by S&P	 	 	by S&P or Baa2 or	 
	 	 	higher by Moody’s	 	 	A2 by Moody’s	 	 	A3 by Moody’s.	 	 	or Baa1 by Moody’s.	 	 	lower by Moody’s.	 
	**Facility Fees
(per annum):
	 	 	0.125	%	 	 	0.15	%	 	 	0.175	%	 	 	0.225	%	 	 	0.35	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	***Applicable
Margin — Base Rate
(as used in
conjunction with
Base Rate Advance)
[Base Rate plus]
	 	 	0.125	%	 	 	0.35	%	 	 	0.575	%	 	 	0.775	%	 	 	0.90	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	****Applicable
Margin — Non-Base
Rate (as used in
conjunction
with: (i) L/C
Fee Rate
(US, Sterling and
Canadian) and
Canadian Stamping
Fee Rate (per
annum); (ii)
Eurodollar Advance
& Sterling Advance;
and (iii) Swingline
Loan) [Eurodollar
Rate plus]
	 	 	1.125	%	 	 	1.35	%	 	 	1.575	%	 	 	1.775	%	 	 	1.90	%








 




			
	*	 	In the case of a single split rating, the relevant Rating Level is determined by the higher
of S&P or Moody’s rating. In the event of a multiple split rating, the relevant Rating Level shall
be one level below the higher rating.
	 
	**	 	For purposes of determining facility fees, the Rating Level for each calendar quarter shall be
determined as of the first day of such quarter.
	 
	***	 	For purposes of determining the Applicable Margin for Base Rate Advances, the Rating Level for
each calendar quarter shall be determined as of the first day of such quarter.
	 
	****	 	For purposes of determining the Applicable Margin for Eurodollar Advances and Sterling
Advances, the Rating Level will be determined as of the first day of the Interest Period for such
Eurodollar Advances and as of the first day of the Sterling Interest Period for such Sterling
Advances. For purposes of determining the L/C Fee Rate, the Rating Level will be the Rating Level
in effect on each applicable day of the quarter or term, as the case may be, with respect to any
such Letter of Credit, Canadian Letter of Credit or Sterling Letter of Credit. For purposes of
determining the Canadian Stamping Fee Rate, the Rating Level will be the Rating Level in effect on
the date on which the corresponding Canadian Bankers’ Acceptances are accepted by the Canadian
Banks or Canadian BA Equivalent Loans are made, as the case may be.




Schedule I









 










SCHEDULE II




BANKS, COMMITMENTS, PRO RATA SHARES AND ADMINISTRATIVE
INFORMATION



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Canadian Allocated	 	 	Canadian	 	 	Sterling Allocated	 	 	Sterling Pro Rata	 
	Bank	 	Commitment	 	 	Pro Rata Share	 	 	Commitment	 	 	Pro Rata Share	 	 	Commitment	 	 	Share	 
	Bank of America, N.A.
	 	$	85,000,000	 	 	 	8.5	%	 	$	14,000,000	 	 	 	18.667	%	 	$	18,000,000	 	 	 	24.000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank,
N.A.
	 	$	85,000,000	 	 	 	8.5	%	 	$	14,000,000	 	 	 	18.667	%	 	$	19,000,000	 	 	 	25.333	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Barclays Bank PLC
	 	$	85,000,000	 	 	 	8.5	%	 	$	14,000,000	 	 	 	18.666	%	 	$	18,000,000	 	 	 	24.000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Citibank, N.A.
	 	$	85,000,000	 	 	 	8.5	%	 	$	12,000,000	 	 	 	16.000	%	 	$	10,000,000	 	 	 	13.333	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Société Générale
	 	$	85,000,000	 	 	 	8.5	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	U.S. Bank National
Association
	 	$	85,000,000	 	 	 	8.5	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	UBS Loan Finance LLC
	 	$	85,000,000	 	 	 	8.5	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Banco Bilbao Vizcaya
Argentaria, S.A. New
York Branch
	 	$	70,000,000	 	 	 	7.0	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Deutsche Bank AG, New
York Branch
	 	$	70,000,000	 	 	 	7.0	%	 	$	12,000,000	 	 	 	16.000	%	 	$	10,000,000	 	 	 	13.334	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	The Bank of
Tokyo-Mitsubishi UFJ,
Ltd.
	 	$	70,000,000	 	 	 	7.0	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Wells Fargo Bank, N.A.
	 	$	70,000,000	 	 	 	7.0	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Goldman Sachs Bank USA
	 	$	50,000,000	 	 	 	5.0	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	The Bank of Nova Scotia
	 	$	50,000,000	 	 	 	5.0	%	 	$	9,000,000	 	 	 	12.000	%	 	$	0	 	 	 	0	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Credit Suisse, Cayman
Islands Branch
	 	$	25,000,000	 	 	 	2.5	%	 	$	0	 	 	 	0	%	 	$	0	 	 	 	0	%
	 
	Total
	 	$	1,000,000,000	 	 	 	100	%	 	$	75,000,000	 	 	 	100	%	 	$	75,000,000	 	 	 	100	%






[remainder of Schedule II intentionally omitted]






Schedule II









 








SCHEDULE III




OUTSTANDING LETTERS OF CREDIT



     None.



Schedule III









 





SCHEDULE IV




SWINGLINE COMMITMENTS



	 	 	 	 	 

	Bank of America, N.A.
	 	$	150,000,000	 
	Total
	 	$	150,000,000	 







Schedule IV