EXHIBIT
10.1




 





AMENDED AND RESTATED
CREDIT AGREEMENT


[US/Canada Facilities]


PLAINS ALL AMERICAN
PIPELINE, L.P., as US Borrower,


PMC (NOVA SCOTIA) COMPANY
and PLAINS MARKETING CANADA, L.P.,

as Canadian Borrowers,


BANK OF AMERICA, N.A.,


as Administrative Agent,


BANK OF AMERICA, N.A.,
acting through its Canada Branch,


as Canadian Administrative
Agent,


WACHOVIA BANK, NATIONAL
ASSOCIATION and JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agents,


FORTIS CAPITAL CORP.,
CITIBANK, N.A. and BNP PARIBAS,

as Co-Documentation Agents,


and CERTAIN FINANCIAL
INSTITUTIONS, as Lenders


$1,000,000,000 Revolving
Credit Facility










BANC OF AMERICA SECURITIES
LLC and


WACHOVIA CAPITAL MARKETS,
LLC,


as Joint Lead Arrangers
and Joint Book Managers


November 4, 2005




 



















TABLE
OF CONTENTS




	
   

   	
    

   	
    

   	
    

   	
    

   	
   Page

   
	
  ARTICLE
  I.—Definitions and References

  	
   

  	
   

  	
  1

  	
   

  
	
   

  	
  Section 1.1.

  	
   

  	
  Defined
  Terms

  	
   

  	
   

  	
  1

  	
   

  
	
   

  	
  Section 1.2.

  	
   

  	
  Exhibits
  and Schedules; Additional Definitions

  	
   

  	
   

  	
  21

  	
   

  
	
   

  	
  Section 1.3.

  	
   

  	
  Amendment
  of Defined Instruments

  	
   

  	
   

  	
  21

  	
   

  
	
   

  	
  Section 1.4.

  	
   

  	
  References
  and Titles

  	
   

  	
   

  	
  22

  	
   

  
	
   

  	
  Section 1.5.

  	
   

  	
  Calculations
  and Determinations

  	
   

  	
   

  	
  22

  	
   

  
	
   

  	
  Section 1.6.

  	
   

  	
  Letter of
  Credit Amounts

  	
   

  	
   

  	
  22

  	
   

  
	
  ARTICLE
  II.—The Loans and Letters of Credit

  	
   

  	
   

  	
  22

  	
   

  
	
   

  	
  Section 2.1.

  	
   

  	
  Commitments
  to Lend; Notes

  	
   

  	
   

  	
  22

  	
   

  
	
   

  	
  Section 2.2.

  	
   

  	
  Requests
  for Loans

  	
   

  	
   

  	
  26

  	
   

  
	
   

  	
  Section 2.3.

  	
   

  	
  Continuations
  and Conversions of Existing Loans

  	
   

  	
   

  	
  27

  	
   

  
	
   

  	
  Section 2.4.

  	
   

  	
  Use of
  Proceeds

  	
   

  	
   

  	
  29

  	
   

  
	
   

  	
  Section 2.5.

  	
   

  	
  Interest
  Rates and Fees

  	
   

  	
   

  	
  29

  	
   

  
	
   

  	
  Section 2.6.

  	
   

  	
  [Intentionally
  deleted]

  	
   

  	
   

  	
  30

  	
   

  
	
   

  	
  Section 2.7.

  	
   

  	
  [Intentionally
  deleted]

  	
   

  	
   

  	
  30

  	
   

  
	
   

  	
  Section 2.8.

  	
   

  	
  Optional
  Prepayments

  	
   

  	
   

  	
  31

  	
   

  
	
   

  	
  Section 2.9.

  	
   

  	
  Mandatory
  Prepayments

  	
   

  	
   

  	
  31

  	
   

  
	
   

  	
  Section 2.10.

  	
   

  	
  Letters of
  Credit

  	
   

  	
   

  	
  32

  	
   

  
	
   

  	
  Section 2.10A.

  	
   

  	
  Swing Line
  Loans

  	
   

  	
   

  	
  41

  	
   

  
	
   

  	
  Section 2.11.

  	
   

  	
  Creation of
  Bankers’ Acceptances

  	
   

  	
   

  	
  44

  	
   

  
	
   

  	
  Section 2.12.

  	
   

  	
  Terms of
  Acceptance by Canadian Lenders

  	
   

  	
   

  	
  44

  	
   

  
	
   

  	
  Section 2.13.

  	
   

  	
  General
  Procedures for Bankers’ Acceptances

  	
   

  	
   

  	
  46

  	
   

  
	
   

  	
  Section 2.14.

  	
   

  	
  Execution
  of Bankers’ Acceptances

  	
   

  	
   

  	
  46

  	
   

  
	
   

  	
  Section 2.15.

  	
   

  	
  Prepayment
  of Bankers’ Acceptances

  	
   

  	
   

  	
  47

  	
   

  
	
  ARTICLE
  III.—Payments to Lenders

  	
   

  	
   

  	
  47

  	
   

  
	
   

  	
  Section 3.1.

  	
   

  	
  General
  Procedures

  	
   

  	
   

  	
  47

  	
   

  
	
   

  	
  Section 3.2.

  	
   

  	
  Capital
  Reimbursement

  	
   

  	
   

  	
  49

  	
   

  
	
   

  	
  Section 3.3.

  	
   

  	
  Increased
  Cost of Eurodollar Loans or Letters of Credit

  	
   

  	
   

  	
  50

  	
   

  
	
   

  	
  Section 3.4.

  	
   

  	
  Notice;
  Change of Applicable Lending Office

  	
   

  	
   

  	
  50

  	
   

  
	
   

  	
  Section 3.5.

  	
   

  	
  Availability

  	
   

  	
   

  	
  50

  	
   

  
	
   

  	
  Section 3.6.

  	
   

  	
  Funding
  Losses

  	
   

  	
   

  	
  51

  	
   

  
	
   

  	
  Section 3.7.

  	
   

  	
  Reimbursable
  Taxes

  	
   

  	
   

  	
  51

  	
   

  
	
   

  	
  Section 3.8.

  	
   

  	
  Replacement
  of Lenders

  	
   

  	
   

  	
  52

  	
   

  
	
   

  	
  Section 3.9.

  	
   

  	
  Currency
  Conversion and Indemnity

  	
   

  	
   

  	
  53

  	
   

  
	
  ARTICLE IV.—Conditions
  Precedent to Lending

  	
   

  	
   

  	
  53

  	
   

  
	
   

  	
  Section 4.1.

  	
   

  	
  Documents
  to be Delivered

  	
   

  	
   

  	
  53

  	
   

  
	
   

  	
  Section 4.2.

  	
   

  	
  Additional
  Conditions Precedent

  	
   

  	
   

  	
  55

  	
   

  
	
  ARTICLE V.—Representations
  and Warranties

  	
   

  	
   

  	
  55

  	
   

  
	
   

  	
  Section 5.1.

  	
   

  	
  No Default

  	
   

  	
   

  	
  55

  	
   

  
	
   

  	
  Section 5.2.

  	
   

  	
  Organization
  and Good Standing

  	
   

  	
   

  	
  55

  	
   

  
	
   

  	
  Section 5.3.

  	
   

  	
  Authorization

  	
   

  	
   

  	
  56

  	
   

  
	
   

  	
  Section 5.4.

  	
   

  	
  No
  Conflicts or Consents

  	
   

  	
   

  	
  56

  	
   

  
	
   

  	
  Section 5.5.

  	
   

  	
  Enforceable
  Obligations

  	
   

  	
   

  	
  56

  	
   

  
	
   

  	
  Section 5.6.

  	
   

  	
  Initial
  Financial Statements

  	
   

  	
   

  	
  56

  	
   

  
	
   

  	
  Section 5.7.

  	
   

  	
  Other
  Obligations and Restrictions

  	
   

  	
   

  	
  56

  	
   

  
	
   

  	
  Section 5.8.

  	
   

  	
  Full
  Disclosure

  	
   

  	
   

  	
  56

  	
   

  







 i
 








 




	
  

  	
  Section 5.9.

  	
   

  	
  Litigation

  	
   

  	
   

  	
  57

  	
   

  
	
   

  	
  Section 5.10.

  	
   

  	
  ERISA Plans
  and Liabilities

  	
   

  	
   

  	
  57

  	
   

  
	
   

  	
  Section 5.11.

  	
   

  	
  Compliance
  with Permits, Consents and Law

  	
   

  	
   

  	
  57

  	
   

  
	
   

  	
  Section 5.12.

  	
   

  	
  Environmental
  Laws

  	
   

  	
   

  	
  57

  	
   

  
	
   

  	
  Section 5.13.

  	
   

  	
  US
  Borrower’s Subsidiaries

  	
   

  	
   

  	
  58

  	
   

  
	
   

  	
  Section 5.14.

  	
   

  	
  Title to
  Properties

  	
   

  	
   

  	
  58

  	
   

  
	
   

  	
  Section 5.15.

  	
   

  	
  Government
  Regulation

  	
   

  	
   

  	
  58

  	
   

  
	
   

  	
  Section 5.16.

  	
   

  	
  Insider

  	
   

  	
   

  	
  58

  	
   

  
	
   

  	
  Section 5.17.

  	
   

  	
  Solvency

  	
   

  	
   

  	
  58

  	
   

  
	
  ARTICLE VI.—Affirmative
  Covenants

  	
   

  	
   

  	
  59

  	
   

  
	
   

  	
  Section 6.1.

  	
   

  	
  Payment and
  Performance

  	
   

  	
   

  	
  59

  	
   

  
	
   

  	
  Section 6.2.

  	
   

  	
  Books,
  Financial Statements and Reports

  	
   

  	
   

  	
  59

  	
   

  
	
   

  	
  Section 6.3.

  	
   

  	
  Other
  Information and Inspections

  	
   

  	
   

  	
  60

  	
   

  
	
   

  	
  Section 6.4.

  	
   

  	
  Notice of
  Material Events

  	
   

  	
   

  	
  61

  	
   

  
	
   

  	
  Section 6.5.

  	
   

  	
  Maintenance
  of Existence, Qualifications and Assets

  	
   

  	
   

  	
  61

  	
   

  
	
   

  	
  Section 6.6.

  	
   

  	
  Payment of
  Taxes, etc.

  	
   

  	
   

  	
  61

  	
   

  
	
   

  	
  Section 6.7.

  	
   

  	
  Insurance

  	
   

  	
   

  	
  61

  	
   

  
	
   

  	
  Section 6.8.

  	
   

  	
  Compliance
  with Agreements and Law

  	
   

  	
   

  	
  62

  	
   

  
	
   

  	
  Section 6.9.

  	
   

  	
  Guaranties
  of Subsidiaries

  	
   

  	
   

  	
  62

  	
   

  
	
  ARTICLE
  VII.—Negative Covenants

  	
   

  	
   

  	
  62

  	
   

  
	
   

  	
  Section 7.1.

  	
   

  	
  Subsidiary
  Indebtedness

  	
   

  	
   

  	
  62

  	
   

  
	
   

  	
  Section 7.2.

  	
   

  	
  Limitation
  on Liens

  	
   

  	
   

  	
  63

  	
   

  
	
   

  	
  Section 7.3.

  	
   

  	
  Limitation
  on Mergers

  	
   

  	
   

  	
  64

  	
   

  
	
   

  	
  Section 7.4.

  	
   

  	
  Limitation
  on New Businesses

  	
   

  	
   

  	
  65

  	
   

  
	
   

  	
  Section 7.5.

  	
   

  	
  Transactions
  with Affiliates

  	
   

  	
   

  	
  65

  	
   

  
	
   

  	
  Section 7.6.

  	
   

  	
  Limitation
  on Distributions

  	
   

  	
   

  	
  65

  	
   

  
	
   

  	
  Section 7.7.

  	
   

  	
  Restricted
  Contracts

  	
   

  	
   

  	
  65

  	
   

  
	
   

  	
  Section 7.8.

  	
   

  	
  Debt
  Coverage Ratio

  	
   

  	
   

  	
  66

  	
   

  
	
   

  	
  Section 7.9.

  	
   

  	
  Intentionally
  Deleted

  	
   

  	
   

  	
  66

  	
   

  
	
   

  	
  Section 7.10.

  	
   

  	
  Unrestricted
  Subsidiaries

  	
   

  	
   

  	
  66

  	
   

  
	
   

  	
  Section 7.11.

  	
   

  	
  No Negative
  Pledges

  	
   

  	
   

  	
  67

  	
   

  
	
  ARTICLE
  VIII.—Events of Default and Remedies

  	
   

  	
   

  	
  67

  	
   

  
	
   

  	
  Section 8.1.

  	
   

  	
  Events of
  Default

  	
   

  	
   

  	
  67

  	
   

  
	
   

  	
  Section 8.2.

  	
   

  	
  Remedies

  	
   

  	
   

  	
  69

  	
   

  
	
  ARTICLE
  IX.—Agents

  	
   

  	
   

  	
  69

  	
   

  
	
   

  	
  Section 9.1.

  	
   

  	
  Appointment
  and Authority

  	
   

  	
   

  	
  69

  	
   

  
	
   

  	
  Section 9.2.

  	
   

  	
  Rights as a
  Lender

  	
   

  	
   

  	
  69

  	
   

  
	
   

  	
  Section 9.3.

  	
   

  	
  Exculpatory
  Provisions

  	
   

  	
   

  	
  70

  	
   

  
	
   

  	
  Section 9.4.

  	
   

  	
  Reliance by
  Agents

  	
   

  	
   

  	
  70

  	
   

  
	
   

  	
  Section 9.5.

  	
   

  	
  Delegation
  of Duties

  	
   

  	
   

  	
  71

  	
   

  
	
   

  	
  Section 9.6.

  	
   

  	
  Resignation
  of Agent

  	
   

  	
   

  	
  71

  	
   

  
	
   

  	
  Section 9.7.

  	
   

  	
  Non-Reliance
  on Agents and Other Lenders

  	
   

  	
   

  	
  71

  	
   

  
	
   

  	
  Section 9.8.

  	
   

  	
  No Other
  Duties, Etc.

  	
   

  	
   

  	
  72

  	
   

  
	
   

  	
  Section 9.9.

  	
   

  	
  Guaranty
  Matters

  	
   

  	
   

  	
  72

  	
   

  
	
   

  	
  Section 9.10.

  	
   

  	
  Indemnification

  	
   

  	
   

  	
  72

  	
   

  
	
   

  	
  Section 9.11.

  	
   

  	
  Sharing of
  Set-Offs and Other Payments

  	
   

  	
   

  	
  72

  	
   

  
	
   

  	
  Section 9.12.

  	
   

  	
  Investments

  	
   

  	
   

  	
  73

  	
   

  







 ii
 








 




	
  ARTICLE X.—Miscellaneous

  	
   

  	
   

  	
  73

  	
   

  
	
   

  	
  Section 10.1.

  	
   

  	
  Waivers and
  Amendments; Acknowledgments

  	
   

  	
   

  	
  73

  	
   

  
	
   

  	
  Section 10.2.

  	
   

  	
  Survival of
  Representations, Warranties and Agreements; Cumulative Nature

  	
   

  	
   

  	
  75

  	
   

  
	
   

  	
  Section 10.3.

  	
   

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  	
   

  	
  75

  	
   

  
	
   

  	
  Section 10.4.

  	
   

  	
  Expenses;
  Indemnity; Damage Waiver

  	
   

  	
   

  	
  76

  	
   

  
	
   

  	
  Section 10.5.

  	
   

  	
  Successors
  and Assigns

  	
   

  	
   

  	
  78

  	
   

  
	
   

  	
  Section 10.6.

  	
   

  	
  Treatment
  of Certain Information; Confidentiality

  	
   

  	
   

  	
  82

  	
   

  
	
   

  	
  Section 10.7.

  	
   

  	
  Governing
  Law; Submission to Process

  	
   

  	
   

  	
  82

  	
   

  
	
   

  	
  Section 10.8.

  	
   

  	
  Waiver of
  Judgment Interest Act (Alberta)

  	
   

  	
   

  	
  83

  	
   

  
	
   

  	
  Section 10.9.

  	
   

  	
  Deemed
  Reinvestment Not Applicable

  	
   

  	
   

  	
  83

  	
   

  
	
   

  	
  Section 10.10.

  	
   

  	
  Limitation
  on Interest

  	
   

  	
   

  	
  83

  	
   

  
	
   

  	
  Section 10.11.

  	
   

  	
  Right of
  Offset

  	
   

  	
   

  	
  84

  	
   

  
	
   

  	
  Section 10.12.

  	
   

  	
  Termination;
  Limited Survival; Payments Set Aside

  	
   

  	
   

  	
  84

  	
   

  
	
   

  	
  Section 10.13.

  	
   

  	
  Severability

  	
   

  	
   

  	
  85

  	
   

  
	
   

  	
  Section 10.14.

  	
   

  	
  Counterparts

  	
   

  	
   

  	
  85

  	
   

  
	
   

  	
  Section 10.15.

  	
   

  	
  Waiver of
  Jury Trial

  	
   

  	
   

  	
  85

  	
   

  
	
   

  	
  Section 10.16.

  	
   

  	
  USA PATRIOT
  Act Notice

  	
   

  	
   

  	
  85

  	
   

  
	
   

  	
  Section 10.17.

  	
   

  	
  Reallocation
  of Commitments under Existing Agreement

  	
   

  	
   

  	
  85

  	
   

  






 



 iii
 








Schedules and
Exhibits:




	
  Schedule I—Facility Fees and
  Applicable Margin

  
	
  Schedule
  II—Commitments and Pro Rata Shares

  
	
  Schedule
  III—Disclosure Schedule

  
	
  Schedule
  10.3—Administrative Agent’s Office; Certain Addresses for Notices

  
	
  Exhibit A-1—US
  Note

  
	
  Exhibit A-2—Canadian
  Note

  
	
  Exhibit A-3—Swing
  Line Note

  
	
  Exhibit B-1—US
  Borrowing Notice

  
	
  Exhibit B-2—Canadian
  Borrowing Notice

  
	
  Exhibit B-3—Swing
  Line Loan Notice

  
	
  Exhibit C-1—US
  Continuation/Conversion Notice

  
	
  Exhibit C-2—Canadian
  Continuation/Conversion Notice

  
	
  Exhibit D—Certificate
  Accompanying Financial Statements

  
	
  Exhibit E-1—Opinion
  of In-House Counsel for Restricted Persons

  
	
  Exhibit E-2—Opinion
  of Fulbright & Jaworski L.L.P., Counsel for Restricted Persons

  
	
  Exhibit E-3—Opinion
  of Bennett Jones, Canadian Counsel for Restricted Persons

  
	
  Exhibit F—Assignment
  and Assumption Agreement

  






 



 iv















AMENDED AND
RESTATED CREDIT AGREEMENT

[US/Canada
Facilities]


THIS AMENDED AND RESTATED
CREDIT AGREEMENT [US/Canada Facilities] is made as of November 4, 2005, by
and among PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership (“US Borrower”), PMC (NOVA SCOTIA) COMPANY, a Nova Scotia
unlimited liability company, and PLAINS MARKETING CANADA, L.P., an Alberta
limited partnership (each a “Canadian Borrower”
and collectively, the “Canadian Borrowers”),
BANK OF AMERICA, N.A., as administrative agent (in such capacity, “Administrative Agent”), BANK OF AMERICA, N.A., acting
through its Canada Branch, as Canadian administrative agent (in such capacity, “Canadian Administrative Agent”), WACHOVIA BANK, NATIONAL
ASSOCIATION and JPMORGAN CHASE BANK, N.A., as co-syndication agents (in such
capacity, “Co-Syndication Agents”), FORTIS CAPITAL
CORP., CITIBANK, N.A. and BNP PARIBAS, as co-documentation agents (in such
capacity, “Co-Documentation Agents”), BANC OF
AMERICA SECURITIES LLC AND WACHOVIA CAPITAL MARKETS, LLC, as joint lead
arrangers and joint book managers (in such capacity, “Joint Lead
Arrangers and Book Managers”) and the Lenders referred to below. In
consideration of the mutual covenants and agreements contained herein the
parties hereto agree as follows:


W I T N E S S E T H


US Borrower, Canadian Borrowers, Administrative Agent
and other agents and lenders entered into that certain Credit Agreement
[US/Canada Facilities] dated November 2, 2004 (as amended prior to the
effective date of this Agreement, the “Existing Agreement”)
and desire to amend and restate the Existing Agreement as set forth herein.


In consideration of the
mutual covenants and agreements contained herein and in consideration of the
loans which may hereafter be made by Lenders and the Letters of Credit which
may be made available by LC Issuers to Borrowers and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


ARTICLE
I.—Definitions
and References


Section 1.1.   Defined
Terms.   As used in this Agreement, each of the following terms
has the meaning given to such term in this Section 1.1 or in the sections
and subsections referred to below:


“Acquisition Period”
means the period beginning, at the election of US Borrower, with the funding
date of the purchase price for a Specified Acquisition and ending on the
earliest of (a) the third following Fiscal Quarter end, (b) US
Borrower’s receipt of proceeds of a Specified Equity Offering; and (c) US
Borrower’s election in writing to terminate such Acquisition Period (provided, at the time of such election, the Debt Coverage
Ratio shall not, on a pro forma basis, exceed 4.75 to 1.00); provided, however, if the
Debt Coverage Ratio exceeds 4.75 to 1.00 at the end of the Fiscal Quarter
ending next following such funding date, then the Acquisition Period shall be
deemed to have commenced as of such funding date; provided,
further, during any Acquisition Period,
no additional Acquisition Period shall commence, nor shall such Acquisition
Period be extended, by any subsequent Specified Acquisition until the current
Acquisition Period shall have expired and US Borrower shall be in compliance
with Section 7.8(ii).


“Administrative Agent”
means Bank of America, N.A., as Administrative Agent hereunder, and its
successors in such capacity.


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


“Affiliate”
means, as to any Person, each other Person that directly or indirectly (through
one or more intermediaries or otherwise) controls, is controlled by, or is
under common control with, such Person. A 



 1
 








Person shall be deemed to
be “controlled by” any other Person if such other Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.


“Agent” means (i) with
respect to US Loans, Administrative Agent, (ii) with respect to Canadian
Loans, Canadian Administrative Agent, and (iii) their respective
successors in such capacity.


“Agreement”
means this Credit Agreement.


“All American”
means Plains Pipeline, L.P., a Texas limited partnership.


“Applicable Lending Office”
means, for each Lender and for each Type of Loan, the “Lending Office” of such
Lender (or of an Affiliate of such Lender) designated for such Type of Loan on
such Lender’s Administrative Questionnaire or such other office of such Lender
(or an Affiliate of such Lender) as such Lender may from time to time specify
to Administrative Agent or Canadian Administrative Agent, as applicable, and US
Borrower by written notice in accordance with the terms hereof as the office by
which its Loans of such Type are to be made and maintained.


“Applicable Margin”
means, as to any Type of Loan, the percent per annum set forth on Schedule I as
the “Applicable Margin” for such Type of Loan, based on the Applicable Rating
Level in effect on such date. Changes in the Applicable Margin will occur
automatically without prior notice as changes in the Applicable Rating Level
occur. Administrative Agent will give notice promptly to Borrowers, Canadian
Administrative Agent and Lenders of changes in the Applicable Margin.


“Applicable Rating Level” means for any day, the level set
forth below that corresponds to the PAA Debt Rating by the Ratings Agencies
applicable on such day; provided, in
the event the PAA Debt Rating by the Ratings Agencies differs by one level, the
higher PAA Debt Rating shall apply; provided  further, in the event the PAA Debt Rating by the Ratings
Agencies differs by more than one level, the PAA Debt Rating one level above
the lower PAA Debt Rating shall apply. As used in this definition, “>”
means a rating equal to or more favorable than and “<“ means a rating less
favorable than.




	
  Rating Level

  	
   

  	
   

  	
   

  	
  S&P

  	
   

  	
  Moody’s

  
	
  Level I

  	
   

  	
  >
  BBB+

  	
   

  	
  >
  Baa1

  
	
  Level II

  	
   

  	
   BBB

  	
   

  	
      Baa2

  
	
  Level III

  	
   

  	
    BBB-

  	
   

  	
      Baa3

  
	
  Level IV

  	
   

  	
  < BBB-

  	
   

  	
  < Baa3

  






 


If either of the Rating
Agencies shall not have in effect a PAA Debt Rating or if the rating system of
either of the Rating Agencies shall change, or if either of the Rating Agencies
shall cease to be in the business of rating corporate debt obligations, US
Borrower and Majority Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such Rating Agency, but until such an agreement shall be reached,
the Applicable Rating Level shall be based only upon the PAA Debt Rating by the
remaining Rating Agency.


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


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


“BA Discount Rate”
means, in respect of a BA being accepted by a Canadian Lender on any date, (i) for
a Canadian Lender 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 quotations for bankers’ acceptances accepted by leading Canadian
financial institutions) at approximately 10:00 a.m. (Toronto, Ontario
time) on such 



 2
 








drawdown date for bankers’
acceptances having a comparable maturity date as the maturity date of such BA
(the “CDOR Rate”); or, if such rate is not
available at or about such time, the average of the bankers’ acceptance rates
(expressed to five decimal places) as quoted to the Canadian Administrative
Agent by the Schedule I BA Reference Banks as of 10:00 a.m. (Toronto,
Ontario time) on such drawdown date for bankers’ acceptances having a
comparable maturity date as the maturity date of such BA; and (ii) for a
Canadian Lender that is listed in Schedule II to the Bank Act (Canada) or a Canadian Lender that is listed in
Schedule III to the Bank Act
(Canada) that is not subject to the restrictions and requirements referred to
in subsection 524 (2) of the Bank Act
(Canada), the rate established by the Canadian Administrative Agent to be the
lesser of (A) the CDOR Rate plus 10 Basis Points and (B) the average
of the bankers’ acceptance rates (expressed to five decimal places) as quoted
to the Canadian Administrative Agent by the Schedule II BA Reference Banks or
Schedule III BA Reference Banks as of 10:00 a.m. (Toronto, Ontario time)
on such drawdown date for bankers’ acceptances having a comparable maturity
date as the maturity date of such BA.


“BA Equivalent Advance”
means a Canadian Advance provided hereunder by a Canadian Lender in lieu of
accepting and purchasing a BA pursuant to Section 2.12(f).


“Bankers’ Acceptance”
or “BA” means a non-interest bearing bill of
exchange on a Canadian Lender’s usual form (or a bill of exchange within the
meaning of the Bill of Exchange Act Canada), or a depository bill within the
meaning of the Depository Bills and Notes Act (Canada), denominated in Canadian
Dollars, drawn by or on behalf of either Canadian Borrower, for a term selected
by such Canadian Borrower of either one, two, three or six months (as reduced
or extended by Canadian Administrative Agent, acting reasonably, to allow the maturity
thereof to fall on a Business Day) payable in Canada, and accepted by a
Canadian Lender in accordance with this Agreement.


“Bankruptcy and Insolvency
Act (Canada)” means the
Bankruptcy and Insolvency Act, S.C. 1992, c. 27, including the
regulations made and, from time to time, in force under that Act.


“Base Rate”
means for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1¤2
of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by the Reference Bank as its “prime rate.” The “prime
rate” is a rate set by the Reference Bank based upon various factors including
its 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 Reference Bank shall take effect at the opening of business on the day
specified in the public announcement of such change.


“Base Rate Loan”
means a US Loan to US Borrower which does not bear interest at a rate based
upon the Eurodollar Rate.


“Board” shall
have the meaning given that term in clause (i) of the definition of the
term “Change of Control.”


“Borrowers”
means, collectively, US Borrower, each Canadian Borrower and their successors
and assigns, in each case, so long as it is permitted to borrow hereunder or
request the issuance of a Letter of Credit; “Borrower”
means, individually, any of such Persons.


“Borrowing”
means (i) a borrowing of new Loans of a single Type pursuant to Section 2.2
or (ii) a Continuation or Conversion of existing Loans into a single Type
(and, in the case of Eurodollar Loans, with the same Interest Period) pursuant
to Section 2.3 or (iii) the acceptance or purchase by Canadian
Lenders of Bankers’ Acceptances issued by either Canadian Borrower under Section 2.12,
or (iv) with respect to Swing Line Loans, a Swing Line Borrowing.



 3
 








“Borrowing Notice”
means a written or telephonic request, or a written confirmation, made by a
Borrower which meets the requirements of Section 2.2 or, with respect to
Swing Line Borrowings, the requirements of Section 2.10A(b).


“Business Day”
means: (i) with respect to Canadian Obligations a Canadian Business Day,
and (ii) with respect to all other Obligations, a US Business Day.


“Canadian Administrative
Agent” means Bank of America, N.A., acting through its Canada
branch, as Canadian Administrative Agent hereunder, and its successors in such
capacity.


“Canadian Advances”
has the meaning given to such term in Section 2.1(c).


“Canadian Allocated
Commitment” means, as to each Lender, its, its Canadian branch’s or
its Affiliate’s Canadian Percentage Share as set forth opposite such Lender’s,
Canadian branch’s or Affiliate’s name on Schedule II or in the Assignment
and Assumption pursuant to which such Lender, 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 Lenders, their Canadian branches or Affiliates as set forth
opposite such Lender’s, Canadian branch’s or affiliate’s name on Schedule II or
in the Assignment and Acceptance pursuant to which such Lender, Canadian branch
or affiliate becomes a party hereto, as applicable, as may be increased
pursuant to Section 2.1(d).


“Canadian Allocated Total
Commitment” means the aggregate amount of the US Commitments
allocated by US Borrower from time to time as the Canadian Allocated Total
Commitment pursuant to Section 2.1(b), not to exceed the Canadian
Allocated Maximum Total Commitment.


“Canadian Allocation Period”
means any time during which either (a) US Borrower has allocated any
portion of the US Commitments as the Canadian Allocated Total Commitment
pursuant to Section 2.1(b) or (b) the Canadian Total Outstanding
Amount exceeds zero.


“Canadian Borrowers”
means collectively, until termination of US Borrower’s right to allocate a
portion of the US Total Committed Amount as the Canadian Allocated Total
Commitment, PMC (Nova Scotia) Company, a Nova Scotia unlimited liability
company, and Plains Marketing Canada, L.P., an Alberta limited partnership; “Canadian Borrower” means, individually, either of such
Persons.


“Canadian Business Day”
means any day, other than a Saturday, Sunday or day which shall be in the
Provinces of Ontario, Quebec or Alberta a legal holiday or day on which banking
institutions are required or authorized to close. Any Business Day in any way
relating to Eurodollar Loans (such as the day on which an Interest Period
begins or ends) must also be a day on which commercial banks settle payments in
London.


“Canadian Commitment”
means, as to each Canadian Lender, its obligation during a Canadian Allocation
Period to (a) make Canadian Advances to either Canadian Borrower pursuant
to Sections 2.1(c), (b) purchase participations in Canadian LC
Obligations pursuant to Section 2.10(c), and (c) purchase
participations in Swing Line Loans to either Canadian Borrower, in an aggregate
principal amount at any one time outstanding not to exceed such Canadian Lender’s
Canadian Allocated Commitment.


“Canadian Commitment Fee
Rate” means, on any day during a Canadian Allocation Period, the
rate per annum set forth on Schedule I as the “Canadian Commitment Fee Rate”
based on the Applicable Rating Level on such date. Changes in the applicable
Canadian Commitment Fee Rate will occur automatically without prior notice as
changes in the Applicable Rating Level occur. Administrative Agent will give
notice promptly to Canadian Borrowers and Canadian Lenders of any change (and
its effective date) in the Applicable Rating Level and the applicable Canadian
Commitment Fee Rate.



 4
 








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


“Canadian LC Issuer”
means Bank of America, N.A., acting through its Canada branch, in its capacity
as the issuer of Canadian Letters of Credit hereunder, and its successors in
such capacity. Canadian Administrative Agent may, with the consent of Canadian
Borrowers and the Canadian Lender in question, or a Canadian Borrower may, with
the consent of Canadian Lender in question and notice to the Canadian
Administrative Agent, appoint any Canadian Lender hereunder as a Canadian LC
Issuer in place of or in addition to Bank of America, N.A., acting through its
Canada Branch.


“Canadian LC Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Canadian Letters of Credit plus
the aggregate outstanding amount of all Unreimbursed Amounts with respect to
Canadian Letters of Credit that are not fully refinanced by a Canadian Advance
and, without duplication, all LC Borrowings with respect to Canadian Letters of
Credit. For all purposes of this Agreement, if on any date of determination a
Canadian 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
Canadian Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.


“Canadian Lenders”
means, during a Canadian Allocation Period, each signatory hereto designated as
a Canadian Lender and the successors and permitted assigns of each such party
as holder of a Canadian Note and, as the context requires, includes the Swing
Line Lender.


“Canadian Lender Parties”
means Canadian Administrative Agent, Canadian LC Issuer, and Canadian Lenders.


“Canadian Letter of Credit”
means any letter of credit issued by Canadian LC Issuer hereunder at the
application of either Canadian Borrower pursuant to Section 2.10. For the
avoidance of doubt, Canadian Letter of Credit includes a commercial or
documentary letter of credit and a standby letter of credit.


“Canadian Letter of Credit
Fee Rate” means, on any day during a Canadian Allocation Period, the
rate per annum set forth on Schedule I as the “Canadian LC Fee Rate” based on
the Applicable Rating Level on such date. Changes in the applicable Canadian
Letter of Credit Fee Rate will occur automatically without prior notice as
changes in the Applicable Rating Level occur. Administrative Agent will give
notice promptly to Canadian Administrative Agent of any change (and its
effective date) in the Applicable Rating Level, and Canadian Administrative
Agent will in turn give notice promptly to Canadian Borrowers and Canadian
Lenders of such change in the Applicable Rating Level and the applicable
Canadian Letter of Credit Fee Rate.


“Canadian Loans”
has the meaning given such term in Section 2.1(c) hereof and includes,
as the context requires, including without limitation for purposes of Section 2.5(a)(ii) hereof,
Swing Line Loans by the Swing Line Lender to either Canadian Borrower pursuant
to Section 2.10A.


“Canadian Notes”
has the meaning given such term in Section 2.1(c) hereof.


“Canadian Obligations”
means all Liabilities from time to time owing by any Restricted Person to any
Lender Party under or pursuant to any of the Canadian Advances, Canadian Notes
and Canadian Letters of Credit, including all Canadian LC Obligations owing
thereunder, or under or pursuant to any guaranty of the obligations of either
Canadian Borrower under the Loan Documents. “Canadian
Obligation” means any part of the Canadian Obligations.


“Canadian Percentage Share” means:


(a)   at any time
the US Commitments remain outstanding and not during a Canadian Allocation
Period, with respect to each Lender, the Canadian Percentage Share of such
Lender, its Canadian branch or affiliate set forth opposite such Lender’s,
Canadian branch’s or affiliate’s name on Schedule II or in the 



 5
 








Assignment and Assumption
pursuant to which such Lender, Canadian branch or affiliate becomes a
party hereto;


(b)   at any time
the Canadian Commitments remain outstanding and during a Canadian Allocation
Period, with respect to each Canadian Lender, a fraction (expressed as a
percentage, carried out to the sixth decimal place), the numerator
of which is the amount of the Canadian Commitment of such Canadian Lender 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 US Commitments and Canadian Commitments pursuant to Section 8.1,
with respect to each Canadian Lender, a fraction (expressed as a percentage,
carried out to the sixth decimal place), the numerator
of which is:


the sum of


(i)    the
Outstanding Amount of Canadian Advances of such Canadian Lender plus


(ii)   an amount
equal to (A) the Outstanding Amount of Canadian Advances of such Canadian
Lender divided by (B) the Outstanding
Amount of Canadian Advances of all Canadian Lenders times
(C) the Outstanding Amount of all Canadian LC Obligations, and


the denominator of
which is the Canadian Total Outstanding Amount.


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


“Canadian Prime Rate”
means on any day a fluctuating rate of interest per annum equal to the higher
of (i) the rate of interest per annum most recently announced by Canadian
Administrative Agent as its reference rate for Canadian Dollar commercial
demand loans made to a Person in Canada; and (ii) Canadian Administrative
Agent’s discount rate for Bankers’ Acceptances having a maturity of one month
plus one-half percent (0.5%) per annum. Changes in the Canadian Prime Rate
resulting from changes in the foregoing described reference rate or discount
rate shall take place immediately without notice or demand of any kind.


“Canadian Prime Rate Loan”
means a Canadian Loan which bears interest at a rate based upon the Canadian
Prime Rate.


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


“Canadian Total Outstanding
Amount” means, at any time, the sum of (i) the Outstanding
Amount of Canadian Advances at such time plus (ii) the
Outstanding Amount of Canadian LC Obligations.


“Canadian US Dollar Base
Rate” means for a day, the rate per annum equal to the higher of (a) the
Federal Funds Rate for such day plus one-half of one percent (0.5%) and (b) the
rate of interest per annum most recently established by Canadian Administrative
Agent as its reference rate for US Dollar commercial loans made to a Person in
Canada. Any change in the Canadian US Dollar Base Rate due to a change in the
Canadian Administrative Agent’s reference rate shall be effective on the
effective date of such change.


“Canadian US Dollar Base
Rate Loan” means a US Dollar-denominated Canadian Loan to a Canadian
Borrower which does not bear interest at a rate based upon the Eurodollar Rate.


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



 6
 








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


“Cash and Carry Purchases”
means purchases of Petroleum Products for physical storage or in storage or in
transit in pipelines which has been hedged by either a NYMEX contract, an OTC
contract or a contract for physical delivery.


“Cash Collateralize”
has the meaning specified in Section 2.10(g).


“Cash Equivalents” means Investments in:


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


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


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


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


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


“Change of Control” means the occurrence of any of the
following events:


(i)    Qualifying
Directors cease for any reason to constitute collectively a majority of the
members of the board of directors of GP LLC (the “Board”) then in office;


(ii)   GP LLC
shall cease to be, directly or indirectly, the beneficial owner (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of all of the general partner interests of General Partner.


(iii) General
Partner shall cease to be, directly or indirectly, the beneficial owner (as
defined above) of all of the general partner interests of US Borrower; or


(iv)  Neither
General Partner nor US Borrower shall continue to be, directly or indirectly,
the beneficial owner of all of the general partner interests in Plains
Marketing and All American; or


(v)   US Borrower
shall cease to be, directly or indirectly, the beneficial owner (as defined
above) of all of the outstanding partnership or equity interests in either
Canadian Borrower, if after giving effect thereto, such Canadian Borrower has
any outstanding Obligations or any Lender shall have any outstanding Canadian
Commitment thereto.


As used herein, “Qualifying Director”
means (i) any Person designated by any Qualifying Owner as its
representative on the Board, (ii) so long as Qualifying Owners own a
majority of the ownership interests of GP LLC entitling the holders thereof to
vote in elections for directors of GP LLC, any Person elected by a 



 7
 








majority of such owners of GP LLC entitled to vote
thereon, and (iii) the chief executive officer of GP LLC, and “Qualifying Owner” means Kayne Anderson Investment
Management, EnCap Investments LLC, Vulcan Energy Corporation or any Affiliate
of any of the foregoing.


“Closing Date”
means the first date all the conditions precedent in Sections 4.1 and 4.2 are
satisfied or waived in accordance with Section 10.1 and a Borrower’s
initial funding request hereunder is so funded.


“Code” means the
Internal Revenue Code of 1986, as amended from time to time, together with all rules and
regulations promulgated with respect thereto.


“Commitment”
means, collectively, the US Commitments and the Canadian Commitments.


“Commitment Period”
means the period from and including the date hereof until the Maturity Date
(or, if earlier, the day on which the obligation of Lenders to make Loans
to Borrowers hereunder pursuant to Section 2.1(a) or (c) and the
obligation of LC Issuers to issue Letters of Credit at the request of
Borrowers pursuant to Section 2.10 has been terminated or the day on which
any of the Notes first becomes due and payable in full).


“Companies’ Creditors
Arrangement Act (Canada)” means the Companies’
Creditors Arrangement Act, R.S.C. 1985, c. C-36, including the
regulations made and from time to time in force under that Act.


“Consolidated”
refers to the consolidation of any Person, in accordance with GAAP, with its
properly consolidated subsidiaries. References herein to a Person’s
Consolidated financial statements, financial position, financial condition,
liabilities, etc. refer to the consolidated financial statements, financial
position, financial condition, liabilities, etc. of such Person and its properly
consolidated subsidiaries.


“Consolidated EBITDA”
means, for any period, the sum of (1) the Consolidated Net Income during
such period, plus (2) all interest
expense that was deducted in determining such Consolidated Net Income for such
period, plus (3) all income taxes
(including any franchise taxes to the extent based upon net income) that were
deducted in determining such Consolidated Net Income, plus
(4) all depreciation, amortization (including amortization of good will
and debt issue costs) and other non-cash charges (including any provision
for the reduction in the carrying value of assets recorded in accordance with
GAAP) which were deducted in determining such Consolidated Net Income, minus (5) all non-cash items of income which were
included in determining such Consolidated Net Income.


“Consolidated Funded
Indebtedness” means as of any date, the sum of the following
(without duplication): (i) the outstanding principal amount of all
Indebtedness which is classified as “long-term indebtedness” on a consolidated
balance sheet of US Borrower and its Consolidated Subsidiaries (excluding
Unrestricted Subsidiaries) prepared as of such date in accordance with GAAP
(subject to year-end audit adjustments with respect to non-year end periods)
and any current maturities and other principal amount in respect of such
Indebtedness due within one year but which was classified as “long-term
indebtedness” at the creation thereof; (ii) the outstanding principal
amount of Indebtedness for borrowed money of US Borrower and its Consolidated
Subsidiaries (excluding Unrestricted Subsidiaries) outstanding under a
revolving credit, term or similar agreement (and renewals and extensions
thereof); and (iii) the outstanding principal amount of Indebtedness in
respect of Capital Leases of US Borrower and its Consolidated Subsidiaries
(excluding Unrestricted Subsidiaries); provided, however, Consolidated Funded Indebtedness shall not, if
otherwise applicable, include (x) Indebtedness in respect of letters of
credit, (y) Indebtedness incurred to finance Cash and Carry Purchases or (z) margin
deposits.


“Consolidated Net Income”
means, for any period, US Borrower’s and its Subsidiaries’ (excluding
Unrestricted Subsidiaries) gross revenues for such period, including any cash
dividends or distributions actually received from any other Person during such
period, minus US Borrower’s and its Subsidiaries’ (excluding Unrestricted
Subsidiaries) expenses and other proper charges against income (including taxes
on income, to the extent imposed), determined on a Consolidated basis after
eliminating earnings or losses 



 8
 








attributable to
outstanding minority interests and excluding the net earnings of any Person
other than a Subsidiary in which US Borrower or any of its Subsidiaries
(excluding Unrestricted Subsidiaries) has an ownership interest. Consolidated
Net Income shall not include (i) any gain or loss from the sale of assets,
(ii) any extraordinary gains or losses, or (iii) any non-cash gains
or losses resulting from mark to market activity as a result of the
implementation of SFAS 133 or EITF 98-10. In addition, Consolidated Net
Income shall not include the cost or proceeds of purchasing or selling options
which are used to hedge future activity, until the period in which such hedged
future activity occurs.


“Consolidated Tangible Net
Worth” means the remainder of (i) all Consolidated assets, as
determined in accordance with GAAP, of US Borrower and its Subsidiaries
(excluding Unrestricted Subsidiaries) minus (ii) the
sum of (a) US Borrower’s Consolidated liabilities (excluding liabilities
of Unrestricted Subsidiaries, to the extent included therein), as determined in
accordance with GAAP, (b) the book value of any equity interests in any of
US Borrower’s Subsidiaries (excluding Unrestricted Subsidiaries) which equity
interests are owned by a Person other than US Borrower or a Wholly Owned
Subsidiary of US Borrower; and (c) the net book value of all assets that
would be treated as intangible under GAAP, including goodwill, trademarks,
trade names and service marks. The effect of any increase or decrease of net
worth in any period as a result of items of income or loss not reflected in the
determination of net income but reflected in the determination of comprehensive
income (to the extent provided under GAAP as in effect on the date hereof)
shall be excluded in determining Consolidated Tangible Net Worth.


“Contango Credit Agreement”
means that certain Restated Credit Agreement dated November 19, 2004, as
amended from time to time, among Plains Marketing, Bank of America, N.A., as
administrative agent, and the lenders named therein.


“Continue”, “Continuation” and “Continued”
shall refer to (i) the continuation pursuant to Section 2.3 of a
Eurodollar Loan as a Eurodollar Loan from one Interest Period to the next
Interest Period and (ii) a rollover of a Banker’s Acceptance at maturity.


“Continuation/Conversion
Notice” means a written or telephonic request, or a written
confirmation, made by a Borrower which meets the requirements of
Section 2.3.


“Convert”, “Conversion” and “Convert” refers
to a conversion pursuant to Section 2.3 of one Type of US Loan into
another Type of US Loan, or of one Type of Canadian Advance into another Type
of Canadian Advance.


“Debt Coverage Ratio”
shall have the meaning given that term in Section 7.8.


“Default” means
any Event of Default and any default, event or condition which would, with the
giving of any requisite notices and the passage of any requisite periods of
time, constitute an Event of Default.


“Defaulting Lender”
means any Lender Party that (a) has failed to fund any portion of the
Loans or participations in LC Obligations or participations in Swing Line Loans
required to be funded by it hereunder or failed to issue any Letter of Credit
required to be issued by it hereunder, in either case within one Business Day
of the date required for such funding or issuance by it hereunder, unless
cured, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless cured or the subject of a good
faith dispute, (c) has otherwise materially breached any of its
obligations hereunder or under any other Loan Document, unless cured, or
(d) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.



 9















“Default Rate” means, at the time in question, two percent
(2%) per annum plus:


(a)    the
Eurodollar Rate plus the Applicable Margin then in effect for each Eurodollar
Loan (up to the end of the applicable Interest Period),


(b)   the Base
Rate plus the Applicable Margin then in effect for each Base Rate Loan or
Dollar-denominated LC Borrowing by US Borrower, as the case may be,


(c)    the
Canadian Prime Rate plus the Applicable Margin for each Canadian Prime Rate
Loan or Canadian Dollar-denominated LC Borrowing by a Canadian Borrower, as the
case may be; or


(d)   the
Canadian US Dollar Base Rate plus the Applicable Margin for each Canadian
US Dollar Base Rate Loan or Dollar-Denominated LC Borrowing by a Canadian
Borrower, as the case may be;


provided, however, the Default Rate shall never exceed
the Highest Lawful Rate.


“Default Rate Period”
means (i) any period during which an Event of Default, other than pursuant
to Section 8.1(a) or (b), is continuing, provided that such period
shall not begin until notice of the commencement of the Default Rate has been
given to the applicable Borrower by the relevant Agent upon the instruction by
Majority Lenders and (ii) any period during which any Event of Default
pursuant to Section 8.1(a) or (b) is continuing unless such
applicable Borrower has been notified otherwise by the relevant Agent upon the
instruction by Majority Lenders.


“Depository Bills and Notes
Act (Canada)” means the Depository
Bills and Notes Act (Canada), R.S.C. 1998, c. 13, including the
regulations made and, from time to time, in force under that Act.


“Disclosure Schedule”
means Schedule III hereto.


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


	
  

  	
  Face Amount

  	
   

  
	
  1 + 

  	
  (Rate x Term)

  	
   

  
	
   

  	
          365

  
					



 


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


“Distribution”
means (a) any dividend or other distribution (whether in cash or other
property, but excluding dividends or other distributions payable in equity
interests in US Borrower) with respect to any equity interest of US Borrower, (b) any
payment (whether in cash or other property, but excluding dividends or other
distributions payable in equity interests in US Borrower), including any
sinking fund or similar deposit, on account of the retirement, redemption,
purchase, cancellation, termination or other acquisition for value of any
equity interest of US Borrower or (c) any other payment by US Borrower to
any holder of equity interests of US Borrower with respect to such equity
interests held thereby other than payments made with equity interests in US
Borrower.


“Dollar Equivalent”
of any amount of any currency at any date means (i) if such currency is
Dollars, the amount of such currency, or (ii) if such currency is Canadian
Dollars, the equivalent in Dollars of such amount of such currency based upon
the rate of exchange for such conversion as quoted by the Bank of Canada at
approximately 12:00 noon, Toronto time (or, if not so quoted, the spot rate of
exchange quoted for wholesale transactions made by Administrative Agent) on the
date on or as of which such amount is to be determined.



 10
 








“Dollars” and “$” means the lawful currency of the United States of
America, except where otherwise specified.


“Eligible Assignee”
means (a) a Lender, and (b) any other Person (other than a natural
person), including Affiliates of Lenders and Approved Funds, approved by (i) the
Administrative Agent (and, as to the Canadian Commitment, Canadian
Administrative Agent), the LC Issuers and the Swing Line Lender, and (ii) unless
an Event of Default is continuing, US Borrower (each such approval not to be unreasonably
withheld or delayed); provided, that
notwithstanding the foregoing, “Eligible Assignee” shall not include a Borrower
or any of such Borrower’s Affiliates or Subsidiaries or, unless an Event of
Default is continuing, any Person who, at the relevant time of determination,
is a Defaulting Lender or an Affiliate of a Defaulting Lender; provided further,
an Eligible Assignee of any Lender shall include only those Persons which,
through their respective Lending Offices, are capable of lending Dollars to US
Borrower without the imposition of any withholding taxes on interest or
principal owed to such Persons, and Loans by such Eligible Assignee shall be
made through such Lending Office (and, if such Lender’s US Commitment may be
allocated in whole or in part to the Canadian Allocated Total Commitment, only
those Persons which, through their respective Lending Offices, are capable of
lending Canadian Dollars to either Canadian Borrower without the imposition of
any withholding taxes on interest or principal owed to such Persons, and
Canadian Loans by such Persons shall be made through such Lending Offices).


“Environmental Laws”
means any and all Laws relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment
including ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes.


“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended from time to
time, together with all rules and regulations promulgated with respect
thereto.


“ERISA Affiliate”
means each Restricted Person and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control that, together with such Restricted Person, are treated as a
single employer under Section 414 of the Code.


“ERISA Plan”
means any employee pension benefit plan subject to Title IV of ERISA maintained
by any ERISA Affiliate with respect to which any Restricted Person has a fixed
or contingent liability.


“Eurodollar Loan”
means a Loan that bears interest at a rate based upon the Eurodollar Rate.


“Eurodollar Rate”
means, for any Interest Period with respect to a Eurodollar Loan, the rate per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
relevant 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 of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the “Eurodollar Rate” for such Interest Period shall
be the rate per annum determined by the relevant Agent to be the rate 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 Loan being made,
continued or converted by the Reference Bank and with a term equivalent to such
Interest Period would be offered by the Reference Bank’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.


“Event of Default”
has the meaning given to such term in Section 8.1.



 11
 








“Existing Agreement”
has the meaning given to such term in the second introductory paragraph hereof.


“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank 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 Bank of America on such day on such transactions as
determined by the Administrative Agent.


“Fee Letters”
means the letter agreements, dated October 11, 2005 between the US
Borrower and (i) Administrative Agent and Banc of America Securities LLC
and (ii) Wachovia Bank, National Association and Wachovia Capital Markets,
LLC.


“Fiscal Quarter”
means a three-month period ending on March 31, June 30, September 30
or December 31 of any year.


“Fiscal Year”
means a twelve-month period ending on December 31 of any year.


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


“GAAP” means
those generally accepted accounting principles and practices which are
recognized as such by the Financial Accounting Standards Board (or any
generally recognized successor) and which, in the case of US Borrower and its
Consolidated Subsidiaries, are applied for all periods after the date hereof in
a manner consistent with the manner in which such principles and practices were
applied to the Initial Financial Statements. If any change in any accounting
principle or practice is required by the Financial Accounting Standards Board
(or any such successor) in order for such principle or practice to continue as
a generally accepted accounting principle or practice, all reports and
financial statements required hereunder with respect to US Borrower or with
respect to US Borrower and its Consolidated Subsidiaries may be prepared in
accordance with such change, but all calculations and determinations to be made
hereunder may be made in accordance with such change only after notice of such
change is given to each Lender and Majority Lenders agree to such change
insofar as it affects the accounting of US Borrower or of US Borrower and its
Consolidated Subsidiaries.


“General Partner”
means Plains AAP, L.P., a Delaware limited partnership, in its capacity as the
sole general partner of US Borrower.


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


“GP LLC” means
Plains All American GP LLC, a Delaware limited liability company.


“Guarantors”
means, as of the date hereof, US Borrower and all of its Subsidiaries, other
than 3794865 Canada Ltd., Plains LPG Services GP LLC, Plains LPG Services, L.P.
and Atchafalaya Pipeline, L.L.C. (excluding US Borrower with respect to
the US Commitment and each Canadian Borrower with respect to its own Canadian
Obligations) and any other Person who has guaranteed some or all of the
Obligations and who has been accepted by Administrative Agent as a Guarantor or
any 



 12
 








Subsidiary of US Borrower
which now or hereafter executes and delivers a guaranty to Administrative Agent
pursuant to Section 6.9.


“Hazardous Materials”
means any substances regulated under any Environmental Law, whether as
pollutants, contaminants, or chemicals, or as industrial, toxic or hazardous
substances or wastes, or otherwise.


“Highest Lawful Rate”
means, with respect to each Lender Party to whom Obligations are owed, the
maximum nonusurious rate of interest that such Lender Party is permitted under
applicable Law to contract for, take, charge, or receive with respect to such
Obligations. 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 Lender Party as appropriate to assure that the Loan
Documents are not construed to obligate any Person to pay interest to any
Lender Party at a rate in excess of the Highest Lawful Rate applicable to such
Lender Party.


“Income Tax Act (Canada)”
means the Income Tax Act, R.S.C.
1985 c. 1 (fifth supplement), including the regulations made and, from time to
time, in force under that Act.


“Indebtedness” of any Person means each of the following:


(a)   its
obligations for the repayment of borrowed money,


(b)   its
obligations to pay the deferred purchase price of property or services
(excluding trade account payables arising in the ordinary course of business),
other than contingent purchase price or similar obligations incurred in
connection with an acquisition and not yet earned or determinable,


(c)   its
obligations evidenced by a bond, debenture, note or similar instrument,


(d)   its
obligations, as lessee, constituting principal under Capital Leases,


(e)   its direct
or contingent reimbursement obligations with respect to the face amount of
letters of credit pursuant to the applications or reimbursement agreements
therefor,


(f)    its
obligations for the repayment of outstanding banker’s acceptances, whether
matured or unmatured,


(g)   its
obligations under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing if the obligation
under such synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP (excluding, to the extent included herein, operating
leases entered into in the ordinary course of business), or


(h)   its obligations
under guaranties of any obligations of any other Person described in the
foregoing clauses (a) through (g).


“Initial Financial
Statements” means (i) the audited Consolidated financial
statements of US Borrower as of December 31, 2004, and (ii) the unaudited
consolidating balance sheet and income statement of US Borrower as of June 30,
2005.


“Interest Act (Canada)”
means the Interest Act, R.S.C.
1985, c. I-15, including the regulations made and, from time to time, in
force under that Act.


“Interest Expense”
means, with respect to any period, the sum (without duplication) of the
following (in each case, eliminating all offsetting debits and credits between
US Borrower and its Subsidiaries (excluding Unrestricted Subsidiaries) and all
other items required to be eliminated in the course of the preparation of
Consolidated financial statements of US Borrower and its Subsidiaries
(excluding Unrestricted Subsidiaries) in accordance with GAAP): (a) all
interest and commitment fees in respect of 



 13
 








Indebtedness of US
Borrower or any of its Subsidiaries (excluding Unrestricted Subsidiaries)
(including imputed interest on Capital Lease Obligations) which are accrued
during such period and whether expensed in such period or capitalized; plus (b) all
fees in respect of letters of credit issued for the account of US Borrower or
any of its Subsidiaries, which are accrued during such period and whether
expensed in such period or capitalized.


“Interest Payment Date”
means (a) with respect to each Base Rate Loan, Canadian Prime Rate Loan or
Canadian US Dollar Base Rate Loan, the last day of each March, June, September and
December beginning December 31, 2005, and (b) with respect to
each Eurodollar Loan, the last day of the Interest Period that is applicable
thereto and, if such Interest Period is six, or twelve months in length, the
dates specified by Administrative Agent or Canadian Administrative Agent, as
applicable, which are approximately three, six, and nine months (as
appropriate) after such Interest Period begins; provided that the last Business
Day of each calendar month shall also be an Interest Payment Date for each such
Loan so long as any Event of Default exists under Section 8.1 (a) or
(b).


“Interest Period”
means, with respect to each particular Eurodollar Loan in a Borrowing, the
period specified in the Borrowing Notice or Continuation/Conversion Notice
applicable thereto, beginning on and including the date specified in such
Borrowing Notice or Continuation/Conversion Notice (which must be a Business
Day), and ending one, two, three, six or twelve months (if twelve months is
available for each Lender) thereafter (and, as to Loans, ending on a date less
than 30 days thereafter as may be specified by US Borrower or either Canadian
Borrower, if such lesser period is available for each Lender making such
Loans), as US Borrower or either Canadian Borrower may elect in such notice;
provided that: (a) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day; (b) any
Interest Period which begins on the last Business Day in a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day in
a calendar month; and (c) notwithstanding the foregoing, no Interest
Period may be selected for a Loan to any Borrower that would end after the
Maturity Date


“Investment”
means any investment made, directly or indirectly in any Person, whether by
acquisition of shares of capital stock, indebtedness or other obligations or
securities or by loan, advance, capital contribution or otherwise, and whether
made in cash, by the transfer of property or by any other means.


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


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


“Judgment Interest Act
(Alberta)” means the Judgment
Interest Act, S.A. 1984 c. J-O.5, including the regulations made
and, from time to time, in force under that Act.


“Law” means any
statute, law, regulation, ordinance, rule, treaty, judgment, order, decree,
permit, concession, franchise, license, agreement or other governmental
restriction of the United States or Canada or any state, province, or political
subdivision thereof or of any foreign country or any department, state,
province or other political subdivision thereof.


“LC Advance”
means, with respect to each Lender, such Lender’s funding of its participation
in any LC Borrowing in accordance with its US Percentage Share or Canadian
Percentage Share, as applicable. All LC Advances shall be denominated in
Dollars, with respect to US Letters of Credit and 



 14
 








Dollar-denominated
Canadian Letters of Credit, and in Canadian Dollars, with respect to Canadian
Dollar-denominated Canadian Letters of Credit.


“LC 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 (i) a US LC Issuer, as to a
US Letter of Credit, or (ii) a Canadian LC Issuer, as to a Canadian LC
Issuer, which in either case includes any electronic online letter of credit
application/request system of any LC Issuer.


“LC Borrowing”
means an extension of credit from an LC Issuer resulting from a drawing under
any Letter of Credit which has not been reimbursed by a Borrower on the date
when made or refinanced as a Borrowing. All LC Borrowings shall be denominated
in the currency of the Letter of Credit that was drawn upon that resulted in
such LC Borrowing.


“LC Credit Extension”
means, with respect to any Letter of Credit, the issuance thereof or extension
of the expiry date thereof, or the increase of the amount thereof.


“LC Issuer”
means: (i) with respect to any US Letter of Credit, the US LC Issuer that
issued or is requested to issue such Letter of Credit, (ii) with respect
to any Canadian Letter of Credit, the Canadian LC Issuer that issued or is
requested to issue such Canadian Letter of Credit, and (iii) their
respective successors in such capacity.


“LC Obligations”
means: (i) with respect to US Lenders, US LC Obligations, and (ii) with
respect to Canadian Lenders, Canadian LC Obligations.


“Lender Parties”
means all Agents, all LC Issuers and all Lenders.


“Lenders” means
(i) with respect to US Loans, US Lenders, (ii) with respect to
Canadian Advances, Canadian Lenders, and (iii) collectively, US Lenders
and Canadian Lenders.


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


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


“Liabilities”
means, as to any Person, all indebtedness, liabilities and obligations of such
Person, whether matured or unmatured, liquidated or unliquidated, primary or
secondary, direct or indirect, absolute, fixed or contingent, and whether or
not required to be considered pursuant to GAAP.


“Lien” means,
with respect to any property or assets, any right or interest therein of a
creditor to secure Liabilities owed to it or any other arrangement with such
creditor which provides for the payment of such Liabilities out of such
property or assets or which allows such creditor to have such Liabilities
satisfied out of such property or assets prior to the general creditors of any
owner thereof, including any lien, mortgage, security interest, pledge,
deposit, production payment, rights of a vendor under any title retention or
conditional sale agreement or lease substantially equivalent thereto, tax lien,
mechanic’s or materialman’s lien, or any other charge or encumbrance for
security purposes, whether arising by Law or agreement or otherwise, but
excluding any right of offset which arises without agreement in the ordinary course
of business. “Lien” also means any filed financing statement, any registration
of a pledge (such as with an issuer of uncertificated securities), or any other
arrangement or action which would serve to perfect a Lien described in the
preceding sentence, regardless of whether such financing statement is filed,
such registration is made, or such arrangement or action is undertaken before
or after such Lien exists.


“Loan Documents”
means this Agreement, the Notes, the Letters of Credit, the LC Applications,
the BAs, the written Borrowing Notices and all other agreements, certificates,
documents, instruments and writings at any time delivered in connection
herewith or therewith (exclusive of term sheets and commitment letters).



 15















“Loans” means,
collectively, the US Loans and the Canadian Loans.


“Majority Lenders”
means Lenders who have in the aggregate more than fifty percent (50%) of (i) the
US Total Committed Amount plus, (ii) during any Canadian Allocation
Period, the Canadian Total Committed Amount; provided
that the Commitment of, and the portion of the US Total Committed Amount or
Canadian Total Committed Amount held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Majority Lenders.


“Material Adverse Change”
means (a) a material and adverse change in (i) US Borrower’s
Consolidated financial condition, (ii) US Borrower’s Consolidated
operations, properties or prospects, considered as a whole, or (iii) US
Borrower’s or either Canadian Borrower’s ability to timely pay its Obligations,
or (b) a material adverse effect on the enforceability of the material
terms of any Loan Document.


“Maturity Date”
means the later of (a) November 4, 2010 and (b) if maturity is
extended pursuant to Section 2.1(f), with respect to each Lender
consenting to such extension, the latest date to which such maturity date has
been extended as determined pursuant to such section, unless in either such
case terminated earlier in accordance with Section 8.1 or Section 10.12.


“Moody’s” means
Moody’s Investor Service, Inc., or its successor.


“Net Proceeds”
means with respect to any Bankers’ Acceptance, the Discount Proceeds less the
amount equal to the applicable Stamping Fee Rate multiplied by the face amount
of such Bankers’ Acceptance.


“Notes” means,
collectively, the US Notes, the Canadian Notes and the Swing Line Notes.


“Obligations”
means, collectively, the US Obligations, the Canadian Obligations and all other
Liabilities from time to time owing by any Restricted Person to any Lender
Party under or pursuant to any of the Loan Documents. “Obligation”
means any part of the Obligations.


“Outstanding Amount”
means on any date (i) with respect to Loans or outstanding Canadian BAs,
the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Loans or Canadian BAs occurring on such date; and (ii) with respect
to any LC Obligations, the Dollar Equivalent amount of the aggregate
outstanding amount of such LC Obligations on such date after giving effect to
any LC Credit Extension occurring on such date and any other changes in the
aggregate amount of the LC Obligations as of such date, including as a result
of any reimbursements by any Borrower of Unreimbursed Amounts.


“PAA Debt Rating”
means the rating then in effect by a Rating Agency with respect to the long
term senior unsecured non-credit enhanced debt of US Borrower.


“Participant”
has the meaning specified in Section 10.5(d).


“Permitted Lien”
has the meaning given to such term in Section 7.2.


“Person” means
an individual, corporation, partnership, limited liability company,
association, joint stock company, trust or trustee thereof, estate or executor
thereof, unincorporated organization or joint venture, Governmental Authority,
or any other legally recognizable entity.


“Petroleum Products”
means crude oil, condensate, natural gas, natural gas liquids (NGL’s),
liquefied petroleum gases (LPG’s), refined petroleum products or any blend
thereof.


“Plains Marketing”
means Plains Marketing, L.P., a Texas limited partnership.



 16
 








“Principal Property” means, whether owned or leased on the
date hereof or hereafter acquired:


(a)   any
pipeline assets of any Restricted Person, including any related facilities
employed in the transportation, distribution, terminalling, gathering,
treating, processing, marketing or storage of crude oil or refined petroleum
products, natural gas, natural gas liquids, fuel additives or petrochemicals;
and


(b)   any
processing or manufacturing plant or terminal owned or leased by any Restricted
Person;


except, in the case of
either clause (a) or (b): (i) any such assets consisting of
inventories, furniture, office fixtures and equipment, including data
processing equipment, vehicles and equipment used on, or useful with, vehicles,
and (ii) any such asset, plant or terminal which, in the good faith
opinion of the Board, is not material in relation to the activities of US
Borrower and its Subsidiaries, taken as a whole.


“Rating Agency”
means either S&P or Moody’s.


“Reference Bank”
means, at any time, the financial institution serving as Administrative Agent.


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


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


“Responsible Officer”
means the chief executive officer, president, chief financial officer,
treasurer or assistant treasurer of a Borrower, a Borrower’s general partner or
the general partner of the general partner of any Borrower, as the case may be.
Any document delivered hereunder that is signed by a Responsible Officer of a
Borrower shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such
Borrower, and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Borrower.


“Restricted Person”
means any of US Borrower and each Subsidiary of US Borrower, including but not
limited to Plains Marketing, All American, each Canadian Borrower, and each
Subsidiary of Plains Marketing, All American and Canadian Borrowers, but
excluding, for the avoidance of doubt, Unrestricted Subsidiaries.


“Restriction Exception”
means (i) any applicable Law or any instrument governing Indebtedness or
equity interests, or any applicable Law or any other agreement relating to any
property, assets or operations of a Person whose capital stock or other equity
interests are acquired, in whole or part, by a Restricted Person pursuant to an
acquisition (whether by merger, consolidation, amalgamation or otherwise), as
such instrument or agreement is in effect at the time of such acquisition
(except with respect to Indebtedness incurred in connection with, or in
contemplation of, such acquisition), or such applicable Law is then or
thereafter in effect (as applicable), which is not applicable to the acquiring
Restricted Person, or the property, assets or operations of the acquiring
Restricted Person, other than the acquired Person, or the property, assets or
operations of such acquired Person or such acquired Person’s Subsidiaries; provided that in the case of Indebtedness, the incurrence of
such Indebtedness is not prohibited hereunder, (ii) provisions with
respect to the disposition or distribution of assets in joint venture
agreements or other similar agreements entered into in the ordinary course of
business, (iii) (a) a lease, license or similar contract, which
restricts in a customary manner the subletting, assignment, encumbrance or
transfer of any property or asset that is subject thereto or the assignment,
encumbrance or transfer of any such lease, license or other contract, (b) mortgages,
deeds of trust, pledges or other security instruments, the entry into which
does not result in a Default, securing indebtedness of a Restricted Person,
which restricts the transfer of the property subject to such mortgages, deeds
of trust, pledges or other security instruments, or (c) customary
provisions restricting disposition of, or encumbrances on, real property
interests set forth in any reciprocal easements of any Restricted Person, (iv) restrictions
imposed pursuant to this Agreement and the other Loan Documents, (v) restrictions
on the transfer or 



 17
 








encumbrance of property or
assets which are imposed by the holder of Liens on property or assets of a
Restricted Person, provided that
neither the incurrence of such Lien nor any related Indebtedness results in a
Default, (vi) any agreement to, directly or indirectly, sell or otherwise
dispose of assets or equity interests to any Person pending the closing of such
sale, provided that such sale is consummated
in compliance with any applicable provisions of this Agreement, (vii) net
worth provisions in leases and other agreements entered into by any Restricted
Person in the ordinary course of business, and (viii) an agreement
governing Indebtedness incurred to refinance the Indebtedness issued, assumed
or incurred pursuant to an agreement referred to in clauses (iv) and (v) above;
provided, however,
that the provisions relating to such encumbrance or restriction contained in
any such Indebtedness are no less favorable to the such Restricted Person in
any material respect as determined by the Board in its reasonable and good
faith judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clauses (iv) and (v).


“S&P” means
Standard & Poor’s Ratings Group (a division of McGraw Hill, Inc.)
or its successor.


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


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


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


“Significant Restricted
Persons” means Borrowers, Plains Marketing, All American and
Subsidiaries of US Borrower that would be a “significant subsidiary” as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant
to the Securities Exchange Act of 1934 and the Securities Act of 1933, each as
amended.


“Specified Acquisition”
means one or more acquisitions of assets or entities or operating lines or
divisions in any rolling 12-month period for an aggregate purchase price
of not less than $50,000,000.


“Specified Equity Offering”
means one or more issuances of equity by US Borrower for aggregate net cash
proceeds of not less than fifty percent (50%) of the aggregate purchase price
of the Specified Acquisition.


“Stamping Fee Rate”
means the rate per annum set forth on Schedule I as the “Stamping Fee Rate”
based on the Applicable Rating Level on such date, provided that during a
Default Rate Period, the Stamping Fee Rate shall be increased by two percent
(2%). Changes in the applicable Stamping Fee Rate will occur automatically
without prior notice as changes in the Applicable Rating Level occur and shall
be effective with respect to BA’s issued on and after such change. If during
the term of a BA the Stamping Fee Rate changes as a result of a change in the
Applicable Rating Level, or as a result of a Default Rate Period as provided
above, the stamping fee paid with respect to such BA (the “Initial Fee”)
shall be recalculated based upon such change for the number of days during the
term of such BA that such change is applicable, and if such recalculated amount
is in excess of the Initial Fee, the relevant Canadian Borrower shall pay such
excess as an additional fee for the acceptance of such BA, and if such
recalculated amount is less than the Initial Fee, such difference shall be
credited to such Canadian Borrower Administrative Agent will give notice promptly
to Canadian Administrative Agent of any change (and its effective date) in the
Applicable Rating Level, and Canadian Administrative Agent will in turn give
notice promptly to Canadian Borrowers and Canadian Lenders of such change in
the Applicable Rating Level and the applicable Stamping Fee Rate.



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“Subsidiary”
means, with respect to any Person, any corporation, association, partnership,
limited liability company, joint venture, or other business or corporate
entity, enterprise or organization which is directly or indirectly (through one
or more intermediaries) controlled or owned more than fifty percent by such
Person (other than PAA/Vulcan Gas Storage, LLC and its subsidiaries, unless the US Borrower shall also have the fully
matured right, directly or indirectly, to elect more than 50% of the board of
directors of PAA/Vulcan.Gas Storage, LLC); provided,
however, that no Unrestricted Subsidiary
shall be deemed a “Subsidiary” of any Restricted Person for purposes of any
Loan Document except as provided in Section 7.10.


“Swing Line”
means the revolving credit facility made available by the Swing Line Lender
pursuant to Section 2.10A.


“Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section 2.10A.


“Swing Line Lender”
means (i) Bank of America, N.A., in its capacity as provider of Swing Line
Loans to US Borrower, and (ii) Bank of America, N.A., acting through its
Canada Branch, in its capacity as provider of Swing Line Loans to Canadian
Borrowers, or any successor swing line lenders hereunder.


“Swing Line Loan”
has the meaning specified in Section 2.10A(a).


“Swing Line Loan Notice”
means a notice of a Swing Line Borrowing pursuant to Section 2.10A(b),
which, if in writing, shall be substantially in the form of Exhibit B-3.


“Swing Line Notes”
has the meaning given such term in Section 2.10A(a).


“Swing Line Sublimit”
means (i) with respect to Swing Line Loans to US Borrower, the lesser of (a) $10,000,000
and (b) the US Commitment, and (ii) with respect to aggregate Swing
Line Loans to Canadian Borrowers, the lesser of (a) $10,000,000 and (b) the
Canadian Commitment. The foregoing Swing Line Sublimits are part of, and not in
addition to, the US Commitment and the Canadian Commitment, respectively.


“Termination Event”
means (a) the occurrence with respect to any ERISA Plan of (i) a
reportable event described in Sections 4043(c)(5) or (6) of ERISA or (ii) any
other reportable event described in Section 4043(c) of ERISA other
than a reportable event not subject to the provision for 30-day notice to
the Pension Benefit Guaranty Corporation pursuant to a waiver by such
corporation under Section 4043(a) of ERISA, or (b) the
withdrawal of any ERISA Affiliate from an ERISA Plan during a plan year in
which it was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA, or (c) the filing of a notice of intent to terminate any ERISA Plan
or the treatment of any ERISA Plan amendment as a termination under Section 4041
of ERISA, or (d) the institution of proceedings to terminate any ERISA
Plan by the Pension Benefit Guaranty Corporation 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 ERISA Plan.


“Type” means,
with respect to any Loans, the characterization of such Loans as Base Rate
Loans, Eurodollar Loans, Canadian Prime Rate Loans, Canadian US Dollar Base
Rate Loans, or BAs.


“Unreimbursed Amount”
has the meaning specified in Section 2.10(c)(i).


“Unrestricted Subsidiary”
shall have the meaning given it in Section 7.10.


“US Borrower”
means Plains All American Pipeline, L.P., a Delaware limited partnership.


“US Business Day”
means any day, other than a Saturday, Sunday or day which shall be in New York,
New York a legal holiday or day on which banking institutions are required or
authorized to close. Any Business Day in any way relating to Eurodollar Loans
(such as the day on which an Interest Period begins or ends) must also be a day
on which commercial banks settle payments in London.



 19
 








“US Commitment”
means, as to each US Lender, its obligations to (a) make US Loans to US
Borrower pursuant to Section 2.1, (b) purchase participations in US
LC Obligations pursuant to Section 2.10(c), and (c) purchase participations
in Swing Line Loans to US Borrower, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such US Lender’s
name on Schedule II, as may be increased from time to time pursuant to Section 2.1(d),
or in the Assignment and Assumption pursuant to which such US Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement; provided,
during a Canadian Allocation Period, the US Commitment of any US Lender that is
or has a branch or affiliate that is a Canadian Lender shall be reduced by the
Canadian Allocated Commitment of such Canadian Lender. The US Commitment may be
increased from time to time pursuant to Section 2.1(d) or reduced from
time to time pursuant to Section 2.5(b).


“US Commitment Fee Rate”
means, on any day, the rate per annum set forth on Schedule I as the “US
Commitment Fee Rate” based on the Applicable Rating Level on such date. Changes
in the applicable US Commitment Fee Rate will occur automatically without prior
notice as changes in the Applicable Rating Level occur. Administrative Agent
will give notice promptly to US Borrower and US Lenders of changes in the US
Commitment Fee Rate.


“US LC Issuer”
means Bank of America, N.A., in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity. Administrative Agent may, with
the consent of US Borrower and the US Lender in question, or US Borrower may,
with the consent of US Lender in question and notice to Administrative Agent,
appoint any US Lender hereunder as a US LC Issuer in place of or in addition to
Bank of America, N.A.


“US LC Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding US Letters of Credit plus
the aggregate outstanding amount of all Unreimbursed Amounts with respect to US
Letters of Credit that are not fully refinanced by a Borrowing and, without
duplication, all LC Borrowings with respect to US Letters of Credit. For all
purposes of this Agreement, if on any date of determination a US 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 US Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.


“US Lender Parties”
means Administrative Agent, US LC Issuer and US Lenders.


“US Lenders”
means each signatory hereto designated as a US Lender, and the successors and
permitted assigns of each such party as holder of a US Note, and, as the
context requires, includes the Swing Line Lender.


“US Letter of Credit”
means any letter of credit issued by US LC Issuer hereunder at the application
of US Borrower pursuant to Section 2.10. For the avoidance of doubt, US
Letter of Credit includes a commercial or documentary letter of credit and a
standby letter of credit.


“US Letter of Credit Fee
Rate” means, on any day, the rate per annum set forth on Schedule I
as the “US LC Fee Rate” based on the Applicable Rating Level on such date. Changes
in the applicable US Letter of Credit Fee Rate will occur automatically without
prior notice as changes in the Applicable Rating Level occur. Administrative
Agent will give notice promptly to US Borrower and Lenders of changes in the US
Letter of Credit Fee Rate.


“US Loans” means
loans by US Lenders to US Borrower pursuant to Section 2.1(a), and, as the
context requires, including without limitation for purposes of Section 2.5(a)(i) hereof,
Swing Line Loans by the Swing Line Lender to US Borrower pursuant to Section 2.10A.


“US Notes” has
the meaning given such term in Section 2.1(a) hereof.



 20
 








“US Obligations”
means all Liabilities from time to time owing by any Restricted Person to any
Lender Party under or pursuant to any of the US Notes or US Letters of Credit,
including all US LC Obligations owing thereunder or under or pursuant to any
guaranty of the obligations of US Borrower under the Loan Documents. “US Obligation” means any part of the US Obligations.


“US Percentage Share” means:


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


(b)   upon the
termination of the Commitments pursuant to Section 8.1, a fraction
(expressed as a percentage, carried out to the sixth decimal place), the numerator of which is:


the sum of


(i)    the
Outstanding Amount of US Loans of such US Lender plus


(ii)   an amount
equal to (A) the Outstanding Amount of US Loans of such US Lender, divided by (B) the Outstanding Amount of all US Loans
of all US Lenders, times
(C) the Outstanding Amount of all US LC Obligations, and


the denominator of
which is the US Total Outstanding Amount.


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


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


“US Total Outstanding
Amount” means, at any time, the sum of (i) the Outstanding
Amount of US Loans at such time plus
(ii) the Outstanding Amount of US LC Obligations.


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


“Working Capital Borrowings”
has the meaning given to such term in Section 2.2(c).


Section 1.2.   Exhibits
and Schedules; Additional Definitions.   All Exhibits and
Schedules attached to this Agreement are a part hereof for all purposes.


Section 1.3.   Amendment
of Defined Instruments.   Unless the context otherwise requires
or unless otherwise provided herein the terms defined in this Agreement which
refer to a particular agreement, instrument or document also refer to and
include all renewals, extensions, modifications, amendments and restatements of
such agreement, instrument or document, provided that nothing contained in this
section shall be construed to authorize any such renewal, extension,
modification, amendment or restatement.



 21















Section 1.4.   References
and Titles.   All references in this Agreement to Exhibits,
Schedules, articles, sections, subsections and other subdivisions refer to the
Exhibits, Schedules, articles, sections, subsections and other subdivisions of
this Agreement unless expressly provided otherwise. Titles appearing at the
beginning of any subdivisions are for convenience only and do not constitute
any part of such subdivisions and shall be disregarded in construing the
language contained in such subdivisions. The words “this Agreement,” “this
instrument,” “herein,” “hereof,” “hereby,” “hereunder” and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The phrases “this section” and “this subsection”
and similar phrases refer only to the sections or subsections hereof in which
such phrases occur. The word “or” is not exclusive, and the word “including”
(in its various forms) means “including without limitation.” Pronouns in
masculine, feminine and neuter genders shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise requires. References to an “officer”
or “officers” of the General Partner or any Restricted Person shall mean and
include officers of such Person or the controlling management entity of such
Person as provided in such Person’s organizational documents, as applicable.


Section 1.5.   Calculations
and Determinations.   All calculations under the Loan Documents
of interest chargeable with respect to Eurodollar Loans and of fees shall be
made on the basis of actual days elapsed (including the first day but excluding
the last) and a year of 360 days. All other calculations of interest made under
the Loan Documents shall be made on the basis of actual days elapsed (including
the first day but excluding the last) and a year of 365 or 366 days, as
appropriate. Each determination by a Lender Party of amounts to be paid under Article III
or any other matters which are to be determined hereunder by a Lender Party
(such as any Eurodollar Rate, BA Discount Rate, Business Day, Interest Period,
or Reserve Percentage) shall, in the absence of manifest error, be conclusive
and binding. Unless otherwise expressly provided herein or unless Majority
Lenders otherwise consent all financial statements and reports furnished to any
Lender Party hereunder shall be prepared and all financial computations and
determinations pursuant hereto shall be made in accordance with GAAP.


Section 1.6.   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 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 at
such time.


ARTICLE
II.—The
Loans and Letters of Credit


Section 2.1.   Commitments
to Lend; Notes.


(a)   US Loans to US Borrower.   Subject to the terms and
conditions hereof, each US Lender agrees to make US Loans to US Borrower
upon US Borrower’s request from time to time during the Commitment Period,
provided that (a) subject to Sections 3.3, 3.4 and 3.6, all US Lenders are
requested to make US Loans of the same Type in accordance with their respective
US Percentage Shares and as part of the same Borrowing, (b) after giving
effect to such US Loans, the US Total Outstanding Amount does not exceed the US
Total Committed Amount determined as of the date on which the requested US
Loans are to be made, and (c) after giving effect to such US Loans, the
Outstanding Amount of US Loans by each US Lender plus such US Lender’s US
Percentage Share of the Outstanding Amount of US LC Obligations does not exceed
such US Lender’s US Commitment. The aggregate amount of all US Loans in any
Borrowing must be equal to $1,000,000 or any higher integral multiple of
$100,000. The obligation of US 



 22
 








Borrower to repay to each
US Lender the aggregate amount of all US Loans made by such US Lender to US
Borrower, together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called such US Lender’s “US Note”) made by US Borrower payable to the order of such
US Lender in the form of Exhibit A-1 with appropriate insertions. The
amount of principal owing on any US Lender’s US Note at any given time shall be
the aggregate amount of all US Loans theretofore made by such US Lender to
US Borrower minus all payments of principal theretofore received by such US
Lender on such US Note. Interest on each US Note shall accrue and be due and
payable as provided herein and therein. Each US Note shall be due and payable
as provided herein and therein, and shall be due and payable in full on the
Maturity Date. Subject to the terms and conditions of this Agreement, US
Borrower may borrow, repay, and reborrow under this Section 2.1(a). US
Borrower may have no more than seven Borrowings of Eurodollar Loans outstanding
at any time. All payments of principal and interest on the US Loans made
pursuant to this Section 2.1(a) shall be made in Dollars.


(b)   Canadian Allocation of US Total Committed Amount.   The
US Borrower shall have the right to allocate (or reallocate, if previously
allocated) a portion of the US Total Committed Amount as the Canadian Allocated
Total Commitment by notice to the Administrative Agent; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 11:00 a.m. ten 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 US
Borrower shall not allocate or reallocate any portion of the US Total Committed
Amount if, after giving effect thereto and to any concurrent prepayments
hereunder (a) the US Total Outstanding Amount would exceed the US Total
Committed Amount, (b) the Canadian Total Outstanding Amount would exceed
the Canadian Allocated Total Commitment, (c) any US Lender’s US Commitment
would not equal or exceed the sum of the Outstanding Amount of such US Lender’s
US Loan plus such Lender’s US Percentage Share
of the Outstanding Amount of US LC Obligations; or (d) any Canadian Lender’s
Canadian Commitment would not equal or exceed the sum of the Outstanding Amount
of such Canadian Lender’s Canadian Advances plus such Canadian Lender’s
Canadian Percentage Share of the Outstanding Amount of Canadian LC Obligations,
and (iv) the US Borrower shall make not more than four allocations or
reallocations of the US Total Committed Amount in any calendar year. The
Administrative Agent will promptly notify the Canadian Administrative Agent and
the Lenders or their Canadian branches or affiliates with Canadian Allocated
Commitments of any such notice of allocation or reallocation of the US Total
Committed Amount and the amount of their respective Canadian Allocated
Commitments, and shall notify all Lenders of the US Commitments and Canadian
Allocated Total Commitment upon the effectiveness of such allocation or
reallocation, which effectiveness shall require no vote or consent of any
Lender or Agent.


(c)   Canadian Advances to Canadian Borrowers.   Subject to
the terms and conditions hereof, each Canadian Lender agrees to extend credit
to either Canadian Borrower, and such extension of credit shall constitute
separate Borrowings to such Canadian Borrower, by (i) advancing funds in
Dollars or Canadian Dollars to such Canadian Borrower specified in a Borrowing
Notice (herein called such Canadian Lender’s “Canadian
Loans”) and (ii) accepting and purchasing drafts of Bankers’
Acceptances issued under this Agreement by such Canadian Borrower specified in a
Borrowing Notice (herein called such Canadian Lender’s “Bankers’
Acceptances”; each Canadian Lender’s Canadian Loans and Bankers’
Acceptances are herein collectively called such Canadian Lender’s “Canadian Advances”) upon either Canadian Borrower’s separate
request from time to time during a Canadian Allocation Period, provided that (a) subject
to Sections 3.3, 3.4 and 3.6, all Canadian Lenders are requested to make
Canadian Advances of the same Type in accordance with their respective Canadian
Percentage Shares and as part of the same Borrowing with respect to each
Canadian Borrower, (b) after giving effect to such Canadian Advances, the
Canadian Total Outstanding Amount does not exceed the Canadian Total Committed
Amount determined as of the date on which the requested Canadian Advances are
to be made, and (c) after giving effect to such 



 23
 








Canadian Advance the
Outstanding Amount of the Canadian Advances by each Canadian Lender plus such
Canadian Lender’s Canadian Percentage Share of the Outstanding Amount of
Canadian LC Obligations does not exceed such Canadian Lender’s Canadian
Commitment. The aggregate amount of all Canadian Loans in any Borrowing
advanced in Dollars must be equal to $1,000,000 or any higher integral multiple
of $100,000, the aggregate amount of all Canadian Loans in any Borrowing
advanced in Canadian Dollars must be equal to C$1,000,000 or any higher
integral multiple of C$100,000, and the aggregate amount of any Canadian
Advance pursuant to the issuance of Bankers’ Acceptances must be equal to
C$3,000,000 or any higher integral multiple of C$100,000. The obligation of
each Canadian Borrower to repay to each Canadian Lender the aggregate amount of
all Canadian Advances made by such Canadian Lender to such Canadian Borrower,
together with interest accruing in connection therewith, shall be evidenced by
a single promissory note (herein called such Canadian Lender’s “Canadian Note”) made individually by each Canadian Borrower
payable to the order of such Canadian Lender in the form of Exhibit A-2
with appropriate insertions. The amount of principal owing on any Canadian
Lender’s Canadian Note at any given time shall be the aggregate amount of all
Canadian Advances theretofore made by such Canadian Lender to the appropriate
Canadian Borrower minus all payments of principal theretofore received by such
Canadian Lender on such Canadian Note. Interest on each Canadian Note shall
accrue and be due and payable as provided herein and therein. Each Canadian
Lender’s Canadian Note shall be due and payable as provided herein and therein,
and shall be due and payable in full on the Maturity Date. Subject to the terms
and conditions of this Agreement and within the limits of each Canadian Lender’s
Canadian Commitment, either Canadian Borrower may individually borrow, repay,
and reborrow under this Section 2.1(b). Each Canadian Borrower may have no
more than seven Borrowings of BA’s collectively outstanding at any time. All
payments of principal and interest on the Canadian Loans shall be made in the
currency in which such corresponding Canadian Loan was funded. Canadian Loans
may be made, at the option of either Canadian Borrower, in Dollars or Canadian
Dollars.


(d)   Increase in US Total Committed Amount.   US Borrower
shall have the right, without the consent of the Lenders but with the prior
approval of the Administrative Agent, such approval not to be unreasonably
withheld, to cause from time to time an increase in the US Total Committed
Amount by adding to this Agreement one or more additional Lenders or by
allowing one or more Lenders to increase their respective US Commitments, which
(in whole or part) may, at the request of US Borrower and with the consent of
such Lender, be designated as the Canadian Allocated Commitment of such Lender
(resulting in an increased Canadian Allocated Maximum Total Commitment); provided  however (i) no
Event of Default shall have occurred hereunder which is continuing, (ii) no
such increase shall result in the US Total Committed Amount plus, without
duplication, Canadian Total Committed Amount (if any) to exceed $1,500,000,000,
and (iii) no Lender’s Commitment shall be increased or subject to
allocation towards the Canadian Allocated Total Commitment without such Lender’s
consent. Upon any increase in the aggregate US Total Committed Amount and/or
the Canadian Allocated Total Commitment, as the case may be, pursuant to the
foregoing, the Lenders hereby authorize the Agents and the Borrowers to make
non-ratable borrowings and prepayments of the Loans, and if any such prepayment
requires the payment of Eurodollar Loans, Borrowers shall pay any required
amounts pursuant to Section 3.6 other than on the last day of the
applicable Interest Period, in order to ensure that the Loans of the Lenders
shall be outstanding on a ratable basis in accordance with their US Percentage
Shares and/or Canadian Percentage Shares, the US Commitments and/or Canadian
Commitments shall be as set forth in a revised Schedule II and no such
borrowing or prepayment shall violate any provisions of this Agreement.


(e)   Termination of Right to Canadian Allocation of US Total Committed
Amount.   If no Canadian Allocation Period exists, the US
Borrower may at any time permanently terminate its right to allocate a portion
of the US Total Committed Amount as the Canadian Allocated Total Commitment, at
which time the obligations of each Canadian Borrower hereunder and each
Guarantor with respect to any Canadian Obligations shall automatically
terminate, and thereafter no Lender, nor its Canadian branch or affiliate 



 24
 








shall have any Canadian
Allocated Commitment, nor shall any Canadian Lender have any Canadian
Commitment.


(f)    Extension of Maturity Date.


(i)    Requests for Extension.   The US Borrower may, up to two
times during the Commitment Period, by notice to the Administrative Agent (who
shall promptly notify the Lenders) not earlier than 30 days prior to the first
anniversary of the Closing Date and not later than 30 days prior to the
Maturity Date then in effect hereunder (the “Existing
Maturity Date”), request that each Lender extend such Lender’s
Maturity Date for one additional year from the Existing Maturity Date.


(ii)   Lender Elections to Extend.   Each Lender, acting in its
sole and individual discretion, shall, by notice to the Administrative Agent
given not later than the date (the “Notice Date”)
that is 15 days after the date of US Borrower’s notice to the Administrative
Agent under clause (i) above, advise the Administrative Agent not later
than 5:00 p.m., New York, New York time, whether or not such Lender agrees
to such extension (each Lender that determines not to so extend its Maturity
Date, a “Non-Extending Lender”), and any
Lender that does not so advise the Administrative Agent shall be deemed to be a
Non-Extending Lender. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.


(iii)  Notification by Administrative Agent.   Following
receipt by the Administrative Agent of the Lenders’ notices under Section 2.1(f)(ii),
the Administrative Agent shall on the Notice Date (or, if such date is not a
Business Day, on the next following Business Day), notify the Borrower of each
Lender’s determination under Section 2.1(f)(ii).


(iv)  Additional Commitment Lenders.   The Borrower shall have
the right, both before and after the effectiveness of a requested extension
under this Section 2.1(f), to replace any Non-Extending Lender with,
and add as “Lenders” under this Agreement in place thereof, one or more
Eligible Assignees (each such Eligible Assignee replacing a Non-Extending
Lender on or before the effectiveness of a requested extension under this Section 2.1(f),
an “Additional Commitment Lender”) as
provided in Section 3.8, each of which Additional Commitment Lenders shall
have entered into an Assignment and Assumption pursuant to which such
Additional Commitment Lender shall, effective as of the effectiveness of such
requested extension, undertake a Commitment (and, if any such Additional
Commitment Lender is already a Lender, its Commitment shall be in addition to
such Lender’s Commitment hereunder on such date). Any Eligible Assignee
replacing a Non-Extending Lender after the effectiveness of a requested
extension shall enter into an Assignment and Assumption with such Non-Extending
Lender assuming such Non-Extending Lender’s Commitment with such extended
Maturity Date.


(v)    Minimum Extension Requirement.   If Majority Lenders
(determined after giving effect to any Additional Commitment Lenders and their
Commitments) shall approve any such requested extension under this Section 2.1(f),
then, subject to the conditions set forth in Section 2.1(f)(vi), the Maturity
Date as to each Lender approving such requested extension and of each
Additional Commitment Lender shall be extended to the same date one year after
the Existing Maturity Date (except that, if such date is not a Business Day,
such Maturity Date as so extended shall be the next preceding Business Day) and
each Additional Commitment Lender shall thereupon become a “Lender” for all
purposes of this Agreement. The Maturity Date of each Non-Extending Lender
remaining a Lender hereunder shall remain the Existing Maturity Date; provided, the Borrower shall continue to have the right to
replace any such Non-Extending Lender following the effectiveness of any such
extension as provided in Section 2.1(f)(iv).



 25
 








(vi)  Conditions to Effectiveness of Extensions.   Notwithstanding
the foregoing, the extension of the Existing Maturity Date pursuant to this Section shall
not be effective with respect to any Lender unless:


(A)  no Default
or Event of Default shall have occurred and be continuing on the date of such
extension and after giving effect thereto;


(B)   the
representations and warranties made by any Restricted Person in any Loan
Document are true and correct on and as of the date of such extension and after
giving effect thereto, as though made as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date or updated, modified or supplemented as of a subsequent date with
the consent of Majority Lenders (after giving effect to any Additional
Commitment Lenders), then in each case, as of such specific date); and


(C)   on the
Maturity Date of each Non-Extending Lender, the US Borrower and Canadian
Borrowers shall prepay US Loans and Canadian Loans, respectively, outstanding
on such date (and pay any additional amounts required pursuant to Section 3.6)
to the extent necessary to keep outstanding US Loans and Canadian Loans ratable
with any revised US Percentage Shares and Canadian Percentage Shares,
respectively, of the respective US Lenders and Canadian Lenders effective as of
such date.


Section 2.2.   Requests
for Loans.   A requesting Borrower must give to the appropriate
Agent written notice (or telephonic notice promptly confirmed in writing) of
any requested Borrowing. Each such notice constitutes a “Borrowing Notice”
hereunder and must:


(a)   specify (i) as
to US Loans (A) the aggregate amount of any such Borrowing and the date on
which Base Rate Loans are to be advanced, or (B) the aggregate amount of
any such Borrowing of new Eurodollar Loans, the date on which such Eurodollar
Loans are to be advanced (which shall be the first day of the Interest Period
which is to apply thereto), and the length of the applicable Interest Period,
or (ii) as to Canadian Loans (A) the aggregate amount of any such
Borrowing of new Canadian Prime Rate Loans (if Canadian Dollar-denominated
Loans) or Canadian US Dollar Base Rate Loans (if Dollar-denominated Loans) and
the date on which such Canadian Loans are to be advanced, or (B) the
aggregate amount of any such Borrowing by way of Bankers’ Acceptances (subject
to Section 2.12(f)), and the date on which such Bankers’ Acceptances are
to be accepted and the maturity of such Bankers’ Acceptances (if Canadian
Dollar-denominated Loans) or the aggregate amount of any such Borrowing of new
Eurodollar Loans, the date on which such Eurodollar Loans are to be advanced
(which shall be the first day of the Interest Period which is to apply
thereto), and the length of the applicable Interest Period (if
Dollar-denominated Loans); and


(b)   be received
by the appropriate Agent not later than 11:00 a.m., New York, New York
time or Toronto, Canada time, as the case may be, on (i) the day on which
any such Base Rate Loans, Canadian Prime Rate Loans or Canadian US Dollar Base
Rate Loans are to be made, (ii) the third Business Day preceding the day
on which any such Eurodollar Loans are to be made or any such Bankers’
Acceptances are to be issued; and


(c)   if any
requested Borrowing or portion thereof is to be utilized exclusively for
working capital purposes (such Borrowing or such portion being called a “Working Capital Borrowing”), such Borrower shall specify in
the Borrowing Notice that such Borrowing or such portion is a Working Capital
Borrowing. In addition, any repayment of a Loan that is intended as a repayment
of all or any part of the outstanding amount of one or more Working Capital
Borrowings shall be so identified to the appropriate Agent at the time of such
repayment.


Each such written request
or confirmation must be made in the form and substance of the “US Borrowing
Notice” attached hereto as Exhibit B-1 or the “Canadian Borrowing
Notice” attached hereto as 



 26
 








Exhibit B-2,
duly completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by such Borrower as to the matters which
are required to be set out in such written confirmation. Upon receipt of any
such Borrowing Notice, the appropriate Agent shall give each US Lender or
Canadian Lender, as the case may be, prompt notice of the terms thereof. If all
conditions precedent to such new Loans have been met, each US Lender or
Canadian Lender, as the case may be, will on the date requested promptly remit
to the appropriate Agent at its office in Boston, Massachusetts or Toronto,
Canada, as the case may be, the amount of such Lender’s new Loan in immediately
available funds, and upon receipt of such funds, unless to its actual knowledge
any conditions precedent to such Loans have been neither met nor waived as
provided herein, such Agent shall promptly make such Loans available to the
requesting Borrower. Unless an Agent shall have received prompt notice from a
Lender that such Lender will not make available to such Borrower such Lender’s
new Loan, such Agent may in its discretion assume that such Lender has made
such Loan available to such Agent in accordance with this section, and such
Agent may if it chooses, in reliance upon such assumption, make such Loan
available to such Borrower. If and to the extent such Lender shall not so make
its new Loan available to such Agent, such Lender and requesting Borrower
severally agree to pay or repay to such Agent within three days after demand
the amount of such Loan together with interest thereon, for each day from the
date such amount was made available to such Borrower until the date such amount
is paid or repaid to such Agent, with interest at (i) as to US Loans and
Dollar-denominated Canadian Loans, the Federal Funds Rate, and as to Canadian
Dollar-denominated Canadian Loans, the “Bank Rate” as set by the Bank of
Canada, as quoted on Reuters page BOCFAD, if such Lender is making such
payment, and (ii) the interest rate applicable at the time to the other
new Loans made on such date, if such Borrower is making such repayment. If
neither such Lender nor such Borrower pays or repays to such Agent such amount
within such three-day period, such Agent shall be entitled to recover from such
Borrower, on demand in lieu of the interest provided for in the preceding
sentence, interest thereon at the Default Rate, calculated from the date such
amount was made available to such Borrower. The failure of any Lender to make
any new Loan to be made by it hereunder shall not relieve any other Lender of
its obligation hereunder, if any, to make its new Loan, but no Lender shall be
responsible for the failure of any other Lender to make any new Loan to be made
by such other Lender. All Borrowings of US Loans shall be advanced in Dollars. Borrowings
of Canadian Loans, at either Canadian Borrower’s option, may be advanced in
Canadian Dollars or Dollars.


Section 2.3.   Continuations
and Conversions of Existing Loans.   US Borrower may make the
following elections with respect to US Loans already outstanding: (i) to
Convert, in whole or in part, Base Rate Loans to Eurodollar Loans, (ii) to
Convert, in whole or in part, Eurodollar Loans to Base Rate Loans on the last
day of the Interest Period applicable thereto, and (iii) to Continue, in
whole or in part, Eurodollar Loans beyond the expiration of such Interest
Period by designating a new Interest Period to take effect at the time of such
expiration. Subject to the terms of Section 2.13 with respect to Bankers’
Acceptances, each Canadian Borrower may make the following elections with
respect to Canadian Advances already outstanding: (i) to Convert any Type
of Canadian Advance to any other Type of Canadian Advance, provided that any
such Conversion of a Bankers’ Acceptance must be made on the date of maturity
thereof; and (ii) to rollover any existing Bankers’ Acceptance by
designating the new maturity date applicable thereto. In making such elections,
such Borrower may combine existing US Loans to US Borrower or Canadian Advances
to such Canadian Borrower made pursuant to separate Borrowings into one new
Borrowing or divide existing US Loans to US Borrower or Canadian Advances to
such Canadian Borrower made pursuant to one Borrowing into separate new
Borrowings, provided that US Borrower may have no more than seven Borrowings of
Eurodollar Loans outstanding at any time and neither Canadian Borrower may have
more than seven BA’s and Eurodollar Loans in the aggregate outstanding at any
time. To make any such election, such Borrower must give to the appropriate
Agent written notice (or telephonic notice promptly confirmed in writing) of
any such Conversion or 



 27
 








Continuation of existing
Loans or Canadian Advances, with a separate notice given for each new Borrowing.
Each such notice constitutes a “Continuation/Conversion Notice” hereunder and
must:


(i)    specify
the existing US Loans or Canadian Advances which are to be Continued or
Converted;


(ii)   specify (A) the
aggregate amount of any Borrowing of Base Rate Loans, Canadian Prime Rate Loans
(as to Canadian Dollar-denominated Canadian Loans) or Canadian US Dollar Base
Rate Loans (as to Dollar-denominated Canadian Loans) into which such existing
US Loans or Canadian Advances, as the case may be, are to be Continued or
Converted and the date on which such Continuation or Conversion is to occur, (B) the
aggregate amount of any Borrowing of Eurodollar Loans into which such existing
Dollar-denominated Loans are to be Continued or Converted, the date on which
such Continuation or Conversion is to occur (which shall be the first day of
the Interest Period which is to apply to such Eurodollar Loans), and the length
of the applicable Interest Period, or (C) the amount of any Borrowing of
Bankers’ Acceptances into which such existing Canadian Dollar-denominated
Canadian Advances are to be Continued or Converted, the date on which such
Continuation or Conversion is to occur, and the maturity of such Bankers’ Acceptances;
and


(iii)  be
received by the appropriate Agent not later than 11:00 a.m. New York, New
York time or Toronto, Canada time, as the case may be, on (i) the day on
which any such Continuation or Conversion to Base Rate Loans, Canadian Prime
Rate Loans or Canadian US Dollar Base Rate Loans is to occur, or (ii) the
third Business Day preceding the day on which any such Continuation or
Conversion to Eurodollar Loans or Bankers’ Acceptances is to occur.


Each such written request
or confirmation must be made in the form and substance of the “US
Continuation/Conversion Notice” attached hereto as Exhibit C-1 or
the “Canadian Continuation/Conversion Notice” attached hereto as Exhibit C-2,
as appropriate, duly completed. Each such telephonic request shall be deemed a
representation, warranty, acknowledgment and agreement by the requesting
Borrower as to the matters which are required to be set out in such written
confirmation. Upon receipt of any such Continuation/Conversion Notice, the
appropriate Agent shall give each US Lender or Canadian Lender, as the case may
be, prompt notice of the terms thereof. Each Continuation/Conversion Notice
shall be irrevocable and binding on the requesting Borrower. During the
continuance of any Default, US Borrower may not make any election to Convert
existing US Loans into Eurodollar Loans or Continue existing US Loans as
Eurodollar Loans beyond the expiration of their respective and corresponding
Interest Period then in effect, nor may either Canadian Borrower make any election
to Convert existing Dollar-denominated Canadian Loans into Eurodollar Loans or
Continue existing Dollar-denominated Canadian Loans as Eurodollar Loans beyond
the expiration of their respective and corresponding Interest Period then in
effect, or Convert existing Canadian Dollar-denominated Canadian Advances into
Bankers’ Acceptances or to rollover existing Bankers’ Acceptances into new
Bankers’ Acceptances. If (due to the existence of a Default or for any other
reason) any Borrower fails to timely and properly give any
Continuation/Conversion Notice with respect to a Borrowing of existing
Eurodollar Loans or Bankers’ Acceptances at least three days prior to the end
of the Interest Period applicable to such Eurodollar Loans or the maturity of
such Bankers’ Acceptance, any such Eurodollar Loans, to the extent not prepaid
at the end of such Interest Period, shall automatically be Converted into Base
Rate Loans (or, as to Canadian Loans, Canadian US Dollar Base Rate Loans) at
the end of such Interest Period, and any such Bankers’ Acceptances, to the
extent not prepaid at such maturity, shall automatically be Converted into
Canadian Prime Rate Loans at such maturity. No new funds shall be repaid by any
Borrower or advanced by any Lender in connection with any Continuation or
Conversion of existing US Loans or Canadian Advances pursuant to this section,
and no such Continuation or Conversion shall be deemed to be a new advance of
funds for any purpose; such Continuations and Conversions merely constitute a
change in the interest rate applicable to such already outstanding US Loans or
Canadian Advances.



 28
 








Section 2.4.   Use of
Proceeds.   Borrowers shall use all Loans and Canadian Advances (a) to
refinance outstanding indebtedness under the Existing Agreement including
letters of credit issued thereunder, and (b) for fees and expenses related
to this Agreement and the transactions contemplated hereby, capital
expenditures of any Restricted Person, reimbursement obligations of Letters of
Credit, working capital for operations and other general business purposes,
including acquisitions. Borrowers shall use all Letters of Credit for its and
its Subsidiaries’ general corporate purposes including in relation to the
purchase or exchange by any Restricted Person of Petroleum Products. In no
event shall the funds from any Loans, Canadian Advances or any Letters of
Credit be used directly or indirectly by any Person for personal, family,
household or agricultural purposes or for the purpose, whether immediate,
incidental or ultimate, of purchasing, acquiring or carrying any “margin stock”
(as such term is defined in Regulation U promulgated by the Board of Governors
of the Federal Reserve System) or to extend credit to others directly or
indirectly for the purpose of purchasing or carrying any such margin stock. Borrowers
represent and warrant that they are not engaged principally, or as one of their
important activities, in the business of extending credit to others for the
purpose of purchasing or carrying such margin stock.


Section 2.5.   Interest Rates and Fees.


(a)   Interest Rates.


(i)    Each US
Loan shall bear interest as follows: (A) unless the Default Rate shall
apply, each Base Rate Loan shall bear interest on each day outstanding at the
Base Rate plus the Applicable Margin in effect on such day, and each Eurodollar
Loan shall bear interest on each day during the related Interest Period at the
related Eurodollar Rate plus the Applicable Margin in effect on such day, and
(B) during a Default Rate Period, all US Loans shall bear interest on each
day outstanding at the applicable Default Rate.


(ii)   Each
Canadian Loan shall bear interest as follows: (A) unless the Default Rate
shall apply, each Canadian Prime Rate Loan shall bear interest on each day
outstanding at the Canadian Prime Rate plus the Applicable Margin in effect on
such day, each Canadian US Dollar Base Rate Loan shall bear interest on each
day outstanding at the Canadian US Dollar Base Rate plus the Applicable Margin
in effect on such day, and each Eurodollar Loan shall bear interest on each day
during the related Interest Period at the related Eurodollar Rate plus the
Applicable Margin in effect on such day, and (B) during a Default Rate
Period, all Canadian Loans shall bear interest on each day outstanding at the
applicable Default Rate.


(iii)  If an
Event of Default based upon Section 8.1(a), Section 8.1(b) or,
with respect to any Borrower, based upon Section 8.1(h)(i),
(h)(ii) or (h)(iii) exists and the Loans are not bearing interest at
the Default Rate, the past due principal and past due interest shall bear
interest on each day outstanding at the applicable Default Rate.


(iv)  The
interest rate shall change whenever the applicable Base Rate, Eurodollar Rate,
Canadian Prime Rate, Canadian US Dollar Base Rate or Applicable Margin changes.
In no event shall the interest rate on any Loan exceed the Highest Lawful Rate.


(b)   Commitment Fees; Reduction of Commitments.


(i)    In
consideration of each US Lender’s US Commitment, US Borrower will pay to
Administrative Agent for the account of each US Lender a commitment fee
determined on a daily basis equal to the US Commitment Fee Rate in effect on
such day times such US Lender’s US Percentage Share of the unused portion of
the US Total Committed Amount on each day during the Commitment Period,
determined for each such day by deducting from the amount of the US Total
Committed Amount at the end of such day the US Total Outstanding Amount
(excluding the Outstanding Amount of Swing Line Loans).



 29















(ii)   During a
Canadian Allocation Period, in consideration of each Canadian Lender’s Canadian
Commitment, Canadian Borrowers jointly and severally agree to pay to Canadian
Administrative Agent for the account of each Canadian Lender its pro rata share
of a commitment fee determined on a daily basis equal to the Canadian
Commitment Fee Rate in effect on such day times such Canadian Lender’s Canadian
Percentage Share of the unused portion of the Canadian Allocated Commitment on
each day during the Canadian Allocation Period, determined for each such day by
deducting from the amount of the Canadian Total Committed Amount at the end of
such day the Canadian Total Outstanding Amount (excluding the Outstanding
Amount of Swing Line Loans).


(iii)  Each such
commitment fee shall be due and payable in arrears on the last day of each
Fiscal Quarter and at the end of the Commitment Period. US Borrower shall have
the right from time to time to permanently reduce the US Total Committed Amount
or Canadian Total Committed Amount, as the case may be, provided that (A) notice
of such reduction is given not less than two Business Days prior to such
reduction, (B) the resulting US Total Committed Amount or Canadian Total
Committed Amount is not less than the US Total Outstanding Amount or the
Canadian Total Outstanding Amount, respectively, and (C) each partial
reduction shall be in an amount at least equal to $1,000,000 and in multiples
of $1,000,000 in excess thereof.


(c)   Utilization Fee.   US Borrower shall pay to the
Administrative Agent for the account of each US Lender in accordance with such
US Lender’s US Percentage Share, a utilization fee of 0.10% per annum times the US Total Outstanding Amount on
each day that the sum of (a) the
US Total Outstanding Amount plus (b) the
Canadian Total Outstanding Amount exceeds fifty percent (50%) of the daily amount of the aggregate
Commitments then in effect (or, if terminated, in effect immediately prior to
such termination). Canadian Borrowers jointly and severally agree to pay to the
Canadian Administrative Agent for the account of each Canadian Lender in
accordance with such Canadian Lender’s Canadian Percentage Share, a utilization
fee of 0.10% per annum times the
Canadian Total Outstanding Amount on each day that the sum of (a) the US Total Outstanding
Amount plus (b) the Canadian Total
Outstanding Amount on each day exceeds fifty percent (50%) of the daily amount of the aggregate
Commitments then in effect (or, if terminated, in effect immediately prior to
such termination). Utilization fees shall accrue at all times that such excess
outstandings are in effect, including at any time during which one or more of
the conditions in Article IV is not met. Each such utilization fee shall
be due and payable quarterly in arrears on the last day of each Fiscal Quarter
and at the end of the Commitment Period. Each utilization fee shall be
calculated quarterly in arrears.


(d)   Stamping Fees.   In consideration of each Canadian
Lender’s commitment to accept or participate in Bankers’ Acceptances under this
Agreement, each Canadian Borrower will pay to Canadian Administrative Agent for
the account of such Canadian Lender the Stamping Fee Rate multiplied by the
face amount of each Bankers’ Acceptance accepted by such Canadian Lender on
behalf of such Canadian Borrower under this Agreement calculated for the number
of days in the term of such Bankers’ Acceptance. Such fee shall be due and
payable on the date on which such Bankers’ Acceptances are accepted and shall be
deducted from the Discount Proceeds paid to such Canadian Borrower. Such fee
shall be non-refundable, notwithstanding any reduction in the Stamping Fee Rate
during the term of such Bankers’ Acceptances.


(e)   Agents’ Fees.   In addition to all other amounts due to
Administrative Agent or Canadian Administrative Agent under the Loan Documents,
US Borrower will pay to Administrative Agent agent fees pursuant to the Fee
Letter described in clause (i) of the definition of the term “Fee Letters”.


Section 2.6.   [Intentionally
deleted]


Section 2.7.   [Intentionally
deleted]



 30
 








Section 2.8.   Optional
Prepayments


(a)   US Loans.   US Borrower may, upon three Business Days’
notice, as to Eurodollar Loans, or same Business Day’s notice, as to Base Rate
Loans, to Administrative Agent (and Administrative Agent will promptly give
notice to the other US Lenders) from time to time and without premium or
penalty (other than any amounts due under Section 3.6 hereof with respect
to prepayments of any Eurodollar Loans) prepay the US Loans, in whole or in
part, so long as the aggregate amounts of all partial prepayments of principal
on (i) Eurodollar Loans equals $2,500,000 or any higher integral multiple
of $250,000, and (ii) Base Rate Loans equals $250,000 or any higher
integral multiple of $50,000. Upon receipt of any such notice, Administrative
Agent shall give each US Lender prompt notice of the terms thereof.


(b)   Canadian Loans.   Either Canadian Borrower may, upon
three Business Days’ notice as to Eurodollar Loans, or same Business Day’s notice,
as to Canadian Prime Rate Loans or Canadian US Dollar Base Rate Loans, to
Canadian Administrative Agent (and Canadian Administrative Agent will promptly
give notice to the other Canadian Lenders) from time to time and without
premium or penalty (other than any amounts due under Section 3.6 hereof
with respect to prepayments of any Eurodollar Loans) prepay its Canadian Loans,
in whole or in part, so long as the aggregate amounts of all partial
prepayments of principal on (i) Eurodollar Loans equals $2,500,000 or any
higher integral multiple of $50,000, (ii) Canadian Prime Rate Loans equals
C$250,000 or any higher integral multiple of C$50,000, and (iii) US Dollar
Base Rate Loans equals $250,000 or any higher integral multiple of $50,000. No
BA may be prepaid hereunder except in accordance with Section 2.15.


(c)   Swing Line Loans.   Any Borrower may, upon notice to the
Swing Line Lender (with a copy to the Administrative Agent or Canadian
Administrative Agent, as appropriate), at any time or from time to time,
voluntarily prepay Swing Line Loans made to it in whole or in part without
premium or penalty (other than any amounts due under Section 3.6 hereof
with respect to prepayments of any Eurodollar Loans); provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent or Canadian Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $100,000. Each such notice shall specify the date
and amount of such prepayment. If such notice is given by any Borrower, such
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.


(d)   Accrued and Unpaid Interest.   Each prepayment of
principal of a Loan under this section shall be accompanied by all interest
then accrued and unpaid on the principal so prepaid. Any principal or interest
prepaid pursuant to this section shall be in addition to, and not in lieu of,
all payments otherwise required to be paid under the Loan Documents at the time
of such prepayment.


(e)   Prepayment.   Following notice by any Borrower pursuant
to Section 2.8(a) or (b) above, such Borrower shall make such
prepayment, and the prepayment amount specified in such notice shall be due and
payable, on the date specified in such notice.


Section 2.9.   Mandatory
Prepayments.


(a)   US Loans to US Borrower.   If at any time the US Total
Outstanding Amount exceeds the US Total Committed Amount (whether due to a
reduction in the US Total Committed Amount in accordance with this Agreement,
or otherwise), US Borrower shall immediately upon demand prepay the
principal of the US Loans made to US Borrower in an amount at least equal to
such excess.


(b)   Swing Line Loans.   Each Borrower shall repay each Swing
Line Loan made to it on the earlier to occur of (i) (A) with respect
to a Loan other than a Eurodollar Rate Loan, the date fifteen Business Days
after such Loan is made and (B) with respect to a Eurodollar Loan, on the
last day of the Interest Period that is applicable thereto, and (ii) the
Maturity Date.



 31
 








(c)   Canadian Loans.   Except to the extent permitted by Section 2.9(e),
if the Canadian Total Outstanding Amount ever exceeds the Canadian Total
Committed Amount, each Canadian Borrower shall severally, but not jointly,
immediately on demand prepay the principal of the Canadian Advances made to
such Canadian Borrower (but shall not be required to prepay the principal of
any Canadian Advances made to the other Canadian Borrower) in an aggregate
amount at least equal to such excess. Any such excess shall be applied first to
outstanding Canadian Loans to such Canadian Borrower, and then to prepay BA’s
in accordance with Section 2.15.


(d)   Working Capital Borrowings.   For an economically
meaningful period of time in each Fiscal Year, as reasonably determined by GP
LLC, the aggregate outstanding principal balance of all Working Capital
Borrowings shall be reduced to a relatively small amount as may be reasonably
specified by GP LLC.


(e)   Currency Fluctuations.   Notwithstanding
any other provision of this Agreement, Canadian Administrative Agent shall have
the right to calculate the outstanding 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, Canadian Administrative Agent determines that the Canadian
Total Outstanding Amount is greater than 105% of the Canadian Total Committed
Amount, then Canadian Administrative Agent shall so advise Canadian Borrowers
and each Canadian Borrower shall severally, but not jointly repay, on the
earlier of five Business Days after such advice and the next applicable
Interest Payment Date immediately following such advice, an aggregate amount
sufficient to eliminate such excess, together with all accrued interest on the
amount so paid; provided, each Canadian Borrower’s obligation to make such
repayment shall be limited to an amount not to exceed the Outstanding Amount of
Canadian Advances made to such Canadian Borrower, plus accrued interest. Any
such excess shall be applied first to outstanding Canadian Loans to such
Canadian Borrower, and then to prepay BA’s in accordance with Section 2.15.


(f)    Accrued and Unpaid Interest.   Each prepayment of
principal under this section shall be accompanied by all interest then accrued
and unpaid on the principal so prepaid. Any principal or interest prepaid
pursuant to this section shall be in addition to, and not in lieu of, all
payments otherwise required to be paid under the Loan Documents at the time of
such prepayment.


Section 2.10.   Letters of
Credit


(a)   The Letter of Credit Commitment.


(i)    Subject
to the terms and conditions set forth herein, (A) each of US LC Issuer and
Canadian LC Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.10, (1) from
time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit denominated in
Dollars (or, as to Canadian LC Issuer, Dollars or Canadian Dollars) for the
account of US Borrower or either Canadian Borrower, respectively, and to amend
or extend Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the US Lenders and Canadian Lenders severally agree to
participate in US Letters of Credit and Canadian Letters of Credit,
respectively, issued for the account of US Borrower or Canadian Borrowers, respectively, and any drawings thereunder;
provided that after giving effect to any
LC Credit Extension with respect to any Letter of Credit, (x) as to US
Letters of Credit, the US Total Outstanding Amount does not exceed the US Total
Committed Amount, and as to Canadian Letters of Credit, the Canadian Total
Outstanding Amount does not exceed the Canadian Total Committed Amount, and (y) as
to US Letters of Credit, the aggregate Outstanding Amount of the US Loans
of any US Lender, plus such US Lender’s US
Percentage Share of the Outstanding Amount of all US LC Obligations shall not
exceed such US Lender’s US Commitment, and as to Canadian Letters of
Credit, the aggregate Outstanding Amount of the Canadian Advances of any
Canadian Lender, plus such Canadian 



 32
 








Lender’s
Canadian Percentage Share of the Outstanding Amount of all Canadian LC
Obligations shall not exceed such Canadian Lender’s Canadian Commitment. Each
request by a Borrower for the issuance or amendment of a Letter of Credit shall
be deemed to be a representation by such Borrower that the LC Credit Extension
so requested complies with the conditions set forth in the provisos to the
preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly each such 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. All Letters of Credit outstanding under the Existing Agreement as of the
Closing Date shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and
conditions hereof.


(ii)   An LC Issuer shall not issue any Letter of
Credit, if:


(A)  subject to Section 2.10(b)(iii),
the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last extension, unless the Majority
Lenders have approved such expiry date; or


(B)   the expiry
date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved such expiry date.


(iii)  An LC
Issuer shall not be under any obligation to
issue any Letter of Credit if:


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


(B)   except
as otherwise agreed by the Administrative Agent or the Canadian Administrative
Agent, as applicable, and the LC Issuer, such Letter of Credit is in an initial
stated amount less than $100,000 (as to US Letters of Credit and
Dollar-denominated Canadian Letters of Credit) or C$100,000 (as to Canadian
Dollar-denominated Canadian Letters of Credit);


(C)   except
as otherwise agreed by the Administrative Agent or the Canadian Administrative
Agent, as applicable, and the LC Issuer, such Letter of Credit is to be
denominated in a currency other than Dollars (or, as to Canadian Letters of
Credit, Dollars or Canadian Dollars); or


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


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


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



 33
 








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


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


(i)    Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of a Borrower delivered to the appropriate LC Issuer (with a copy to
the relevant Agent) in the form of a printed LC Application, appropriately
completed and signed by a Responsible Officer of such Borrower or an electronic
LC Application initiated by such Borrower pursuant to such LC Issuer’s online
electronic letter of credit application/request system. Such LC Application
must be received by the appropriate LC Issuer and the relevant Agent (A) not
later than 11:00 a.m. (New York, New York time) at least two Business Days
prior to the proposed issuance date or date of amendment, as the case may be,
of any Letter of Credit denominated in Dollars, and (B) not later than
11:00 a.m. (Toronto, Canada time) at least two Business Days prior to the
proposed issuance date or date of amendment, as the case may be, of any Letter
of Credit denominated in Canadian Dollars; or in each case such later date and
time as the appropriate Agent and LC Issuer may agree in a particular instance
in their sole discretion. In the case of a request for an initial issuance of a
Letter of Credit, such LC Application shall specify in form and detail
satisfactory to the LC Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
and currency 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; (G) any modification in respect of Rule 3.14 of the ISP,
and (H) such other matters as the LC Issuer may reasonably require. In the
case of a request for an amendment of any outstanding Letter of Credit, such LC
Application shall specify in form and detail satisfactory to the LC Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment
(including any modification in respect of Rule 3.14 of the ISP); and (D) such
other matters as the LC Issuer may reasonably require. Additionally, such
Borrower shall furnish to such LC Issuer and Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as such LC Issuer or Agent may
reasonably require.


(ii)   Promptly
after receipt of any LC Application, an LC Issuer will confirm with the
relevant Agent (by telephone or in writing) that such Agent has received a copy
of such LC Application and, if not, the LC Issuer will provide such Agent with
a copy thereof. Unless the LC Issuer has received written notice from such
Agent (who hereby agrees to provide contemporaneous notice to the relevant
Borrower) or any Restricted Person, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Article IV shall not
then be satisfied, specifying in reasonable detail the relevant condition or
conditions not then satisfied, and the basis for such assertion, and such
condition or conditions, as applicable, remain unsatisfied on such requested
date of issuance or amendment, then, subject to the terms and conditions
hereof, the LC Issuer shall, on the requested date, issue a Letter of Credit
for the account of such Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with the LC Issuer’s usual and
customary business practices. Immediately upon the issuance of each US Letter
of Credit or Canadian Letter of Credit, each US Lender or Canadian Lender shall
be respectively deemed to, and hereby irrevocably and unconditionally agrees 



 34
 








to,
purchase from such LC Issuer a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s US Percentage Share or Canadian
Percentage Share, as applicable, times the
amount of such Letter of Credit.


(iii)  If any Borrower so requests in any applicable LC Application, an LC
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that
any such Auto-Extension Letter of Credit must permit such LC Issuer to deny any
such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving written prior notice to
the beneficiary thereof not later than a day (the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon by
such requesting Borrower and such LC Issuer at the time such Letter of Credit
is issued. The LC Issuer of any Auto-Extension Letter of Credit hereby agrees
to contemporaneously furnish to the appropriate Borrower a copy of any denial
of the extension of such Auto-Extension Letter of Credit. Unless otherwise
directed by such LC Issuer, a Borrower shall not be required to make a specific
request to an LC Issuer for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the US Lenders or Canadian Lenders, as the case may
be, shall be deemed to have authorized (but may not require) the US LC Issuer
or Canadian LC Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that
such LC Issuer shall not permit any such extension if (A) the LC Issuer
has determined that it would not be permitted, or would have no obligation, at
such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.10(a) or otherwise), or (B) it has received notice
(which may be by telephone or in writing) on or before the day that is five
Business Days before the Non-Extension Notice Date (1) from the relevant
Agent (who hereby agrees to provide contemporaneous notice to the relevant
Borrower) that the Majority Lenders have elected not to permit such extension
or (2) from the relevant Agent (who hereby agrees to provide
contemporaneous notice to the relevant Borrower) or Borrower that one or more
of the applicable conditions specified in Article IV is not then
satisfied, specifying in reasonable detail the relevant condition or conditions
not then satisfied, and such condition or conditions, as applicable, are
unsatisfied on such extension date, and the basis for such assertion, and in
each such case directing the LC Issuer not to permit such extension.


(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,
an LC Issuer will also deliver to the appropriate Borrower and the relevant
Agent a true and complete copy of such Letter of Credit or amendment.


(c)   Drawings and Reimbursements; Funding of Participations.


(i)    Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the LC Issuer shall notify the US Borrower and, if
not the US Borrower, the appropriate Canadian Borrower and the relevant Agent
thereof. In the case of a Canadian Letter of Credit denominated in Canadian
Dollars, the appropriate Canadian Borrower shall reimburse the Canadian LC
Issuer in Canadian Dollars, unless the Canadian LC Issuer and such Canadian
Borrower otherwise agree that such Canadian Borrower will reimburse the
Canadian LC Issuer in Dollars, in which case the Canadian LC Issuer shall
notify such Canadian Borrower of the Dollar Equivalent of the amount of the
related drawing. If an LC Issuer shall give notice to the applicable Borrower
prior to 11:00 a.m. (New York, New York or Toronto, Canada time, as
applicable) on the date of any payment by such LC Issuer under a Letter of Credit
(such date, an “Honor Date”),
the account party Borrower shall reimburse such LC Issuer through the relevant
Agent in an amount equal to the amount of such drawing and in the applicable
currency (and if such LC Issuer shall give notice to such applicable Borrower
at or after such time, such account party Borrower shall reimburse such LC 



 35
 








Issuer
by such time on the following Business Day). If a Borrower fails to so
reimburse the LC Issuer by the applicable time, the relevant Agent shall
promptly notify each US Lender or Canadian Lender, as appropriate, of the Honor
Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of
such Lender’s US Percentage Share or Canadian Percentage Share, as applicable,
thereof. In such event, such Borrower shall be deemed to have requested a
Borrowing of Base Rate Loans (or Canadian Prime Rate Loans or US Dollar Base
Rate Loans, as to Canadian Dollar- or Dollar-denominated Canadian Letters of
Credit, respectively) 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 Loans (or Canadian
Prime Rate Loans or US Dollar Base Rate Loans, as the case may be), but subject
to the amount of the unutilized portion of the US Total Committed Amount or
Canadian Total Committed Amount, as applicable, and the conditions set forth in
Article IV (without giving effect to Borrower’s failure to so reimburse
such LC Issuer as provided in this Section 2.10(c)(i) above). Any
notice given by an LC Issuer or an Agent pursuant to this Section 2.10(c)(i) may
be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


(ii)   Each
US Lender or Canadian Lender, as appropriate, shall upon any notice pursuant to
Section 2.10(c)(i) prior to 11:00 a.m. (New York, New York or
Toronto, Canada time, as applicable), make funds available to the relevant
Agent, as the case may be, for the account of the appropriate LC Issuer, in
Dollars (or, as to Canadian Dollar-denominated Canadian Letters of Credit, in
Canadian Dollars), at the relevant Agent’s Applicable Lending Office for Dollar
denominated (or Canadian Dollar-denominated) payments in
an amount equal to such Lender’s US Percentage Share or Canadian Percentage
Share of the Unreimbursed Amount not later than 1:00 p.m. (New York, New York
time) on the Business Day specified in such notice by the relevant Agent (and,
if such notice pursuant to Section 2.10(c)(i) is at or after 11:00 a.m.
(New York, New York or Toronto, Canada time, as applicable), each such Lender
shall make such funds available not later than 1:00 p.m. (New York,
New York time) on the following Business Day), whereupon, subject to the
provisions of Section 2.10(c)(iii), each such Lender that so makes funds
available shall be deemed to have made a Base Rate Loan (or, as to Canadian
Lenders, a Canadian Prime Rate Loan (as to Canadian Dollar funds), or a
Canadian US Dollar Base Rate Loan (as to Dollar funds), to such Borrower in
such amount. The relevant Agent shall remit the funds so received to such LC
Issuer in Dollars (or, as to Canadian Dollar-denominated Canadian Letters of
Credit, in Canadian Dollars).


(iii)  With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans (or Canadian Prime Rate Loans or
Canadian US Dollar Base Rate Loans, as set forth above) because the conditions
set forth in Article IV (without giving effect to Borrower’s failure to
reimburse such LC Issuer as provided in Section 2.10(c)(i)) cannot be
satisfied, because LC Issuer’s notice pursuant to Section 2.10(c)(i) is
at or after 11:00 a.m. (New York, New York or Toronto, Canada time, as
applicable) or for any other reason, such Borrower shall be deemed to have
incurred from the LC Issuer an LC Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which LC Borrowing shall be due and payable
on the second Business Day following the corresponding Honor Date (together
with interest) and shall bear interest on the amount thereof from time to time
outstanding at the Base Rate in effect from time to time, and if not repaid by
11:00 a.m. (New York, New York time) on such second succeeding Business
Day, shall thereafter bear interest on the amount thereof from time to time
outstanding at the Default Rate. In such event, each Lender’s payment to the
relevant Agent for the account of the LC Issuer pursuant to Section 2.10(c)(ii) shall
be deemed payment in respect of its participation in such LC Borrowing and
shall constitute an LC Advance from such Lender in satisfaction of its
participation obligation under this Section 2.10.



 36
 








(iv)  Until
each Lender funds its Loan or LC Advance pursuant to this Section 2.10(c) to
reimburse an LC Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s US Percentage Share or Canadian Percentage
Share, as applicable, of such amount shall be solely for the account of such LC
Issuer.


(v)    Each
Lender’s obligation to make Loans or LC Advances to reimburse an LC Issuer for
amounts drawn under Letters of Credit, as contemplated by this Section 2.10(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against an LC Issuer, any Borrower,
any Restricted Person or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided, however, that
each Lender’s obligation to make Loans pursuant to this Section 2.10(c) is
subject to the amount of unutilized portion of the US Total Committed Amount or
Canadian Total Committed Amount, as applicable, and the conditions set forth in
Article IV (without giving effect to Borrower’s failure to so reimburse
such LC Issuer pursuant to Section 2.10(c)(i) above). No such making
of an LC Advance shall relieve or otherwise impair the obligation of a Borrower
to reimburse an LC Issuer for the amount of any payment made by the LC Issuer
under any Letter of Credit issued at the request of such Borrower, together
with interest as provided herein.


(vi)  If
any Lender fails to make available to the relevant Agent for the account of an
LC Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.10(c) by the time specified in
Section 2.10(c)(ii), the LC Issuer shall be entitled to recover from such
Lender (acting through the relevant 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 LC Issuer at a rate
per annum equal to the greater of (a) the Federal Funds Rate as to US
Lenders, and at the “Bank Rate” as set by the Bank of Canada, as quoted on
Reuters page BOCFAD, as to Canadian Lenders, and (b) a rate
determined by the LC Issuer in accordance with banking industry rules on
interbank compensation. A certificate of the LC Issuer submitted to any Lender
(through the relevant 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 an LC Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s LC Advance in respect of such
payment in accordance with Section 2.10(c), if the relevant Agent receives
for the account of the LC Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the appropriate
Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the relevant Agent), the relevant Agent will distribute to such Lender its US
Percentage Share or Canadian Percentage Share, as applicable, thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s LC Advance was outstanding) in the
same funds as those received by such Agent.



 37















(ii)   If
any payment received by the relevant Agent for the account of an LC Issuer
pursuant to Section 2.10(c)(i) is required to be returned under any
of the circumstances described in the second paragraph of Section 10.12
(including pursuant to any settlement entered into by an LC Issuer in its
discretion), each Lender shall pay to the relevant Agent for the account of
such LC Issuer its US Percentage Share or Canadian Percentage Share, as
applicable, thereof on demand of the relevant Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at
a rate per annum equal to (A) the Federal Funds Rate, as to US Letters of
Credit or Dollar-denominated Canadian Letters of Credit, or (B) the
“Bank Rate” as set by the Bank of Canada, as quoted on Reuters page BOCFAD, as to Canadian Dollar-denominated Canadian Letters
of Credit, from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


(e)   Obligations Absolute.   The obligation of each Borrower
to reimburse an LC Issuer for each drawing under each Letter of Credit issued
at the request of such Borrower and to repay each LC Borrowing 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 Loan Document;


(ii)   the
existence of any claim, counterclaim, setoff, defense or other right that such
Borrower or any Restricted Person 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 LC 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 any LC 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 any LC Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any debtor relief Law;


(v)    any
adverse change in the relevant exchange rates or in the availability of the
Canadian Dollar to a Canadian Borrower or any Subsidiary or in the relevant
currency markets generally; or


(vi)  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, such Borrower or any Restricted
Person or any Subsidiary.


Each Borrower shall promptly examine
a copy of each Letter of Credit requested by it and each amendment thereto that
is delivered to it and, in the event of any claim of noncompliance with such
Borrower’s instructions or other irregularity, such Borrower will immediately
notify the appropriate LC Issuer, and the LC Issuer will correct such claim in
conformity with such Borrower’s instructions or as otherwise agreed between
such Borrower and such LC Issuer, subject to the terms hereof. Each Borrower
shall be conclusively deemed to have waived any such claim against the LC
Issuer and its correspondents with respect to any Letter of Credit issued at
such Borrower’s request unless such notice is given as aforesaid.



 38
 








(f)    Role of LC Issuer.   Each Lender and each Borrower
agrees that, in paying any drawing under a Letter of Credit, no LC 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 the
LC Issuers, Agents, any of their respective Related Parties nor any
correspondent, participant or assignee of an LC Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Majority Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross
negligence, willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit or Issuer Document. Each 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 a 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 the LC Issuers, the Agents, any of their respective Related Parties nor any
correspondent, participant or assignee of an LC Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.10(e); provided, however, that anything in such clauses to the contrary
notwithstanding, a Borrower may have a claim against an LC Issuer, and an LC
Issuer may be liable to such Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by
such Borrower which such Borrower proves were caused by an LC Issuer’s willful
misconduct, gross negligence or material breach of any of its obligations
hereunder or under any Issuer Document or under any Letter of Credit issued on
such Borrower’s behalf after the presentation to such LC Issuer 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 LC 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 an LC Issuer shall
not 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.


(i)    Within
one Business Day following the request of the relevant Agent, (A) if an LC
Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an LC Borrowing that remains
outstanding for more than two Business Days thereafter, or (B) if, as of
the Letter of Credit Expiration Date, any LC Obligation with respect to any
Borrower for any reason remains outstanding, such Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all such LC
Obligations.


(ii)   The
Canadian Administrative Agent may, at any time and from time to time after the
initial deposit of non Canadian Dollar-denominated Cash Collateral securing any
Canadian Dollar-denominated Canadian Letter of Credit, request that additional
Cash Collateral be provided in order to protect against the results of exchange
rate fluctuations.


(iii)  For purposes of this Agreement, “Cash Collateralize” means to pledge
and deposit with or deliver to the relevant Agent, for the benefit of the
appropriate LC Issuer and Lenders, as collateral for the applicable LC
Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to the relevant Agent and such LC Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term
have corresponding meanings. US Borrower hereby grants to the Administrative
Agent, and each Canadian Borrower hereby grants to the Canadian Administrative
Agent, for the benefit of the US LC Issuer and US Lenders, and the Canadian LC
Issuer and the Canadian Lenders, respectively, as applicable and to the extent
of each of their respective interests in any such cash or deposit account balances,
a security interest in all such 



 39
 








cash,
deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, interest bearing deposit accounts at
the Administrative Agent.


When the LC Borrowing giving rise to
the posting of Cash Collateral has been discharged or such Borrower otherwise
has no LC Obligations outstanding, and no other event of the nature described
in Section 2.10(g)(i)(A) then exists, any Lien on any Cash Collateral
shall automatically terminate and the relevant Agent will promptly return such
Cash Collateral to the Borrower originally pledging such Cash Collateral.


(h)   Applicability of ISP.   Unless otherwise expressly agreed by an LC Issuer and a Borrower when
a Letter of Credit is issued (including any such agreement applicable to any
Letter of Credit outstanding under the Existing Agreement as of the Closing
Date), (i) the rules of 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 at the time of issuance shall apply to each
commercial or documentary Letter of Credit.


(i)    Letter of Credit Fees.   Each Borrower shall pay, solely
with respect to the Letters of Credit issued at the request of such Borrower,
to the relevant Agent for the account of each US Lender or Canadian Lender, as
appropriate, in accordance with such Lender’s US Percentage Share or Canadian
Percentage Share, respectively, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to
the Applicable Margin for Eurodollar Loans times the
Dollar Equivalent of the daily amount available to be drawn under such Letter
of Credit. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.6. Letter of Credit Fees shall be
computed on a quarterly basis in arrears and shall be due and payable on the
first Business Day after the end of each March, June, September and December. If there is any change
in such Applicable Margin during any quarter, the daily amount available to be
drawn under each Letter of Credit shall be computed and multiplied by such
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect.


(j)    Fronting Fee and Documentary and Processing Charges Payable to LC
Issuer.   Each Borrower
shall pay directly to the appropriate LC Issuer for its own account a fronting
fee solely with respect to each Letter of Credit requested by such Borrower, at
such rate as agreed to by Borrower and such LC Issuer, computed on the Dollar
Equivalent of the daily amount available to be drawn under such Letter of
Credit on a quarterly basis in arrears, and due and payable on the first
Business Day after the end of each March,
June, September and December. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.6. In
addition, each Borrower shall pay directly to each LC Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of such LC Issuer relating to
letters of credit as from time to time in effect, effective schedules of which
will be provided to US Borrower upon request. Such customary fees and standard
costs and charges are due and payable quarterly in arrears on the first
Business Day after the end of each March, June, September and December and
are nonrefundable.


(k)   Conflict with Issuer Documents.   In the event of any
conflict between the terms hereof and the terms of any Issuer Document, the
terms hereof shall control.


(l)    Transferees of Letters of Credit.   If any Letter of
Credit provides that it is transferable, the LC Issuer thereof shall have no
duty to determine the proper identity of anyone appearing as transferee of such
Letter of Credit, nor shall such LC Issuer be charged with responsibility of
any nature or character for the validity or correctness of any transfer or
successive transfers, and payment by such LC Issuer to any purported transferee
or transferees as determined by such LC Issuer is hereby authorized and
approved, and the Borrower requesting such Letter of Credit releases each
Lender Party from, and agrees to hold each Lender Party harmless and
indemnified against, any liability or claim in connection with or arising out 



 40
 








of the foregoing, WHICH INDEMNITY SHALL APPLY
WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT
CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY
ANY LENDER PARTY, provided
only that no Lender Party shall be entitled to indemnification for that
portion, if any, of any liability or claim which is proximately caused by its
own individual gross negligence or willful misconduct, as determined in a final
judgment.


Section 2.10A.   Swing
Line Loans.


(a)   The Swing Line.   Subject to
the terms and conditions set forth herein, the Swing Line Lender agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.10A,
to make loans (each such loan, a “Swing Line Loan”)
to either the US Borrower or to either of the Canadian Borrowers from time to
time on any Business Day during the Commitment Period in an aggregate amount
not to exceed at any time outstanding the amount of the Swing Line Sublimit
applicable to it, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Outstanding Amount of other US Loans and US LC Obligations,
or of other Canadian Loans and Canadian Obligations, as the case may be, of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender’s US
Commitment or Canadian Commitment, respectively; provided,
however, that after giving effect to any
Swing Line Loan, (i) the US Total Outstanding Amount or Canadian Total
Outstanding Amount, as appropriate, shall not exceed the US Total Committed
Amount or Canadian Total Committed Amount, respectively, and (ii) the
Outstanding Amount of US Loans or Canadian Loans by any US Lender or Canadian
Lender, respectively, plus such US
Lender’s US Percentage Share of the Outstanding Amount of US LC Obligations or
such Canadian Lender’s Canadian Percentage Share of the Outstanding Amount of
Canadian LC Obligations, as the case may be, plus
such US Lender’s US Percentage Share of the Outstanding Amount of all Swing
Line Loans made to US Borrower or such Canadian Lender’s Canadian Percentage
Share of the Outstanding Amount of all Swing Line loans made to either Canadian
Borrower, as the case may be, shall not exceed such US Lender’s US Commitment
or such Canadian Lender’s Canadian Commitment, respectively, and provided, further, that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. The obligation of each Borrower to repay to the
Swing Line Lender Swing Line Loans made by such Swing Line Lender to such
Borrower, together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called the Swing Line Lender’s “Swing Line Note”) made by each Borrower payable to the order
of the Swing Line Lender in the form of Exhibit A-3 with appropriate
insertions. The amount of principal owing on any Swing Line Note at any given
time shall be the aggregate amount of all Swing Line Loans theretofore
made by the Swing Line Lender to such Borrower minus all payments of principal
theretofore received by the Swing Line Lender on such Swing Line Note. Interest
on each Swing Line Note shall accrue and be due and payable as provided herein
and therein. Each Swing Line Note shall be due and payable as provided herein
and therein, and shall be due and payable in full on the Maturity Date. Within
the foregoing limits, and subject to the other terms and conditions hereof, any
Borrower may borrow under this Section 2.10A, prepay under Section 2.8(c),
and reborrow under this Section 2.10A. US Borrower may request either Base
Rate Loans or Eurodollar Loans with an Interest Period not exceeding fifteen
(15) days. Either Canadian Borrower may request (i) Dollar-denominated
Canadian US Dollar Base Rate Loans or Eurodollar Loans with an Interest Period
not exceeding fifteen (15) days, or (ii) Canadian Dollar-denominated
Canadian Prime Rate Loans. Immediately upon the making of a Swing Line Loan to
US Borrower or either Canadian Borrower, each US Lender or Canadian Lender, as
the case may be, shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such US Lender’s US
Percentage Share, or such Canadian Lender’s Canadian Percentage Share, as
appropriate, times the amount of such Swing
Line Loan.


(b)   Borrowing Procedures.   Each
Swing Line Borrowing shall be made upon a Borrower’s irrevocable notice to the
Swing Line Lender and the Administrative Agent or Canadian Administrative
Agent, as 



 41
 








applicable, which
may be given by telephone. Each such notice must be received by the Swing Line
Lender and the Administrative Agent or Canadian Administrative Agent not later
than 1:00 p.m. on the requested borrowing date (or, for Eurodollar Loans,
not later than 1:00 p.m. on the third Business Day prior to the requested
borrowing date), and shall specify (i) the amount to be borrowed, which
shall be a minimum of $1,000,000 (or, if denominated in Canadian Dollars,
C$1,000,000), (ii) the requested borrowing date, which shall be a Business
Day, (iii) for Eurodollar Loans, the length of the applicable Interest
Period, and (iv) for Swing Line Loans to a Canadian Borrower (1) whether
such Swing Line Loans are Dollar-denominated or Canadian Dollar-denominated, (2) if
Dollar-denominated, whether such Swing Line Loans are Canadian US Dollar Base
Rate Loans or Eurodollar Loans, and (3) if such Loans are Eurodollar Loans,
the information described in clause (iii) above. Either Canadian Borrower
may request Dollar-denominated or Canadian Dollar-denominated Swing Line Loans.
Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent or Canadian Administrative Agent, as
appropriate, of a written Swing Line Loan Notice, appropriately completed and
signed by a Responsible Officer of such Borrower. Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent or Canadian Administrative
Agent, as appropriate (by telephone or in writing) that the Administrative
Agent or Canadian Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent
or Canadian Administrative Agent, as appropriate (by telephone or in writing)
of the contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent or Canadian
Administrative Agent (including at the request of any Lender) prior to 2:00 p.m.
on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.10A(a),
or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m.
on the borrowing date specified in such Swing Line Loan Notice, make the amount
of its Swing Line Loan available to such Borrower.


(c)   Refinancing of Swing Line Loans.


(i)    The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of any Borrower with any outstanding Swing
Line Loans (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each US Lender make a Base Rate Loan (whether originally
a Base Rate Loan or Eurodollar Loan, which, if originally a Eurodollar Loan,
shall be deemed to have been Converted to a Base Rate Loan on such date), or
each Canadian Lender make a Canadian US Dollar Base Rate Loan (whether
originally a Canadian US Dollar Base Rate Loan or Eurodollar Loan, which, if
originally a Eurodollar Loan, shall be deemed to have been Converted to a Base
Rate Loan on such date) or Canadian Prime Rate Loan (if originally made in
Canadian Dollars), as applicable, in an amount equal to such US Lender’s US
Percentage Share or such Canadian Lender’s Canadian Percentage Share,
respectively, of the amount of Swing Line Loans then outstanding. Such request
shall be made in writing (which written request shall be deemed to be a
Borrowing for purposes hereof) and in accordance with the requirements of Section 2.2,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, Canadian US Dollar Base Rate Loans or Canadian Prime
Rate Loans, as the case may be, but subject to the unutilized portion of the US
Commitment or Canadian Commitment, as the case may be, and the conditions set
forth in Section 4.2. The Swing Line Lender shall furnish such Borrower
with a copy of the applicable Borrowing Notice promptly after delivering such
notice to the Administrative Agent or Canadian Administrative Agent, as
appropriate. Each US Lender or Canadian Lender, as the case may be, shall make
an amount equal to its respective US Percentage Share or Canadian Percentage
Share of the amount specified in such Borrowing Notice available to the
Administrative Agent or Canadian Administrative Agent, as appropriate, in
immediately available funds for the account of the Swing Line Lender not later
than 1:00 p.m. on the day specified in such Borrowing Notice, 



 42
 








whereupon, subject
to Section 2.10A(c)(ii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Loan, Canadian US Dollar Base Rate Loan or
Canadian Prime Rate Loan, as the case may be, to such Borrower in such amount. The
Administrative Agent or Canadian Administrative Agent shall remit the funds so
received to the Swing Line Lender.


(ii)   If for any reason any Swing Line Loan cannot
be refinanced by such a Borrowing in accordance with Section 2.10A(c)(i),
or pursuant to a Borrowing requested in accordance with Section 2.2, as
the case may be, the request for Loans submitted by the Swing Line Lender as
set forth in Section 2.10A(c)(i) shall be deemed to be a request by
the Swing Line Lender that each of the US Lenders or Canadian Lenders, as the
case may be, fund its risk participation in the relevant Swing Line Loan and
each such Lender’s payment to the Administrative Agent or Canadian
Administrative Agent, as appropriate, for the account of the Swing Line Lender
pursuant to Section 2.10A(c)(i) shall be deemed payment in respect of
such participation.


(iii)  If any Lender fails to make available to the
Administrative Agent or Canadian Administrative Agent for the account of the
Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.10A(c) by the time specified
in Section 2.10A(c)(i), the Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent or 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 Swing Line Lender at a rate per annum equal to
the greater of the Federal Funds Rate (or, as to Canadian Dollar-denominated
Swing Line Loans, the “Bank Rate” as set by the Bank of Canada, as quoted on
Reuters page BOCFAD) and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent or Canadian Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest
error.


(iv)  Each Lender’s obligation to make Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.10A
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender, any
Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation
to make Loans pursuant to this Section 2.10A(c) is subject to the
conditions set forth in Section 4.2. No such funding of risk
participations shall relieve or otherwise impair the obligation of any Borrower
to repay Swing Line Loans made to it, together with interest as provided
herein.


(d)   Repayment of Participations.


(i)    At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its US Percentage Share or Canadian Percentage Share,
as the case may be, of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
risk participation was funded) in the same funds as those received by the Swing
Line Lender.


(ii)   If any payment received by the Swing Line
Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the circumstances
described in the second paragraph of Section 10.12 (including pursuant to
any settlement entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its appropriate US Percentage Share
or Canadian Percentage Share thereof on demand of the 



 43
 








Administrative
Agent or Canadian Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned, at a rate per annum equal to
the Federal Funds Rate (or, as to Canadian Dollar-denominated Swing Line Loans,
the “Bank Rate” as set by the Bank of Canada, as quoted on Reuters page BOCFAD.
The Administrative Agent or Canadian Administrative Agent, as appropriate, will
make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.


(e)   Interest for Account of Swing Line Lender.   The
Swing Line Lender shall be responsible for invoicing each Borrower for interest
on the Swing Line Loans made to it. Until each Lender funds its Base Rate Loan
or risk participation pursuant to this Section 2.10A to refinance such US
Lender’s US Percentage Share or such Canadian Lender’s Canadian Percentage
Share, as appropriate, of any Swing Line Loan, interest in respect of such US
Percentage Share or Canadian Percentage Share shall be solely for the account
of the Swing Line Lender.


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


Section 2.11.   Creation of Bankers’ Acceptances.   Upon
receipt of a Borrowing Notice requesting a Borrowing by way of Bankers’
Acceptances, and subject to the provisions of this Agreement, each Canadian
Lender shall accept, in accordance with its Canadian Percentage Share of the
requested Borrowing from time to time such Bankers’ Acceptances as either
Canadian Borrower shall request provided that:


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


(b)   each Bankers’ Acceptance shall have a term of one, two, three or
six months (excluding days of grace), as selected by such Canadian Borrower in
the relevant Borrowing Notice provided that each Bankers’ Acceptance shall
mature on a Business Day;


(c)   the face amount of each Bankers’ Acceptance shall be not less than
C$3,000,000 and in multiples of C$100,000 for any amounts in excess thereof;
and


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


Section 2.12.   Terms of
Acceptance by Canadian Lenders.


(a)   Delivery and Payment.   Subject
to Sections 2.13 and 2.14 and only if a valid appointment pursuant to
Section 2.12(d) is not in place, each Canadian Borrower shall
pre-sign and deliver to each Canadian Lender bankers’ acceptance drafts in
sufficient quantity to meet each Canadian Borrower’s requirements for
anticipated Borrowings by way of Bankers’ Acceptances. Each Canadian Borrower
shall, at its option, provide for payment to Canadian Administrative Agent for the
benefit of Canadian Lenders of each Bankers’ Acceptance on the date on which a
Bankers’ Acceptance matures, either by payment of the full face amount thereof
or through utilization of a Conversion to another Type of Borrowing in
accordance with this Agreement, or through a combination thereof. Each Canadian
Borrower waives presentment for payment of Bankers’ Acceptances by Canadian
Lenders and shall not claim from Canadian Lenders any days of grace for the
payment at maturity of Bankers’ Acceptances. Any amount owing by a Canadian
Borrower in respect of any Bankers’ Acceptance which is not paid in accordance
with the foregoing, shall, as and from the date on which such Bankers’
Acceptance matures, be deemed to be outstanding hereunder as a Canadian Prime Rate
Loan.



 44















(b)   No Liability.   Canadian Administrative Agent and
Canadian Lenders 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 Canadian Administrative Agent or a Canadian Lender failing to use the
same standard of care in the custody of such bankers’ acceptance drafts as
Canadian Administrative Agent or such Canadian Lender use in the custody of
their own property of a similar nature.


(c)   Bankers’ Acceptances Purchased by Canadian Lenders.   Each
Canadian Lender shall purchase Bankers’ Acceptances accepted by it for an
amount equal to the Discount Proceeds.


(d)   Power of Attorney.   To facilitate the procedures
contemplated in this Agreement, each Canadian Borrower appoints each Canadian
Lender from time to time as the attorney-in-fact of such Canadian Borrower to
execute, endorse and deliver on behalf of such Canadian Borrower drafts or
depository bills in the form or forms prescribed by such Canadian Lender for
Bankers’ Acceptances denominated in Canadian Dollars. Each Bankers’ Acceptance
executed and delivered by a Canadian Lender on behalf of a Canadian Borrower
shall be as binding upon such Canadian Borrower as if it had been executed and
delivered by a duly authorized officer of such Canadian Borrower. The foregoing
appointment shall cease to be effective, in respect of any Canadian Lender
regarding a Canadian Borrower, three Business Days following receipt by such
Canadian Lender of a written notice from such Canadian Borrower revoking such appointment
(which notice shall be copied to the Canadian Administrative Agent); provided
that any such revocation shall not affect Bankers’ Acceptances previously
executed and delivered by such Canadian Lender pursuant to such appointment.


(e)   Pro-Rata Treatment of Canadian Advances.


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


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


(f)    BA Equivalent Advances.   Each Canadian Lender may, in
lieu of accepting a BA on the date of any Borrowing, make a BA Equivalent
Advance. The amount of each BA Equivalent Advance shall be 



 45
 








equal to the Discount
Proceeds (with reference to the applicable BA Discount Rate) which would be
realized from a hypothetical sale of those BAs which, but for this subsection,
would have been sold to such Canadian Lender. If such Canadian Lender does not
otherwise have a BA Discount Rate applicable to it, the applicable BA Discount
Rate will be calculated as though such Canadian Lender was listed on Schedule
II or Schedule III of the Bank Act (Canada).
Any BA Equivalent Advance shall be made on the relevant date of any Borrowing,
and shall remain outstanding for the term of the corresponding BA. On the
maturity date of the corresponding BA, such BA Equivalent Advance shall be
repaid in an amount equal to the face amount of a draft that would have been
accepted by such Canadian Lender if such Canadian Lender had accepted and
purchase BA hereunder. Each BA Equivalent Advance made pursuant to this
subsection shall be deemed to be a BA accepted and purchased by such Canadian
Lender pursuant to the terms hereof, and except in this subsection, any
reference to a BA shall include such BA Equivalent Advance.


Section 2.13.   General
Procedures for Bankers’ Acceptances.


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


(b)   Conversion from Canadian Prime Rate Loans or Canadian US Dollar Base
Rate Loans.   In the case of a Conversion from a Borrowing of
Canadian Prime Rate Loans or Canadian US Dollar Base Rate Loans to a Canadian
Borrower into a Borrowing by way of Bankers’ Acceptances to be accepted by a
Canadian Lender pursuant to Section 2.12, such Canadian Lender, in order
to satisfy the continuing liability of such Canadian Borrower to it for the
principal amount of the Canadian Prime Rate Loans or Canadian US Dollar Base
Rate Loans being converted, shall retain for its own account the Discount
Proceeds of each new Bankers’ Acceptance issued by it in connection with such
Conversion; and such Canadian Borrower shall, on the date of issuance of the
Bankers’ Acceptances, pay to Canadian Administrative Agent for the benefit of
Canadian Lenders an amount equal to the difference between the aggregate
principal amount of the Canadian Prime Rate Loans or Canadian US Dollar Base
Rate Loans being converted owing to the Canadian Lenders and the aggregate
Discount Proceeds of such Bankers’ Acceptances.


(c)   Authorization.   Each Canadian Borrower hereby
authorizes each Canadian Lender to complete, stamp, hold, sell, rediscount or
otherwise dispose of all Bankers’ Acceptances of such Canadian Borrower
accepted by it pursuant to this section in accordance with the instructions
provided by such Canadian Borrower pursuant to Section 2.3, as applicable.


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


Section 2.14.   Execution
of Bankers’ Acceptances.   The signatures of any authorized
signatory on Bankers’ Acceptances which are authorized and requested hereunder
by a Canadian Borrower may, at the option of such Canadian Borrower, be
reproduced in facsimile and such Bankers’ Acceptances bearing such facsimile
signatures shall be binding on such Canadian Borrower as if they had been
manually signed by such authorized signatory. Notwithstanding that any person
whose signature appears on any Bankers’ 



 46
 








Acceptance as a signatory
may no longer be an authorized signatory of such Canadian Borrower at the date
of issuance of a Bankers’ Acceptance, and notwithstanding that the signature
affixed may be a reproduction only, such signature shall, unless prior to its
use such Canadian Borrower has notified the Canadian Administrative Agent in
writing to contrary, nevertheless be valid and sufficient for all purposes as
if such authority had remained in force at the time of such issuance and as if
such signature had been manually applied, and any such Bankers’ Acceptance so
signed shall be binding on such Canadian Borrower.


Section 2.15.   Prepayment
of Bankers’ Acceptances.   Any amounts received by Canadian
Administrative Agent to be applied to outstanding Bankers’ Acceptances, whether
pursuant to an Event of Default and acceleration of the Obligations under Section 8.1
or a prepayment as permitted or required under Section 2.8 or 2.9, shall
be deposited into an escrow account maintained by and in the name of Canadian
Administrative Agent for the benefit of Canadian Lenders for set-off against
such outstanding Bankers’ Acceptances as they mature, and pending such
application shall bear interest at the rate declared by 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 such Bankers’ Acceptances,
as applicable. Upon the repayment of all such outstanding Bankers’ Acceptances,
any amounts remaining (including accrued interest) will (i) during the
continuance of an Event of Default, be subject to such remedies as each Lender
Party may have hereunder or under applicable Law, or (ii) otherwise, be
released to the appropriate Canadian Borrower.


ARTICLE
III.—Payments to Lenders


Section 3.1.   General
Procedures.


(a)   Each
Restricted Person shall pay all amounts owing by such Restricted Person with
respect to any US Obligations (whether for principal, interest, fees, or
otherwise) to Administrative Agent for the account of the US Lender Party to
whom such payment is owed in Dollars, without set-off, deduction or
counterclaim, and in immediately available funds and each Restricted Person
shall pay all amounts owing by such Restricted Person with respect to any
Canadian Obligations (whether for principal, interest, fees, or otherwise) to
Canadian Administrative Agent for the account of the Canadian Lender Party to
whom such payment is owed in the currency such Canadian Loans were funded,
without set-off, deduction or counterclaim, and in immediately available
funds. If any payment is received on account of any US Obligation in any
currency other than Dollars (whether voluntarily or pursuant to any order or
judgment or the enforcement thereof or the realization of any security or the
liquidation of any Person or otherwise howsoever), such payment shall
constitute a discharge of the liability of a Restricted Person hereunder and
under the other Loan Documents in respect of such US Obligation only to the
extent of the amount of Dollars which the relevant Lender Parties are able to
purchase with the amount of the other currency received by it on the Business
Day next following such receipt by the Administrative Agent in accordance with
its normal procedures and after deducting any premium and costs of exchange. If
any payment is received on account of any Canadian Obligation in any currency
other than the currency such Canadian Loans were funded (whether voluntarily or
pursuant to any order or judgment or the enforcement thereof or the realization
of any security or the liquidation of any Person or otherwise howsoever), such
payment shall constitute a discharge of the liability of a Restricted Person
hereunder and under the other Loan Documents in respect of such Canadian
Obligation only to the extent of the amount of Canadian Dollars or Dollars, as
the case may be, which the relevant Lender Parties are able to purchase with
the amount of the other currency received by it on the Business Day next
following such receipt by Canadian Administrative Agent in accordance with its
normal procedures and after deducting any premium and costs of exchange;
provided, however, if the Canadian LC Issuer is paid Dollars pursuant to Section 2.10(c)(i),
such payment shall constitute a full discharge of the liability to which such
payment relates. Each payment under the Loan Documents must be received by the
relevant Agent not later than 



 47
 








noon, New York, New York
time or Toronto, Ontario time, as the case may be, on the date such payment
becomes due and payable, unless otherwise expressly provided herein. Any
payment received by the relevant Agent after such time will be deemed to have
been made on the next following Business Day. Should any such payment become
due and payable on a day other than a Business Day, the maturity of such
payment shall be extended to the next succeeding Business Day, and, in the case
of a payment of principal or past due interest, interest shall accrue and be
payable thereon for the period of such extension as provided in the Loan
Document under which such payment is due. Each payment under a Loan Document to
a US Lender Party shall be due and payable at the place provided therein and,
if no specific place of payment is provided, shall be due and payable at the
place of payment of Administrative Agent’s US Note. Each Payment under a Loan
Document to a Canadian Lender Party shall be due and payable at the place
provided therein, and, if no specific place of payment is provided, shall be
due and payable at the place of payment in Canadian Administrative Agent’s
Canadian Note.


(b)   When
Administrative Agent collects or receives money on account of the US
Obligations, Administrative Agent shall distribute all money so collected or
received, and each US Lender Party shall apply all such money so distributed,
as follows:


(i)    first, for
the payment of all US Obligations which are then due (and if such money is
insufficient to pay all such US Obligations, first to any reimbursements due
Administrative Agent under Section 10.4 and then to the partial payment of
all other US Obligations then due in proportion to the amounts thereof, or as
US Lender Parties shall otherwise agree);


(ii)   then for
the prepayment of amounts owing under the Loan Documents (other than principal
on the US Notes) if so specified by US Borrower;


(iii)  then for
the prepayment of principal on the US Notes, together with accrued and unpaid
interest on the principal so prepaid, or held by US LC Issuer and applied to US
LC Obligations as they mature; and


(iv)  last, for
the payment or prepayment of any other US Obligations.


All payments applied to principal or interest on any
US Note shall be applied first to any interest then due and payable, then to
principal then due and payable, and last to any prepayment of principal and
accrued interest thereon in compliance with Sections 2.8 and 2.9, as applicable.
All distributions of amounts described in any of subsections (ii), (iii), or (iv) above
shall be made by Administrative Agent pro rata to each US Lender Party then
owed US Obligations described in such subsection in proportion to all amounts
owed to all US Lender Parties which are described in such subsection; provided
that if any US Lender then owes payments to US LC Issuer for the purchase of a
participation under Section 2.10(a) or to Administrative Agent under Section 9.10,
any amounts otherwise distributable under this section to such US Lender shall
be deemed to belong to US LC Issuer, or Administrative Agent, respectively, to
the extent of such unpaid payments, and Administrative Agent shall apply such
amounts to make such unpaid payments rather than distribute such amounts to
such US Lender.


(c)   When
Canadian Administrative Agent collects or receives money on account of the
Canadian Obligations, other than as provided in Section 3.9, Canadian
Administrative Agent shall distribute all money so collected or received, and
each Canadian Lender Party shall apply all such money so distributed, as
follows:


(i)    first, for
the payment of all Canadian Obligations which are then due (and if such money
is insufficient to pay all such Canadian Obligations, first to any
reimbursements due Canadian Administrative Agent under 10.4 and then to the
partial payment of all other Canadian Obligations then due in proportion to the
amounts thereof, or as Canadian Lender Parties shall otherwise agree);



 48
 








(ii)   then for
the prepayment of amounts owing under the Loan Documents (other than principal
on the Canadian Notes) if so specified by a Canadian Borrower;


(iii)  then for
the prepayment of principal on the Canadian Notes, together with accrued and
unpaid interest on the principal so prepaid, or held by Canadian LC Issuer and
applied to Canadian LC Obligations as they mature; and


(iv)  last, for
the payment or prepayment of any other Canadian Obligations.


All payments applied to principal or interest on any
Canadian Note shall be applied first to any interest then due and payable, then
to principal then due and payable, and last to any prepayment of principal and
accrued interest thereon in compliance with Sections 2.8 and 2.9, as applicable.
All distributions of amounts described in any of subsections (ii), (iii), or (iv) above
shall be made by Canadian Administrative Agent pro rata to each Canadian Lender
Party then owed Canadian Obligations described in such subsection in proportion
to all amounts owed to all Canadian Lender Parties which are described in such
subsection; provided that if any Canadian Lender then owes payments to Canadian
LC Issuer for the purchase of a participation under Section 2.10(a ) or to
Canadian Administrative Agent under Section 9.10, any amounts otherwise
distributable under this section to such Canadian Lender shall be deemed to
belong to Canadian LC Issuer, or Canadian Administrative Agent, respectively,
to the extent of such unpaid payments, and Canadian Administrative Agent shall
apply such amounts to make such unpaid payments rather than distribute such
amounts to such Canadian Lender.


(d)   Unless the
Administrative Agent or Canadian Administrative Agent shall have received
notice from the relevant Borrower prior to the date on which any payment is due
to the Administrative Agent or Canadian Administrative Agent, as the case may
be, for the account of the Lenders or any LC Issuer hereunder that such
Borrower will not make such payment, the Administrative Agent or Canadian
Administrative Agent, as the case may be, may assume that such Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the appropriate Lenders or the L/C Issuer, as the
case may be, the amount due. In such event, if such Borrower has not in fact
made such payment, then each of such Lenders or the L/C Issuer, as the case may
be, severally agrees to repay to the Administrative Agent or Canadian
Administrative Agent, as appropriate, forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available funds
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent or Canadian Administrative Agent, at the greater of the Federal Funds
Rate (or, as to Canadian Dollar-denominated amounts, the “Bank Rate” as set by
the Bank of Canada, as quoted on Reuters page BOCFAD) and a rate
determined by the Administrative Agent or Canadian Administrative Agent, as
appropriate, in accordance with banking industry rules on interbank
compensation. A notice of the Administrative Agent or Canadian Administrative
Agent to any Lender with respect to any amount owing under this subsection (d) shall
be conclusive, absent manifest error.


Section 3.2.   Capital
Reimbursement.   If either (a) the introduction or
implementation of or the compliance with or any change in or in the
interpretation of any Law, or (b) the introduction or implementation of or
the compliance with any request, directive or guideline from any central bank
or other governmental authority (whether or not having the force of Law)
affects or would affect the amount of capital required or expected to be maintained
by any Lender Party or any corporation controlling any Lender Party, then,
within five Business Days after demand by such Lender Party, the relevant
Borrower will pay to the relevant Agent for the benefit of such Lender Party,
from time to time as specified by such Lender Party, such additional amount or
amounts which such Lender Party shall determine to be appropriate to compensate
such Lender Party or any corporation controlling such Lender Party in light of
such circumstances, to the extent that such Lender Party reasonably determines
that the amount of any such capital would be increased or the rate of return on
any such capital would be reduced by or in whole 



 49
 








or in part based on the
existence of the face amount of such Lender Party’s Loans, Letters of Credit,
participations in Letters of Credit, in Banker’s Acceptances, or commitments
under this Agreement.


Section 3.3.   Increased
Cost of Eurodollar Loans or Letters of Credit.   If any
applicable Law (whether now in effect or hereinafter enacted or promulgated,
including Regulation D) or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof (whether or not having the force of Law):


(a)   shall
change the basis of taxation of payments to any Lender Party of any principal,
interest, or other amounts attributable to any Eurodollar Loan or Letter of
Credit or otherwise due under this Agreement in respect of any Eurodollar Loan
or Letter of Credit (other than taxes imposed on, or measured by, the overall
net income of such Lender Party or any Applicable Lending Office of such Lender
Party by any jurisdiction in which such Lender Party or any such Applicable
Lending Office is located); or


(b)   shall
change, impose, modify, apply or deem applicable any reserve, special deposit
or similar requirements in respect of any Eurodollar Loan or any Letter of
Credit (excluding those for which such Lender Party is fully compensated
pursuant to adjustments made in the definition of Eurodollar Rate) or against
assets of, deposits with or for the account of, or credit extended by, such
Lender Party; or


(c)   shall
impose on any Lender Party or the interbank Eurocurrency deposit market any
other condition affecting any Eurodollar Loan or Letter of Credit, the result
of which is to increase the cost to any Lender Party of funding or maintaining
any Eurodollar Loan or of issuing any Letter of Credit or to reduce the amount
of any sum receivable by any Lender Party in respect of any Eurodollar Loan or Letter
of Credit by an amount deemed by such Lender Party to be material, then such
Lender Party shall promptly notify relevant Agent and relevant Borrower in
writing of the happening of such event and of the amount required to compensate
such Lender Party for such event (on an after-tax basis, taking into
account any taxes on such compensation), whereupon (i) relevant Borrower
shall, within five Business Days after demand therefor by such Lender Party,
pay such amount to relevant Agent for the account of such Lender Party and (ii) relevant
Borrower may elect, by giving to relevant Agent and such Lender Party not less
than three Business Days’ notice, to Convert all (but not less than all) of any
such Eurodollar Loans into Base Rate Loans.


Section 3.4.   Notice;
Change of Applicable Lending Office.   A Lender Party shall
notify the relevant Borrower of any event occurring after the date of this
Agreement that will entitle such Lender Party to compensation under Section 3.2,
3.3, or 3.5 hereof as promptly as practicable, but in any event within 180 days,
after such Lender Party obtains actual knowledge thereof; provided, that (i) if
such Lender Party fails to give such notice within 180 days after it obtains
actual knowledge of such an event, such Lender Party shall, with respect to
compensation payable pursuant to Section 3.2, 3.3, or 3.5 in respect of
any costs resulting from such event, only be entitled to payment under Section 3.2,
3.3, or 3.5 hereof for costs incurred from and after the date 180 days prior to
the date that such Lender Party does give such notice and (ii) such Lender
Party will designate a different Applicable Lending Office for the Loans
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such
Lender Party, be disadvantageous to such Lender Party, except that such Lender
Party shall have no obligation to designate an Applicable Lending Office
located in the United States of America. Each Lender Party will furnish to the
relevant Borrower a certificate setting forth the basis and amount of each
request by such Lender Party for compensation under Section 3.2, 3.3, or
3.5 hereof.


Section 3.5.   Availability.   If
(a) any change in applicable Laws, or in the interpretation or
administration thereof of or in any jurisdiction whatsoever, domestic or
foreign, shall make it unlawful or impracticable for any Lender Party to fund
or maintain Eurodollar Loans, accept BA’s or to issue or participate in Letters
of Credit, or shall materially restrict the authority of any Lender Party to
purchase or 



 50
 








take offshore deposits of
dollars (i.e., “Eurodollars”), or (b) any Lender Party determines that
matching deposits appropriate to fund or maintain any Eurodollar Loan are not
available to it, or (c) any Lender Party determines that the formula for
calculating the Eurodollar Rate does not fairly reflect the cost to such Lender
Party of making or maintaining loans based on such rate, in each case with
respect to the relevant Commitment hereunder, then, upon notice by such Lender
Party to the relevant Borrower and the relevant Agent, such Borrower’s right to
elect Eurodollar Loans from such Lender Party or issue BA’s (or, if applicable,
to obtain Letters of Credit) shall be suspended to the extent and for the
duration of such illegality, impracticability or restriction and all Eurodollar
Loans of such Lender Party which are then outstanding and all BA’s which are
then outstanding or are then the subject of any Borrowing Notice and which
cannot lawfully or practicably be maintained, funded or accepted shall
immediately become or remain, or shall be funded as, Base Rate Loans of such
Lender Party. With respect to each Commitment, the relevant Borrower agrees to
indemnify each Lender Party extending credit pursuant thereto, and hold each
such Lender Party harmless against all costs, expenses, claims, penalties,
liabilities and damages which may result from any such change in Law,
interpretation or administration. Such indemnification shall be on an after-tax
basis, taking into account any taxes imposed on the amounts paid as indemnity.


Section 3.6.   Funding
Losses.   In addition to its other obligations hereunder, with
respect to each Commitment, the relevant Borrower will indemnify each Lender
Party extending credit pursuant thereto against, and reimburse each Lender
Party on demand for, any loss or expense incurred or sustained by such Lender
Party (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender Party to fund
or maintain Eurodollar Loans), as a result of (a) any payment or
prepayment (whether or not authorized or required hereunder) of all or a
portion of a Eurodollar Loan on a day other than the day on which the
applicable Interest Period ends, (b) any payment or prepayment, whether or
not required hereunder, of a Loan made after the delivery, but before the
effective date, of a Continuation/Conversion Notice, if such payment or
prepayment prevents such Continuation/Conversion Notice from becoming fully
effective, (c) the failure of any Loan to be made or of any Continuation/Conversion
Notice to become effective due to any condition precedent not being satisfied
or due to any other action or inaction of any Restricted Person, or (d) any
Conversion (whether or not authorized or required hereunder) of all or any
portion of any Eurodollar Loan into a Base Rate Loan or into a different
Eurodollar Loan on a day other than the day on which the applicable Interest
Period ends. Such indemnification shall be on an after-tax basis, taking
into account any taxes imposed on the amounts paid as indemnity.


Section 3.7.   Reimbursable
Taxes.   With respect to the Commitments, the relevant Borrower
thereunder covenants and agrees with each Lender Party extending credit
pursuant thereto that:


(a)   Such
Borrower will indemnify each such Lender Party against and reimburse each such
Lender Party for all present and future stamp and other taxes, duties, levies,
imposts, deductions, charges, costs, and withholdings whatsoever imposed,
assessed, levied or collected on or in respect of this Agreement, any
Eurodollar Loans, any BA’s or Letters of Credit (whether or not legally or
correctly imposed, assessed, levied or collected) including all taxes imposed
pursuant to Part XIII of the Income Tax Act (Canada) and any withholding
or other taxes imposed on any Lender Party under Canadian Law, excluding,
however, any taxes imposed on or measured by the overall net income of any
Agent or such Lender Party or any Applicable Lending Office of such Lender
Party by any jurisdiction in which such Lender Party or any such Applicable Lending
Office is located (all such non-excluded taxes, levies, costs and charges
being collectively called “Reimbursable Taxes” in this section). Such
indemnification shall be on an after-tax basis, taking into account any
taxes imposed on the amounts paid as indemnity.



 51















(b)   All
payments on account of the principal of, and interest on, each such Lender
Party’s Loans and Notes, and all other amounts payable by such Borrower to any
such Lender Party hereunder, shall be made in full without set-off or
counterclaim and shall be made free and clear of and without deductions or
withholdings of any nature by reason of any Reimbursable Taxes, all of which
will be for the account of the relevant Borrower. In the event of any such
Borrower being compelled by Law to make any such deduction or withholding from
any payment to any such Lender Party, such Borrower shall pay on the due date
of such payment, by way of additional interest, such additional amounts as are
needed to cause the amount receivable by such Lender Party after such deduction
or withholding to equal the amount which would have been receivable in the
absence of such deduction or withholding. If any such Borrower should make any
deduction or withholding as aforesaid, such Borrower shall within 60 days
thereafter forward to such Lender Party an official receipt or other official
document evidencing payment of such deduction or withholding.


(c)   If any such
Borrower is ever required to pay any Reimbursable Tax with respect to any
Eurodollar Loan, such Borrower may elect, by giving to the relevant Agent and
such Lender Party not less than three Business Days’ notice, to Convert all
(but not less than all) of any such Eurodollar Loan into a Base Rate Loan, but
such election shall not diminish such Borrower’s obligation to pay all
Reimbursable Taxes.


(d)   Notwithstanding
the foregoing provisions of this section, such Borrower shall be entitled, to
the extent it is required to do so by Law, to deduct or withhold (and not to
make any indemnification or reimbursement for) income or other similar taxes
imposed by the United States of America or Canada (other than any portion
thereof attributable to a change in federal income tax Laws effected after the
date hereof) from interest, fees or other amounts payable hereunder for the
account of such Lender Party, other than such a Lender Party (i) who is a
US person for Federal income tax purposes or (ii) who has the Prescribed
Forms on file with Administrative Agent (with copies provided to the relevant
Borrower) 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,
provided that if such Borrower shall so deduct or withhold any such taxes, it
shall provide a statement to Administrative Agent and such Lender Party,
setting forth the amount of such taxes so deducted or withheld, the applicable
rate and any other information or documentation which such Lender Party may
reasonably request for assisting such Lender Party to obtain any allowable
credits or deductions for the taxes so deducted or withheld in the jurisdiction
or jurisdictions in which such Lender Party is subject to tax. As used in this
section, “Prescribed Forms” means such duly executed forms or statements, and
in such number of copies, which may, from time to time, be prescribed by Law
and which, pursuant to applicable provisions of (x) an income tax treaty
between the United States and the country of residence of such Lender Party
providing the forms or statements, (y) the Code, or (z) any applicable
rules or regulations thereunder, permit such Borrower to make payments
hereunder for the account of such Lender Party free of such deduction or
withholding of income or similar taxes.


Section 3.8.   Replacement
of Lenders.   If any Lender Party requests compensation under
Sections 3.2 through 3.7, or if any Lender Party has failed to fund any portion
of the Loans or participations in LC Obligations required to be funded by it
hereunder or failed to issue any Letter of Credit required to be issued by it
hereunder, in either case within two Business Days of the date required for
such funding or issuance by it hereunder, notwithstanding subsequent cure, or
with respect to any Non-Extending Lender under Section 2.1(f) hereof,
then any Borrower may, at its sole expense (except as otherwise provided
hereunder) and effort, upon notice to such Lender Party and the relevant Agent,
require such Lender Party to assign and delegate (in accordance with and
subject to the restrictions contained in, and consents required by, Section 10.5),
all of its interests, rights and obligations under this Agreement and the
related



 52
 








Loan Documents to
an assignee that shall assume such obligations (which assignee may be another
Lender Party, if a Lender Party accepts such assignment), provided that:


(a)   such
Lender Party shall have received payment of an amount equal to the outstanding
principal of its Loans and LC Obligations, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.6) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
applicable Borrower (in the case of all other amounts); and


(b)   such
assignment does not conflict with applicable Laws.


Notwithstanding the foregoing rights of each Borrower
under this section, however, Borrowers may not replace any Lender Party which
seeks reimbursement for increased costs under Section 3.2 through 3.7
unless such Borrower is at the same time replacing all Lender Parties which are
then seeking such compensation.


Section 3.9.   Currency
Conversion and Indemnity.


(a)   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 under a Loan Document in
the currency in which it was effected (the “Agreed Currency”)
then the conversion shall be made on the basis of the rate of exchange
prevailing on the Business Day preceding the date such judgment is given and in
any event each Restricted Person obligated to pay such Obligation shall be
obligated to pay the relevant Lender Parties any deficiency in accordance with Section 3.9(b).
For the foregoing purposes “rate of exchange” means the rate at which the
relevant Agent, as applicable, 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.


(b)   If any Lender Party
receives any payment or payments on account of the liability of a Restricted
Person under the Loan Documents pursuant to any judgment or order in any
currency other than the Agreed Currency (an “Other
Currency”), and the amount of the Agreed Currency which the
relevant Lender Party 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 Obligations
immediately prior to such judgment or order, then the Borrower owing such
Obligation on demand shall, and such Borrower hereby agrees to, indemnify and
save such Lender Party 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 3.9(b) 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 Lender Parties 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.


ARTICLE
IV.—Conditions
Precedent to Lending


Section 4.1.   Documents
to be Delivered.   No Lender has any obligation to make its
first Loan, and no LC Issuer has any obligation to issue the first Letter of
Credit, unless Administrative Agent shall have received all of the following,
at Administrative Agent’s office in Boston, Massachusetts, duly executed and
delivered and in form, substance and date satisfactory to Administrative Agent,
each of which was so executed and delivered:


(a)   This
Agreement and any other document that Lenders are to execute in connection
herewith.


(b)   Each
Note and the guaranty of each Guarantor.



 53
 








(c)   Certain certificates including:


(i)    An “Omnibus
Certificate” of the secretary or assistant secretary and any vice president of
GP LLC, which shall contain the names and signatures of the officers of GP LLC
authorized to execute Loan Documents and which shall certify to the truth,
correctness and completeness of the following exhibits attached thereto: (1) a
copy of resolutions duly adopted by the Board and in full force and effect at
the time this Agreement is entered into, authorizing the execution of this
Agreement and the other Loan Documents delivered or to be delivered in
connection herewith and the consummation of the transactions contemplated
herein and therein, (2) a copy of the charter documents of US Borrower and
all amendments thereto, certified by the appropriate official of its
jurisdiction of organization, and (3) a copy of the agreement of limited
partnership of US Borrower;


(ii)   An “Omnibus
Certificate” of the secretary or assistant secretary and any vice president of
Plains Marketing GP Inc., which shall contain the names and signatures of the
officers of such company authorized to execute Loan Documents and which shall
certify to the truth, correctness and completeness of the following exhibits
attached thereto: (1) a copy of resolutions duly adopted by the board of
directors of such company and in full force and effect at the time this
Agreement is entered into, authorizing the execution of this Agreement and the
other Loan Documents delivered or to be delivered in connection herewith and
the consummation of the transactions contemplated herein and therein, (2) a
copy of the charter documents of each Significant Restricted Person, other than
those Significant Restricted Persons whose charter documents are attached to the
certificates described in Section 4.1(c)(i) above or Section 4.1(c)(iii) below
and all amendments thereto, certified by the appropriate official of its
jurisdiction of organization, and (3) a copy of any bylaws or agreement of
limited partnership of such Significant Restricted Persons;


(iii)  An “Omnibus
Certificate” of the secretary or assistant secretary and any vice president of
PMC (Nova Scotia) Company, which shall contain the names and signatures of the
officers of PMC (Nova Scotia) Company authorized to execute Loan Documents and
which shall certify to the truth, correctness and completeness of the following
exhibits attached thereto: (1) a copy of resolutions duly adopted by the
board of directors of PMC (Nova Scotia) Company and in full force and effect at
the time this Agreement is entered into, authorizing the execution of this
Agreement and the other Loan Documents delivered or to be delivered in
connection herewith and the consummation of the transactions contemplated
herein and therein, (2) a copy of the charter documents of PMC (Nova
Scotia) Company and Plains Marketing Canada, L.P. and all amendments thereto,
certified by the appropriate official of its jurisdiction of organization, and (3) a
copy of the bylaws of PMC (Nova Scotia) Company and the agreement of limited
partnership of Plains Marketing Canada, L.P.; and


(iv)  A
certificate of a Responsible Officer of GP LLC, regarding satisfaction of Section 4.2.


(d)   A
certificate (or certificates) of the due formation, valid existence and good standing
of each Significant Restricted Person in its respective jurisdiction of
organization, issued by the appropriate authorities of such jurisdiction.


(e)   Favorable
opinions of Tim Moore, Esq., General Counsel for Restricted Persons,
substantially in the form set forth in Exhibit E-1, Fulbright &
Jaworski L.L.P., special Texas and New York counsel to Restricted Persons,
substantially in the form set forth in Exhibit E-2, and Bennett
Jones LLP, special Canadian Counsel for Restricted Persons, substantially in
the form set forth in Exhibit E-3.


(f)    [Intentionally deleted].


(g)   Consolidated
financial statements of US Borrower and its Subsidiaries as of June 30,
2005, reflecting compliance with Section 7.8, together with a certificate
by the chief financial officer of GP LLC certifying such financial statements.



 54
 








(h)   No
Material Adverse Change shall have occurred since December 31, 2004.


(i)    Administrative
Agent shall have received all documents and instruments which Administrative
Agent has then requested (including opinions of legal counsel for Restricted
Persons and Administrative Agent; corporate documents and records; documents
evidencing governmental authorizations, consents, approvals, licenses and
exemptions; and certificates of public officials and of officers and
representatives of Borrowers and other Persons), as to (i) the accuracy
and validity of or compliance with all representations, warranties and
covenants made by any Restricted Person in this Agreement and the other Loan
Documents, (ii) the satisfaction of all conditions contained herein or
therein, and (iii) all other matters pertaining hereto and thereto. All
such additional documents and instruments shall be satisfactory to
Administrative Agent in form and substance.


(j)    Payment of
all commitment, facility, agency and other fees required to be paid to any
Agent or Lender pursuant to any Loan Documents or any commitment agreement
heretofore entered into.


(k)   Evidence of
the payment in full of all outstanding Indebtedness under the Existing Agreement,
the release of all Liens securing such Indebtedness, and termination of the
Existing Agreement.


Without limiting the generality of
the provisions of Section 9.4, for purposes of determining compliance with
the conditions specified in this Section 4.1, each Lender that has signed
this Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to
the proposed Closing Date specifying its objection thereto, and Administrative
Agent hereby agrees to promptly provide US Borrower with a copy of any such
notice received by Administrative Agent.


Section 4.2.   Additional
Conditions Precedent.   No Lender has any obligation to make any
Loan (including its first), and no LC Issuer has any obligation to issue any
Letter of Credit (including its first), unless the following conditions
precedent have been satisfied:


(a)   All
representations and warranties made by any Restricted Person in any Loan
Document shall be true on and as of the date of such Loan or the date of
issuance of such Letter of Credit as if such representations and warranties had
been made as of the date of such Loan or the date of issuance of such Letter of
Credit except to the extent that such representation or warranty was made as of
a specific date or updated, modified or supplemented as of a subsequent date
with the consent of Majority Lenders, then in each such case, such other date.


(b)   No Default shall exist at the date of such Loan or the date of
issuance of such Letter of Credit or result from such Loan or such issuance of
such Letter of Credit.


ARTICLE
V.—Representations
and Warranties


To confirm each Lender’s understanding concerning
Restricted Persons and Restricted Persons’ businesses, properties and
obligations and to induce each Lender to enter into this Agreement and to
extend credit hereunder, each of US Borrower and, with respect to itself and
its Subsidiaries, the other Borrowers represents and warrants to each Lender
that:


Section 5.1.   No
Default.   No event has occurred and is continuing which
constitutes a Default, except as has been waived in accordance with this
Agreement.


Section 5.2.   Organization
and Good Standing.   Each Significant Restricted Person is duly
organized or formed, validly existing and in good standing under the Laws of
its jurisdiction of organization or formation, having all requisite corporate
or similar powers required to carry on its business and enter into and carry
out the transactions contemplated hereby. Each Significant Restricted Person is
duly qualified, in good standing, and authorized to do business in all other
jurisdictions wherein the character of the 



 55
 








properties owned or held
by it or the nature of the business transacted by it makes such qualification
necessary except where the failure to so qualify would not reasonably be
expected to cause a Material Adverse Change.


Section 5.3.   Authorization.   Each
Restricted Person has duly taken all action necessary to authorize the
execution and delivery by it of the Loan Documents to which it is a party and
to authorize the consummation of the transactions contemplated thereby and the
performance of its obligations thereunder. Each Borrower is duly authorized to
borrow funds hereunder.


Section 5.4.   No
Conflicts or Consents.   The execution and delivery by each
Restricted Person of the Loan Documents to which it is a party, the performance
by it of its obligations, and the consummation of the transactions contemplated
thereby, do not and will not (i) violate any provision of (1) Law
applicable to it, (2) its organizational documents or (3) any
judgment, order or material license or permit applicable to or binding upon it,
(ii) result in the acceleration of any Indebtedness owed by it or (iii) result
in or require the creation of any consensual Lien upon any of its material
assets or properties except as expressly contemplated in, or permitted by, the
Loan Documents. Except as expressly contemplated in or permitted by the Loan
Documents, disclosed in the Disclosure Schedule or disclosed pursuant to Section 6.4,
no permit, consent, approval, authorization or order of, and no notice to or
filing, registration or qualification with, any Governmental Authority is
required on the part of any Restricted Person a party thereto pursuant to the
provisions of any material Law applicable to it as a condition to its
execution, delivery or performance of any Loan Document or (ii) to
consummate any transactions contemplated by the Loan Documents.


Section 5.5.   Enforceable
Obligations.   This Agreement is, and the other Loan Documents
when duly executed and delivered will be, legal, valid and binding obligations
of each Restricted Person which is a party hereto or thereto, enforceable in
accordance with their terms except as such enforcement may be limited by
bankruptcy, insolvency or similar Laws of general application relating to the
enforcement of creditors’ rights and general principles of equity.


Section 5.6.   Initial
Financial Statements.   US Borrower has heretofore delivered to
each Lender true, correct and complete copies of the Initial Financial
Statements. The Initial Financial Statements fairly present US Borrower’s
Consolidated financial position at the date thereof and the Consolidated
results of US Borrower’s operations for the periods thereof, and in the case of
the annual Initial Financial Statements, Consolidated cash flows for the period
thereof. Except as disclosed pursuant to Section 6.4, since the date of
the annual Initial Financial Statements, no Material Adverse Change has
occurred. All Initial Financial Statements described in clause (i) of that
defined term were prepared in accordance with GAAP.


Section 5.7.   Other
Obligations and Restrictions.   As of the Closing Date, no
Restricted Person has any outstanding payment obligations of any kind
(including contingent obligations, tax assessments and unusual forward or long-term
commitments) which are, in the aggregate, material to US Borrower or material
with respect to US Borrower’s Consolidated financial condition and not
reflected in the Initial Financial Statements, disclosed in the Disclosure
Schedule or otherwise permitted under Section 7.1. Except as disclosed in
the Disclosure Schedule or pursuant to Section 6.4, no Restricted Person
is subject to or restricted by any franchise, contract, deed, charter
restriction, or other instrument or restriction which would reasonably be
expected to cause a Material Adverse Change.


Section 5.8.   Full
Disclosure.   No certificate, statement or other information
delivered herewith or heretofore by any Restricted Person to any Lender in
connection with the negotiation of this Agreement or in connection with any
transaction contemplated hereby contains any untrue statement of a material
fact or omits to state any material fact necessary to make the statements
contained herein or therein, in light of the circumstances under which they
were made, not misleading as of the date made or deemed made (or if such
information expressly relates or refers to an earlier date, as of such earlier
date). All written 



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information furnished
after the date hereof by or on behalf of any Restricted Person to
Administrative Agent or any Lender Party in connection with this Agreement and
the other Loan Documents and the transactions contemplated hereby and thereby
will be true, complete and accurate in every material respect in light of the
circumstances in which made or based on reasonable estimates, in each case as
of the date on which such information is stated or certified (or if such
information expressly relates or refers to an earlier date, as of such earlier
date). There is no fact known to any Restricted Person that has not been
disclosed to each Lender in writing which would reasonably be expected to cause
a Material Adverse Change.


Section 5.9.   Litigation.   Except
as disclosed in the Initial Financial Statements, in the Disclosure Schedule or
pursuant to Section 6.4: (i) there are no actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or to the
knowledge of any Restricted Person overtly threatened, against any Restricted
Person before any Governmental Authority having jurisdiction over it which
would reasonably be expected to cause a Material Adverse Change, and (ii) there
are no outstanding judgments, injunctions, writs, rulings or orders by any such
Governmental Authority having jurisdiction over it against any Restricted
Person or, to the knowledge of US Borrower, any Restricted Person’s
stockholders, partners, directors or officers which would reasonably be
expected to cause a Material Adverse Change.


Section 5.10.   ERISA
Plans and Liabilities.   All currently existing ERISA Plans are
listed in the Disclosure Schedule or pursuant to Section 6.4. Except as
disclosed in the Initial Financial Statements, in the Disclosure Schedule or
pursuant to Section 6.4, no Termination Event has occurred with respect to
any ERISA Plan and all ERISA Affiliates are in compliance with ERISA in all
material respects, to the extent that the non-compliance therewith would not be
reasonably expected to cause a Material Adverse Change. No ERISA Affiliate is
required to contribute to, or has any other absolute or contingent liability in
respect of, any “multiemployer plan” as defined in Section 4001 of ERISA. Except
as set forth in the Disclosure Schedule or disclosed pursuant to Section 6.4:
(i) no “accumulated funding deficiency” (as defined in Section 412(a) of
the Code) exists with respect to any ERISA Plan, whether or not waived by the
Secretary of the Treasury or his delegate, and (ii) the current value of
each ERISA Plan’s benefits does not exceed the current value of such ERISA Plan’s
assets available for the payment of such benefits by more than $5,000,000.


Section 5.11.   Compliance
with Permits, Consents and Law.   Except as set forth in the
Disclosure Schedule or pursuant to Section 6.4, each Restricted Person has
all permits, licenses and authorizations required in connection with the conduct
of its businesses, except to the extent failure to have any such permit,
license or authorization would not reasonably be expected to cause a Material
Adverse Change. Except as set forth in the Disclosure Schedule or pursuant to Section 6.4,
each Restricted Person is in compliance with the terms and conditions of all
such permits, licenses and authorizations, and is also in compliance with all
other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any Law,
including applicable Environmental Law, or in any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent that non-compliance
therewith would not reasonably be expected to cause a Material Adverse Change
or such term, restriction or otherwise is being contested in good faith or a
bona fide dispute exists with respect thereto.


Section 5.12.   Environmental
Laws.   Except as set forth in the Disclosure Schedule or
disclosed pursuant to Section 6.4, (i) US Borrower and its
Subsidiaries are conducting their businesses in material compliance with all
applicable Laws, including Environmental Laws, and have and are in compliance
with all licenses and permits required under any such Laws, unless failure to
so comply or have such licenses and permits would not reasonably be expected to
cause a Material Adverse Change; (ii) none of the operations or properties
of US Borrower or any of its Subsidiaries is the subject of federal, provincial
or local investigation evaluating whether any material remedial action is
needed to respond to a release of any Hazardous Materials into the environment
or to the improper storage or disposal (including storage or 



 57
 








disposal at offsite
locations) of any Hazardous Materials, unless such remedial action would not
reasonably be expected to cause a Material Adverse Change; and (iii) neither
US Borrower nor any of its Subsidiaries (and to the actual knowledge of US
Borrower, no other Person) has filed any notice under any Law indicating that
any Restricted Person is responsible for the improper release into the
environment, or the improper storage or disposal, of any material amount of any
Hazardous Materials or that any Hazardous Materials have been improperly
released, or are improperly stored or disposed of, upon any property of any
such Person, other than of an alleged improper release, storage or disposal
that would not reasonably be expected to cause a Material Adverse Change.


Section 5.13.   US
Borrower’s Subsidiaries.   US Borrower has no Subsidiary and
owns no stock in any other corporation or association except as listed in the
Disclosure Schedule or disclosed after the Closing Date to Administrative Agent
in writing. No Restricted Person is a member of any general or limited
partnership, limited liability company, joint venture or association of any
type whatsoever except those listed in the Disclosure Schedule or disclosed
after the Closing Date to Administrative Agent in writing. US Borrower owns,
directly or indirectly, the equity interest in each of its Subsidiaries which
is indicated in the Disclosure Schedule except as disclosed after the Closing
Date to Administrative Agent.


Section 5.14.   Title to
Properties.   Each Restricted Person has good and defensible
title to all of its material properties and assets, free and clear of all Liens
(other than Permitted Liens) and of all impediments to the use of such
properties and assets in such Restricted Person’s business, other than such
impediments that would not reasonably be expected to cause a Material Adverse
Change.


Section 5.15.   Government
Regulation.   Neither any Borrower nor any other Restricted
Person owing Obligations is subject to regulation under the Public Utility
Holding Company Act of 1935, the Investment Company Act of 1940 (as any of the
preceding acts have been amended) or any other Law which regulates the
incurring by such Person of Indebtedness, including Laws relating to common contract
carriers or the sale of electricity, gas, steam, water or other public utility
services. Neither any Borrower nor any other Restricted Person is subject to
regulation under the Federal Power Act which would violate, result in a default
of, or prohibit the effectiveness or the performance of any of the provisions
of the Loan Documents.


Section 5.16.   Insider.   No
Restricted Person, nor any Person having “control” (as that term is defined in
12 U.S.C. § 375b(9) or in regulations promulgated pursuant thereto) of any
Restricted Person, is a “director” or an “executive officer” or “principal
shareholder” (as those terms are defined in 12 U.S.C. § 375b(8) or
(9) or in regulations promulgated pursuant thereto) of any Lender, of a
bank holding company of which any Lender is a Subsidiary or of any Subsidiary
of a bank holding company of which any Lender is a Subsidiary.


Section 5.17.   Solvency.   Upon
giving effect to the issuance of the Notes, the execution of the Loan Documents
by Borrowers and each Guarantor and the consummation of the transactions
contemplated hereby, (i) each Borrower and each Guarantor will be solvent
(as such term is used in applicable bankruptcy, liquidation, receivership,
insolvency or similar Laws), and the sum of each Borrower’s and each
Guarantor’s absolute and contingent liabilities, including the Obligations or
guarantees thereof, shall not exceed the fair market value of such Restricted
Person’s assets, and (ii) each Borrower’s and each Guarantor’s capital
should be adequate for the businesses in which such Restricted Person is
engaged and intends to be engaged. Neither any Borrower nor any other Restricted
Person has incurred (whether under the Loan Documents or otherwise), nor does
any Restricted Person intend to incur or reasonably foreseeably believes that
it will incur, debts which will be beyond its ability to pay as such debts
mature.



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ARTICLE
VI.—Affirmative
Covenants


To conform with the terms and conditions under which
each Lender is willing to have credit outstanding to Borrowers, and to induce
each Lender to enter into this Agreement and extend credit hereunder, each of
US Borrower and, with respect to itself and its Subsidiaries, the other
Borrowers, covenants and agrees that until the full and final payment of the
Obligations and the termination of this Agreement, unless Majority Lenders, or
all Lenders as required under Section 10.1, have previously agreed
otherwise:


Section 6.1.   Payment
and Performance.   Each Restricted Person will pay all amounts
due from it pursuant to the provisions of the Loan Documents to which it is a
party in accordance with the terms thereof and will observe, perform and comply
with every covenant, term and condition imposed on it pursuant to the
provisions of such Loan Documents.


Section 6.2.   Books,
Financial Statements and Reports.   Each Restricted Person will
at all times maintain full and accurate books of account and records. US
Borrower will maintain and will cause its Subsidiaries to maintain a standard
system of accounting, will maintain its Fiscal Year, and will furnish the
following statements and reports to each Lender at US Borrower’s expense:


(a)   Promptly
upon the filing thereof, and in any event within ninety (90) days after the end
of each Fiscal Year, a copy of US Borrower’s Form 10-K, which report
shall include US Borrower’s complete Consolidated financial statements together
with all notes thereto, prepared in reasonable detail in accordance with GAAP,
together with an opinion, without material qualification, based on an audit
using generally accepted auditing standards, by PricewaterhouseCoopers LLP, or
other independent certified public accountants selected by General Partner,
stating that such Consolidated financial statements have been so prepared. These
financial statements shall contain a Consolidated balance sheet as of the end
of such Fiscal Year and Consolidated statements of earnings for such Fiscal
Year. Such Consolidated financial statements shall set forth in comparative
form the corresponding figures for the preceding Fiscal Year.


(b)   Promptly
upon the filing thereof, and in any event within sixty (60) days after the end
of each of the first three Fiscal Quarters of each Fiscal Year, a copy of US
Borrower’s Form 10-Q, which report shall include US Borrower’s
unaudited Consolidated balance sheet as of the end of such Fiscal Quarter and
Consolidated statements of US Borrower’s earnings and cash flows for such
Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter. In addition US Borrower will, together
with each such set of financial statements and each set of financial statements
furnished under subsection (a) of this section, furnish a certificate in
the form of Exhibit D signed by the chief financial officer, principal
accounting officer or treasurer of General Partner stating that such financial
statements are accurate and complete in all material respects (subject to
normal year-end adjustments), stating that he has reviewed the Loan Documents,
containing calculations showing compliance (or non-compliance) at the end
of such Fiscal Quarter with the requirements of Section 7.8 and stating
that, to the best of his knowledge, no Default exists at the end of such Fiscal
Quarter or at the time of such certificate or specifying the nature and period
of existence of any such Default.


(c)   Promptly
upon their becoming available, copies of all Form 8-K’s filed by US
Borrower with any securities exchange, the Securities and Exchange Commission
or any similar governmental authority.


(d)   Promptly
upon their becoming available, copies of all financial statements, reports,
notices and proxy statements sent by US Borrower to its unit holders and all
registration statements filed by US Borrower with any securities exchange, the
Securities and Exchange Commission or any similar governmental authority.


(e)   Prompt
notice of any publicly announced change in PAA’s Debt Rating by either Standard &
Poor’s or Moody’s.



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Documents required to be delivered pursuant to Section 6.2(a),
(b), (c) or (d), (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 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 on Schedule 10.3, and notifies Administrative Agent of such posting or
link.


Section 6.3.   Other Information
and Inspections.   In each case subject to the last sentence of this
Section 6.3, each Restricted Person will furnish to Administrative Agent any
information which Administrative Agent or any Lender may from time to time
reasonably request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with any Restricted Person’s businesses
and operations. In each case subject to the last sentence of this Section 6.3,
each Restricted Person will permit representatives appointed by Administrative
Agent (including independent accountants, auditors, agents, attorneys,
appraisers and any other Persons), upon reasonable prior notice, to visit and
inspect during normal business hours any of such Restricted Person’s property,
including its books of account, other books and records, and any facilities or
other business assets, and to make extra copies therefrom and photocopies and
photographs thereof, and to write down and record any information such
representatives obtain, and each Restricted Person shall permit Administrative
Agent or its representatives to investigate and verify the accuracy of the
information furnished to Administrative Agent or any Lender in connection with
the Loan Documents and to discuss all such matters with its officers, employees
and, upon reasonable prior notice to US Borrower, its representatives. Each of
the foregoing inspections and examinations shall be made subject to compliance
with applicable safety standards and the same conditions applicable to any
Restricted Person in respect of property of that Restricted Person on the
premises of Persons other than a Restricted Person or an Affiliate of a
Restricted Person, and all information, books and records furnished or
requested to be made, all information to be investigated or verified and all
discussion conducted with any officer, employee or representative of any
Restricted Person shall be subject to any applicable attorney-client privilege
exceptions which the Restricted Person determines is reasonably necessary and
compliance with conditions to disclosures under non-disclosure agreements
between any Restricted Person and Persons other than a Restricted Person or an
Affiliate of a Restricted Person and the express undertaking of each Person
acting at the direction of or on behalf of any Lender Party to be bound by the
confidentiality provisions of Section 10.6 of this Agreement.


Each Borrower hereby
acknowledges that (a) the Administrative Agent will make available to the
Lenders and the LC Issuer materials and/or information provided by or on behalf
of such Borrower hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain
of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to any Borrower or its securities) (each, a “Public
Lender”). If Borrower clearly, conspicuously and prominently
marks the front page of any Borrower Materials furnished by it with the
term “PUBLIC”, then (x) the Borrower shall be deemed to have authorized
the Administrative Agent, the LC Issuer and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrowers or
their respective securities for purposes of United States Federal and state
securities laws; (y) all Borrower
Materials so marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor.”



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Section 6.4.   Notice
of Material Events.   US Borrower will notify each Lender Party,
not later than five (5) Business Days after any executive officer of US
Borrower has knowledge thereof, stating that such notice is being given
pursuant to this Agreement, of:


(a)   the (i) occurrence
of any Material Adverse Change or (ii) occurrence of any event or
condition that is covered by any of Section 5.6 (next-to-last sentence),
5.7 (last sentence), 5.9, 5.10, 5.11 or 5.12 which would reasonable be expected
to cause a Material Adverse Change,


(b)   the
occurrence of any Default,


(c)   the
acceleration of the maturity of any Indebtedness owed by any Restricted Person
or of any default by any Restricted Person under any indenture, mortgage,
agreement, contract or other instrument to which any of them is a party or by
which any of them or any of their properties is bound, if such acceleration or
default would reasonably be expected to cause a Material Adverse Change,


(d)   the
occurrence of any Termination Event,


(e)   any
claim under any Environmental Law adverse to a Restricted Person or of
potential liability with respect to such claim, or any other adverse claim
asserted against any Restricted Person or with respect to any Restricted Person’s
properties taken as a whole, in each case, which claim would reasonably be
expected to cause a Material Adverse Change, and


(f)    the
filing of any suit or proceeding, or the assertion in writing of a claim
against any Restricted Person or with respect to any Restricted Person’s
properties, which would reasonably be expected to cause a Material Adverse
Change.


Upon the occurrence of any of the foregoing the applicable
Restricted Person will take all necessary or appropriate steps to remedy
promptly, if applicable, any such Material Adverse Change, Default,
acceleration, default or Termination Event, to protect against any such adverse
claim, to defend any such claim, suit or proceeding, and to resolve all
controversies on account of any of the foregoing.


Section 6.5.   Maintenance
of Existence, Qualifications and Assets.   Each Significant
Restricted Person (i) will maintain and preserve its existence and its
rights (including permits, licenses and other authorizations required under
Environmental Laws) and franchises in full force and effect, (ii) will
qualify to do business in all states or jurisdictions where required by
applicable Law, and (iii) keep all of its material assets that are useful
in and necessary to its business in good working order and condition (ordinary
wear and tear and obsoleteness excepted) except, in each case (a) where
the failure so to maintain, preserve, qualify or keep would not be reasonably
expected to cause a Material Adverse Change, (b) as permitted in Section 7.3
or as a result of statutory conversions or (c) as a result of a release
permitted pursuant to Section 6.9. US Borrower will notify Administrative
Agent in writing of any changes in its or any other Significant Restricted
Person’s name or the location of its or any other Significant Restricted Person’s
chief executive office or principal place of business.


Section 6.6.   Payment
of Taxes, etc.   Each Significant Restricted Person
will (a) timely file all required tax returns (including any extensions), (b) timely
pay all taxes, assessments, and other governmental charges or levies imposed
upon it or upon its income, profits or property, and (c) maintain
appropriate accruals and reserves for all of the foregoing as required by GAAP,
except to the extent that (y) it is in good faith contesting the validity
thereof by appropriate proceedings, if necessary, and has set aside on its
books adequate reserves therefor which are required by GAAP or (z) such
non-filing, non-payment or non-maintenance would not reasonably be expected to
cause a Material Adverse Change.


Section 6.7.   Insurance.   In
accordance with industry standards, each Significant Restricted Person will
keep insured (by responsible and reputable insurance companies or associations)
or self-insured, at the option of US Borrower or such Significant
Restricted Person, in such amounts and against such risks as are usually
insured by Persons engaged in the same or similar businesses and owning similar
properties. The 



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insurance coverages and
amounts will be reasonably determined by US Borrower, based on coverages
carried by prudent owners of similar property, and with respect to each
Restricted Person, may be maintained by the US Borrower.


Section 6.8.   Compliance
with Agreements and Law.   Each Significant Restricted Person
will perform all material obligations it is required to perform under the terms
of each indenture, mortgage, deed of trust, security agreement, lease,
franchise and other material agreement, contract or other instrument (including
all contractual obligations and agreements with respect to environmental
remediation or other environmental matters) to which it is a party or by which
it or any of its properties is bound to the extent that non-performance
therewith would not reasonably be expected to cause a Material Adverse Change. Each
Restricted Person will conduct its business and affairs in compliance, in all
material respects, with all Laws (including Environmental Laws) applicable thereto
to the extent non-compliance therewith would not reasonably be expected to
cause a Material Adverse Change or such requirement of Law is being contested
in good faith or a bona fide dispute exists with respect thereto.


Section 6.9.   Guaranties
of Subsidiaries.   Each Significant Restricted Person that has
outstanding Indebtedness (other than guarantees hereunder) shall execute and
deliver to Administrative Agent an absolute and unconditional guaranty of the
timely repayment of the Obligations (in each case for which such Person is not
a borrower, account party or similar primary and direct obligor), which
guaranty shall be reasonably satisfactory to Administrative Agent in form and
substance; provided, with respect to any such
Person that is not a Wholly Owned Subsidiary of US Borrower, for which consent
or approval of third parties is required for the delivery of such guaranty,
such Person shall not be required to deliver such guaranty, but shall use its
commercially reasonable best efforts, as determined by Administrative Agent, to
deliver such guaranty. Notwithstanding any provision contained herein to the
contrary, in no event shall any Unrestricted Subsidiary be required to execute
and deliver any guaranty for, or in respect of, the Obligations, or any part
thereof. US Borrower will cause each of its Subsidiaries required to deliver a
guaranty pursuant to this Section 6.9 to deliver to Administrative Agent,
simultaneously with its delivery of such a guaranty, written evidence
satisfactory to Administrative Agent that such Subsidiary has taken all
corporate, limited liability company or partnership action necessary to duly
approve and authorize its execution, delivery and performance of such guaranty.
US Borrower may at any time request the release of one or more Guarantors from
their guaranty of the Obligations (other than the guaranty by US Borrower of
the Canadian Obligations), and each such Guarantor shall be so released upon
such request, provided, no Default then exists
and either (a) such Guarantor has no outstanding Indebtedness or
guaranties of Indebtedness (other than guaranties hereunder) or (b) the
request is in contemplation of the sale or disposition of such Subsidiary
(including all or substantially all of its assets). Each Agent, as applicable,
is authorized to execute and deliver to US Borrower evidence of any such
release, as reasonably requested by, and at the expense of, US Borrower.


ARTICLE
VII.—Negative
Covenants


To conform with the terms and conditions under which
each Lender is willing to have credit outstanding to each of Borrowers and to
induce each Lender to enter into this Agreement and make the Loans, each of US
Borrower and, with respect to itself and its Subsidiaries, the other Borrowers,
covenants and agrees that until the full and final payment of the Obligations
and the termination of this Agreement, unless Majority Lenders, or all Lenders
as required under Section 10.1, have previously agreed otherwise:


Section 7.1.   Subsidiary
Indebtedness.   No Subsidiary of US Borrower will incur any
Indebtedness other than:


(a)   the
Obligations;


(b)   Guaranties
by Guarantors of, and the incurrence of obligations by Guarantors as a
co-obligor on (as distinguished from, and in addition to incurring such
obligation as, a guarantor of), Indebtedness of US 



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Borrower or any other
Restricted Person, the incurrence of which did not result in a Default or an
Event of Default;


(c)   Indebtedness
of Plains Marketing pursuant to the Contango Credit Agreement;


(d)   Indebtedness
of any Restricted Person owing to another Restricted Person;


(e)   Indebtedness
of any Subsidiary described in clause (b) of the definition of “Indebtedness”
that is determinable but not yet earned; provided, US
Borrower reasonably contemplates that such Indebtedness will be repaid from the
proceeds of one or more advances made by US Borrower to such Subsidiary;


(f)    Indebtedness
of a Subsidiary acquired (including acquisition by merger, consolidation or
amalgamation) after the date hereof by a Restricted Person, which Indebtedness
was incurred by such Subsidiary before the time of such acquisition, merger,
consolidation or amalgamation, and was not created in contemplation thereof; provided, that contemporaneously with such acquisition,
merger, consolidation or amalgamation, and so long as no adverse tax and/or
regulatory consequences are caused thereby, such Subsidiary shall be a
Guarantor subject to the provisions of Section 6.9; and


(g)   Indebtedness
not otherwise described in the foregoing clauses (a) through (f) owing
by any one or more Guarantors in an aggregate principal amount not to exceed at
any time outstanding the greater of (A) $100,000,000 and (B) fifteen
percent (15%) of Consolidated Tangible Net Worth.


Section 7.2.   Limitation
on Liens.   No Restricted Person will create, assume or permit
to exist any Lien upon any Principal Property or upon the stock, membership
interests, partnership interests or other equity ownership interests of any
Subsidiary of US Borrower (other than Unrestricted Subsidiaries), except the
following (“Permitted Liens”):


(a)   Liens
securing (i) on a pari passu basis, the Obligations and (ii) if
required, any related interest hedge rate agreements;


(b)   Intentionally
deleted;


(c)   Liens
imposed by any governmental authority for taxes, assessments or charges not yet
due or the validity of which is being contested in good faith and by
appropriate proceedings, if necessary, for which adequate reserves are
maintained on the books of any Restricted Person in accordance with GAAP;


(d)   pledges or
deposits of cash or securities under worker’s compensation, unemployment
insurance or other social security legislation;


(e)   carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other
like Liens (including without limitation, Liens on property of any Restricted
Person in the possession of storage facilities, pipelines or barges) arising in
the ordinary course of business for amounts which are not more than 60 days
past due or the validity of which is being contested in good faith and, if
necessary, by appropriate proceedings, and for which adequate reserves are
maintained on the books of any Restricted Person in accordance with GAAP;


(f)    Liens on
cash and Cash Equivalents under or with respect to accounts with brokers or
counterparties with respect to hedging contracts consisting of cash,
commodities or futures contracts, options, securities, instruments, and other
like assets securing only hedging contracts;


(g)   deposits of
cash or securities to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;


(h)   easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of real property or minor
imperfections in title thereto which, in the aggregate, are not material in 



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amount, and which do not
in any case materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the business of any Restricted
Person;


(i)    Liens in
respect of operating leases;


(j)    Liens upon
any property or assets directly or indirectly acquired after the date hereof by
a Restricted Person, each of which either (i) existed on such property or
asset before the time of its acquisition and was not created in anticipation
thereof, or (ii) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including the cost of construction) of such property or asset; provided
that no such Lien shall extend to or cover any property or asset of a
Restricted Person other than the property or asset so acquired (or
constructed); and any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancings, refundings or replacements),
in whole or part, of the foregoing, provided, however, that such Liens shall
not cover or secure any additional Indebtedness, obligations, property or
asset;


(k)   rights
reserved to or vested in any governmental authority by the terms of any right,
power, franchise, grant, license or permit, or by any provision of law, to
revoke or terminate any such right, power, franchise, grant, license or permit
or to condemn or acquire by eminent domain or similar process;


(l)    rights
reserved to or vested by Law in any governmental authority to in any manner,
control or regulate in any manner any of the properties of any Restricted
Person or the use thereof or the rights and interests of any Restricted Person
therein, in any manner under any and all Laws;


(m)  rights
reserved to the grantors of any properties of any Restricted Person, and the
restrictions, conditions, restrictive covenants and limitations, in respect
thereto, pursuant to the terms, conditions and provisions of any rights-of-way
agreements, contracts or other agreements therewith;


(n)   inchoate
Liens in respect of pending litigation or with respect to a judgment which has
not resulted in an Event of Default under Section 8.1;


(o)   Liens
securing obligations in an aggregate principal amount not to exceed at any time
outstanding 10% of US Borrower’s Consolidated Tangible Net Worth; and


(p)   Liens
related to the extension, renewal, refinancing, refunding or replacement (or
successive extensions, renewals, refinancings, refundings or replacements), in
whole or in part, of clauses (a), (b) and (o) of this Section 7.2;
provided, however, that such Liens shall not cover or secure any additional
Indebtedness.


Section 7.3.   Limitation
on Mergers.   Except as expressly provided in this section, no
Significant Restricted Person (other than (i) a Guarantor for whom a
release has been requested pursuant to an event described in clause (b) of
Section 6.9 and otherwise is so released, or (ii) such other
Significant Restricted Person, other than a Borrower, that is the subject of
any such event described in such clause (b) of Section 6.9) will (a) merge
or consolidate or amalgamate with any Person, or liquidate, wind up or dissolve
or (b) sell, transfer, lease, exchange or otherwise dispose of, in one
transaction or a series of related transactions, all or substantially all of
its business or property, whether now owned or hereafter acquired, to any
Person; provided, any such Significant
Restricted Person, other than a Borrower, may (A) merge into or
consolidate or amalgamate with, and such business and property may be disposed
of to:


(i)    any other
Subsidiary of US Borrower; provided, if
such Significant Restricted Person or such Subsidiary is a Guarantor, a
Guarantor is the surviving or transferee (as applicable) business entity,


(ii)   any
Borrower, so long as such Borrower is the surviving or transferee (as
applicable) business entity and after giving effect thereto, no Default exists,
or


(iii)  any other
Person pursuant or incidental to, or in connection with, any contemporaneous or
substantially contemporaneous acquisition, provided that
for purposes of this clause (iii) such merging, 



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amalgamating,
consolidating or transferor Significant Restricted Person is not a Borrower,
Guarantor or a Wholly Owned Subsidiary of US Borrower, other than a Wholly
Owned Subsidiary that was formed, acquired or created solely for purposes of
such acquisition or otherwise conducted no operations and owned no assets,
other than of an inconsequential amount and


(B) dissolve, liquidate or wind up if such
dissolution, liquidation and winding up results from dispositions not
prohibited by this Agreement.


Section 7.4.   Limitation
on New Businesses.   No Restricted Person will materially or
substantially engage directly or indirectly in any business or conduct any
operations other than (i) marketing, gathering, transporting (by barge,
pipeline, ship, truck or other modes of hydrocarbon transportation),
terminalling, storing, producing, acquiring, developing, exploring for,
exploiting, producing, processing, dehydrating and otherwise handling
hydrocarbons, including, without limitation, constructing pipeline, platform,
dehydration, processing and other energy-related facilities, (ii) any
other business that generates gross income that constitutes “qualifying income”
under Section 7704(d) of the Internal Revenue Code of 1986, as
amended, or (iii) activities or services reasonably related or ancillary
thereto, including entering into hedging obligations to support those
businesses.


Section 7.5.   Transactions
with Affiliates.   No Restricted Person will engage in any
material transaction with any of its Affiliates except as follows: (a) transactions
among US Borrower and its Subsidiaries or between Subsidiaries of US Borrower; (b) if
and to the extent any of them constitute transactions with Affiliates,
transactions governed by the Amended and Restated Omnibus Agreement between
Plains Resources Inc., US Borrower, Plains Marketing, Plains All American GP
LLC, Plains Marketing GP, Inc. and Plains Pipeline, L.P. (and successors
of each) dated July 23, 2004, as amended and in effect; ,the Crude Oil
Marketing Agreement among Plains Exploration & Production Company,
Arguello Inc., PXP Gulf Coast Inc. and Plains Marketing, L.P. dated as of June 15,
2004, as amended, or the Amended and Restated Crude Oil Marketing Agreement
among Plains Resources Inc., Calumet Florida, LLC and Plains Marketing, L.P.
dated as of July 23, 2004, as amended (c) any employment, equity
award, equity option or equity appreciation agreement or plan entered into by
US Borrower or any of its Subsidiaries in the ordinary course of business of US
Borrower or such Subsidiary; (d) transactions effected in accordance with
the terms of agreements as in effect on the Closing Date; (e) customary
compensation, indemnification and other benefits made available to officers,
directors or employees of US Borrower, any of its Subsidiaries or GP LLC,
including reimbursement or advancement of out-of-pocket expenses and provisions
of officers’ and directors’ liability insurance; (f) transactions as
contemplated by US Borrower’s agreement of limited partnership; and (g) transactions
on terms which are no less favorable to such Restricted Person than those which
would have been obtainable at the time in arm’s-length transactions with
Persons other than such Affiliates.


Section 7.6.   Limitation
on Distributions.   US Borrower shall not declare or pay any
Distribution so long as any Default or Event of Default has occurred and is
continuing or would result therefrom.


Section 7.7.   Restricted
Contracts.   Except as expressly provided for in the Loan
Documents and as described in the Disclosure Schedule or pursuant to a
Restriction Exception, the substance of which, in detail satisfactory to
Administrative Agent, is promptly reported to Administrative Agent, no
Restricted Person will, directly or indirectly, enter into, create, or
otherwise allow to exist any contract or other consensual restriction on the
ability of any Subsidiary of US Borrower, including but not limited to either
Canadian Borrower and any Subsidiary of such Persons to: (a) pay dividends
or make other distributions to US Borrower or either Canadian Borrower, (b) redeem
equity interests held in it by US Borrower or either Canadian Borrower, (c) repay
loans and other indebtedness owing by it to US Borrower or either Canadian
Borrower, or (d) transfer any of its assets to US Borrower or either
Canadian Borrower.



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Section 7.8.   Debt
Coverage Ratio.   At the end of any Fiscal Quarter, the Debt
Coverage Ratio will not be greater than the amount set forth below for the
applicable time set forth below:


(i)    During an Acquisition Period:                             5.25 to 1.0


(ii)   Other
than an Acquisition Period:                      4.75
to 1.0


As used herein, “Debt Coverage Ratio”
means the ratio of (a) Consolidated Funded Indebtedness to (b) Consolidated
EBITDA, for the four Fiscal Quarter period (or other period specified below)
most recently ended prior to the date of determination for which financial
statements contemplated by Section 6.2(a) or (b) are available
to US Borrower; provided, for purposes of this Section 7.8,
if, since the beginning of the four Fiscal Quarter period ending on the date
for which Consolidated EBITDA is determined, any Restricted Person shall have
made any asset disposition or acquisition, shall have consolidated or merged
with or into any Person (other than another Restricted Person), or shall have
made any disposition or acquisition of a Restricted Person or disposition or
acquisition of any partial ownership interest in any other Person, Consolidated
EBITDA shall be calculated giving pro forma effect thereto as if the
disposition, acquisition, consolidation or merger had occurred on the first day
of such period; provided, with respect to any
Person not constituting a Subsidiary of US Borrower, such pro forma calculation
of Consolidated EBITDA, with respect to any such Person, shall be limited to
not more than 75% of (i) such Restricted Person’s ownership interest in
such Person times (ii) the difference of such
Person’s (A) Consolidated EBITDA minus (B) Interest
Expense and capital expenditures. Such pro forma calculations shall be
determined (i) in good faith by the chief financial officer of
US Borrower, and (ii) without giving effect to any anticipated or
proposed change in operations, revenues, expenses or other items included in
the computation of Consolidated EBITDA, except cost reductions specifically
identified at the time of disposition, acquisition, consolidation or merger
that are attributable to personnel reductions, non-recurring maintenance and
environmental costs and allocated corporate overhead.


Section 7.9.   Intentionally Deleted.


Section 7.10.   Unrestricted
Subsidiaries.   So long as no Default or Event of Default has
occurred and is continuing, and after giving effect to such designation, no
Default or Event of Default would result therefrom, US Borrower or any Wholly
Owned Subsidiary of US Borrower may designate one or more Subsidiaries that are
not Borrowers or Guarantors (each such Subsidiary, and each of its
Subsidiaries, each an “Unrestricted Subsidiary”), which Unrestricted
Subsidiaries shall be subject to the following:


(a)   No
Unrestricted Subsidiary shall be deemed to be a “Restricted Person” or a “Subsidiary”
of US Borrower for purposes of this Agreement or any other Loan Document, and
no Unrestricted Subsidiary shall be subject to or included within the scope of
any provision herein or in any other Loan Document, including without
limitation any representation, warranty, covenant or Event of Default herein or
in any other Loan Document, except as set forth in this Section 7.10.


(b)   No
Restricted Person shall guarantee or otherwise become liable in respect of any
Indebtedness of, grant any Lien on any of its property to secure any
Indebtedness of or other obligation of, or provide any other form of credit
support to, any Unrestricted Subsidiary, and no Restricted Person shall enter
into any contract or agreement with any Unrestricted Subsidiary, except on
terms no less favorable to such Restricted Person, as applicable, than could be
obtained in a comparable arm’s length transaction with a non-Affiliate of such
Restricted Person; provided,
Restricted Persons may guarantee trade accounts payable of Unrestricted
Subsidiaries that arise in the ordinary course of business in an amount not to
exceed five percent (5%) of Consolidated Tangible Net Worth.


(c)   Borrowers
shall at all times maintain, as between Restricted Persons and Unrestricted
Subsidiaries, the separate existence of each Unrestricted Subsidiary.



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(d)   Restricted Persons shall notify each Lender Party, not later than
five (5) Business Days after any executive officer of Restricted Persons
has knowledge of, any claim, including any claim under any Environmental Law,
or any notice of potential liability under any Environmental Law, asserted
against any Unrestricted Subsidiary or with respect to any Unrestricted
Subsidiary’s properties that would reasonably be expected to result in a
Material Adverse Change, stating that such notice is being given pursuant to
this Section 7.10.


US Borrower may designate
any Unrestricted Subsidiary to become a Restricted Person if a Default or Event
of Default is not continuing, such designation would not result in a Default or
an Event of Default, and immediately thereafter such Subsidiary has no
outstanding Indebtedness. Immediately thereafter, US Borrower shall promptly
notify the Administrative Agent of such designation and provide to it an
officer’s certificate that such designation was made in compliance with this Section 7.10.


Section 7.11.   No
Negative Pledges.   Except as described in the Disclosure
Schedule or pursuant to a Restriction Exception, the substance of which, in
detail satisfactory to Administrative Agent, is promptly reported to
Administrative Agent, no Restricted Person will, directly or indirectly, enter
into, create, or consent to be bound to any contract or other consensual
restriction that restricts the ability of any Restricted Person to create or
maintain Liens on its assets in favor of Agents, LC Issuers and Lenders to
secure, in whole or part, the Obligations.


ARTICLE VIII.—Events
of Default and Remedies


Section 8.1.   Events of Default.   Each
of the following events constitutes an Event of Default under this Agreement:


(a)   Any Borrower fails to pay the principal component of any Loan made
to it or any LC Borrowing when due and payable, whether at a date for the
payment of a fixed installment or as a contingent or other payment becomes due
and payable or as a result of acceleration or otherwise,


(b)   Any Restricted Person fails to pay any Obligation for which it is
contractually liable (other than the Obligations in subsection (a) above)
when due and payable, whether at a date for the payment of a fixed installment
or as a contingent or other payment becomes due and payable or as a result of
acceleration or otherwise, within three Business Days after the same becomes
due;


(c)   Any Restricted Person fails to duly observe, perform or comply
with any covenant, agreement or provision of Section 6.4 or
Article VII;


(d)   Any Restricted Person fails (other than as referred to in
subsections (a), (b) or (c) above) to duly observe, perform or comply
with any of its obligations under any covenant, agreement, condition or
provision of any Loan Document to which it is a party, and such failure remains
unremedied for a period of thirty (30) days after notice of such failure is
given by Administrative Agent to US Borrower;


(e)   Any representation or warranty previously, presently or hereafter
made in writing by or on behalf of any Restricted Person in connection with any
Loan Document shall prove to have been false or incorrect in any material
respect on any date on or as of which made, or any Loan Document at any time
ceases to be valid, binding and enforceable as warranted in Section 5.5
for any reason other than its release or subordination by Administrative Agent;


(f)    Any Restricted Person shall default in the payment when due of
any principal of or interest on any of its other Indebtedness, or any net
hedging obligations, in excess of the Dollar Equivalent of $25,000,000 in the
aggregate (other than such Indebtedness or hedging obligations the validity of
which is being contested in good faith, by appropriate proceedings (if
necessary) and for which adequate reserves with respect thereto are maintained
on the books of such Restricted Person as required by GAAP), or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any such Indebtedness or hedging obligations shall occur for a
period beyond the applicable grace, cure extension, forbearance or other
similar period, if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit the holder or holders of
such Indebtedness or hedging obligations 



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(or a trustee or
agent on behalf of such holder or holders) to cause, as applicable, such
Indebtedness to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity, or an
early termination event or similar event to occur and such Restricted Person’s
related net hedging obligations in excess of the Dollar Equivalent of
$25,000,000 to become due and payable;


(g)   Either (i) any “accumulated funding deficiency” (as defined
in Section 412(a) of the Code) in excess of $5,000,000 exists with
respect to any ERISA Plan, whether or not waived by the Secretary of the
Treasury or his delegate, or (ii) any Termination Event occurs with
respect to any ERISA Plan and the then
current value of such ERISA Plan’s benefit liabilities exceeds the then current
value of such ERISA Plan’s assets available for the payment of such benefit
liabilities by more than $5,000,000 (or in the case of a Termination Event
involving the withdrawal of a substantial employer, the withdrawing employer’s
proportionate share of such excess exceeds such amount);


(h)   GP LLC, General Partner, or any Significant Restricted Person:


(i)    has entered against it a judgment, decree or order for relief by
a Governmental Authority of competent jurisdiction having jurisdiction over it
in an involuntary proceeding commenced under any applicable bankruptcy,
insolvency or other similar Law of any jurisdiction now or hereafter in effect,
including the federal Bankruptcy Code, the Bankruptcy and Insolvency Act
(Canada) or the Companies’ Creditors Arrangement Act (Canada), as from time to
time amended, or has any such proceeding commenced against it, in each case,
which remains undismissed for a period of sixty days; or


(ii)   commences a voluntary case under any
applicable bankruptcy, insolvency or similar Law now or hereafter in effect,
including the federal Bankruptcy Code, the Bankruptcy and Insolvency Act
(Canada) or the Companies’ Creditors Arrangement Act (Canada), as from time to
time amended; or applies for or consents to the entry of an order for relief in
an involuntary case under any such Law; or makes a general assignment for the
benefit of creditors; or is generally unable to pay (or admits in writing its
inability to so pay) its debts as such debts become due; or takes corporate or
other action to authorize any of the foregoing; or


(iii)  has entered against it the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of all or a substantial part of its assets in
a proceeding brought against or initiated by it, and such appointment or taking
possession is neither made ineffective nor discharged within sixty days after
the making thereof, or such appointment or taking possession is at any time
consented to, requested by, or acquiesced to by it; or


(i)    Any Significant Restricted Person:


(i)    has entered against it a final judgment for the payment of money
in excess of the Dollar Equivalent of $25,000,000 (in each case not covered by
insurance satisfactory to Administrative Agent in its discretion), unless the
same is stayed or discharged within thirty days after the date of entry thereof
(or longer period for which a stay of enforcement is allowed by applicable Law)
or an appeal or appropriate proceeding for review thereof is taken within such
period and a stay of execution pending such appeal is obtained; or


(ii)   suffers a writ or warrant of attachment or
any similar process to be issued by any Governmental Authority having
jurisdiction over it against all or any substantial part of its assets, and
such writ or warrant of attachment or any similar process is not stayed or
released within sixty days after the entry or levy thereof (or longer period
for which a stay of enforcement is allowed by applicable Law) or after any stay
is vacated or set aside;


(j)    Any Change in Control occurs.



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Upon the
occurrence of an Event of Default described in subsection (h)(i), (h)(ii) or
(h)(iii) of this section: (a) with respect to US Borrower, all of the
Obligations or (b) with respect to any other Borrower, all of such
Borrower’s Obligations, shall thereupon be immediately due and payable, without
demand, presentment, notice of demand or of dishonor and nonpayment, protest,
notice of protest, notice of intention to accelerate, declaration or notice of
acceleration, or any other notice or declaration of any kind, all of which are
hereby expressly waived by each Borrower and each Restricted Person who at any
time ratifies or approves this Agreement. Upon any such acceleration, any
obligation of any Lender to make any further Loans and any obligation of any LC
Issuer to issue Letters of Credit hereunder to or for the account of such
Borrower shall be permanently terminated. During the continuance of any other
Event of Default, Administrative Agent at any time and from time to time may
(and upon written instructions from Majority Lenders, Administrative Agent
shall), without notice to any Borrower or any other Restricted Person, do
either or both of the following: (1) terminate or suspend any obligation
of Lenders to make Loans hereunder and any obligation of any LC Issuer to issue
Letters of Credit hereunder, and (2) declare any or all of the Obligations
immediately due and payable, and all such Obligations shall thereupon be
immediately due and payable, without demand, presentment, notice of demand or
of dishonor and nonpayment, protest, notice of protest, notice of intention to
accelerate, declaration or notice of acceleration, or any other notice or
declaration of any kind, all of which are hereby expressly waived by each
Borrower and each Restricted Person who at any time ratifies or approves this
Agreement. If the Obligations or any part thereof become immediately due and
payable pursuant to the foregoing, then, unless all Lenders otherwise
specifically elect to the contrary (which election may thereafter be retracted
by any Lender at any time), all LC Obligations shall become immediately due and
payable without regard to whether or not actual drawings or payments on the
Letters of Credit have occurred, and each Borrower shall be obligated to
immediately pay to the appropriate LC Issuer an amount equal to the aggregate
LC Obligations which are then outstanding with respect to Letters of Credit
issued by such LC Issuer at the request of such Borrower, to be held by such LC
Issuer and applied to such LC Obligations as they mature.


Section 8.2.   Remedies.   If any
Default shall occur and be continuing, each Lender Party may protect and
enforce its rights under the Loan Documents by any appropriate proceedings,
including proceedings for specific performance of any covenant or agreement
contained in any Loan Document, and each Lender Party may enforce the payment
of any Obligations due it or enforce any other legal or equitable right which
it may have. All rights, remedies and powers conferred upon Lender Parties
under the Loan Documents shall be deemed cumulative and not exclusive of any
other rights, remedies or powers available under the Loan Documents or at Law
or in equity.


ARTICLE IX.—Agents


Section 9.1.   Appointment and Authority.   Each of the Lenders and the LC Issuers hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent and Bank of America, N.A., acting through its Canada Branch to act on its
behalf as the Canadian Administrative Agent, as the case may be, hereunder and
under the other Loan Documents and authorizes the Agents to take such actions
on its behalf and to exercise such powers as are delegated to such Agents by
the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Agents, the Lenders and the LC Issuers, and neither any Borrower nor any other Lender
Party shall have rights as a third party beneficiary of any of such
provisions (other than the right to reasonably approve a successor Agent under Section 9.6
or with respect to application of payments among Lenders as provided in Section 9.11).


Section 9.2.   Rights as a Lender.   The Person serving as the Administrative Agent or the
Canadian Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as
though it were not an Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include
the Person serving as an Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept 



 69
 








deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Borrowers or any Subsidiary or other Affiliate thereof as if such Person were
not an Agent hereunder and without any duty to account therefor to the Lenders.


Section 9.3.   Exculpatory Provisions.   Neither Agent shall have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, neither Agent:


(a)   shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing;


(b)   shall have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that such
Agent is required to exercise as directed in writing by the Majority Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided
that the Agents shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose such Agent to liability or that is
contrary to any Loan Document or applicable law; and


(c)   shall, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, nor shall it be liable for the failure to
disclose, any information relating to any of the Borrowers or any of their
respective Affiliates that is communicated to or obtained by the Person serving
as the relevant Agent or any of its Affiliates in any capacity.


Neither
Agent shall be liable for any action taken or not taken by it (i) with the
consent or at the request of the Majority Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the relevant shall
believe in good faith shall be necessary, under the circumstances as provided
in Sections 10.1 and 8.2) or (ii) in the absence of its own gross
negligence or willful misconduct. Neither Agent shall be deemed to have
knowledge of any Default unless and until notice describing such Default is
given to such Agent by a Borrower, a Lender or an LC Issuer.


Neither
Agent shall be responsible for nor have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


Section 9.4.   Reliance by Agents.   Each
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person. Each Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or an LC Issuer, each Agent
may presume that such condition is satisfactory to such Lender or such LC
Issuer unless such Agent shall have received notice to the contrary from such
Lender or such LC Issuer prior to the making of such Loan or the issuance of
such Letter of Credit. Each Agent may consult with legal counsel (who may be
counsel for any Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts.



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Section 9.5.   Delegation of Duties.   Each Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by such Agent. Such Agent
and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of such Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as an Agent.


Section 9.6.   Resignation of Agent.   Either Agent may at any time give notice of its
resignation to the Lenders, the LC Issuers and the Borrowers, which notice
shall set forth the proposed date of resignation. Upon receipt of any such
notice of resignation, the Majority Lenders shall have the right to appoint a
successor (subject to the approval of US Borrower, unless a Default has
occurred and is continuing, which approval will not be unreasonably withheld),
which shall, with respect to the Administrative Agent, be a bank with an office
in the United States, or an Affiliate of any such bank with an office in the
United States, and, with respect to the Canadian Administrative Agent, be a
commercial bank organized or licensed to conduct a banking or trust business
under the Laws of the Dominion of Canada or of any province thereof. If no such
successor shall have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may on behalf of the Lenders
and the LC Issuers, appoint a successor Agent meeting the qualifications set
forth above; provided that if such Agent shall
notify the US Borrower and the Lenders that no qualifying Person has accepted
such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents
and (2) all payments, communications and determinations provided to be
made by, to or through such Agent shall instead be made by or to each Lender
and each LC Issuer directly, until such time as the Majority Lenders appoint a
successor Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as an Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided above in this Section). The
fees payable by the Borrowers to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrowers and
such successor. After the retiring Agent’s resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 10.4
shall continue in effect for the benefit of such retiring Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while the retiring Agent was acting as Agent.


Any
resignation by Bank of America or Bank of America, N.A., acting through its Canada
Branch, as an Agent pursuant to this Section shall also constitute its
resignation as LC Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring LC Issuer and Swing Line Lender, (b) the retiring
LC Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor LC Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring LC Issuer to
effectively assume the obligations of the retiring LC Issuer with respect to
such Letters of Credit.


Section 9.7.   Non-Reliance on Agents and Other
Lenders.   Each Lender and each
LC Issuer acknowledges that it has, independently and without reliance upon the
Agents or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and each LC
Issuer also acknowledges that it will, independently and without reliance upon
any Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem 



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appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.


Section 9.8.   No Other Duties, Etc.   Anything herein to the contrary notwithstanding, neither
the Agents, Co-Syndication Agents nor the Co-Documentation Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as Agent, a Lender or an
LC Issuer hereunder.


Section 9.9.   Guaranty Matters.   The Lenders and the LC Issuers irrevocably authorize
each Agent, at its option and in its discretion, to release any Guarantor from
its obligations under the Guaranty if such Person ceases to be a Subsidiary as
a result of a transaction permitted hereunder or as otherwise expressly
provided in any Loan Document.


Upon
request by an Agent at any time, the Majority Lenders will confirm in writing
an Agent’s authority to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.9.


Section 9.10.   Indemnification.   Each
Lender agrees to indemnify each Agent (to the extent not reimbursed by US
Borrower or Canadian Borrowers within ten (10) days after demand) from and
against such Lender’s US Percentage Share or Canadian Percentage Share, as the
case may be, of any and all liabilities, obligations, claims, losses, damages,
penalties, fines, actions, judgments, suits, settlements, costs, expenses or
disbursements (including reasonable fees of attorneys, accountants, experts and
advisors) of any kind or nature whatsoever (in this section collectively called
“liabilities and costs”) which to any extent (in whole or in part) may be
imposed on, incurred by, or asserted against such Agent growing out of,
resulting from or in any other way associated with the Loan Documents and the
transactions and events (including the enforcement thereof) at any time
associated therewith or contemplated therein and any borrower’s use of loan
proceeds (whether arising in contract or in tort or otherwise and including any
violation or noncompliance with any Environmental Laws by any Person or any
liabilities or duties of any Person with respect to Hazardous Materials found
in or released into the environment).


THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES
AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY
CLAIM OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY AGENT, provided
only that no Lender shall be obligated under this section to indemnify any
Agent for that portion, if any, of any liabilities and costs which is
proximately caused by such Agent’s own individual gross negligence or willful
misconduct, as determined in a final judgment. Cumulative of the foregoing,
each Lender agrees to reimburse each Agent promptly upon demand for such Lender’s
US Percentage Share or Canadian Percentage Share, as the case may be, of any
costs and expenses to be paid to such Agent by US Borrower or Canadian
Borrowers under Section 10.4(a) to the extent that such Agent is not
timely reimbursed for such expenses by such Persons as provided in such section.
As used in this section the term “Agent” shall refer not only to the Persons
designated as such in Section 1.1 but also to each director, officer,
agent, attorney, employee, representative and Affiliate of such Person.


Section 9.11.   Sharing
of Set-Offs and Other Payments.   Each Lender Party agrees
that if it shall, whether through the exercise of rights of banker’s lien, set
off, or counterclaim against any Borrower or otherwise, obtain payment of a
portion of the aggregate Obligations owed to it which, taking into account all
distributions made by either Agent under Section 3.1, causes such Lender
Party to have received more than it would have received had such payment been
received by either Agent and distributed pursuant to Section 3.1, then (a) it
shall be deemed to have simultaneously purchased and shall be obligated to
purchase interests in the Obligations as necessary to cause all Lender Parties
to share all payments as provided for in Section 3.1, and (b) such
other adjustments shall be made from time to time as shall be equitable to
ensure that such Agent and all Lender Parties share all payments of Obligations
as provided in Section 3.1; provided, however, and for the avoidance of
doubt, that nothing herein contained shall in any way affect the right of any
Lender Party to obtain payment (whether by exercise of rights of banker’s lien,
set-off or counterclaim or otherwise) of indebtedness other than the
Obligations. Each Borrower expressly 



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consents to the
foregoing arrangements, subject to Section 10.11. If all or any part of
any funds transferred pursuant to this section is thereafter recovered from the
seller under this section which received the same, the purchase provided for in
this section shall be deemed to have been rescinded to the extent of such
recovery, together with interest, if any, if interest is required pursuant to
the order of a Governmental Authority to be paid on account of the possession
of such funds prior to such recovery.


Section 9.12.   Investments.   Whenever
either Agent in good faith determines that it is uncertain about how to
distribute to Lender Parties any funds which it has received, or whenever either
Agent in good faith determines that there is any dispute among Lender Parties
about how such funds should be distributed, such Agent may choose to defer
distribution of the funds which are the subject of such uncertainty or dispute.
If either Agent in good faith believes that the uncertainty or dispute will not
be promptly resolved, or if either Agent is otherwise required to invest funds
pending distribution to Lender Parties, such Agent shall invest such funds
pending distribution; all interest on any such Investment shall be distributed
upon the distribution of such Investment and in the same proportion and to the
same Persons as such Investment. All moneys received by any Agent for
distribution to Lender Parties (other than to the Person who is Administrative
Agent in its separate capacity as a Lender Party, or the Person who is Canadian
Administrative Agent in its separate capacity as a Lender Party) shall be held
by such Agent pending such distribution solely as such Agent for such Lender
Parties, and such Agent shall have no equitable title to any portion thereof.


ARTICLE X.—Miscellaneous


Section 10.1.   Waivers
and Amendments; Acknowledgments.


(a)   Waivers and Amendments.   No
failure or delay (whether by course of conduct or otherwise) by any Lender in
exercising any right, power or remedy which such Lender Party may have under
any of the Loan Documents shall operate as a waiver thereof or of any other
right, power or remedy, nor shall any single or partial exercise by any Lender
Party of any such right, power or remedy preclude any other or further exercise
thereof or of any other right, power or remedy. No waiver of any provision of
any Loan Document and no consent to any departure therefrom shall ever be
effective unless it is in writing and signed as provided below in this section,
and then such waiver or consent shall be effective only in the specific
instances and for the purposes for which given and to the extent specified in
such writing. This Agreement and the other Loan Documents set forth the entire
understanding between the parties hereto with respect to the transactions
contemplated herein and therein and supersede all prior discussions and
understandings with respect to the subject matter hereof and thereof, and no
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by a Borrower or any other Restricted
Person therefrom, shall be effective unless in writing signed by the Majority
Lenders and the applicable Borrower or the applicable Restricted Person, as the
case may be, and acknowledged by the Administrative Agent, and each such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:


(i)    waive any condition set forth in Section 4.1
without the written consent of each Lender (provided Administrative Agent may
in its discretion withdraw any request it has made under Section 4.1(i) to
the extent such request does not pertain to an item expressly covered by any
other subsection of Section 4.1);


(ii)   extend or increase the Commitment of any
Lender (or reinstate any Commitment terminated pursuant to Section 8.1)
without the written consent of such Lender;


(iii)  postpone any date fixed by this Agreement or
any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;



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(iv)  reduce
the principal of, or the rate of interest specified herein on, any Loan or LC
Borrowing, or (subject to clause (iii) of
the proviso at the end of this Section 10.1) any fees or other amounts
payable hereunder or under any other Loan Document, or change the manner of computation of any financial ratio (including
any change in any applicable defined term) used in determining the Applicable
Margin that would result in a reduction of any interest rate on any Loan or any
fee payable hereunder without the written consent of each Lender
directly affected thereby; provided, however, and for the avoidance of doubt, that only the
consent of the Majority Lenders shall be necessary (A) to amend the
definition of “Default Rate” or to waive any obligation of any Borrower to pay
interest, Letter of Credit Fees or stamping fees at the Default Rate or (B) to
amend any financial covenant hereunder (or any defined term used therein) even
if the effect of such amendment would be to reduce the rate of interest on any Loan
or LC Borrowing or to reduce any fee payable hereunder;


(v)    change
Section 9.11 or Section 8.2 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each
Lender; or


(vi)  change any provision of this Section or
the definition of “Majority Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; or


(vii) except as expressly provided herein or in any other Loan Document,
release (A) any Borrower from its obligation to pay such Lender’s
Note, (B) any Guarantor from its guaranty of such payment or (C) any
Restricted Person from the negative pledge covenant set forth in Section 7.11
hereof.


and,
provided  further,
that (i) no amendment, waiver or consent shall, unless in writing and
signed by an LC Issuer in addition to the Lenders required above, affect the
rights or duties of an LC Issuer under this Agreement or any LC Application
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent or the Canadian Administrative Agent, as the
case may be, in addition to the Lenders required above, affect the rights or
duties of such Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder or any other Loan Document, nor shall a Defaulting
Lender’s vote or status as a Lender be required in determining majority,
unanimity or other condition or effect of any vote, except that the Commitment
of such Lender may not be increased or extended without the consent of such
Lender.


(b)   Acknowledgments and Admissions.   Each Borrower hereby
represents, warrants, acknowledges and admits that (i) it has been advised
by counsel in the negotiation, execution and delivery of the Loan Documents to
which it is a party, (ii) no Lender Party has any fiduciary obligation
toward such Borrower with respect to any Loan Document or the transactions
contemplated thereby, (iii) the relationship pursuant to the Loan
Documents between such Borrower and the other Restricted Persons, on one hand,
and each Lender Party, on the other hand, is and shall be solely that of debtor
and creditor, respectively, and (iv) no partnership or joint venture
exists with respect to the Loan Documents between any Restricted Person and any
Lender Party.


(c)   Representation by Lenders.   Each Lender hereby
represents that it will acquire its Notes for its own account in the ordinary
course of its commercial lending or investing business; however, the
disposition of such Lender’s property shall at all times be and remain within
its control and, in particular 



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and without limitation,
such Lender may sell or otherwise transfer its Note, any participation interest
or other interest in its Note, or any of its other rights and obligations under
the Loan Documents subject to compliance with Section 10.5 and applicable
Law.


(d)   JOINT ACKNOWLEDGMENT.   THIS
WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.


THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


(e)   Annual Rates of Interest.   For the purposes of the Interest Act (Canada), whenever interest
payable pursuant to this Agreement is calculated on the basis of a period other
than a calendar year (in this Section 10.1(e), 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.


(f)    Joint and Several Liability.   All Obligations which are
incurred by two or more Restricted Persons shall be their joint and several
obligations and liabilities of such Restricted Persons.


Section 10.2.   Survival
of Representations, Warranties and Agreements; Cumulative Nature.   All
of Restricted Persons’ various representations, warranties, covenants and
agreements in the Loan Documents shall survive the execution and delivery of
this Agreement and the other Loan Documents and the performance hereof and
thereof, including the making or granting of the Loans and the delivery of the
Notes and the other Loan Documents, and shall further survive until all of the
Obligations are paid in full to each Lender Party and all of Lender Parties’
obligations to Borrowers are terminated. Such representations
and warranties have been or will be relied upon by the Agents and each Lender,
regardless of any investigation made by either Agent or any Lender or on their
behalf and notwithstanding that either Agent or any Lender may have had notice
or knowledge of any Default at the time of any credit extension hereunder. The
rights, powers, and privileges granted to Lender Parties in the Loan Documents,
are cumulative, and, except for expressly specified waivers and consents, no
Loan Document shall be construed in the context of another to diminish,
nullify, or otherwise reduce the benefit to any Lender Party of any such right,
power or privilege.


Section 10.3.   Notices;
Effectiveness; Electronic Communication.


(a)   Notices Generally.   Except in the case of notices and
other communications expressly permitted to be given by telephone or otherwise
(and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier or other electronic transmission as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:


(i)    if to any
Borrower, either Agent or either LC Issuer, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on
Schedule 10.3; and


(ii)   if to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire if it has been
delivered to the party sending such notice or communication; otherwise to such
address reasonably believed to be correct by the sending party.


Notices sent by
hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier
shall be deemed to have been given when received (except that, if not given during
normal business hours for the recipient, shall be deemed to have been received
at the opening of business on the next business day for the recipient), with 



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confirmation
of the transmittal of any such telecopied notice evidencing receipt thereof. Notices
delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection
(b).


(b)   Electronic Communications.   Notices and other
communications to the Lenders and the LC Issuers hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the relevant Agent, provided that the foregoing shall not apply to notices to
any Lender or either LC Issuer pursuant to Article II if such Lender or
such LC Issuer, as applicable, has notified Administrative Agent that it is
incapable of receiving notices under such Article by electronic
communication. Either Agent or any Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.


Unless the relevant
Agent otherwise prescribes, (i) notices and other communications sent to
an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or
other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor.


(c)   Change of Address, Etc.   Each of the Borrowers, the
Agents and the LC Issuers may change its address, telecopier, e-mail address or
telephone number for notices and other communications hereunder by notice to
the other parties hereto. Each other Lender may change its address, telecopier,
e-mail address or telephone number for notices and other communications
hereunder by notice to the Borrowers, the Agents and the LC Issuers.


(d)   Reliance by Agents, LC Issuers and Lenders.   The Lender
Parties shall be entitled to rely and act upon any notices each of them
reasonably believes is purportedly given by or on behalf of any Borrower even
if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Each Borrower shall jointly
and severally indemnify the Lender Parties from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice it
reasonably believes is purportedly given by or on behalf of any Borrower, as
provided in Section 10.4(b). All telephonic notices to and other
telephonic communications with either Agent may be recorded by such Agent, and
each of the parties hereto hereby consents to such recording.


Section 10.4.   Expenses;
Indemnity; Damage Waiver.


(a)   Payment of Expenses.   Each Borrower shall jointly and severally pay (i) all
reasonable out-of-pocket expenses incurred by the Agents and their
respective Affiliates (including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent), in connection with the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the LC Issuers in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by
any Agent, any Lender or any LC Issuer (including the fees, charges and
disbursements of any counsel for any Agent, any Lender or any LC Issuer and all fees and time charges for attorneys who
may be employees of any Agent or any LC Issuer), in connection with the
enforcement or 



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protection
of its rights under this Agreement and the other Loan Documents, including its
rights under this Section and out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.


(b)   Indemnity.   Each Borrower agrees to indemnify each
Lender Party from and against any and all liabilities, obligations, claims,
losses, damages, penalties, fines, actions, judgments, suits, settlements,
costs, expenses or disbursements (including reasonable fees of attorneys, accountants,
experts and advisors) of any kind or nature whatsoever (in this section
collectively called “liabilities and costs”) which to any extent (in whole or
in part) may be imposed on, incurred by, or asserted against such Lender Party
growing out of, resulting from or in any other way associated with the Loan
Documents and the transactions and events (including the enforcement or defense
thereof) at any time associated therewith or contemplated therein and any
Borrower’s use of Loan proceeds (whether arising in contract or in tort or
otherwise and including any violation or noncompliance with any Environmental
Laws by any Lender Party or any other Person or any liabilities or duties of
any Lender Party or any other Person with respect to Hazardous Materials found
in or released into the environment). In the case of an investigation,
litigation or proceeding to which the indemnity in this Section 10.4
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Borrower, any of its equity holders,
Affiliates or creditors or a Lender Party or any third party and whether or not
a Lender Party is otherwise a party thereto.


THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH
LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN
PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN
PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY,
provided only that no Lender Party shall be entitled under this section to
receive indemnification for that portion, if any, of any liabilities and costs
which (i) is proximately caused by its own (A) individual gross
negligence or willful misconduct, as determined in a final judgment, or (B) material
breach of any of its obligations hereunder or under any other Loan Documents,
as determined in a final judgment or (ii) arises by reason of a claim (A) by
any one or more Lender Parties against any one or more other Lender Parties or (B) by
an equity-interest owner of any Lender Party against any one or more Lender
Parties, so long as in either such case, such claim is not proximately caused
solely by the breach hereunder or under any other Loan Document by any Borrower
or its Affiliates. If any Person (including any Borrower or any of its
Affiliates) ever alleges gross negligence or willful misconduct pursuant to the
preceding clause (i)(A) (but, for the avoidance of doubt, not with respect
to an allegation of a material breach pursuant to the preceding clause (i)(B))
by any Lender Party, the indemnification provided for in this section shall
nonetheless be paid upon demand, subject to later adjustment or reimbursement,
until such time as a court of competent jurisdiction enters a final judgment as
to the extent and effect of the alleged gross negligence  or willful
misconduct. As used in this section the term “Lender Party” shall refer not
only to each Person designated as such in Section 1.1 but also to each
director, officer, trustee, agent, attorney, employee, representative and
Affiliate of such Persons. So long as no Default has occurred and is continuing
and US Borrower is financially solvent, no Lender Party may settle any claim to
be indemnified without the consent of the US Borrower, such consent not to be
unreasonably withheld; provided that the US Borrower may not reasonably
withhold consent to any settlement that a Lender Party proposes, if the US
Borrower does not have the financial ability to pay all its obligations
outstanding and asserted against the US Borrower at that time, including the
maximum potential claims against the Lender Party to be indemnified pursuant to
this Section 10.4.


(c)   Reimbursement by Lenders.   To the extent that any
amounts required to be paid to any Agent, an LC Issuer or any Related Party of
any of the foregoing pursuant to subsection (a) or (b) of this Section 10.4
are not indefeasibly paid, each Lender severally agrees to pay to such Agent,
the LC Issuer or such Related Party, as the case may be, such Lender’s US
Percentage Share or Canadian Percentage Share, as appropriate (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that
the unreimbursed expense or indemnified loss, 



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claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against any Agent, or an LC Issuer in its capacity as such, or against
any such Related Party of any of the foregoing acting for such Agent or LC
Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) shall be several, as provided in the second next
to last sentence of Section 2.2 with respect to the several obligations of
Lenders to make Loans.


(d)   Waiver of Consequential Damages, Etc.   To the fullest
extent permitted by applicable law, no party hereto or Related Party of any
party hereto shall assert, and hereby waives, any claim against each other
party hereto and its Related Parties (including, as applicable, each indemnitee
referred to in subsection (b) above), on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed by
it through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than as a result of such
indemnitee’s gross negligence, willful misconduct or material breach of any of
its obligations under any Loan Document.


(e)   Interest.   Each Borrower hereby promises to each Lender
Party interest at the Default Rate on all obligations to pay fees or to
reimburse or indemnify any Lender Party which such Borrower has promised to pay
to such Lender Party pursuant to this Section 10.4 and which are not paid
when due. Such interest shall accrue from the date such Obligations become due
until they are paid.


(f)    Payments.   All amounts due under this Section shall
be payable not later than ten Business Days after demand therefor and US
Borrower’s receipt of reasonably detailed invoices or statements related
thereto.


(g)   Survival.   The agreements in this Section shall
survive the resignation of the Agents and the LC Issuers, the replacement of
any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all the other Obligations.


Section 10.5.   Successors
and Assigns.


(a)   Successors and Assigns Generally.   The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that no Borrower nor any other Restricted Person may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent or the Canadian Administrative Agent, as
applicable, and each Lender, and no Lender 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) 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 Affiliates of the Agents, the LC Issuers and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.



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(b)   Assignments by Lenders.   Any Lender 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 Loans (including for purposes of this subsection (b), participations in
LC Obligations and Swing Line Loans) at the time owing to it); provided that:


(i)    except (A) in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitments, if any,
and the Loans at the time owing to it, or (B) in the case of an assignment
to a Lender and the assigning Lender retains a Commitment of $5,000,000, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the relevant Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000, unless the relevant Agent and, so long as no
Event of Default has occurred and is continuing, the US Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);


(ii)   each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, any assignment of a Lender’s US Commitment that may be allocated in
whole or in part to the Canadian Allocated Total Commitment shall include a
proportionate assignment by such Lender (or its affiliate) of such allocable
amount, and no assignment of a Canadian Lender’s Canadian Commitment shall be
made unless a proportionate assignment of such Lender’s (or its affiliate’s) US
Commitment is also assigned, except that this clause (ii) shall not apply
to rights of the Swing Line Lender in respect of Swing Line Loans;


(iii)  any assignment of a Commitment must be
approved by the relevant Agent, LC Issuer and Swing Line Lender unless the
Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and


(iv)  the parties to each assignment shall execute
and deliver to the relevant Agent an Assignment and Assumption, together with a
processing and recordation fee payable by such assignor Lender (and not at
Borrower’s expense) of $3,500, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the relevant Agent an Administrative Questionnaire.


Subject to acceptance and recording thereof by the relevant
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 Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 3.2, 3.3,
3.6 and 3.7 and Section 10.4 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Upon request, each
applicable Borrower (at its expense), as applicable, shall execute and deliver
a Note to the assignee Lender against receipt by such Borrower of the canceled
original Note of the assignor, if its entire Commitment was assigned, or
evidence that such assignor’s Note is marked to reflect its reduction.. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.


Each Eligible Assignee of
a US Lender which is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) for Federal income tax purposes, must (to the extent it has not
already 



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done so)
provide Administrative Agent and US Borrower with the “Prescribed Forms”
referred to in Section 3.7(d).


Each
Eligible Assignee of a Canadian Lender must be a financial institution that is (i) not
a non-resident of Canada for the purposes of the Income Tax Act (Canada) or (ii) an “authorized foreign
bank” as defined in section 2 of the Bank
Act (Canada) and in subsection 248(1) of the Income Tax Act (Canada), that is not
subject to the restrictions and requirements referred to in subsection 524(2) of
the Bank Act (Canada) and which
will receive all amounts paid or credited to it under its Canadian Loans and
Canadian Note in respect of its “Canadian banking business” for the purposes of
paragraph 212(13.3)(a) of the Income
Tax Act (Canada). Any purported assignment by a Canadian Lender to
an assignee failing to satisfy the foregoing conditions shall be null and void
on its face.


(c)   Register.   The
Administrative Agent or, with respect to Canadian Obligations, the Canadian
Administrative Agent, acting solely for this purpose as an agent of the US
Borrower or Canadian Borrowers, as applicable, shall maintain at its Applicable
Lending Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and LC Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive,
absent manifest error, and each Borrower, the relevant Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof, and its correspondingly recorded Commitment, as a Lender
hereunder owning such Commitment for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by Borrowers and the LC Issuers at any reasonable time and from time
to time upon reasonable prior notice. In addition, at any time (i) requested
by the US Borrower or (ii) that a request for a consent for a material or
substantive change to the Loan Documents is pending, the US Borrower or any Lender
wishing to consult with other Lenders in connection therewith, as applicable,
may request and receive from the relevant Agent a copy of the Register.


(d)   Participations.   Any
Lender may at any time, without the consent of, or notice to, any Borrower or any
Agent, sell participations to any Person (other than a natural person or the
Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of the Obligations owing to such Lender and such Lender’s
rights related thereto and such Lender’s obligations under this Agreement
(including all or a portion of its Commitment and/or the Obligations (including
such Lender’s participations in LC Obligations and/or Swing Line Loans) owing
to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrowers, the relevant Agent, the
Lenders and the LC Issuers shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement.


Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.1 that directly
affects such Participant. Subject to subsection (e) of this Section, each
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.2, 3.3, 3.6 and 3.7 and the obligations imposed by such Sections,
and shall be subject to replacement pursuant to Section 3.8, to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.11 as though it were a Lender, provided such
Participant agrees to be subject to Section 9.11 as though it were a
Lender.


(e)   Limitation upon
Participant Rights.   A Participant shall not be entitled to
receive any greater payment under Sections 3.2 through 3.7 than the applicable Lender would have
been entitled to receive 



 80
 








with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with a Borrower’s prior written
consent, which consent sets forth an express waiver of the limitation on
Sections 3.2 through 3.7 which are set forth in this subsection.


(f)    Certain Pledges.   Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Notes, if any)
to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute (or, except as to the Federal Reserve Bank,
permit the substitution of) any such pledgee or assignee for such Lender as a
party hereto, and all costs, fees and expenses related to any such pledge shall
be for the sole account of such Lender.


(g)   Electronic Execution of
Assignments.   The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.


(h)   Resignation as LC Issuer
after Assignment.   Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitments
and Loans pursuant to subsection (b) above, Bank of America and Bank
of America, N.A., acting through its Canada Branch, may, (i) upon 30 days’
notice to Borrowers and the Lenders, resign as an LC Issuer and/or
(ii) upon 30 days’ notice to Borrowers, resign as Swing Line Lender. In
the event of any such resignation as LC Issuer or Swing Line Lender, the
Borrowers shall be entitled to appoint from among the Lenders successor LC
Issuers or successor Swing Line Lender hereunder; provided,
however, that no failure by Borrowers to
appoint any such successor shall affect the resignation of Bank of America and
Bank of America, N.A., acting through its Canada Branch, as an LC Issuer or
Swing Line Lender, as the case may be. If Bank of America or Bank of America,
N.A., acting through its Canada Branch, resigns as an LC Issuer, it shall
retain all the rights and obligations of the LC Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its
resignation as an LC Issuer and all LC Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section 2.10(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.10A(c).
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring LC Issuer or Swing Line
Lender, as the case may be, and (b) the successor LC Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.


(i)    Lost Notes.   Upon receipt of an affidavit reasonably
satisfactory to US Borrower of an officer of any Lender as to the loss, theft,
destruction or mutilation of its Note which is not of public record, and, in
the case of any such loss, theft, destruction or mutilation, upon cancellation
of such Note, such Borrower will execute and deliver, in lieu thereof, a
replacement Note in the principal amount of such Lender’s then Commitment or if
no Commitment is in effect, the outstanding principal amount owed to such
Lender and otherwise of like tenor.



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Section 10.6.   Treatment
of Certain Information; Confidentiality.   Each of the Agents, the Lenders and the LC Issuers (for itself
and each of its Affiliates, and its and their Related Parties) agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential and will agree
to maintain such confidences), (b) to the extent requested or required by
applicable laws or regulations or by any subpoena or similar legal process, (c) subject
to this Section 10.6, to any other party hereto, (d) in connection
with the exercise of any remedies hereunder or under any other Loan Document or
any action or proceeding relating to this Agreement or any other Loan Document
or in connection with any Default or anticipated Default, the enforcement of
rights hereunder or thereunder, (e) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to, and requested by, a Borrower and its obligations, (f) with
the consent of the applicable Borrower, or (g) to the extent such
Information becomes publicly available other than as a result of a breach of
this Section, or becomes available to any Agent, any Lender, any LC Issuer or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrowers.


For purposes of this Section, “Information” means all information received from any of the
Borrowers or any Subsidiary relating to any of the Borrowers or any Subsidiary,
or any Affiliate of any of them, or any of their respective businesses, other
than any such information that is available to any Agent, any Lender or the LC
Issuer on a nonconfidential basis prior to disclosure by any of the Borrowers or
any Subsidiary, provided that, in the case of
information received from any of the Borrowers or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


Section 10.7.   Governing
Law; Submission to Process.   EXCEPT TO THE EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY
ELECTED IN A LOAN DOCUMENT, THE LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND
INSTRUMENTS MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST SUCH BORROWER WITH RESPECT TO THIS AGREEMENT, THE NOTES OR
ANY OF THE LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS
LENDER PARTIES MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, EACH BORROWER
ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
BORROWER AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THE LOAN DOCUMENTS AND
WAIVES ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE
SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS. IN FURTHERANCE OF THE
FOREGOING, EACH BORROWER HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CORPORATION
SERVICE COMPANY, 80 STATE STREET, ALBANY, NEW YORK 12207, AS AGENT OF SUCH
BORROWER TO RECEIVE SERVICE OF ALL PROCESS BROUGHT AGAINST SUCH BORROWER WITH
RESPECT TO ANY SUCH PROCEEDING IN ANY SUCH COURT IN NEW YORK, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY SUCH BORROWER TO BE EFFECTIVE AND BINDING SERVICE
IN EVERY RESPECT. COPIES OF ANY SUCH PROCESS SO SERVED SHALL ALSO, IF PERMITTED
BY LAW, BE SENT BY REGISTERED MAIL TO THE RELEVANT BORROWER AT ITS ADDRESS SET
FORTH BELOW, BUT THE FAILURE OF SUCH BORROWER TO RECEIVE SUCH COPIES SHALL NOT
AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS AS AFORESAID. EACH BORROWER SHALL
FURNISH TO LENDER PARTIES A CONSENT OF CORPORATION 



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SERVICE
COMPANY AGREEING TO ACT HEREUNDER PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER PARTIES TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER PARTIES TO
BRING PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
IF FOR ANY REASON CORPORATION SERVICE COMPANY SHALL RESIGN OR OTHERWISE CEASE
TO ACT AS ANY BORROWER’S AGENT, EACH BORROWER HEREBY IRREVOCABLY AGREES TO (A) IMMEDIATELY
DESIGNATE AND APPOINT A NEW AGENT ACCEPTABLE TO ADMINISTRATIVE AGENT TO SERVE
IN SUCH CAPACITY AND, IN SUCH EVENT, SUCH NEW AGENT SHALL BE DEEMED TO BE
SUBSTITUTED FOR CORPORATION SERVICE COMPANY FOR ALL PURPOSES HEREOF AND (B) PROMPTLY
DELIVER TO ADMINISTRATIVE AGENT THE WRITTEN CONSENT (IN FORM AND SUBSTANCE
SATISFACTORY TO ADMINISTRATIVE AGENT) OF SUCH NEW AGENT AGREEING TO SERVE IN
SUCH CAPACITY.


Section 10.8.   Waiver
of Judgment Interest Act (Alberta).   To the extent permitted by
Law, the provisions of the Judgment Interest Act (Alberta) shall not apply to
the Canadian Notes and the other Loan Documents and are hereby expressly waived
by each Canadian Borrower.


Section 10.9.   Deemed
Reinvestment Not Applicable.   For the purposes of the Interest
Act (Canada), the principle of deemed reinvestment of interest shall not apply
to any interest calculation under the Loan Documents, and the rates of interest
stipulated in this Agreement are intended to be nominal rates and not effective
rates or yields.


Section 10.10.   Limitation
on Interest.   Lender Parties, Restricted Persons and any other
parties to the Loan Documents intend to contract in strict compliance with
applicable usury Law from time to time in effect. In furtherance thereof such
Persons stipulate and agree that none of the terms and provisions contained in
the Loan Documents shall ever be construed to create a contract to pay, for the
use, forbearance or detention of money, interest in excess of the maximum
amount of interest permitted to be contracted for, charged, or received by
applicable Law from time to time in effect. Neither any Restricted Person nor
any present or future guarantors, endorsers, or other Persons hereafter
becoming liable for payment of any Obligation shall ever be liable for unearned
interest thereon or shall ever be required to pay interest thereon in excess of
the maximum amount that may be lawfully contracted for, charged, or received
under applicable Law from time to time in effect, and the provisions of this
section shall control over all other provisions of the Loan Documents which may
be in conflict or apparent conflict herewith. Lender Parties expressly disavow
any intention to contract for, charge, or receive excessive unearned interest
or finance charges in the event the maturity of any Obligation is accelerated. If
(a) the maturity of any Obligation is accelerated for any reason, (b) any
Obligation is prepaid and as a result any amounts held to constitute interest
are determined to be in excess of the legal maximum, or (c) any Lender or
any other holder of any or all of the Obligations shall otherwise collect
moneys which are determined to constitute interest which would otherwise
increase the interest on any or all of the Obligations to an amount in excess
of that permitted to be contracted for, charged or received by applicable Law
then in effect, then all sums determined to constitute interest in excess of
such legal limit shall, without penalty, be promptly applied to reduce the then
outstanding principal of the related Obligations or, at such Lender’s or holder’s
option, promptly returned to Borrower or other payor thereof upon such
determination. In determining whether or not the interest paid or payable,
under any specific circumstance, exceeds the maximum amount permitted under
applicable Law, Lender Parties and Restricted Persons (and any other payors
thereof) shall to the greatest extent permitted under applicable Law, (i) characterize
any non-principal payment as an expense, fee or premium rather than as
interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize,
prorate, allocate, and spread the total amount of interest throughout the
entire contemplated term of the instruments evidencing the Obligations in
accordance with the amounts outstanding from time to time thereunder and the
maximum legal rate of interest from time to time in effect under applicable Law
in order to lawfully charge the maximum amount of interest permitted under
applicable Law. In the event applicable Law provides for an interest ceiling
under Chapter 303 of the Texas Finance Code (the “Texas
Finance Code”) as amended, to the extent that the Texas Finance Code
is mandatorily applicable to any Lender, for that day, the ceiling shall be the
“weekly ceiling” as defined in 



 83
 








the Texas Finance Code,
provided that if any applicable Law permits greater interest, the Law
permitting the greatest interest shall apply. In no event shall Chapter 346 of
the Texas Finance Code apply to this Agreement or any other Loan Document, or
any transactions or loan arrangement provided or contemplated hereby or thereby.
In no event shall the aggregate “interest” (as defined in section 347 of the
Criminal Code (Canada)) payable under the Loan Documents 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 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 Borrowers, Agents and Lenders and the amount of such excess payment
or collection shall be refunded to the relevant Borrower. For purposes of the
Canadian Notes, the effective annual rate of interest shall be determined in
accordance with generally accepted actuarial practices and principles over the
term applicable thereto 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.


Section 10.11.   Right of
Offset.   At any time and from time to time during the
continuance of any Event of Default, each Lender is hereby authorized to offset
against the Obligations then due and payable (without notice to any Restricted
Person), (a) any and all moneys, securities or other property (and the
proceeds therefrom) of such Restricted Person now or hereafter held or received
by or in transit to any Lender from or for the account of such Restricted
Person, whether for safekeeping, custody, pledge, transmission, collection or
otherwise, (b) any and all deposits (general or special, time or demand,
provisional or final) of such Restricted Person with any Lender, and (c) any
other credits and claims of such Restricted Person at any time existing against
any Lender, including claims under certificates of deposit.


Section 10.12.   Termination;
Limited Survival; Payments Set Aside.   In its sole and absolute
discretion US Borrower may at any time that no Obligations are owing or
outstanding elect in a written notice delivered to Administrative Agent to
terminate this Agreement. Upon receipt by Administrative Agent of such a
notice, if no Obligations are then owing or outstanding this Agreement and all
other Loan Documents shall thereupon be terminated and the parties thereto released
from all prospective obligations thereunder. Notwithstanding the foregoing or
anything herein to the contrary, any waivers or admissions made by any
Restricted Person in any Loan Document, any Obligations under Sections 3.2
through 3.6, and any obligations which any Person may have to indemnify or
compensate any Lender Party shall survive any termination of this Agreement or
any other Loan Document. At the request and expense of Borrower, Administrative
Agent shall prepare and execute all necessary instruments to reflect and effect
such termination of the Loan Documents. Administrative Agent is hereby
authorized to execute all such instruments on behalf of all Lenders, without
the joinder of or further action by any Lender.


To the extent that any payment by or
on behalf of any Borrower is made to any Agent, the LC Issuer or any Lender, or
any Agent, the LC Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Agent, the LC Issuer
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any debtor relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and the LC Issuer severally agrees to
pay to such Agent upon demand its applicable share (without duplication) of any
amount so recovered from or repaid by such Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the 



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Lenders
and the LC Issuer under clause (b) of the preceding sentence shall survive
the payment in full of the Obligations and the termination of this Agreement.


Section 10.13.   Severability.   If
any term or provision of any Loan Document shall be determined to be illegal or
unenforceable all other terms and provisions of the Loan Documents shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable Law.


Section 10.14.   Counterparts.   This
Agreement may be separately executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to constitute one and the same Agreement.


Section 10.15.   Waiver
of Jury Trial.   EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


Section 10.16.   USA
PATRIOT Act Notice.   Each
Lender that is subject to the Act (as hereinafter defined) and each Agent (for
itself and not on behalf of any Lender) hereby notifies each Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law November 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or such Agent, as applicable, to
identify such Borrower in accordance with the Act.


Section 10.17.   Reallocation
of Commitments under Existing Agreement.   In connection with
the amendment and restatement of the Existing Agreement pursuant hereto,
Borrowers, Administrative Agent and Lenders shall as of the Closing Date make
adjustments to the outstanding principal amount of “US Loans” and “Canadian
Loans” under the Existing Agreement (as such terms are defined therein) (but
not any interest accrued thereon prior to the Closing Date or any accrued
commitment fees under the Existing Agreement prior to the Closing Date),
including the borrowing of additional US Loans and/or Canadian Loans hereunder
and the repayment of US Loans and/or Canadian Loans plus all applicable accrued
interest, fees and expenses as shall be necessary to provide for US Loans by
each US Lender in the amount of its US Percentage Share of all US Loans as of
the Closing Date and for Canadian Loans by each Canadian Lender in the amount
of its new Canadian Percentage Share of all Canadian Loans as of the Closing
Date, but in no event shall such adjustment of any Eurodollar Loans (i) constitute
a payment or prepayment of all or a portion of any Eurodollar Loans or (ii) entitle
any Lender to any reimbursement under Section 3.6 hereof, and each Lender
shall be deemed to have made an assignment of its outstanding Loans and
commitments under the Existing Agreement, and assumed outstanding Loans and
commitments of other Lenders under the Existing Agreement as may be necessary to
effect the foregoing.


[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]



 85















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


	
  US BORROWER:

  	
  PLAINS
  ALL AMERICAN PIPELINE,
  L.P.

  
	
   

  	
  By:

  	
  PLAINS AAP, L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
  By:

  	
  PLAINS ALL AMERICAN GP LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice
  President—Finance and Treasurer

  
	
  CANADIAN
  BORROWERS:

  	
  PMC (NOVA SCOTIA)
  COMPANY

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice
  President and Treasurer

  
	
   

  	
  PLAINS MARKETING
  CANADA, L.P.

  
	
   

  	
  By:

  	
  PMC (NOVA SCOTIA) COMPANY,

  
	
   

  	
   

  	
  its general
  partner

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice
  President and Treasurer

  
	
  GUARANTOR:

  	
  PLAINS ALL AMERICAN PIPELINE, L.P.

  
	
   

  	
  By:

  	
  PLAINS AAP, L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
  By:

  	
  PLAINS ALL AMERICAN GP LLC,

  
	
   

  	
   

  	
  its general
  partner

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Al Swanson

  
	
   

  	
   

  	
  Vice President—Finance
  and Treasurer

  
	
  Address for
  Borrowers and Guarantors:

  	
  333 Clay Street,
  Suite 1600

  
	
   

  	
  Houston, Texas
  77002

  
	
   

  	
  Attention: Al
  Swanson

  
	
   

  	
  Telephone: (713)
  646-4455

  
	
   

  	
  Fax: (713) 646-4564

  
	
   

  	
  Website: www.paalp.com

  



 



 86















	
  

  	
  BANK  OF AMERICA,
  N.A.,

  
	
   

  	
  Administrative Agent

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  BANK  OF AMERICA,
  N.A.,

  
	
   

  	
  LC Issuer and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  BANK  OF AMERICA,
  N.A.,

  
	
   

  	
  acting through its Canada Branch,

  
	
   

  	
  as Canadian Administrative Agent, Canadian LC

  
	
   

  	
  Issuer and a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 87















	
  

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  Co-Syndication Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  CONGRESS FINANCIAL
  CORPORATION

  
	
   

  	
  (CANADA),
  a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 88















	
  

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  Co-Syndication Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  JPMORGAN CHASE
  BANK, N.A.,

  
	
   

  	
  TORONTO
  BRANCH, a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 89















	
  

  	
  FORTIS
  CAPITAL CORP.,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  FORTIS CAPITAL
  (CANADA) LTD.,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 90















	
  

  	
  CITIBANK,
  N.A.,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  CITIBANK, N.A., Canadian branch,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 91















	
  

  	
  BNP PARIBAS,

  
	
   

  	
  Co-Documentation Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  BNP
  PARIBAS CANADA, a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 92
 








 


	
  

  	
  WELLS FARGO BANK,

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 93
 








 




	
  

  	
  THE BANK OF NOVA SCOTIA,

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  THE
  BANK OF NOVA SCOTIA,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 



 94
 








 


	
  

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 95
 








 


	
  

  	
  SUNTRUST BANK,

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 96
 








 


	
  

  	
  UBS LOAN FINANCE LLC,

  
	
   

  	
  Managing Agent and a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  UBS
  AG CANADA BRANCH,

  
	
   

  	
  a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 97
 








 


 


	
  

  	
  UFJ BANK LTD., NEW YORK
  BRANCH,

  
	
   

  	
  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 98















	
  

  	
  SUMITOMO MITSUI BANKING CORPORATION,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  

  	
  SUMITOMO MITSUI BANKING

  CORPORATION OF CANADA, a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 99
 








 


	
  

  	
  UNION BANK OF CALIFORNIA,
  N.A.,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  

  	
  UNION
  BANK OF CALIFORNIA, N.A.,

  CANADA BRANCH, a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 100
 








 


	
  

  	
  ROYAL BANK OF CANADA,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 101
 








 


	
  

  	
  SOCIETE GENERALE,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  

  	
  SOCIETE
  GENERALE (CANADA)

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 102
 








 


	
  

  	
  HSBC BANK USA,
  NATIONAL ASSOCIATION

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  

  	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  TORONTO BRANCH, a Canadian Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 103















	
  

  	
  DNB NOR BANK ASA,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 104















	
  

  	
  COMMERZBANK AG, NEW YORK AND

  GRAND CAYMAN BRANCHES, a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  




 105















	
  

  	
  COMERICA BANK,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  COMERICA
  BANK, CANADA BRANCH,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  




 106















	
  

  	
  AMEGY BANK NATIONAL
  ASSOCIATION,

  a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  




 107















	
  

  	
  ING CAPITAL LLC, a Lender

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 108