FIRST AMENDMENT
FIRST AMENDMENT
FIRST AMENDMENT, dated as of August 17, 2005 (this Amendment), to the Credit Agreement, dated as of July 29, 2004 (the Credit Agreement), among Burlington Resources Inc., a Delaware corporation (Parent or the US Facility Borrower), Burlington Resources Canada Ltd., an Alberta corporation (BRCL), Burlington Resources Canada (Hunter) Ltd., an Alberta corporation (Canadian Hunter and, together with BRCL, the Canadian Borrowers, and, together with Parent as a borrower under the Canadian Facility, the Canadian Facility Borrowers; the Canadian Facility Borrowers, together with the US Facility Borrower, the Borrowers), the lenders party thereto (the Existing Lenders), JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Swing Line Lender and a Canadian L/C Issuer, and JPMorgan Chase Bank, N.A., as Administrative Agent, US Swing Line Lender and a US L/C Issuer.
RECITALS
WHEREAS, the Borrowers, the Existing Lenders and the Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrowers have requested that the Existing Lenders and the Administrative Agent agree to amend certain provisions of the Credit Agreement, and that the New Lenders (as defined below) become parties to the Credit Agreement, in each case as set forth herein, and the Existing Lenders, the New Lenders and the Administrative Agent are agreeable to such request upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, and for other valuable consideration the receipt of which is hereby acknowledged, the Borrowers, the Existing Lenders, the New Lenders and the Administrative Agent hereby agree as follows:
AGREEMENT
Section 1. Definitions. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Section 2. Amendments. The parties hereto hereby agree that on and as of the First Amendment Effective Date (as defined below), the Credit Agreement shall be amended as follows:
(a) Amendment to Section 1.01 (Defined Terms). Section 1.01 of the Credit Agreement shall be amended by deleting the definition Maturity Date in its entirety and inserting in lieu thereof the following:
Maturity Date means the later of (a) August 17, 2010, and (b) if maturity is extended pursuant to Section 4.07, such extended maturity date as determined pursuant to Section 4.07 (it being understood and agreed that any such maturity shall not be deemed extended for any Lender that has not consented to such extension).
The foregoing amendment to the definition of Maturity Date shall not be deemed to constitute a request to extend the Maturity Date pursuant to Section 4.07(a) of the Credit Agreement, and the US Facility Borrower may request, for itself and the Canadian Borrowers, up to two such extensions in the future in accordance with the terms and conditions set forth in Section 4.07 of the Credit Agreement.
(b) Amendment to Section 4.02 (Fees). Section 4.02(b)(i) of the Credit Agreement shall be amended by deleting the words 12.5 Basis Points and inserting in lieu thereof 10.0 Basis Points.
(c) Amendment to Schedule 1.01 (Pricing Grid). Schedule 1.01 to the Credit Agreement shall be amended by deleting such Schedule 1.01 in its entirety and replacing it with the Schedule 1.01 attached hereto.
Section 3. Commitments. (a) As of the First Amendment Effective Date, the Canadian Commitments and the US Commitments shall be as set forth in Schedule 2.01 attached hereto, and Schedule 2.01 to the Credit Agreement is hereby amended by deleting such Schedule 2.01 in its entirety and replacing it with the Schedule 2.01 attached hereto.
(b) From and after the First Amendment Effective Date, (i) each Person indicated as having a Commitment pursuant to Schedule 2.01 attached hereto that is not an Existing Lender (each such Person, a New Lender) shall be deemed to be a party to the Credit Agreement and shall have the rights and obligations of a Lender (and, as applicable, a US Lender and/or a Canadian Lender) thereunder, and (ii) each Existing Lender that is not indicated as having a Commitment pursuant to Schedule 2.01 hereto (each such Existing Lender, a Departing Lender) shall relinquish its rights and be released from its obligations under the Credit Agreement and shall cease to be a party to the Credit Agreement, provided, however, that each Departing Lender shall retain any claim with respect to any fee, interest, cost, expense or indemnity that accrues, or relates to an event that occurs, prior to the First Amendment Effective Date pursuant to Section 2.04(i), 2.04(j), 3.04(i), 3.04(j), 4.01, 4.02, 5.01, 5.04, 5.05 or 12.04 of the Credit Agreement, in each case as in effect immediately prior to the First Amendment Effective Date.
Section 4. Representations; No Default. Each of the Borrowers hereby represents and warrants to the Existing Lenders (other than the Departing Lenders), the New Lenders and the Administrative Agent that (a) this Amendment has been duly executed and delivered by such Borrower and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, (b) no Loan or Letter of Credit is or will be outstanding at any time on and after the date hereof and prior to the First Amendment Effective Date, and (c) on and as of the First Amendment Effective Date, and after giving effect to this Amendment, (i) each representation and warranty contained in Section 7.01 of the Credit Agreement is true and correct in all material respects as though made on and as of such date (or, if such representation and warranty is stated to be made as at a specific date or for a specific period, as at the original specified date or with respect to the original specified period), (ii) no Default has occurred and is continuing and (iii) from the date of the most recent financial statements of Parent delivered pursuant to Section 8.03 of the Credit Agreement to and including the First Amendment Effective Date there has been no material adverse change in the consolidated financial condition, or in the consolidated results of operations, of Parent and its consolidated Subsidiaries from that shown on such most recent financial statements.
Section 5. Fees. (a) The Borrowers agree to pay to each Existing Lender (other than any Existing Lender that is a Departing Lender) and each New Lender that, in each case, executes and delivers a copy of this Amendment to the Administrative Agent (or its counsel) at or prior to 12:00 (noon), New York City time, on August 17, 2005, through the Administrative Agent, an amendment fee (collectively, the Amendment Fees) in an amount equal to 2.0 Basis Points of the Commitment of such Person on the First Amendment Effective Date, as set forth on Schedule 2.01 hereto. The Amendment Fees shall be payable in full, in immediately available funds, on the First Amendment Effective Date. Once paid, none of such fees shall be refundable under any circumstances.
(b) On the First Amendment Effective Date, the Borrowers shall pay to each Departing Lender, through the Administrative Agent, any and all Facility Fees and other fees under the Credit Agreement accrued for the account of such Departing Lender as of such date and not yet paid.
Section 6. Conditions to Effectiveness. This Amendment shall not become effective until the date (the First Amendment Effective Date) on which (a) the Administrative Agent shall have received (i) counterparts of this Amendment, duly executed and delivered by a duly authorized officer of each of the Borrowers, the Administrative Agent, each of the Existing Lenders and each of the New Lenders and (ii) a certificate of each Borrower dated as of the First Amendment Effective Date signed by a Responsible Officer of such Borrower, certifying that the warranties and representations contained in Section 4 hereof are true and correct as of the First Amendment Effective Date and (b) the Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable to them on or prior to the First Amendment Effective Date, including, to the extent invoiced, payment or reimbursement of the Administrative Agents reasonable out-of-pocket expenses in connection with this Amendment and any other out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
Section 7. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not be deemed to be a modification or amendment of any other term, condition, obligation, covenant or agreement contained in the Credit Agreement or any other provision of the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. In furtherance of the foregoing, it is expressly agreed that all interest and fees accruing under the Credit Agreement in respect of periods prior to the First Amendment Effective Date will accrue at the rates specified in the Credit Agreement prior to its amendment hereby. On and after the First Amendment Effective Date, each reference in the Credit Agreement to this Agreement, hereunder, hereof, herein or words of like import shall be deemed a reference to the Credit Agreement as amended hereby.
Section 8. General.
(a) Governing Law. This Amendment shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.
(b) Costs and Expenses. The Borrowers agree to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with this Amendment, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
(c) Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof.
(d) Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the date first above written.
BURLINGTON RESOURCES INC.
By: /s/ Daniel D. Hawk | ||
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Name: Title: | Daniel D. Hawk Vice President and Treasurer |
BURLINGTON RESOURCES CANADA LTD. |
By: /s/ Daniel D. Hawk | ||
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Name: Title: | Daniel D. Hawk Vice President and Treasurer |
BURLINGTON RESOURCES CANADA |
(HUNTER) LTD.
By: /s/ Daniel D. Hawk | ||
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Name: Title: | Daniel D. Hawk Vice President and Treasurer |
JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent, US Swing Line Lender and US L/C Issuer |
By: /s/ Robert C. Mertensotto | ||
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Name: Title: | Robert C. Mertensotto Managing Director |
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, individually and as Canadian Swing Line Lender and Canadian L/C Issuer |
By: /s/ Robert C. Mertensotto | ||
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Name: Title: | Robert C. Mertensotto Managing Director | |
BANK OF AMERICA, N.A., individually and as US L/C Issuer |
By: /s/ Joseph F. Scott | ||
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Name: Title: | Joseph F. Scott Vice President |
BANK OF AMERICA, N.A., CANADA BRANCH, individually and as Canadian L/C Issuer |
By: /s/ Medina Sales de Andrade | ||
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Name: Title: | Medina Sales de Andrade Assistant Vice President | |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
AMEGY BANK NATIONAL ASSOCIATION | ||
By: /s/ W. Bryan Chapman | ||
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Name: Title: | W. Bryan Chapman Senior Vice President Energy Lending |
BANCA DI ROMA CHICAGO BRANCH | |||||||
By: | /s/ Joyce Montgomery | ||||||
Name: | Joyce Montgomery | ||||||
Title: | Vice President |
By: | /s/ Aurora Pensa | ||||||
Name: | Aurora Pensa | ||||||
Title: | Vice President |
BANCO BILBAO VIZCAYA ARGENTARIA S.A. |
By: /s/ Giampaolo Consigliere | ||
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Name: Title: | Giampaolo Consigliere Vice President, Global Trade Finance |
By: | /s/ Juan Urquiola | ||||||
Name: Juan Urquiola | |||||||
Title: | Head of Corporate Banking and | ||||||
Global Trade Finance |
THE BANK OF NEW YORK | |||||||
By: | /s/ Craig J. Anderson | ||||||
Name: | Craig J. Anderson | ||||||
Title: | Vice President |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
BANK OF TOKYO-MITSUBISHI (CANADA) VANCOUVER OFFICE
By: /s/ Davis J. Stewart | ||
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Name: Title: | Davis J. Stewart Senior Vice President |
THE BANK OF TOKYO-MITSUBISHI, LTD. | |||||||
By: | /s/ Kelton Glasscock | ||||||
Name: | Kelton Glasscock | ||||||
Title: | Vice President & Manager |
BARCLAY BANK PLC |
By: /s/ Alison McGuigan | ||
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Name: Title: | Alison McGuigan Associate Director |
BAYERISCHE HYPO-UND VEREINSBANK AG |
NEW YORK BRANCH
By: /s/ Yoram Dankner | ||
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Name: Title: | Yoram Dankner Managing Director |
By: | /s/ Shannon Batchman | ||||||
Name: | Shannon Batchman | ||||||
Title: | Director |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
BAYERISCHE LANDESBANK
By: /s/ Michael Jakob | ||
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Name: Title: | Michael Jakob Vice President |
By: | /s/ Norman McClave | ||||||
Name: | Norman McClave | ||||||
Title: | First Vice President |
BNP PARIBAS |
By: /s/ David Dodd | ||
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Name: Title: | David Dodd Director |
By: | /s/ Betsy Jocher | ||||||
Name: | Betsy Jocher | ||||||
Title: | Vice-President |
CITIBANK, N.A. |
By: /s/ Amy K. Pincu | ||
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Name: Title: | Amy K. Pincu Attorney-in-Fact |
CITIBANK, N.A., CANADIAN BRANCH |
By: /s/ Niyousha Zarinpour | ||
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Name: Title: | Niyousha Zarinpour Authorized signer |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
CREDIT SUISSE, CAYMAN ISLANDS BRANCH (formerly known as Credit Suisse First Boston acting through its Cayman Islands Branch)
By: /s/ Alain Daoust | ||
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Name: Title: | Alain Daoust Director |
By: | /s/ Denise L. Alvarez | ||||||
Name: | Denise L. Alvarez | ||||||
Title: | Associate |
CREDIT SUISSE, TORONTO BRANCH, (formerly known as Credit Suisse First Boston Toronto Branch) |
By: /s/ Alain Daoust | ||
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Name: Title: | Alain Daoust Director |
By: | /s/ Bruce F. Wetherly | ||||||
Name: | Bruce F. Wetherly | ||||||
Title: Director, | |||||||
Controllers Department |
DEUTSCHE BANK AG |
CANADA BRANCH
By: /s/ Rod OHara | ||
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Name: Title: | Rod OHara Director |
By: | /s/ Paul Jurist | ||||||
Name: | Paul Jurist | ||||||
Title: | Managing Director and | ||||||
Principal Officer |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
DEUTSCHE BANK AG NEW YORK
BRANCH
By: /s/ Rainer Meier | ||
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Name: Title: | Rainer Meier Assistant Vice President |
By: | /s/ Ming K. Chu | ||||||
Name: | Ming K. Chu | ||||||
Title: | Vice President |
HARRIS NESBITT FINANCING, INC. |
By: /s/ James V. Ducote | ||
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Name: Title: | James V. Ducote Vice President |
ING CAPITAL LLC |
By: /s/ Cheryl LaBelle | ||
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Name: Title: | Cheryl LaBelle Managing Director |
LEHMAN BROTHERS BANK, FSB |
By: /s/ Janine M. Shugan | ||
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Name: Title: | Janine M. Shugan Authorized Signatory |
MELLON BANK, N.A. |
By: /s/ Richard A. Matthews | ||
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Name: Title: | Richard a. Matthews First Vice President |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
MORGAN STANLEY BANK
By: /s/ Daniel Twenge | ||
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Name: Title: | Daniel Twenge Vice President |
MORGAN STANLEY SENIOR FUNDING (NOVA SCOTIA) CO. |
By: /s/ Daniel Twenge | ||
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Name: Title: | Daniel Twenge Vice President |
THE NORTHERN TRUST COMPANY |
By: /s/ Kathleen D Schurr | ||
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Name: Title: | Kathleen D. Schurr Vice President |
ROYAL BANK OF CANADA |
By: /s/ Linda M. Stephens | ||
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Name: Title: | Linda M. Stephens Authorized Signatory |
THE ROYAL BANK OF SCOTLAND PLC |
By: /s/ Kevin J. Howard | ||
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Name: Title: | Kevin J. Howard Managing Director |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
SOCIETE GENERALE
By: /s/ Elena Robciuc | ||
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Name: Title: | Elena Robciuc Vice President |
SOCIETE GENERALE (CANADA) |
By: /s/ Francois LALIBERTE | ||
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Name: Title: | Francois LALIBERTE Managing Director |
By: | /s/ David BALDONI | ||||||
Name: | David BALDONI | ||||||
Title: | Managing Director |
SUMITOMO MITSUI BANKING |
CORPORATION
By: /s/ Masakazu Hasegawa | ||
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Name: Title: | Masakazu Hasegawa Joint General Manager |
SUMITOMO MITSUI BANKING |
CORPORATION OF CANADA
By: /s/ Takehiro Matsumoto | ||
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Name: Title: | Takehiro Matsumoto Senior Vice President |
SUN TRUST BANK |
By: /s/ Sean Roche | ||
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Name: Title: | Sean Roche Vice President |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
TORONTO DOMINION BANK
By: /s/ Parin Kanji | ||
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Name: | Parin Kanji |
Title: Assistant Manager Corporate Credit Compliance |
TORONTO DOMINION (TEXAS) LLC
By: /s/ Jim Bridwell | ||
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Name: Title: | Jim Bridwell Authorized Signatory |
UBS AG CANADA BRANCH |
By: /s/ Wilfred V. Saint | ||
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Name: Title: | Wilfred V. Saint Director Banking Products Services, US |
By: | /s/ Barbara Ezell-McMichael | ||||||
Name: | Barbara Ezell-McMichael | ||||||
Title: | Associate Director | ||||||
Banking Products Services, US |
UBS LOAN FINANCE LLC |
By: /s/ Satloz Sikka | ||
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Name: Title: | Satloz Sikka Associate Director |
Banking Products Services, US |
By: /s/ Marie A. Haddad | ||
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Name: Title: | Marie A. Haddad Associate Director Banking Products Services, US |
SIGNATURE PAGE TO FIRST AMENDMENT TO BURLINGTON RESOURCES INC. CREDIT AGREEMENT DATED AS OF JULY 29, 2004 |
WACHOVIA BANK, N.A.
By: /s/ Paul M. Pritchett | ||
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Name: Title: | Paul M. Pritchett Assistant Vice President |
WELLS FARGO BANK, NA |
By: /s/ Chris Carter | ||
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Name: Title: | Chris Carter Corporate Officer |
WILLIAM STREET COMMITMENT |
CORPORATION (Recourse only to assets of William Street Commitment Corporation)
By: /s/ Mark Walton | ||
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Name: Title: | Mark Walton Assistant Vice President |
SCHEDULE 1.01
PRICING
LEVEL I | LEVEL II | LEVEL III | LEVEL IV | LEVEL V | LEVEL VI | |||||||
Basis for Pricing | A or higher by S&P/A2 or higher by Moodys | A- by S&P/A3 by Moodys | BBB+ by S&P/ Baa1 by Moodys | BBB by S&P/Baa2 by Moodys | BBB- by S&P/ Baa3 by Moodys | Lower than BBB- by S&P/ Baa3 by Moodys | ||||||
Facility Fee Percentage | 6 bps | 7 bps | 8 bps | 11 bps | 12.5 bps | 17 bps | ||||||
Applicable Margin | 19 bps | 23 bps | 27 bps | 39 bps | 50 bps | 58 bps | ||||||
The applicable pricing level shall change on the date of any relevant change in the rating by S&P or Moodys of any public long term senior unsecured debt securities of the Parent. In the case of split ratings from S&P and Moodys, the rating to be used to determine the applicable pricing level is the higher of the two (e.g., A-/Baa1 results in Level II pricing), provided that in the event the split is more than one full category, the average (or the higher of two intermediate ratings) shall be used (e.g., A-/Baa2 results in Level III pricing, as does A-/Baa3).
SCHEDULE 2.01
COMMITMENTS
Lender | Canadian Tranche | US Tranche | ||||||
JPMorgan Chase Bank, N.A. | $ | 0 | $ | 11,000,000 | ||||
JPMorgan Chase Bank, N.A., Toronto Branch | $ | 86,000,000 | $ | 0 | ||||
Bank of America, N.A. | $ | 0 | $ | 11,000,000 | ||||
Bank of America, N.A., Canada Branch | $ | 86,000,000 | $ | 0 | ||||
Barclay Bank PLC | $ | 0 | $ | 77,000,000 | ||||
Bank of Tokyo-Mitsubishi (Canada) | $ | 27,000,000 | $ | 0 | ||||
The Bank of Tokyo-Mitsubishi, Ltd. | $ | 0 | $ | 50,000,000 | ||||
Citibank, N.A., Canadian Branch | $ | 61,000,000 | $ | 0 | ||||
Citibank, N.A. | $ | 0 | $ | 16,00,000 | ||||
Credit Suisse, Cayman Islands Branch | $ | 0 | $ | 30,00,000 | ||||
Credit Suisse, Toronto Branch | $ | 30,000,000 | $ | 0 | ||||
Harris Nesbitt Financing, Inc. | $ | 30,000,000 | $ | 30,000,000 | ||||
Merrill Lynch Bank USA | $ | 0 | $ | 60,000,000 | ||||
Morgan Stanley Bank | $ | 0 | $ | 30,000,000 | ||||
Morgan Stanley Senior Funding (Nova Scotia) Co. | $ | 30,000,000 | $ | 0 | ||||
The Royal Bank of Scotland plc | $ | 0 | $ | 60,000,000 | ||||
Sumitomo Mitsui Banking Corporation of Canada | $ | 30,000,000 | $ | 0 | ||||
Sumitomo Mitsui Banking Corporation | $ | 0 | $ | 30,000,000 | ||||
SunTrust Bank | $ | 0 | $ | 60,000,000 | ||||
UBS AG Canada Branch | $ | 30,000,000 | $ | 0 | ||||
UBS Loan Finance LLC | $ | 0 | $ | 30,000,000 | ||||
Wachovia Bank, N.A. | $ | 0 | $ | 60,000,000 | ||||
The Bank of New York | $ | 0 | $ | 45,000,000 | ||||
Bayerische Landesbank | $ | 0 | $ | 45,000,000 | ||||
Deutsche Bank AG Canada Branch | $ | 20,000,000 | $ | 0 | ||||
Deutsche Bank AG New York Branch | $ | 0 | $ | 25,000,000 | ||||
Lehman Brothers Bank, FSB | $ | 0 | $ | 45,000,000 | ||||
Mellon Bank, N.A. | $ | 20,000,000 | $ | 25,000,000 | ||||
Societe Generale | $ | 0 | $ | 25,000,000 | ||||
Societe Generale (Canada) | $ | 20,000,000 | $ | 0 | ||||
Toronto Dominion Bank | $ | 20,000,000 | $ | 0 | ||||
Toronto Dominion (Texas) LLC | $ | 0 | $ | 25,000,000 | ||||
Wells Fargo Bank, NA | $ | 0 | $ | 45,000,000 | ||||
William Street Commitment Corporation | $ | 0 | $ | 45,000,000 | ||||
Banco Bilbao Vizcaya Argentaria S.A. | $ | 0 | $ | 25,000,000 | ||||
ING Capital LLC | $ | 0 | $ | 25,000,000 | ||||
Amegy Bank National Association | $ | 0 | $ | 20,000,000 | ||||
Banca di Roma Chicago Branch | $ | 0 | $ | 20,000,000 | ||||
The Northern Trust Company | $ | 0 | $ | 20,000,000 | ||||
Royal Bank of Canada | $ | 10,000,000 | $ | 10,000,000 | ||||