Exhibit 10.1


 




 





 


[Published CUSIP Number:         ]


 


CREDIT AGREEMENT


 


Dated as of November 2, 2009


 


among


 


FERRELLGAS, L.P.,


as the Borrower,


 


FERRELLGAS, INC.,

as the General Partner of the Borrower,


 


 


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

an L/C Issuer,


 


and


 


The Other Lenders Party Hereto


 


 


BANC OF AMERICA SECURITIES LLC

and

WELLS FARGO SECURITIES, LLC,

as Lead Arrangers


 


 


BANC OF AMERICA SECURITIES LLC

WELLS FARGO SECURITIES, LLC

and

J.P. MORGAN SECURITIES INC.,

as Book Managers


 


 


WELLS FARGO BANK NATIONAL ASSOCIATION

and

JPMORGAN CHASE BANK, N.A.,

as Syndication Agents


 


 


SOCIÉTÉ GÉNÉRALE


and


BNP PARIBAS,


as Documentation Agents


 




 





 

















 


TABLE
OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND
  ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive
  Provisions

  	
  29

  
	
  1.03

  	
  Accounting Terms

  	
  30

  
	
  1.04

  	
  Rounding

  	
  31

  
	
  1.05

  	
  Times of Day

  	
  31

  
	
  1.06

  	
  Letter of Credit Amounts

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE COMMITMENTS
  AND CREDIT EXTENSIONS

  	
  31

  
	
  2.01

  	
  The Loans

  	
  31

  
	
  2.02

  	
  Borrowings, Conversions
  and Continuations of Loans

  	
  31

  
	
  2.03

  	
  Letters of Credit

  	
  33

  
	
  2.04

  	
  Swing Line Loans

  	
  42

  
	
  2.05

  	
  Prepayments

  	
  45

  
	
  2.06

  	
  Termination or Reduction
  of Commitments

  	
  46

  
	
  2.07

  	
  Repayment of Loans

  	
  47

  
	
  2.08

  	
  Interest

  	
  47

  
	
  2.09

  	
  Fees

  	
  48

  
	
  2.10

  	
  Computation of Interest
  and Fees; Retroactive Adjustments of Applicable Rate

  	
  48

  
	
  2.11

  	
  Evidence of Debt

  	
  49

  
	
  2.12

  	
  Payments Generally;
  Administrative Agent’s Clawback

  	
  50

  
	
  2.13

  	
  Sharing of Payments by
  Lenders

  	
  52

  
	
  2.14

  	
  Increase in Facility

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE III TAXES, YIELD
  PROTECTION AND ILLEGALITY

  	
  54

  
	
  3.01

  	
  Taxes

  	
  54

  
	
  3.02

  	
  Illegality

  	
  57

  
	
  3.03

  	
  Inability to Determine
  Rates

  	
  58

  
	
  3.04

  	
  Increased Costs; Reserves
  on Eurodollar Rate Loans

  	
  58

  
	
  3.05

  	
  Compensation for Losses

  	
  60

  
	
  3.06

  	
  Mitigation Obligations;
  Replacement of Lenders

  	
  60

  
	
  3.07

  	
  Survival

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  	
  61

  
	
  4.01

  	
  Conditions of Initial
  Credit Extension

  	
  61

  
	
  4.02

  	
  Conditions to all Credit
  Extensions

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE V REPRESENTATIONS
  AND WARRANTIES

  	
  64

  
	
  5.01

  	
  Existence, Qualification
  and Power

  	
  64

  
	
  5.02

  	
  Authorization; No
  Contravention

  	
  65

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
  65

  
				



 


i

















 


	
  5.04

  	
  Binding Effect

  	
  65

  
	
  5.05

  	
  Financial Statements; No
  Material Adverse Effect

  	
  66

  
	
  5.06

  	
  Litigation

  	
  66

  
	
  5.07

  	
  No Default

  	
  66

  
	
  5.08

  	
  Ownership of Property;
  Liens; Investments

  	
  67

  
	
  5.09

  	
  Environmental Compliance

  	
  67

  
	
  5.10

  	
  Insurance

  	
  67

  
	
  5.11

  	
  Taxes

  	
  68

  
	
  5.12

  	
  ERISA Compliance

  	
  68

  
	
  5.13

  	
  Subsidiaries; Equity
  Interests; Loan Parties

  	
  68

  
	
  5.14

  	
  Margin Regulations;
  Investment Company Act

  	
  69

  
	
  5.15

  	
  Disclosure

  	
  69

  
	
  5.16

  	
  Compliance with Laws

  	
  69

  
	
  5.17

  	
  Intellectual Property;
  Licenses, Etc.

  	
  69

  
	
  5.18

  	
  Solvency

  	
  70

  
	
  5.19

  	
  Casualty, Etc.

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI AFFIRMATIVE
  COVENANTS

  	
  70

  
	
  6.01

  	
  Financial Statements

  	
  70

  
	
  6.02

  	
  Certificates; Other
  Information

  	
  71

  
	
  6.03

  	
  Notices

  	
  74

  
	
  6.04

  	
  Payment of Obligations

  	
  75

  
	
  6.05

  	
  Preservation of Existence,
  Etc.

  	
  75

  
	
  6.06

  	
  Maintenance of Properties

  	
  75

  
	
  6.07

  	
  Maintenance of Insurance

  	
  75

  
	
  6.08

  	
  Compliance with Laws

  	
  75

  
	
  6.09

  	
  Books and Records

  	
  75

  
	
  6.10

  	
  Inspection Rights

  	
  76

  
	
  6.11

  	
  Use of Proceeds

  	
  76

  
	
  6.12

  	
  Covenant to Give Security
  and Guarantee Obligations Security

  	
  76

  
	
  6.13

  	
  Compliance with
  Environmental Laws

  	
  77

  
	
  6.14

  	
  Preparation of
  Environmental Reports

  	
  77

  
	
  6.15

  	
  Further Assurances

  	
  78

  
	
  6.16

  	
  Compliance with Terms of
  Leaseholds

  	
  78

  
	
  6.17

  	
  Material Contracts

  	
  78

  
	
  6.18

  	
  Designation as Senior Debt

  	
  79

  
	
  6.19

  	
  Unrestricted Subsidiaries

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII NEGATIVE
  COVENANTS

  	
  79

  
	
  7.01

  	
  Liens

  	
  79

  
	
  7.02

  	
  Indebtedness

  	
  80

  
	
  7.03

  	
  Investments

  	
  82

  
	
  7.04

  	
  Fundamental Changes

  	
  83

  
	
  7.05

  	
  Dispositions

  	
  84

  
	
  7.06

  	
  Restricted Payments

  	
  85

  
	
  7.07

  	
  Change in Nature of
  Business

  	
  86

  
	
  7.08

  	
  Transactions with
  Affiliates

  	
  86

  



 


ii

















 


	
  7.09

  	
  Burdensome Agreements

  	
  87

  
	
  7.10

  	
  Use of Proceeds

  	
  87

  
	
  7.11

  	
  Financial Covenants

  	
  87

  
	
  7.12

  	
  Amendments of Organization
  Documents

  	
  88

  
	
  7.13

  	
  Accounting Changes

  	
  88

  
	
  7.14

  	
  Prepayments, Etc. of
  Indebtedness

  	
  88

  
	
  7.15

  	
  Amendment, Etc. of
  Indebtedness

  	
  88

  
	
  7.16

  	
  General Partner

  	
  88

  
	
  7.17

  	
  Designation of Senior Debt

  	
  89

  
	
  7.18

  	
  Commodity Risk Management
  Policy

  	
  89

  
	
  7.19

  	
  Deposit Accounts

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII EVENTS OF
  DEFAULT AND REMEDIES

  	
  89

  
	
  8.01

  	
  Events of Default

  	
  89

  
	
  8.02

  	
  Remedies upon Event of
  Default

  	
  92

  
	
  8.03

  	
  Application of Funds

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX ADMINISTRATIVE
  AGENT

  	
  93

  
	
  9.01

  	
  Appointment and Authority

  	
  93

  
	
  9.02

  	
  Rights as a Lender

  	
  94

  
	
  9.03

  	
  Exculpatory Provisions

  	
  94

  
	
  9.04

  	
  Reliance by Administrative
  Agent

  	
  95

  
	
  9.05

  	
  Delegation of Duties

  	
  95

  
	
  9.06

  	
  Resignation of
  Administrative Agent

  	
  96

  
	
  9.07

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
  97

  
	
  9.08

  	
  No Other Duties, Etc.

  	
  97

  
	
  9.09

  	
  Administrative Agent
  May File Proofs of Claim

  	
  97

  
	
  9.10

  	
  Collateral and Guaranty
  Matters

  	
  98

  
	
  9.11

  	
  Secured Cash Management
  Agreements and Secured Hedge Agreements

  	
  98

  
	
   

  	
   

  	
   

  
	
  ARTICLE X MISCELLANEOUS

  	
  99

  
	
  10.01

  	
  Amendments, Etc.

  	
  99

  
	
  10.02

  	
  Notices; Effectiveness;
  Electronic Communications

  	
  100

  
	
  10.03

  	
  No Waiver; Cumulative
  Remedies; Enforcement

  	
  103

  
	
  10.04

  	
  Expenses; Indemnity;
  Damage Waiver

  	
  103

  
	
  10.05

  	
  Payments Set Aside

  	
  105

  
	
  10.06

  	
  Successors and Assigns

  	
  106

  
	
  10.07

  	
  Treatment of Certain
  Information; Confidentiality

  	
  109

  
	
  10.08

  	
  Right of Setoff

  	
  110

  
	
  10.09

  	
  Interest Rate Limitation

  	
  111

  
	
  10.10

  	
  Counterparts; Integration;
  Effectiveness

  	
  111

  
	
  10.11

  	
  Survival of
  Representations and Warranties

  	
  111

  
	
  10.12

  	
  Severability

  	
  111

  
	
  10.13

  	
  Replacement of Lenders

  	
  112

  
	
  10.14

  	
  Governing Law;
  Jurisdiction; Etc.

  	
  112

  
	
  10.15

  	
  Waiver of Jury Trial

  	
  113

  
	
  10.16

  	
  No Advisory or Fiduciary
  Responsibility

  	
  113

  



 


iii

















 


	
  10.17

  	
  Electronic Execution of
  Assignments and Certain Other Documents

  	
  114

  
	
  10.18

  	
  USA PATRIOT Act

  	
  114

  
	
  10.19

  	
  ENTIRE AGREEMENT

  	
  114

  
	
   

  	
   

  	
   

  
	
  SIGNATURES 

  	
  S-1

  



 


iv

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  2.01

  	
  Commitments and Applicable
  Percentages

  
	
  5.08(b)

  	
  Owned Real Property

  
	
  5.08(c)

  	
  Existing Investments

  
	
  5.13

  	
  Subsidiaries and Other
  Equity Investments; Loan Parties

  
	
  5.17

  	
  IP Rights

  
	
  6.12

  	
  Guarantors

  
	
  7.02

  	
  Existing Indebtedness

  
	
  7.09

  	
  Burdensome Agreements

  
	
  10.02

  	
  Administrative Agent’s
  Office, Certain Addresses for Notices

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Form of

  	
   

  
	
   

  	
   

  
	
  A

  	
  Committed Loan Notice

  
	
  B

  	
  Swing Line Loan Notice

  
	
  C

  	
  Note

  
	
  D

  	
  Compliance Certificate

  
	
  E-1

  	
  Assignment and Assumption

  
	
  E-2

  	
  Administrative
  Questionnaire

  
	
  F

  	
  Guaranty

  
	
  G

  	
  Security Agreement

  
	
  H

  	
  Secured Cash Management
  Bank Notice

  
	
  I

  	
  Opinion Matters – Counsel
  to Loan Parties

  



 


v

















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT (“Agreement”) is entered into as of November 2,
2009, among FERRELLGAS, L.P., a Delaware limited partnership (the “Borrower”),
FERRELLGAS, INC., a Delaware corporation and sole general partner of the
Borrower (the “General Partner”), each lender from time to time party
hereto (collectively, the “Lenders” and individually, a “Lender”),
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an
L/C Issuer.


 


PRELIMINARY STATEMENTS:


 


The
Borrower has requested that the Lenders provide a revolving credit facility,
and the Lenders have indicated their willingness to lend and the L/C Issuers
have indicated their willingness to issue letters of credit, in each case, on
the terms and subject to the conditions set forth herein.


 


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


 


ARTICLE I


DEFINITIONS AND ACCOUNTING TERMS


 


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


 


“2004
Fixed Rate Senior Notes” means the $250,000,000 6 3⁄4% Senior Notes due May 1,
2014, issued by the Borrower pursuant to the 2008 Indenture.


 


“2004
Indenture” means the Indenture dated as of April 20, 2004 among the
Borrower, Ferrellgas Finance Corp., and U.S. Bank National Association, as
trustee.


 


“2008
Fixed Rate Senior Notes” means the $200,000,000 6 3⁄4% Senior Notes due May 1,
2014, issued by the Borrower pursuant to the 2008 Indenture.


 


“2008
Indenture” means the Indenture dated as of August 4, 2008 among the
Borrower, Ferrellgas Finance Corp., and U.S. Bank National Association, as
trustee.


 


“2009
Fixed Rate Senior Notes” means the $300,000,000 9.125% Senior Notes due October 1,
2017, issued by the Borrower pursuant to the 2009 Indenture.


 


“2009
Indenture” means the Indenture dated as of September 14, 2009 among
the Borrower, Ferrellgas Finance Corp., and U.S. Bank National Association, as
trustee.


 


“Accounts
Receivable Securitization” means a financing arrangement involving the
transfer or sale of accounts receivable of the Borrower in the ordinary course
of business through one or more SPEs, the terms of which arrangement do not
impose (a) any recourse or repurchase obligations upon the Borrower or any
Affiliate of the Borrower (other than any such SPE) except to the extent of the
breach of a representation or warranty by the Borrower in connection


 

















 


therewith or (b) any
negative pledge or Lien on any accounts receivable or other assets not actually
transferred to any such SPE in connection with such arrangement.


 


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


 


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


 


“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit E-2 or any other form approved by the
Administrative Agent.


 


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


 


“Aggregate
Commitments” means the Commitments of all the Lenders.


 


“Agreement”
means this Credit Agreement.


 


“Applicable
Fee Rate” means, at any time, 0.50% per annum.


 


“Applicable
Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Facility represented by such
Lender’s Commitment at such time. If the commitment of each Lender to make
Revolving Credit Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, or if the
Commitments have expired, then the Applicable Percentage of each Lender shall
be determined based on the Applicable Percentage of such Lender most recently
in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.


 


“Applicable
Rate” means (i) from the Closing Date to the date on which the
Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for
the fiscal year ending July 31, 2009, 2.75% per annum for Base Rate Loans
and 3.75% per annum for Eurodollar Rate Loans and Letter of Credit Fees and (ii) thereafter,
the applicable percentage per annum set forth below determined by reference to
the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):


 


2

















 




	
  Applicable Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Eurodollar

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Rate //

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Standby

  	
   

  	
   

  	
   

  	
  Commercial

  	
   

  
	
  Pricing

  	
   

  	
  Consolidated

  	
   

  	
  Letters of

  	
   

  	
   

  	
   

  	
  Letters of

  	
   

  
	
  Level

  	
   

  	
  Leverage Ratio

  	
   

  	
  Credit

  	
   

  	
  Base Rate

  	
   

  	
  Credit

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  <3.0:1

  	
   

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  	
  2.750

  	
  %

  
	
  2

  	
   

  	
  >3.0:1 but <3.5:1

  	
   

  	
  3.75

  	
  %

  	
  2.75

  	
  %

  	
  2.875

  	
  %

  
	
  3

  	
   

  	
  >3.5:1 but <4.0:1

  	
   

  	
  4.00

  	
  %

  	
  3.00

  	
  %

  	
  3.000

  	
  %

  
	
  4

  	
   

  	
  >4.0:1

  	
   

  	
  4.25

  	
  %

  	
  3.25

  	
  %

  	
  3.125

  	
  %

  






 


Any increase or decrease in
the Applicable Rate resulting from a change in the Consolidated Leverage Ratio
shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then, upon the request of
the Required Lenders, Pricing Level 4 shall apply, in each case as of the first
Business Day after the date on which such Compliance Certificate was required
to have been delivered and in each case shall remain in effect until the date
on which such Compliance Certificate is delivered.


 


Notwithstanding
anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).


 


“Appropriate
Lender” means, at any time, (a) a Lender that has a Commitment or
holds a Revolving Credit Loan at such time, (b) with respect to the Letter
of Credit Sublimit, (i) the applicable L/C Issuer and (ii) if any
Letters of Credit have been issued pursuant to Section 2.03(a), the
Lenders and (c) with respect to the Swing Line Sublimit, (i) the
Swing Line Lender and (ii) if any Swing Line Loans are outstanding
pursuant to Section 2.04(a), the Lenders.


 


“Approved
Interest Counterparty” means a counterparty to an interest rate Swap
Contract that either (a) is a Hedge Bank, or (b) is a Person whose
senior unsecured long-term debt obligations are rated BBB- or higher by S&P
and Baa3 or higher by Moody’s.


 


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


 


“Arranger”
means, collectively, Banc of America Securities LLC and Wells Fargo Securities,
LLC, in their capacities as lead arrangers.


 


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


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E-1 or any other form
approved by the Administrative Agent.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease or similar payments under the relevant lease or
other applicable agreement or instrument that would appear on a balance sheet


 


3

















 


of such Person prepared as
of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended July 31, 2008, and
the related consolidated statements of income or operations, partners’ capital
and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.


 


“Available
Cash” has the meaning given to such term in the Partnership Agreement, as
amended to and including April 7, 2004, provided, that (a) Available
Cash shall not include any Net Proceeds of Asset Sales in excess of an
aggregate amount of $10,000,000 made during any fiscal year of the Borrower, (b) investments,
loans and other contributions to a Non-Recourse Subsidiary or Unrestricted
Subsidiary are to be treated as “cash disbursements” when made for purposes of
determining the amount of Available Cash, and (c) cash receipts of a
Non-Recourse Subsidiary or Unrestricted Subsidiary shall not constitute cash
receipts of the Borrower for purposes of determining the amount of Available
Cash until cash is actually distributed by such Non-Recourse Subsidiary or
Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary.


 


“Availability
Period” means the period from and including the Closing Date to the
earliest of (i) the Maturity Date, (ii) the date of termination of
the Commitments pursuant to Section 2.06, and (iii) the date
of termination of the commitment of each Lender to make Revolving Credit Loans
and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant
to Section 8.02.


 


“Bank
of America” means Bank of America, N.A. and its successors.


 


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


 


“Base
Rate Loan” means a Revolving Credit Loan that bears interest based on the Base
Rate.


 


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


 


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


 


“Borrowing”
means a Revolving Credit Borrowing or a Swing Line Borrowing, as the context
may require.


 


4
















 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day that is also a
London Banking Day.


 


“Capitalized
Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.


 


“Cash
Collateralize” has the meaning specified in Section 2.03(g).


 


“Cash
Equivalents” means (a) United States dollars, (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than eighteen months from the date of acquisition, (c) certificates
of deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers’ acceptances with maturities not
exceeding six months and overnight bank deposits, in each case with any Lender
or with any other domestic commercial bank that is a member of the Federal
Reserve System having capital and surplus in excess of $500 million, (d) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (b) and (c) entered into with any
financial institution meeting the qualifications specified in clause (c) above,
(e) commercial paper or direct obligations of a Person, provided such
Person has publicly outstanding debt having the highest short-term rating
obtainable from Moody’s or S&P and provided further that such commercial
paper or direct obligation matures within 270 days after the date of
acquisition, and (f) investments in money market funds all of whose assets
consist of securities of the types described in the foregoing clauses (a) through
(e).


 


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


 


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


 


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


 


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


 


“Change
of Control” means the occurrence of any of the following events: (a) the
sale, lease, conveyance or other disposition of all or substantially all of the
Borrower’s assets to any Person or group (as such term is used in Section 13(d)(3) of
the Securities Exchange Act of 1934) other than James E. Ferrell, the Ferrell
Related Parties and any Person of which James E. Ferrell and the Ferrell
Related Parties beneficially own in the aggregate 51% or more of the voting
Equity Interests (or if such Person is a partnership, 51% or more of the
general partner


 


5

















 


interests), (b) the
liquidation or dissolution of the Borrower or the General Partner, (c) the
occurrence of any transaction, the result of which is that James E. Ferrell and
the Ferrell Related Parties beneficially own in the aggregate, directly or
indirectly, less than 51% of the total voting power entitled to vote for the
election of directors of the General Partner, or (d) the occurrence of any
transaction, the result of which is that the General Partner is no longer the
sole general partner of the Borrower.


 


“Closing
Date” means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with Section 10.01.


 


“Code”
means the Internal Revenue Code of 1986.


 


“Collateral”
means all of the property that is or is intended under the terms of the
Collateral Documents to be subject to Liens in favor of the Administrative
Agent for the benefit of the Secured Parties.


 


“Collateral
Documents” means, collectively, the Security Agreement, the Intellectual
Property Security Agreements, each of the mortgages, collateral assignments,
Security Agreement Supplements, security agreements, pledge agreements or other
similar agreements delivered to the Administrative Agent pursuant to Section 6.12,
and each of the other agreements, instruments or documents that creates or
purports to create a Lien in favor of the Administrative Agent for the benefit
of the Secured Parties.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Revolving Credit
Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule
2.01 under the caption “Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


 


“Committed
Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.


 


“Commodity
Risk Management Policy” means the Amended and Restated Commodity Risk
Management Policy as of July 14, 2008 of the MLP and the Borrower, as amended
from time to time in compliance with Section 7.18.


 


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


 


“Consolidated
EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Borrower and its Restricted Subsidiaries on a
consolidated basis for the most recently completed Measurement Period plus
(a) the following, to the extent deducted in calculating such Consolidated
Net Income: (i) any extraordinary loss (including expenses related to the
early extinguishment of Indebtedness) plus any net loss realized in connection
with an asset sale, (ii) the provision for Taxes based on income or
profits of the Borrower and the Restricted Subsidiaries, (iii) the
Consolidated Interest Charges for such period,


 


6

















 


whether paid or accrued
(including amortization of original issue discount, non-cash interest payments
and the interest component of any payments associated with Attributable
Indebtedness in respect of Capital Leases and net payments (if any) pursuant to
Swap Contracts in respect of interest rates), (iv) the depreciation and
amortization charges (including amortization of goodwill and other intangibles
but excluding amortization of prepaid cash expenses that were paid in a prior
period), and (v) other non-recurring expenses reducing such Consolidated
Net Income which do not represent a cash item in such period or any future
period (including those related to Dispositions and those resulting from the
requirements of SFAS 133), plus (b) to the extent deducted in
calculating such Consolidated Net Income, non-cash employee compensation
expenses of the Borrower and the Restricted Subsidiaries, minus (c) to
the extent included in calculating such Consolidated Net Income, all non-cash
items increasing Consolidated Net Income (including those related to
Dispositions and those resulting from the requirements of SFAS 133), in each
case in this definition of or by the Borrower and its Restricted Subsidiaries
for such Measurement Period, without duplication on a consolidated basis and
determined in accordance with GAAP.


 


“Consolidated
Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Restricted Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all outstanding
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all outstanding purchase money Indebtedness, (c) all
outstanding obligations in respect of the deferred purchase price of property
or services (other than trade accounts payable in the ordinary course of
business), (d) all outstanding Attributable Indebtedness, (e) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (d) above of Persons other
than the Borrower or any Restricted Subsidiary, and (f) all outstanding
Indebtedness of the types referred to in clauses (a) through (e) above
of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which the Borrower or a
Restricted Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to the Borrower or such Restricted
Subsidiary; provided that, for the avoidance of doubt, “Consolidated Funded
Indebtedness” shall not include any obligations of such Person in respect of
Accounts Receivable Securitizations permitted by Sections 7.02(h) and
7.05(f).


 


“Consolidated
Funded Senior Secured Indebtedness” means, as of any date of determination,
for the Borrower and its Restricted Subsidiaries on a consolidated basis,
Consolidated Funded Indebtedness, but excluding any such Indebtedness that is
not secured by any Liens.


 


“Consolidated
Interest Charges” means, with respect to the Borrower and the Restricted
Subsidiaries for any Measurement Period, on a consolidated basis, the sum of (a) all
interest, fees (including Letter of Credit fees), charges and related expenses
paid or payable (without duplication) by the Borrower and the Restricted
Subsidiaries for that period to the Lenders hereunder or to any other lender in
connection with borrowed money (including capitalized interest) or the deferred
purchase price of assets that are considered “interest expense” under GAAP,
plus (b) the portion of rent paid or payable (without duplication) by the
Borrower and the Restricted Subsidiaries for that period under Capital Leases
that should be treated as interest in


 


7

















 


accordance with Financial
Accounting Standards Board Statement No. 13, on a consolidated basis.


 


“Consolidated
Interest Coverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated EBITDA to (b) Consolidated Interest Charges, in
each case, of or by the Borrower and its Restricted Subsidiaries on a
consolidated basis for the most recently completed Measurement Period. In the
event that the Borrower or any of the Restricted Subsidiaries (i) incurs,
assumes or guarantees any Indebtedness (other than revolving credit borrowings
including, with respect to the Borrower, the Loans and other than Indebtedness
under the Accounts Receivable Securitizations permitted by this Agreement), or (ii) redeems
or repays any Indebtedness (excluding Indebtedness under the Accounts
Receivable Securitizations permitted by this Agreement), in any case subsequent
to the commencement of the Measurement Period but prior to the date of the
event for which the calculation of the Consolidated Interest Coverage is made
(the “Interest Coverage Ratio Calculation Date”), then the Consolidated
Interest Coverage shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee, redemption or repayment of Indebtedness as
if the same had occurred at the beginning of the applicable reference period.
Furthermore, in the event that the Borrower or any of the Restricted
Subsidiaries consummates a purchase or acquisition permitted under Section 7.03(h) or
a Disposition permitted under Section 7.05(h) during a
Measurement Period or subsequent to the end of such Measurement Period but
prior to the date of the event for which the calculation of the Consolidated
Interest Coverage is made, then the Consolidated Interest Coverage Ratio shall
be calculated giving pro forma effect to such purchase or acquisition or to
such Disposition, as the case may be, as though such transaction occurred on
the first day of such Measurement Period; provided that with respect to
the Borrower and the Restricted Subsidiaries, (a) Consolidated Interest
Charges shall be reduced by amounts attributable to businesses or assets that
are so disposed of or discontinued only to the extent that the obligations
giving rise to such Consolidated Interest Charges would no longer be
obligations contributing to the Consolidated Interest Charges of the Borrower
or the Restricted Subsidiaries subsequent to Interest Coverage Ratio
Calculation Date, (b) Consolidated EBITDA generated by an acquired
business or asset of the Borrower or the Restricted Subsidiaries shall be
determined by the actual gross profit (revenues minus costs of goods sold) of
such acquired business or asset during the immediately preceding number of full
fiscal quarters as are in applicable Measurement Period minus the pro forma
expenses that would have been incurred by the Borrower and the Restricted
Subsidiaries in the operation of such acquired business or asset during such
period computed on the basis of (i) personnel expenses for employees
retained by the Borrower and the Restricted Subsidiaries in the operation of
the acquired business or asset and (ii) non-personnel costs and expenses
incurred by the Borrower and the Restricted Subsidiaries on a per gallon basis
in the operation of the Borrower’s business at similarly situated Borrower
facilities, and (c) in connection with any Material Acquisition, in lieu
of the pro forma adjustments provided in the immediately preceding clauses (a) and
(b), if requested by the Borrower, Consolidated Interest Charges and
Consolidated EBITDA may be subject to such pro forma adjustments reasonably
acceptable to the Administrative Agent.


 


“Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated
Funded Indebtedness as of such date to  (b) Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries on a consolidated basis
for the most recently completed Measurement Period. In the event that the
Borrower or any of the Restricted Subsidiaries (i)


 


8

















 


incurs, assumes or
guarantees any Indebtedness (other than revolving credit borrowings including,
with respect to the Borrower, the Loans and other than Indebtedness under the
Accounts Receivable Securitizations permitted by this Agreement) or (ii) redeems
or repays any Indebtedness (excluding Indebtedness under the Accounts
Receivable Securitizations permitted by this Agreement), in any case subsequent
to the commencement of the Measurement Period but prior to the date of the
event for which the calculation of the Consolidated Leverage Ratio is made (the
“Leverage Ratio Calculation Date”), then the Consolidated Leverage Ratio
shall be calculated giving pro forma effect to such incurrence, assumption,
guarantee, redemption or repayment of Indebtedness as if the same had occurred
at the beginning of the applicable reference period. Furthermore, in the event
that the Borrower or any of the Restricted Subsidiaries consummates a purchase
or acquisition permitted under Section 7.03(h) or a
Disposition permitted under Section 7.05(h) during a Measurement
Period or subsequent to the end of the Measurement Period but prior to the date
of the event for which the calculation of the Consolidated Leverage Ratio is
made, then the Consolidated Leverage Ratio shall be calculated giving pro forma
effect to such purchase or acquisition or to such Disposition, as the case may
be, as though such transaction occurred on the first day of such Measurement
Period; provided that with respect to the Borrower and the Restricted
Subsidiaries, (a) Consolidated Funded Indebtedness shall be reduced by
amounts attributable to businesses or assets that are so disposed of or
discontinued only to the extent that the Indebtedness included in such
Consolidated Funded Indebtedness would no longer be obligations of the Borrower
or the Restricted Subsidiaries subsequent to the Leverage Ratio Calculation
Date, (b) Consolidated EBITDA generated by an acquired business or asset
of the Borrower or the Restricted Subsidiaries shall be determined by the
actual gross profit (revenues minus costs of goods sold) of such acquired
business or asset during the immediately preceding number of full fiscal
quarters as are in applicable Measurement Period minus the pro forma expenses
that would have been incurred by the Borrower and the Restricted Subsidiaries
in the operation of such acquired business or asset during such period computed
on the basis of (i) personnel expenses for employees retained by the
Borrower and the Restricted Subsidiaries in the operation of the acquired
business or asset and (ii) non-personnel costs and expenses incurred by
the Borrower and the Restricted Subsidiaries on a per gallon basis in the
operation of the Borrower’s business at similarly situated Borrower facilities,
and (c) in connection with any Material Acquisition, in lieu of the pro
forma adjustments provided in the immediately preceding clauses (a) and
(b), if requested by the Borrower, Consolidated Funded Indebtedness and
Consolidated EBITDA may be subject to such pro forma adjustments reasonably
acceptable to the Administrative Agent.


 


“Consolidated
Net Income” means, at any date of determination, the net income (or loss)
of the Borrower and its Restricted Subsidiaries on a consolidated basis for the
most recently completed Measurement Period; provided that Consolidated
Net Income shall exclude (a) extraordinary gains for such Measurement
Period, (b) the net income of any Restricted Subsidiary during such
Measurement Period to the extent that the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of such income is not
permitted by operation of the terms of its Organization Documents or any
agreement, instrument or Law applicable to such Restricted Subsidiary during
such Measurement Period, except that the Borrower’s equity in any net loss of
any such Restricted Subsidiary for such Measurement Period shall be included in
determining Consolidated Net Income, and (c) any income (or loss) for such
Measurement Period of any Person if such Person is not a Restricted Subsidiary,
except that the Borrower’s equity in the net income of any such Person for such
Measurement Period


 


9

















 


shall be included in
Consolidated Net Income up to the aggregate amount of cash actually distributed
by such Person during such Measurement Period to the Borrower or a Restricted
Subsidiary as a dividend or other distribution (and in the case of a dividend
or other distribution to a Restricted Subsidiary, such Restricted Subsidiary is
not precluded from further distributing such amount to the Borrower as
described in clause (b) of this proviso); provided further that,
Consolidated Net Income shall include extraordinary losses for such Measurement
Period and exclude the cumulative effect of a change in accounting principles.


 


“Consolidated
Senior Secured Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Funded Senior Secured Indebtedness as of such
date to  (b) Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries on a consolidated basis
for the most recently completed Measurement Period. In the event that the
Borrower or any of the Restricted Subsidiaries (i) incurs, assumes or
guarantees any Consolidated Funded Senior Secured Indebtedness (other than
revolving credit borrowings including, with respect to the Borrower, the Loans)
or (ii) redeems or repays any such Indebtedness, in any case subsequent to
the commencement of the Measurement Period but prior to the date of the event
for which the calculation of the Consolidated Senior Secured Leverage Ratio is
made (the “Senior Leverage Ratio Calculation Date”), then the
Consolidated Senior Secured Leverage Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, guarantee, redemption or repayment of
Indebtedness as if the same had occurred at the beginning of the applicable
reference period. Furthermore, in the event that the Borrower or any of the
Restricted Subsidiaries consummates a purchase or acquisition permitted under Section 7.03(h) or
a Disposition permitted under Section 7.05(h) during a
Measurement Period or subsequent to the end of the Measurement Period but prior
to the date of the event for which the calculation of the Consolidated Senior
Secured Leverage Ratio is made, then the Consolidated Senior Secured Leverage
Ratio shall be calculated giving pro forma effect to such purchase or
acquisition or to such Disposition, as the case may be, as though such
transaction occurred on the first day of such Measurement Period; provided
that with respect to the Borrower and the Restricted Subsidiaries, (a) Consolidated
Funded Senior Secured Indebtedness shall be reduced by amounts attributable to
businesses or assets that are so disposed of or discontinued only to the extent
that the Consolidated Funded Indebtedness included in such Consolidated Funded
Senior Secured Indebtedness would no longer be obligations of the Borrower or
the Restricted Subsidiaries subsequent to the Senior Leverage Ratio Calculation
Date, (b) Consolidated EBITDA generated by an acquired business or asset
of the Borrower or the Restricted Subsidiaries shall be determined by the
actual gross profit (revenues minus costs of goods sold) of such acquired
business or asset during the immediately preceding number of full fiscal
quarters as are in applicable Measurement Period minus the pro forma expenses
that would have been incurred by the Borrower and the Restricted Subsidiaries
in the operation of such acquired business or asset during such period computed
on the basis of (i) personnel expenses for employees retained by the
Borrower and the Restricted Subsidiaries in the operation of the acquired
business or asset and (ii) non-personnel costs and expenses incurred by
the Borrower and the Restricted Subsidiaries on a per gallon basis in the
operation of the Borrower’s business at similarly situated Borrower facilities,
and (c) in connection with any Material Acquisition, in lieu of the pro
forma adjustments provided in the immediately preceding clauses (a) and
(b), if requested by the Borrower, Consolidated Funded Senior Secured
Indebtedness and Consolidated EBITDA may be subject to such pro forma
adjustments reasonably acceptable to the Administrative Agent.


 


10

















 


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


 


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


 


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


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


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


 


“Default
Rate” means (a) when used with respect to the Obligations (other than
Obligations constituting Letter of Credit Fees), an interest rate equal to (i) the
Base Rate plus (ii) the Applicable Rate, if any, applicable to Base
Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum, and (b) when
used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus 2% per annum.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of
the Revolving Credit Loans (unless the subject of a good faith dispute),
participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date
required to be funded by it hereunder, (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
the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding, in each case as
reasonably determined by the Administrative Agent.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person (or the granting of any option or other right to do any of the
foregoing), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


 


“Dollar”
and “$” mean lawful money of the United States.


 


11

















 


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


 


“Environmental
Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


 


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


 


“Environmental
Permit” means any permit, approval, identification number, license or other
authorization required under any Environmental Law.


 


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


 


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


 


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


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment


 


12

















 


as a termination under Section 4041
or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate
a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.


 


“Eurodollar
Rate” means:


 


(a) with
respect to each Eurodollar Rate Loan, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to (i) the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or if
such publication is unavailable, such other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) at approximately 11:00 a.m., London time, two London
Banking 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 or (ii), if such rate is not available at
such time for any reason, the rate per annum determined by the Administrative
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 Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two
London Banking Days prior to the commencement of such Interest Period; and


 


(b) for
any interest calculation with respect to a Base Rate Loan, the rate per annum
equal to (i) BBA LIBOR, at approximately 11:00 a.m. (London time)
determined daily on each Business Day (or as to any day that is not a London
Banking Day, on the next preceding London Banking Day) for Dollar deposits
being delivered in the London interbank market for a term of one month
commencing that day or (ii) if such published rate is not available at
such time for any reason, the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan
being made or maintained by Bank of America and with a term equal to one month
would be offered by Bank of America’s London Branch to major banks in the
London interbank Eurodollar market at their request at the date and time of
determination.


 


“Eurodollar
Rate Loan” means a Revolving Credit Loan that bears interest at a rate
based on the Eurodollar Rate.


 


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


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by
its overall net income (however denominated), and franchise taxes imposed on it
(in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable Lending


 


13

















 


Office is located, (b) any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which the Borrower is located, (c) any backup
withholding tax that is required by the Code to be withheld from amounts
payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 10.13), any United
States withholding tax that (i) is required to be imposed on amounts
payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 3.01(a).


 


“Existing
Credit Agreement” means that certain Fifth Amended and Restated Credit
Agreement dated as of April 22, 2005 among the Borrower, the General
Partner, Bank of America, N.A., as administrative agent, and a syndicate of
lenders, as amended or supplemented to the date hereof.


 


“Existing
Letters of Credit” means the letters of credit issued pursuant to the
Existing Credit Agreement that are outstanding on the date hereof.


 


“Facility”
means, at any time, the amount of the Aggregate Commitments at such time.


 


“FCI
ESOT” means the employee stock ownership trust of Ferrell Companies, Inc.
organized under Section 4975(e)(7) of the Code.


 


“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
Letter” means the letter agreement, dated August 24, 2009 among the
Borrower, the Administrative Agent, the Arranger, Wells Fargo Bank, N.A.,
JPMorgan Chase Bank, N.A., and J.P. Morgan Securities Inc.


 


“Ferrell
Related Parties” means collectively (a) the spouse or any lineal
descendant of James E. Ferrell, (b) any trust for his benefit or for the
benefit of his spouse or any such lineal descendants, (c) any corporation,
partnership or other entity in which James E. Ferrell and/or such other Persons
referred to in the foregoing clauses (a) and (b) are the direct
record and beneficial owners of all of the voting and nonvoting Equity
Interests, (d) the FCI ESOT, (e) any participant in the FCI ESOT
whose ESOT account has been allocated shares of Ferrell


 


14
















 


Companies, Inc, (f) Ferrell
Companies, Inc., as long as it is controlled by, and is at least
seventy-five percent (75%) owned by, any Persons described in the preceding
clauses (a) through (e), or (g) any wholly-owned Subsidiary of
Ferrell Companies, Inc., as long as it is controlled by, and is at least
seventy-five percent (75%) owned by, any Persons described in the preceding
clauses (a) through (e).


 


“Foreign
Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes (including
such a Lender when acting in the capacity of an L/C Issuer). For purposes of
this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.


 


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


 


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


 


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


 


“General
Partner” has the meaning specified in the introductory paragraph hereto.


 


“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 exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).


 


“Guarantee”
means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the
“primary obligor”) in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any


 


15

















 


assets of such Person
securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any
right, contingent or otherwise, of any holder of such Indebtedness to obtain
any such Lien). The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation,
or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guaranteeing Person in good faith. The term “Guarantee”
as a verb has a corresponding meaning.


 


“Guarantors”
means, collectively, the General Partner, the Restricted Subsidiaries of the
Borrower listed on Schedule 6.12 and each other Restricted Subsidiary of
the Borrower that shall be required to execute and deliver a guaranty or
guaranty supplement pursuant to Section 6.12.


 


“Guaranty”
means the Guaranty made by the Guarantors in favor of the Secured Parties,
substantially in the form of Exhibit F, together with each other
guaranty and guaranty supplement delivered pursuant to Section 6.12.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“Hedge
Bank” means any Person that, at the time it enters into an interest rate
Swap Contract with the Borrower, is a Lender or an Affiliate of a Lender, in
its capacity as a party to such Swap Contract.


 


“Impacted
Lender” means a Defaulting Lender or a Lender as to which (a) the
Administrative Agent or an L/C Issuer has a good faith belief that the Lender
has defaulted in fulfilling its obligations under one or more other syndicated
credit facilities or (b) an entity that Controls the Lender has been
deemed insolvent or become subject to a bankruptcy or other similar proceeding,
as reasonably determined by the Administrative Agent.


 


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


 


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


 


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


 


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


 


16

















 


(d)                                 all obligations
of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business on
ordinary terms);


 


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


 


(f)                                    all Attributable
Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations
of such Person;


 


(g)                                 all obligations
of such Person in respect of Accounts Receivable Securitizations; and


 


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


 


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


 


“Indemnified
Taxes”  means
Taxes other than Excluded Taxes. 


 


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


 


“Information”
has the meaning specified in Section 10.07.


 


“Intellectual
Property Security Agreement” has the meaning specified in Section 4.01(a)(iv).


 


“Interest
Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day
of each Interest Period applicable to such Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan or Swing Line Loan, the last Business Day of
each March, June, September and December and the Maturity Date.


 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Borrower in its Committed Loan Notice or such
other period that is twelve months or less requested by the Borrower and
consented to by all the Appropriate Lenders; provided that:


 


(a)                                  any Interest
Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such


 


17

















 


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 that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and


 


(c)                                  no Interest
Period shall extend beyond the Maturity Date.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Equity Interests of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or interest in, another Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit or all or a
substantial part of the business of, such Person. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment; provided that the amount of any Investment shall be deemed reduced
by any net return of capital realized during such period upon the sale,
repayment or other liquidation of such Investment (determined in accordance
with GAAP, but without regard to any amounts received during such period as
earnings on such Investment (in the form of interest, or of dividends not
constituting a return of capital, or otherwise) or as loans from any Person in
whom such Investment has been made).


 


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


 


“IRS”
means the United States Internal Revenue Service.


 


“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice, Inc. (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 Letter of Credit
Application, and any other document, agreement and instrument entered into by
an L/C Issuer and the Borrower (or any Restricted Subsidiary) or in favor of an
L/C Issuer and relating to such Letter of Credit.


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
having the force of law.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable
Percentage.


 


18

















 


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


 


“L/C
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.


 


“L/C
Issuance Sublimit” means, with respect to an L/C Issuer, the maximum amount
of L/C Obligations that such L/C Issuer has agreed to incur pursuant to this
Agreement in such capacity, as such amount is mutually agreed to by
Administrative Agent, the Borrower, and such L/C Issuer. The initial L/C
Issuance Sublimit with respect to Bank of America is the amount of $150,000,000
and with respect to PNC Bank, N.A. is the amount of $50,000,000.


 


“L/C
Issuers” means (a) Bank of America and (b) PNC Bank, N.A. each in
their respective in its capacities as an issuer of Letters of Credit hereunder,
or any successor issuers of Letters of Credit hereunder.


 


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


 


“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.


 


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


 


“Letter
of Credit” means any letter of credit issued hereunder and shall include
the Existing Letters of Credit. A Letter of Credit may be a commercial letter
of credit or a standby letter of credit.


 


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


 


“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).


 


“Letter
of Credit Fee” has the meaning specified in Section 2.03(i).


 


“Letter
of Credit Sublimit” means an amount equal to $200,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Facility.


 


19

















 


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


 


“Loan”
means an extension of credit by a Lender to the Borrower under Article II
in the form of a Revolving Credit Loan or a Swing Line Loan.


 


“Loan
Documents” means, collectively, (a) this Agreement, (b) the
Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the
Fee Letter, and (f) each Issuer Document.


 


“Loan
Parties” means, collectively, the Borrower and each Guarantor.


 


“London
Banking Day” means any day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.


 


“Material
Acquisition” has the meaning specified in Section 7.03(h)(iii).


 


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


 


“Material
Contract” means, with respect to any Person, each contract to which such
Person is a party which either (a) involves aggregate consideration
payable to or by such Person of $10,000,000 or more in any year or (b) the
breach thereof by any party thereto could reasonably be expected to result in a
Material Adverse Effect.


 


“Maturity
Date” means November 2, 2012; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.


 


“Measurement
Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Borrower.


 


“MLP”
means Ferrellgas Partners, L.P., a Delaware limited partnership and the sole
limited partner of the Borrower.


 


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


 


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


 


20

















 


“Net
Proceeds of Asset Sale” means the aggregate cash proceeds received by the
Borrower or any of the Restricted Subsidiaries in respect of any Disposition
made pursuant to Section 7.05(h), net of the direct costs relating
to such Disposition (including legal, accounting and investment banking fees,
and sales commissions) and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements), and
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets the subject of such Disposition.


 


“Non-Recourse
Subsidiary” means any Person that would otherwise be a Subsidiary of the Borrower
but is designated as a Non-Recourse Subsidiary in a resolution of the Board of
Directors of the General Partner, so long as each of the following remains
true: (a) no portion of the Indebtedness or any other obligation
(contingent or otherwise) of such Person (i) is a contingent obligation of
the Borrower or any of its Restricted Subsidiaries, (ii) is recourse to or
obligates the Borrower or any of its Restricted Subsidiaries in any way or (iii) is
secured by any property or asset of the Borrower or any of its Restricted
Subsidiaries, directly or indirectly, contingently or otherwise, (b) neither
the Borrower nor any of its Subsidiaries has any contract, agreement,
arrangement or understanding or is subject to an obligation of any kind,
written or oral, with such Person other than on terms no less favorable to the
Borrower and its Subsidiaries than those that might be obtained at the time
from persons who are not Affiliates of the Borrower, (c) neither the
Borrower nor any of its Subsidiaries has any obligation with respect to such
Person (i) to subscribe for additional shares of Equity Interests therein
or (ii) maintain or preserve such Person’s financial condition or to cause
such Person to achieve certain levels of operating or other financial results, (d) such
Person has no more than $1,000 of assets at the time of such designation, and (e) such
Person takes steps designed to assure that neither the Borrower nor any of its
Subsidiaries will be liable for any portion of the Indebtedness or other obligations
of such Person, including maintenance of a corporate or limited partnership
structure and observance of applicable formalities such as regular meetings and
maintenance of minutes, a substantial and meaningful capitalization and the use
of a corporate or partnership name, trade name or trademark not misleadingly
similar to those of the Borrower.


 


“Note”
means a promissory note made by the Borrower in favor of a Lender evidencing
Revolving Credit Loans or Swing Line Loans, as the case may be, made by such
Lender, substantially in the form of Exhibit C.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan, or Letter of Credit, in each case whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest
and fees are allowed claims in such proceeding.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the


 


21

















 


certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or organization
and, if applicable, any certificate or articles of formation or organization of
such entity.


 


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


 


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


 


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


 


“Partnership
Agreement” shall mean the Third Amended and Restated Agreement of Limited
Partnership of the Borrower dated April 7, 2004, as amended from time to
time in accordance with the terms of this Agreement.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


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


 


“Permitted
Amount” means an amount equal to the lesser of (a) $500,000,000 and (b) if
the 2009 Indenture, the 2008 Indenture, the 2004 Indenture is still in effect,
the amount of Indebtedness as the Borrower would be permitted to incur under
the 2009 Indenture, 2008 Indenture or 2004 Indenture.


 


“Permitted
Commodity Swap Contract” means any Swap Contract entered into by the
Borrower with a counterparty in respect of commodities, provided that such Swap
Contract is (or was) entered into in compliance with the terms and provisions
of the Commodity Risk Management Policy.


 


22

















 


“Permitted
Interest Swap Contract” means any Swap Contract entered into by the
Borrower with an Approved Interest Counterparty in respect of interest rates,
provided that (i) the aggregate notional principal amount of indebtedness
subject to all such Swap Contracts must not exceed $200,000,000 at any time,
and (ii) such Swap Contract must not relate to periods of time associated
with such indebtedness after the date that is two years following the Maturity
Date.


 


“Permitted
Liens” means the Liens permitted under Section 7.01.


 


“Permitted
Unsecured Debt” means Indebtedness in respect of senior unsecured notes
(whether issued under a loan agreement or indenture) issued by the Borrower
from time to time, that complies with all of the following requirements:


 


(a)                                  such
Indebtedness is and shall remain unsecured at all times;


 


(b)                                 no scheduled
payment of principal, scheduled mandatory redemption or scheduled sinking fund
payment of such Indebtedness is due on or before the Maturity Date (as in
effect at the time the agreement or indenture governing such Indebtedness is
entered into); provided that such Indebtedness may be prepaid in connection
with a refinancing thereof with other Indebtedness that is permitted by this
Agreement;


 


(c)                                  the agreement
or indenture governing such Indebtedness must not contain (x) financial
maintenance covenants stricter than, or in addition to, those in this Agreement
(as in effect at the time the agreement or indenture governing such
Indebtedness is entered into), or (y) other covenants or “events of
default” that are less favorable to or more restrictive upon (in each case, in
any material respect) the Borrower or any Guarantor than those contained in the
Loan Documents (as in effect at the time the agreement or indenture governing
such Indebtedness is entered into), provided that the inclusion of any other
covenant (other than Prohibited Covenants) that is reasonable and customary
with respect to such type of debt and that is not found in the Loan Documents,
other than the Issuer Documents, (in each case, as in effect at the time the
agreement or indenture governing such Indebtedness is entered into) shall not
be deemed to be more restrictive for purposes of this clause; and


 


(d)                                 on each date on
which such Indebtedness is issued (in this definition defined as a “Date of
Issuance”) and immediately after giving effect to such Indebtedness the
Borrower is in compliance on a pro forma basis with Section 7.11,
calculated for the most recent four fiscal quarter period for which the
financial statements described in Section 6.01(a) and (b) are
available to the Lenders;


 


(e)                                  no Default or
Event of Default exists on the Date of Issuance or will occur as a result of
the issuance of the notes evidencing such Indebtedness;


 


(f)                                    such
Indebtedness is not guaranteed by any Person which is not a Guarantor of all of
the Obligations; and


 


(g)                                 the Borrower
shall have delivered to the Administrative Agent a certificate in reasonable
detail reflecting compliance with the foregoing requirements.


 


23

















 


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


 


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


 


“Platform”
has the meaning specified in Section 6.02.


 


“Pledged
Debt” has the meaning specified in Section 1.3 of the Security
Agreement.


 


“Pledged
Deposit Accounts” has the meaning specified in Section 1.3 of
the Security Agreement.


 


“Pledged
Equity” has the meaning specified in Section 1.3 of the
Security Agreement.


 


“Prohibited
Covenants” means (a) covenants that restrict the ability to grant
liens in favor of the Administrative Agent to secure the Obligations up to a
principal amount equal to the Permitted Amount; (b) covenants that
restrict the ability of the Borrower to borrow up to the Permitted Amount under
this Agreement or have Swap Contracts permitted under this Agreement; (c) covenants
that require the Borrower to prepay the applicable Permitted Unsecured Debt and
prohibit the Borrower from prepaying the Obligations; and (d) covenants
that require the use of specific cash flows or asset sale proceeds to prepay
the applicable Permitted Unsecured Debt and prohibit the Borrower from
prepaying the Obligations with such cash flow or proceeds.


 


“Public
Lender” has the meaning specified in Section 6.02.


 


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


 


“Reinvestment”
means, for any Person, capital expenditures in connection with the present and
related business of such Person.


 


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


 


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


 


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


 


“Required
Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of
each Lender’s risk


 


24
















 


participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by
such Lender for purposes of this definition) and (b) aggregate unused
Commitments; provided that the unused Commitment of, and the portion of
the Total Outstandings held or deemed held by, any Impacted Lender shall be
excluded for purposes of making a determination of Required Lenders.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, director of finance, treasurer, assistant treasurer or controller of a
Loan Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of such
Loan Party and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Loan Party.


 


“Restricted
Payment” means (a) any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of any Person or any of its Subsidiaries, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock
or other Equity Interest, or on account of any return of capital to any
Person’s stockholders, partners or members (or the equivalent of any thereof),
or any option, warrant or other right to acquire any such dividend or other
distribution or payment, and (b) any optional payment (whether in cash,
securities or other property), including any sinking fund payment or similar
deposit, to prepay, purchase, redeem, retire, acquire, cancel, terminate,
defease or refinance the 2004 Fixed Rate Senior Notes, the 2008 Fixed Rate
Senior Notes, or the 2009 Fixed Rate Senior Notes.


 


“Restricted
Subsidiary” means each Subsidiary of the Borrower (including any newly
acquired or formed Subsidiary of the Borrower after the date hereof), excluding
any such Subsidiary that is either an SPE or an Unrestricted Subsidiary.


 


“Revolving
Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having
the same Interest Period made by each of the Lenders pursuant to Section 2.01.


 


“Revolving
Credit Loan” has the meaning specified in Section 2.01.


 


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


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


 


“Secured
Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between any Loan Party and any Cash Management Bank and
that is designated as a “Secured Cash Management Agreement” by delivery to the
Administrative Agent of a written Secured Cash Management Bank Notice,
appropriately completed and signed by a Responsible Officer of the General
Partner.


 


25

















 


“Secured
Cash Management Bank” means any Cash Management Bank that is party to a
Secured Cash Management Agreement; provided that if such Person ceases to be a
Lender hereunder or an Affiliate of a Lender Party hereunder, this definition
shall only include such Person with respect to Secured Cash Management
Agreements entered into during or prior to the time such Person was a Lender or
an Affiliate of a Lender.


 


“Secured
Cash Management Bank Notice” means a notice by the Borrower of the
designation of a Secured Cash Management Agreement, which shall be
substantially in the form of Exhibit H.


 


“Secured
Cash Management Obligations” means all debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Secured Cash
Management Agreement (or any document or instrument relating thereto) whether
direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest
and fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest
and fees are allowed claims in such proceeding.


 


“Secured
Hedge Agreement” means any interest rate Swap Contract that is entered into
by and between the Borrower and any Hedge Bank.


 


“Secured
Hedge Obligations” means all debts, liabilities (including amounts due upon
termination), obligations, covenants and duties of, any Loan Party arising
under any Secured Hedge Agreement (or any document or instrument relating
thereto) whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding.


 


“Secured
Obligations” means (a) all Obligations, (b) all Secured Cash
Management Obligations, and (c) all Secured Hedge Obligations.


 


“Secured
Parties” means, collectively, the Administrative Agent, the Lenders, the
L/C Issuers, the Secured Cash Management Banks, the Hedge Banks, each co-agent
or sub-agent appointed by the Administrative Agent from time to time pursuant
to Section 9.05, and the other Persons the Secured Obligations
owing to which are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.


 


“Security
Agreement” has the meaning specified in Section 4.01(a)(iii).


 


“Security
Agreement Supplement” has the meaning specified in Section 1.3
of the Security Agreement.


 


“Securitization
Assets” means accounts receivable owed to the Borrower or any Restricted
Subsidiary, all collateral (if any) securing such accounts receivable, all
contracts and contract rights in respect thereof, all guarantees in respect
thereof, all proceeds thereof, and other


 


26

















 


assets that are of the type
customarily transferred in connection with a securitization, factoring, or
monetization of similar assets and which are sold, transferred or otherwise
conveyed (or purported to be sold, transferred or otherwise conveyed) by the
Borrower or any Restricted Subsidiary to an SPE in connection with Accounts
Receivable Securitizations permitted hereunder.


 


“Securitization
Subordinated Note” means the Subordinated Note dated April 15, 2009
made by Ferrellgas Receivables, LLC, a Delaware limited liability company,
payable to the order of the Borrower.


 


“Solvent”
and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of
such Person is greater than the present value of the aggregate liabilities
(including contingent liabilities) of such Person, (b) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (c) such
Person is not engaged in business or a transaction, and is not about to engage
in a business or a transaction, for which such Person’s property would
constitute an unreasonably small capital, and (d) such Person is able to
pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


“SPE”
means any special purpose Non-Recourse Subsidiary of the Borrower established
in connection with Accounts Receivable Securitizations permitted by Section 7.02
and 7.05.


 


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


 


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


 


27

















 


a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.


 


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


 


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


 


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


 


“Swing
Line Loan” has the meaning specified in Section 2.04(a).


 


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


 


“Swing
Line Sublimit” means an amount equal to the lesser of (a) $25,000,000
and (b) the Facility. The Swing Line Sublimit is part of, and not in
addition to, the Facility.


 


“Synthetic
Lease” means each arrangement, however described, under which the obligor
accounts for its interest in the property covered thereby under GAAP as lessee
of a lease which is not a capital lease under GAAP and accounts for its
interest in the property covered thereby for Federal income tax purposes as the
owner.


 


“Synthetic
Lease Obligation” means, as to any Person with respect to any Synthetic
Lease at any time of determination, the amount of the liability of such Person
in respect of such Synthetic Lease that would (if such lease was required to be
classified and accounted for as a capital lease on a balance sheet of such
Person in accordance with GAAP) be required to be capitalized on the balance
sheet of such Person at such time.


 


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto.


 


“Threshold
Amount” means $25,000,000.


 


“Total
Revolving Credit Outstandings” means the aggregate Outstanding Amount of
all Revolving Credit Loans, Swing Line Loans and L/C Obligations.


 


“Total
Outstandings” means the aggregate Outstanding Amount of all Loans and all
L/C Obligations.


 


28

















 


“Type”
means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.


 


“UCC”
means the Uniform Commercial Code as in effect in the State of New York; provided
that, if perfection or the effect of perfection or non-perfection or the
priority of any security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New
York, “UCC” means the Uniform Commercial Code as in effect from time to
time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.


 


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


 


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


 


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


 


“Unrestricted
Subsidiary” means any of (a) Ferrellgas Receivables, LLC, a Delaware
limited liability company, (b) Ferrellgas Real Estate, Inc., a
Delaware corporation, (c) Uni Asia Ltd., a Seychelles limited company, (d) Blue
Rhino Canada, Inc., a Delaware corporation, and (e) Ferrellgas
Finance Corp., a Delaware corporation.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the sum of the products
obtained by multiplying (x) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by (y) the number
of years (calculated to the nearest one-twelfth) that will elapse between such
date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness; provided, however, that with respect to any
revolving Indebtedness, the foregoing calculation of Weighted Average Life to
Maturity shall be determined based upon the total available commitments and the
required reductions of commitments in lieu of the outstanding principal amount
and the required payments of principal, respectively.


 


“Wholesale
Accounts Receivable” means all “accounts” in which a Loan Party has any
interest arising from the sale of “inventory” (as such terms are defined in the
UCC), including all such accounts (a) relating to sales of inventory by
the Loan Parties under the trade name “Blue Rhino”, and (b) relating to
wholesale sales of inventory by any Loan Party; provided that such
accounts shall not include any such accounts that are sold pursuant to an
Accounts Receivable Securitization permitted by Sections 7.02(h) and
7.05(f).


 


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


 


(a)                                 The definitions
of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the


 


29

















 


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


 


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


 


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


 


1.03                        Accounting Terms.


 


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


 


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


 


30

















 


required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.


 


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


 


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


 


1.06                        Letter of Credit Amounts. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be 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 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.


 


ARTICLE II


THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                        The Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a “Revolving
Credit Loan”) to the Borrower from time to time, on any Business Day during
the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Commitment; provided, however, that
after giving effect to any Revolving Credit Borrowing, (i) the Total
Revolving Credit Outstandings shall not exceed the Facility, and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Commitment. Within the
limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01.
Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.


 


2.02                        Borrowings, Conversions and Continuations of Loans.


 


(a)                                 Each Revolving
Credit Borrowing, each conversion of Revolving Credit Loans from one Type to
the other, and each continuation of Eurodollar Rate Loans shall be made upon
the Borrower’s irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 12:00 noon (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate
Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans; provided,


 


31

















 


however, that if the
Borrower wishes to request Eurodollar Rate Loans having an Interest Period
other than one, two, three or six months in duration as provided in the
definition of “Interest Period,” the applicable notice must be received by the
Administrative Agent not later than 12:00 noon four Business Days prior to the
requested date of such Borrowing, conversion or continuation, whereupon the
Administrative Agent shall give prompt notice to the Appropriate Lenders of
such request and determine whether the requested Interest Period is acceptable
to all of them. Not later than 12:00 noon, three Business Days before the
requested date of such Borrowing, conversion or continuation, the
Administrative Agent shall notify the Borrower (which notice may be by
telephone) whether or not the requested Interest Period has been consented to
by all the Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the General Partner. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$3,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of
or conversion to Base Rate Loans shall be in a principal amount of $500,000 or
a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Revolving Credit Borrowing, a conversion of Revolving Credit Loans
from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or
to which existing Revolving Credit Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Revolving Credit Loans shall be made as, or converted to,
Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurodollar Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month. Notwithstanding
anything to the contrary herein, a Swing Line Loan may not be converted to a
Eurodollar Rate Loan.


 


(b)                                 Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable
Revolving Credit Loans, and if no timely notice of a conversion or continuation
is provided by the Borrower, the Administrative Agent shall notify each Lender
of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a).
In the case of a Revolving Credit Borrowing, each Appropriate Lender shall make
the amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 3:00 p.m.
on the Business Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided,


 


32

















 


however, that if, on
the date a Committed Loan Notice with respect to a Revolving Credit Borrowing
is given by the Borrower, there are L/C Borrowings outstanding, then the
proceeds of such Revolving Credit Borrowing, first, shall be applied to
the payment in full of any such L/C Borrowings, and second, shall be
made available to the Borrower as provided above.


 


(c)                                  Except as
otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
to another Eurodollar Rate Loan only on the last day of an Interest Period for
such Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.


 


(d)                                 The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders
of any change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.


 


(e)                                  After giving
effect to all Revolving Credit Borrowings, all conversions of Revolving Credit
Loans from one Type to the other, and all continuations of Revolving Credit
Loans as the same Type, there shall not be more than ten Interest Periods in
effect.


 


2.03                        Letters of Credit.


 


(a)                                 The Letter of
Credit Commitment. (i) Subject to the terms and conditions set
forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements
of the Lenders set forth in this Section 2.03, (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 for the account of
the Borrower, 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 Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower and any
drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (w) the Total Outstandings
shall not exceed the Aggregate Commitments, (x) the aggregate Outstanding
Amount of the Revolving Credit Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, (y) the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit,
and (z) the Outstanding Amount of such L/C Issuer’s L/C Obligations shall
not exceed the L/C Issuance Sublimit for such L/C Issuer. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. All Existing Letters of Credit 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.


 


33

















 


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


 


(A)                               subject to Section 2.03(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 Required
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)                               No L/C Issuer
shall be under any obligation to issue any Letter of Credit if:


 


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


 


(B)                               the issuance of
such Letter of Credit would violate one or more policies of such L/C Issuer
applicable to letters of credit generally;


 


(C)                               such Letter of
Credit is to be denominated in a currency other than Dollars;


 


(D)                               a default of any
Lender’s obligations to fund under Section 2.03(c) exists or
any Lender is at such time a Defaulting Lender hereunder, unless such L/C
Issuer has entered into arrangements reasonably satisfactory to such L/C
Issuer, provided that the Borrower and the L/C Issuers agree that cash
collateral shall constitute satisfactory arrangements, with the Borrower or
such Lender to eliminate such L/C Issuer’s risk with respect to such Lender; or


 


(E)                                any Lender is
at such time an Impacted Lender hereunder, unless such L/C Issuer has entered
into arrangements reasonably satisfactory to such L/C Issuer, provided that the
Borrower and the L/C Issuers agree that cash collateral shall constitute
satisfactory arrangements, with the Borrower or such Lender to eliminate such L/C
Issuer’s risk with respect to such Lender.


 


(iv)                              No L/C Issuer
shall be obligated to amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.


 


34
















 


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


 


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


 


(b)                                 Procedures for
Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit. (i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to applicable the L/C Issuer (with a copy to
the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the General
Partner of the Borrower. Such Letter of Credit Application must be received by
the applicable L/C Issuer and the Administrative Agent not later than 12:00
noon at least two Business Days (or such later date and time as such L/C Issuer
may agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be; provided that,
if such requested Letter of Credit will be issued in any of the forms
previously approved by the applicable L/C Issuer and the Administrative Agent,
such L/C Issuer shall use its reasonable efforts to issue such Letter of Credit
on the date the Borrower delivers to such L/C Issuer the Letter of Credit
Application relating thereto (but shall have no liability for failing to
accomplish such issuance on such date). In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the applicable L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder, if applicable;
(F) the full text of any certificate to be presented by such beneficiary
in case of any drawing thereunder; (G) the purpose and nature of the
requested Letter of Credit; and (H) such other matters as such L/C Issuer
may require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the applicable L/C Issuer (A) the Letter of Credit
to be amended; (B) the proposed date of amendment thereof (which shall be
a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as such L/C Issuer may require. Additionally, the Borrower shall
furnish to the applicable L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as such L/C Issuer or
the Administrative Agent may require.


 


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


 


35

















 


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


 


(iii)                               If the Borrower
so requests in any applicable Letter of Credit Application, the applicable L/C
Issuer shall, if consistent with the provisions of Section 2.03(a)(ii) and
in its reasonable judgment the issuance would not be otherwise disadvantageous,
shall 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 L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date
of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each
such twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Notwithstanding the above, no L/C Issuer will give any such nonrenewal
notice if the conditions precedent in Section 4.02 have been met
and a Responsible Officer of General Partner has given such L/C Issuer a
certificate to such effect, provided that after giving effect to any automatic
extension of a Letter of Credit, the expiry date of such Letter of Credit will
not occur after the Letter of Credit Expiration Date. Unless otherwise directed
by the applicable L/C Issuer, the Borrower shall not be required to make a
specific request to such L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not require) such L/C 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 L/C Issuer shall not
permit any such extension if (A) such L/C 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 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing such L/C Issuer not to permit such
extension.


 


(iv)                              If the Borrower
so requests in any applicable Letter of Credit Application, an L/C Issuer may,
in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount
thereof


 


36

















 


after
any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”).
Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not
be required to make a specific request to such L/C Issuer to permit such
reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued,
except as provided in the following sentence, the Lenders shall be deemed to
have authorized (but may not require) such L/C Issuer to reinstate all or a
portion of the stated amount thereof in accordance with the provisions of such
Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement
Letter of Credit permits the applicable L/C Issuer to decline to reinstate all
or any portion of the stated amount thereof after a drawing thereunder by
giving notice of such non-reinstatement within a specified number of days after
such drawing (the “Non-Reinstatement Deadline”), such L/C Issuer shall
not permit such reinstatement if it has received a notice (which may be by
telephone or in writing) on or before the day that is seven Business Days
before the Non-Reinstatement Deadline (A) from the Administrative Agent
that the Required Lenders have elected not to permit such reinstatement or (B) from
the Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then
satisfied (treating such reinstatement as an L/C Credit Extension for purposes
of this clause) and, in each case, directing such L/C Issuer not to permit such
reinstatement.


 


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


 


(c)                                  Drawings and
Reimbursements; Funding of Participations. (i) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 12:00 noon on the date of any
payment by such L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse such L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the applicable L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the
amount of such Lender’s Applicable Percentage thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base
Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan Notice).
Any notice given by either L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.


 


(ii)                                  Each Lender
shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the applicable
L/C Issuer at the Administrative Agent’s Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such


 


37

















 


notice
by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the applicable L/C Issuer.


 


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


 


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


 


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


 


(vi)                              If any Lender
fails to make available to the Administrative Agent for the account of any L/C
Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
such L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to such L/C Issuer at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by such L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by such L/C
Issuer in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Revolving Credit Loan included in the relevant Revolving Credit


 


38

















 


Borrowing
or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A
certificate of the applicable L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall
be conclusive absent manifest error.


 


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


 


(ii)                                  If any payment
received by the Administrative Agent for the account of any L/C Issuer pursuant
to Section 2.03(c)(i) is required to be returned under any of
the circumstances described in Section 10.05 (including pursuant to
any settlement entered into by such L/C Issuer in its discretion), each Lender
shall pay to the Administrative Agent for the account of such L/C Issuer its
Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate
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 the Borrower to reimburse the
applicable L/C Issuer for each drawing under each Letter of Credit and to repay
each L/C 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 the Borrower or
any Subsidiary may have at any time against any beneficiary or any transferee
of such Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), such L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;


 


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


 


(iv)                              any payment by
such L/C Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such


 


39

















 


Letter
of Credit; or any payment made by such L/C Issuer under such Letter of Credit
to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or


 


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


 


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


 


(f)                                   Role of L/C
Issuers. Each Lender and the Borrower agree that, in paying any drawing under
a Letter of Credit, the L/C Issuers shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuers, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuers 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 Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuers, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuers shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim
against the applicable L/C Issuer, and such L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by such L/C Issuer’s willful misconduct or gross negligence
or such L/C Issuer’s willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance
and not in limitation of the foregoing, the L/C Issuers 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 the
L/C Issuers 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.


 


40

















 


(g)                                  Cash Collateral. Upon the
request of the Administrative Agent, (i) if any L/C Issuer has honored any
full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, the
Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations. Sections 2.05 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuers and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
and the L/C Issuers (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Borrower hereby
grants to the Administrative Agent, for the benefit of the L/C Issuers and the
Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of America.


 


(h)                                 Applicability
of ISP and UCP. Unless otherwise expressly agreed by the
applicable L/C Issuer and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (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 Letter of Credit.


 


(i)                                     Letter of
Credit Fees. The Borrower shall pay to the Administrative Agent
for the account of each Lender (other than an Impacted Lender for the period
during which such Lender was an Impacted Lender) in accordance with its
Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”)
(i) for each commercial Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit, and (ii) for
each standby Letter of Credit equal to the Applicable Rate times 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 1.06.
Letter of Credit Fees shall be (i) due and payable on each Interest
Payment Date for Base Rate Loans, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand and (ii) computed on a quarterly basis in
arrears. If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each standby Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect. Notwithstanding
anything to the contrary contained herein, upon the request of the Required
Lenders, when any amount payable by the Borrower under any Loan Document is not
paid when due, all Letter of Credit Fees shall accrue at the Default Rate.


 


(j)                                    Fronting Fee
and Documentary and Processing Charges Payable to L/C Issuer. The Borrower
shall pay directly to the applicable L/C Issuer for its own account a fronting
fee (i) with respect to each commercial Letter of Credit, 0.200% of the
amount available to be drawn under such Letter of Credit and (ii) with
respect to each standby Letter of Credit issued and outstanding, 0.200% per
annum of the amount available to be drawn under such Letter of Credit,


 


41

















 


computed on the daily amount
available to be drawn under such Letter of Credit on a quarterly basis in
arrears. Such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December in respect
of the most recently-ended quarterly period (or portion thereof, in the case of
the first payment), commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. In addition, the
Borrower shall pay directly to the applicable L/C Issuer for its own account
the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuers relating to letters of
credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.


 


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


 


2.04                        Swing Line Loans. (a) The Swing Line. Subject to
the terms and conditions set forth herein, the Swing Line Lender, in its sole
and absolute discretion and in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, may make loans (each such
loan, a “Swing Line Loan”) to the Borrower from time to time on any
Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and
L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Revolving Credit
Outstandings shall not exceed the Facility at such time, and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender at
such time, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations at such time, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such
time shall not exceed such Lender’s Commitment, and provided  further
that the Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall bear
interest only at a rate based on the Base Rate. Immediately upon the making of
a Swing Line Loan, each Lender 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
Lender’s Applicable Percentage times the amount of such Swing Line Loan.


 


(b)                                 Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 3:00 p.m.
on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $200,000 or any multiple of $100,000 in
excess thereof, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and


 


42

















 


signed by a Responsible
Officer of the General Partner. 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 (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (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 (including at
the request of any Lender) prior to 3:00 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 first proviso
to the first sentence of Section 2.04(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 4:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the 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 the Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Loan in an amount equal to such
Lender’s Applicable Percentage 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 Committed Loan Notice for purposes hereof) and in accordance
with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Facility and the conditions
set forth in Section 4.02. The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make an
amount equal to its Applicable Percentage of the amount specified in such
Committed Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrower in such amount. The 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 Revolving Credit
Borrowing in accordance with Section 2.04(c)(i), the request for
Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the Lenders fund
its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in
respect of such participation.


 


(iii)                               If any Lender
fails to make available to the 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 2.04(c) by the time
specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled
to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the


 


43

















 


greater
of the Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the Swing
Line Lender in connection with the foregoing, provided, notwithstanding
anything herein to the contrary in this sentence, no Loan Party shall be
obligated to pay such interest or fees described in this sentence due to the
Swing Line Lender from such Lender; provided further that, the
immediately preceding proviso shall not release, or affect in any manner, any
Loan Party’s obligations to pay interest or fees with respect to such Swing
Line Loans which are required to be paid by the Borrower under any other
provision in this Agreement or any other Loan Document. If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid (not
including such interest and fees as aforesaid) shall constitute such Lender’s
Committed Loan included in the relevant Revolving Credit Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be. A
certificate of the Swing Line Lender submitted to any Lender (through the
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 Revolving Credit Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(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 the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such
funding of risk participations shall relieve or otherwise impair the obligation
of the Borrower to repay Swing Line Loans, 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 Applicable Percentage thereof 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 Section 10.05 (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 Applicable Percentage
thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate per
annum equal to the Federal Funds Rate. The Administrative Agent 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 the Borrower for interest on the Swing Line Loans.
Until each Lender


 


44
















 


funds its Base Rate Loan or
risk participation pursuant to this Section 2.04 to refinance such
Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of
such Applicable Percentage shall be solely for the account of the Swing Line
Lender.


 


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


 


2.05                        Prepayments.


 


(a)                                  Optional. (i) Subject
to the last sentence of this Section 2.05(a)(i), the Borrower may,
upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Credit Loans in whole or in part without premium
or penalty; provided that (A) such notice must be received by the Administrative
Agent not later than 11:00 a.m. (1) three Business Days prior to any
date of prepayment of Eurodollar Rate Loans and (2) on the date of
prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000
in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s ratable portion of such
prepayment (based on such Lender’s Applicable Percentage). If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts required
pursuant to Section 3.05.


 


(ii)                                  The Borrower
may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Swing Line Lender and the Administrative Agent
not later than 3:00 p.m. on the date of the prepayment, and (B) any
such prepayment shall be in a minimum principal amount of $50,000. Each such
notice shall specify the date and amount of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.


 


(b)                                 Mandatory.


 


(i)                                     If for any
reason the Total Revolving Credit Outstandings at any time exceed the Facility
at such time, the Borrower shall immediately prepay Revolving Credit Loans,
Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C
Obligations (other than the L/C Borrowings) in an aggregate amount equal to
such excess.


 


45

















 


(ii)                                  The Borrower
shall prepay the Loans as required under Section 7.05(h)(iv).


 


(iii)                               Prepayments
made pursuant to this Section 2.05(b), first, shall be
applied ratably to the L/C Borrowings and the Swing Line Loans, second,
shall be applied ratably to the outstanding Revolving Credit Loans, and, third,
shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing
of any Letter of Credit that has been Cash Collateralized, the funds held as
Cash Collateral shall be applied (without any further action by or notice to or
from the Borrower or any other Loan Party) to reimburse the applicable L/C
Issuer or the Lenders, as applicable.


 


2.06                        Termination or Reduction of Commitments. (a)  Optional.
The Borrower may, upon notice to the Administrative Agent, terminate the
Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit, or from time to time permanently reduce the Aggregate Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m.
three Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $3,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Borrower
shall not terminate or reduce (A) the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total
Revolving Credit Outstandings would exceed the Facility, as so reduced, (B) the
Letter of Credit Sublimit if, after giving effect thereto, the Outstanding
Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed
the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after
giving effect thereto and to any concurrent prepayments hereunder, the
Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit.


 


(b)                                 Impacted Lender. If a Lender
is then an Impacted Lender, the Borrower (at the Borrower’s election) may elect
to terminate such Impacted Lender’s Commitment hereunder; provided that (i) such
termination must be of such Impacted Lender’s entire Commitment, (ii) the
Borrower shall pay all amounts owed by the Borrower to such Impacted Lender
under this Agreement and under the other Loan Documents (including principal of
and interest on the Loans owed to such Impacted Lender, accrued commitment fees,
if any, and letter of credit fees but specifically excluding any amounts owing
under Section 3.05 as result of such payment of any Eurodollar Rate
Loan on a date other than the last day of the Interest Period for such Loan), (iii) if
after giving effect to such termination the Outstanding Amount of L/C
Obligations exceeds the Letter of Credit Sublimit, the Borrower must fully Cash
Collateralize such excess, (iv) for the avoidance of doubt, after giving
effect to such termination, the remaining Lenders will have a greater
participation interest in the L/C Obligations, and (v) at the time of such
termination, no Event of Default exists or will result after giving effect to
such termination and to the payments described in clause (ii) of
this proviso; provided further that, the termination of an Impacted
Lender’s Commitment pursuant to this clause (b) will (i) not
constitute a waiver or release of any claim the Borrower, the Administrative
Agent, any L/C Issuer, the Swing Line Lender or any other Lender may have
against such Impacted Lender and (ii) not relieve such Impacted Lender
from its obligations under Section 10.04(c) for any amount
unpaid (or accrued) while such Impacted Lender had a Commitment hereunder.


 


46

















 


(c)                                  Mandatory.


 


(i)                                     If after giving
effect to any reduction or termination of Commitments under this Section 2.06,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the Facility
at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the
case may be, shall be automatically reduced by the amount of such excess. If
after giving effect to any reduction or termination of Commitments under this Section 2.06,
any L/C Issuer’s L/C Issuance Sublimit exceeds the Letter of Credit Sublimit at
such time, the L/C Issuance Sublimit of such L/C Issuer shall be automatically
reduced by the amount of such excess.


 


(ii)                                  The Commitments
shall automatically and permanently reduce by the amount of mandatory
prepayment made as required under Section 2.05(b)(ii).


 


(d)                                 Application of
Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Letter
of Credit Sublimit, Swing Line Sublimit or the Commitment under this Section 2.06.
Upon any reduction of the Commitments (other than a termination pursuant to clause
(c) above), the Commitment of each Lender shall be reduced by such
Lender’s Applicable Percentage of such reduction amount. All fees accrued until
the effective date of any termination of the Commitments shall be paid on the
effective date of such termination.


 


2.07                        Repayment of Loans. (a) Revolving Credit Loans. The
Borrower shall repay to the Lenders on the Maturity Date the aggregate
principal amount of all Revolving Credit Loans outstanding on such date.


 


(b)                                 Swing Line
Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date ten Business Days after such Loan is made and (ii) the
Maturity Date.


 


2.08                        Interest. (a)  Subject to the provisions of Section 2.08(b),
(i) each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the Base Rate plus the Applicable Rate.


 


(b)                                 (i)                                     If any amount
of principal of any Loan is not paid when due (without regard to any applicable
grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


(ii)                                  If any amount
(other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request
of the Required Lenders such amount shall thereafter bear interest at a
fluctuating interest


 


47

















 


rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.


 


(iii)                               Upon the
request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.


 


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


 


(c)                                  Interest on
each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.


 


2.09                        Fees. In addition to certain fees described in Sections
2.03(i) and (j):


 


(a)                                  Commitment Fee. The Borrower
shall pay to the Administrative Agent for the account of each Lender (other
than an Impacted Lender for the period during which such Lender was an Impacted
Lender) in accordance with its Applicable Percentage, a commitment fee equal to
the Applicable Fee Rate times the actual daily amount by which the
Facility exceeds the sum of (i) the Outstanding Amount of Revolving Credit
Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment
fee shall accrue at all times during the Availability Period, including at any
time during which one or more of the conditions in Article IV is
not met, and shall be due and payable quarterly in arrears on the last Business
Day of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the last day of the
Availability Period. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Fee Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Fee Rate separately for each period during such quarter that such
Applicable Fee Rate was in effect.


 


(b)                                 Other Fees. (i) The
Borrower shall pay to the Arranger and the Administrative Agent for their own
respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


 


(ii)                                  The Borrower
shall pay to the Lenders such fees as shall have been separately agreed upon in
writing in the amounts and at the times so specified. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.


 


2.10                        Computation of Interest and Fees; Retroactive Adjustments of Applicable
Rate. (a) All computations of interest for Base Rate Loans when the
Base Rate is determined by Bank of America’s “prime rate” shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on


 


48

















 


each Loan for the day on
which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, provided that any
Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.


 


(b)                                 If, as a result
of any restatement of or other adjustment to the financial statements of the
Borrower or for any other reason, the Borrower, or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower as of any applicable
date was inaccurate and (ii) a proper calculation of the Consolidated
Leverage Ratio would have resulted in higher pricing for such period, the
Borrower shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or the
applicable L/C Issuers, as the case may be, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code of
the United States, automatically and without further action by the
Administrative Agent, any Lender or any L/C Issuer), an amount equal to the
excess of the amount of interest and fees that should have been paid for such
period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of the Administrative Agent, any Lender or
any L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(i) or
2.08(b) or under Article VIII. The Borrower’s
obligations under this paragraph shall survive until the date that is 365 days
after the later to occur of (A) termination of the Aggregate Commitments
and (B) the repayment of all other Obligations hereunder.


 


2.11                        Evidence of Debt. (a)  The Credit Extensions made by
each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and by the Administrative Agent in the ordinary course of business.
The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of
its Loans and payments with respect thereto.


 


(b)                                 In addition to
the accounts and records referred to in Section 2.11(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans. In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


 


49

















 


2.12                        Payments Generally; Administrative Agent’s Clawback.


 


(a)                                  General. All payments
to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender’s Lending
Office. All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected on computing interest or fees, as the case may be.


 


(b)                                 (i)  Funding
by Lenders; Presumption by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of
Base Rate Loans, prior to 11:00 a.m. on the date of such Borrowing) that
such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing, provided, notwithstanding anything herein to the contrary in
this clause (A), no Loan Party shall be obligated to pay such interest or fees
described in this clause (A) due to the Swing Line Lender from such
Lender; provided further that, the immediately preceding proviso shall
not release, or affect in any manner, any Loan Party’s obligations to pay
interest or fees with respect to such Loans which are required to be paid by
the Borrower under any other provision in this Agreement or any other Loan
Document, and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to the applicable Borrowing. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.


 


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(ii)                                  Payments by
Borrower; Presumptions by Administrative Agent. Unless the Administrative
Agent shall have received notice from the Borrower prior to the time at which
any payment is due to the Administrative Agent for the account of the Lenders
or any L/C Issuer hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the 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 applicable L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Appropriate Lenders or the applicable L/C
Issuer, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or such 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, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


 


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


 


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


 


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


 


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


 


(f)                                    Insufficient
Funds. If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, toward payment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the


 


51

















 


amounts of principal and L/C
Borrowings then due to such parties; provided that, so long as no Event
of Default has occurred and is continuing, any funds held as Cash Collateral in
respect of L/C Obligations shall be applied solely to L/C Obligations in
accordance with the terms of this Agreement.


 


2.13                        Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of (a) Obligations due and payable to such Lender hereunder and
under the other Loan Documents at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and
payable to such Lender at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations due and
payable to all Lenders hereunder and under the other Loan Documents at such
time obtained by all the Lenders at such time or (b) Obligations owing
(but not due and payable) to such Lender hereunder and under the other Loan
Documents at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing (but not due and
payable) to such Lender at such time to (ii) the aggregate amount of the
Obligations owing (but not due and payable) to all Lenders hereunder and under
the other Loan Parties at such time) of payment on account of the Obligations
owing (but not due and payable) to all Lenders hereunder and under the other
Loan Documents at such time obtained by all of the Lenders at such time then
the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall
be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of Obligations then due
and payable to the Lenders or owing (but not due and payable) to the Lenders,
as the case may be, provided that:


 


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


 


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


 


The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.


 


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2.14                        Increase in Facility.


 


(a)                                  Request for
Increase. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may from time to time, request an increase in the Facility by an
amount (for all such requests) not exceeding $100,000,000; provided that
(i) any such request for an increase shall be in a minimum amount of
$15,000,000, and (ii) the Borrower may make a maximum of six such requests.
At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Lenders).


 


(b)                                 Lender
Elections to Increase. Each Lender shall notify the Administrative
Agent within such time period whether or not it agrees to increase its
Commitment and, if so, whether by an amount equal to, greater than, or less
than its Applicable Percentage of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment.


 


(c)                                  Notification by
Administrative Agent; Additional Lenders. The Administrative Agent
shall notify the Borrower and each Lender of the Lenders’ responses to each
request made hereunder. To achieve the full amount of a requested increase, and
subject to the approval of the Administrative Agent, the L/C Issuers and the
Swing Line Lender (which approvals shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become Lenders
pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.


 


(d)                                 Effective Date
and Allocations. If the Facility is increased in accordance with
this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Revolving Credit Increase Effective Date”) and the
final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase
and the Revolving Credit Increase Effective Date.


 


(e)                                  Conditions to
Effectiveness of Increase. As a condition precedent to such increase,
the Borrower shall deliver to the Administrative Agent a certificate of each
Loan Party dated as of the Revolving Credit Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase or, if the resolutions
authorizing this Agreement permitted a principal amount equal to or greater
than Facility (after giving effect to such increase), certifying that such
resolutions have not been amended or rescinded since the date hereof, and (ii) in
the case of the Borrower, certifying that, before and after giving effect to
such increase, (A) the representations and warranties contained in Article V
and the other Loan Documents are true and correct on and as of the Revolving
Credit Increase Effective Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except that for purposes of this Section 2.14,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (B) no Default exists. The Borrower shall prepay any Revolving Credit
Loans outstanding on the Revolving Credit Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent
necessary to


 


53

















 


keep the outstanding
Revolving Credit Loans ratable with any revised Applicable Percentages arising
from any nonratable increase in the Commitments under this Section.


 


(f)                                    Conflicting Provisions. This Section shall
supersede any provisions in Section 2.13 or 10.01 to the
contrary.


 


ARTICLE III


TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                        Taxes.


 


(a)                                  Payments Free
of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i) Any
and all payments by or on account of any obligation of the Borrower hereunder
or under any other Loan Document shall to the extent permitted by applicable
Laws be made free and clear of and without reduction or withholding for any
Taxes. If, however, applicable Laws require the Borrower or the Administrative
Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in
accordance with such Laws as determined by the Borrower or the Administrative
Agent, as the case may be, upon the basis of the information and documentation
to be delivered pursuant to subsection (e) below.


 


(ii)                                  If the Borrower
or the Administrative Agent shall be required by the Code to withhold or deduct
any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent
shall withhold or make such deductions as are determined by the Administrative
Agent to be required based upon the information and documentation it has
received pursuant to subsection (e) below, (B) the Administrative
Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent
that the withholding or deduction is made on account of Indemnified Taxes or
Other Taxes, the sum payable by the Borrower shall be increased as necessary so
that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or applicable L/C Issuer, as the case may be,
receives an amount equal to the sum it would have received had no such
withholding or deduction been made.


 


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


 


(c)                                  Tax
Indemnifications. (i) Without limiting the provisions of
subsection (a) or (b) above, the Borrower shall, and does hereby, indemnify
the Administrative Agent, each Lender and each L/C Issuer, and shall make
payment in respect thereof within 30 days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) withheld or deducted by the Borrower or the Administrative Agent
or paid by the Administrative Agent, such Lender or such L/C Issuer, as the
case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such


 


54
















 


Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The Borrower shall also, and does hereby, indemnify the
Administrative Agent, and shall make payment in respect thereof within 30 days
after demand therefor, for any amount (other than amounts in respect of
Excluded Taxes) which a Lender or an L/C Issuer for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) of
this subsection. A certificate as to the amount of any such payment or
liability delivered to the Borrower by a Lender or an L/C Issuer (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest
error.


 


(ii)                                  Without
limiting the provisions of subsection (a) or (b) above, each Lender
and each L/C Issuer shall, and does hereby, indemnify the Borrower and the
Administrative Agent, and shall make payment in respect thereof within 30 days after
demand therefor, against any and all Taxes and any and all related losses,
claims, liabilities, penalties, interest and expenses (including the fees,
charges and disbursements of any counsel for the Borrower or  the Administrative Agent) incurred by or
asserted against the Borrower or the Administrative Agent by any Governmental
Authority as a result of the failure by such Lender or such L/C Issuer, as the
case may be, to deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by such Lender or
such L/C Issuer, as the case may be, to the Borrower or the Administrative
Agent pursuant to subsection (e). Each Lender and each L/C Issuer hereby
authorizes the Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender or such L/C Issuer, as the case may be, under
this Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all other Obligations.


 


(d)                                 Evidence of
Payments. Within 30 days after any payment of Taxes by the
Borrower or the Administrative Agent to a Governmental Authority as provided in
this Section 3.01, if a request is made by the Borrower or the
Administrative Agent, as the case may be, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower,
as the case may be, the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of any return
required by Laws to report such payment or other evidence of such payment
reasonably satisfactory to the Borrower or the Administrative Agent, as the
case may be.


 


(e)                                  Status of
Lenders; Tax Documentation. (i)  Each Lender
shall deliver to the Borrower and to the Administrative Agent, at the time or
times prescribed by applicable Laws or when reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the
Borrower or the Administrative Agent, as the case may be, to determine (A) whether
or not payments made hereunder or under any other Loan Document are subject to
Taxes, (B) if applicable, the required rate of withholding or deduction,
and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be


 


55

















 


made to such Lender by the
Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction.


 


(ii)                                  Without
limiting the generality of the foregoing, if the Borrower is resident for tax
purposes in the United States,


 


(A)                               any Lender that
is a “United States person” within the meaning of Section 7701(a)(30) of
the Code shall deliver to the Borrower and the Administrative Agent executed
originals of Internal Revenue Service Form W-9 or such other documentation
or information prescribed by applicable Laws or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements;
and


 


(B)                               each Foreign
Lender that is entitled under the Code or any applicable treaty to an exemption
from or reduction of withholding tax with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:


 


(I)                                   executed
originals of Internal Revenue Service Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the United States is a party,


 


(II)                              executed
originals of Internal Revenue Service Form W-8ECI,


 


(III)                         executed
originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,


 


(IV)                          in the case of
a Foreign Lender claiming the benefits of the exemption for portfolio interest
under section 881(c) of the Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the
Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the
Code and (y) executed originals of Internal Revenue Service Form W-8BEN,
or


 


(V)                               executed
originals of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
together with such supplementary documentation as may be prescribed by
applicable Laws to permit the


 


56

















 


Borrower
or the Administrative Agent to determine the withholding or deduction required
to be made.


 


(iii)                               Each Lender
shall promptly (A) notify the Borrower and the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the Borrower
or the Administrative Agent make any withholding or deduction for taxes from
amounts payable to such Lender.


 


(f)                                   Treatment of
Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise
pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to
any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from
funds paid for the account of such Lender or such L/C Issuer, as the case may
be. If the Administrative Agent, any Lender or any L/C Issuer determines, in
its discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to
the Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses incurred by the Administrative
Agent, such Lender or such L/C Issuer, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Borrower, upon the request of
the Administrative Agent, such Lender or such L/C Issuer, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or such L/C Issuer in the event the Administrative Agent, such
Lender or such L/C Issuer is required to repay such refund to such Governmental
Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or any L/C Issuer to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.


 


3.02                        Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar


 


57

















 


Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.


 


3.03 Inability to Determine Rates. If the
Required Lenders determine that for any reason in connection with any request
for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan,
the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter,
the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall
be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Revolving Credit Borrowing of Base
Rate Loans in the amount specified therein.


 


3.04                        Increased Costs; Reserves on Eurodollar Rate Loans.


 


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


 


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


 


(ii)                                  subject any
Lender or any L/C Issuer to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Eurodollar Rate Loan made by it, or change the basis of taxation of payments to
such Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes
or Other Taxes covered by Section 3.01 and the imposition of, or
any change in the rate of, any Excluded Tax payable by such Lender or such L/C
Issuer); or


 


(iii)                               impose on any
Lender or any L/C Issuer or the London interbank market any other condition,
cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Rate Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or such L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or such
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or such L/C Issuer, the Borrower will pay to such
Lender or such L/C Issuer, as


 


58

















 


the case may be, such
additional amount or amounts as will compensate such Lender or such L/C Issuer,
as the case may be, for such additional costs incurred or reduction suffered.


 


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


 


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


 


(d)                                 Delay in
Requests. Failure or delay on the part of any Lender or any
L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or such L/C Issuer, as the
case may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or such L/C Issuer’s intention to
claim compensation therefor (except that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


(e)                                  Reserves on
Eurodollar Rate Loans. The Borrower shall pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as “Eurocurrency liabilities”), additional interest on the
unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 10 days’ prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 10 days prior to the relevant


 


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Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such
notice.


 


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


 


(a)                                 any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);


 


(b)                                 any failure by
the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate
Loan on the date or in the amount notified by the Borrower; or


 


(c)                                  any assignment
of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;


 


including any loss of
anticipated profits (other than the profit margin represented in the Applicable
Rate for Eurodollar Rate Loans) and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged
by such Lender in connection with the foregoing.


 


For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it
at the Eurodollar Rate for such Loan by a matching deposit or other borrowing
in the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.


 


3.06                        Mitigation Obligations; Replacement of Lenders.


 


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


 


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(b)                                 Replacement of
Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives notice pursuant to Section 3.02, or if any
Lender is then an Impacted Lender, the Borrower may replace such Lender in
accordance with Section 10.13. With respect to an Impacted Lender,
in lieu of replacing such Lender, the Borrower may elect to terminate such
Impacted Lender’s Commitment in accordance with Section 2.06(b).


 


3.07                        Survival. All of the Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments, repayment of all other
Obligations hereunder, and resignation of the Administrative Agent.


 


ARTICLE IV


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01                        Conditions of Initial Credit Extension. The obligation of each L/C
Issuer and each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:


 


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


 


(i)                                     executed
counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;


 


(ii)                                  a Note executed
by the Borrower in favor of each Lender requesting a Note;


 


(iii)                               a security
agreement, in substantially the form of Exhibit G (such security agreement,
together with each other security agreement and security agreement supplement
delivered pursuant to Section 6.12, in each case as amended, being
referred to herein as the “Security Agreement”), duly executed by each
Loan Party, together with:


 


(A)                               to the extent
required under the Security Agreement, certificates representing the Pledged
Equity referred to therein accompanied by undated stock powers executed in
blank and instruments evidencing the Pledged Debt indorsed in blank,


 


(B)                               proper
Financing Statements in form appropriate for filing under the Uniform
Commercial Code of all jurisdictions that the Administrative Agent may deem
necessary in order to perfect the Liens created under the Security Agreement,
covering the Collateral described in the Security Agreement,


 


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(C)                               completed
requests for information, dated on or before the date of the initial Credit
Extension, listing all effective financing statements filed in the
jurisdictions referred to in clause (B) above that name any Loan Party as
debtor, together with copies of such other financing statements,


 


(D)                               deposit account
control agreements as required by the Security Agreement with respect to the
Pledged Deposit Accounts and duly executed by the appropriate parties, and


 


(E)                                evidence that
all other action that the Administrative Agent may deem necessary in order to
perfect the Liens created under, and as required under, the Security Agreement
has been taken or provision therefor has been made (including receipt of duly
executed payoff letters and UCC-3 termination statements, if any);


 


(iv)                              an intellectual
property security agreement, in substantially the form of Exhibit B
to the Security Agreement (such security agreement, together with each other
intellectual property security agreement and intellectual property security
agreement supplement delivered pursuant to Section 6.12, in each
case as amended, being referred to herein as the “Intellectual Property
Security Agreement”), duly executed by each Loan Party, together with
evidence that all action that the Administrative Agent may deem necessary in
order to perfect the Liens created under the Intellectual Property Security
Agreement has been taken;


 


(v)                                 such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party or is to be a party;


 


(vi)                              such documents
and certifications as the Administrative Agent may reasonably require to
evidence that each Loan Party is duly organized or formed, and that each of the
Borrower and the Guarantors is validly existing, in good standing and qualified
to engage in business in each jurisdiction where its ownership, lease or operation
of properties or the conduct of its business requires such qualification,
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect;


 


(vii)                           a favorable
opinion of Bracewell & Giuliani LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters set
forth in Exhibit I and such other matters concerning the Loan
Parties and the Loan Documents as the Required Lenders may reasonably request;


 


(viii)                        a certificate
signed by a Responsible Officer of the General Partner certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have
been satisfied, and (B) that there has been no event or circumstance since
the date of the


 


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Audited
Financial Statements that has had or could be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect;


 


(ix)                              financial
projections and inventory sales projections (reporting projected volumes of
propane to be sold) with respect to the Borrower and the Guarantors for fiscal
years 2010, 2011, and 2012, including balance sheets and statements of
projected income and cash flow, in each case with pro forma adjustments for the
transactions implied in this Agreement;


 


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


 


(xi)                              evidence that
the Existing Credit Agreement has been, or concurrently with the Closing Date
is being, terminated (with no letters of credit remaining issued and
outstanding thereunder with respect to which BNP Paribas is the letter of
credit issuer) and all Liens, if any, securing obligations under the Existing
Credit Agreement have been, or concurrently with the Closing Date are being,
released; and


 


(xii)                           such other
assurances, certificates, documents, consents or opinions as the Administrative
Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may
require.


 


(b)                                 (i) All
fees required to be paid to the Administrative Agent and the Arranger on or
before the Closing Date shall have been paid and (ii) all fees required to
be paid to the Lenders on or before the Closing Date shall have been paid.


 


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


 


(d)                                 The Lenders
shall have completed a due diligence investigation of the Loan Parties’
respective assets which constitute Collateral and financial condition in scope,
and with results, reasonably satisfactory to the Lenders, and shall have been
given such access to the management, records, books of account, contracts and
properties of the Loan Parties and shall have received such financial and
business information regarding each of the Loan Parties and businesses as shall
have been requested (including all documentation and other information
described in the last sentence of Section 10.18); and


 


(e)                                  The Borrower’s
$82 million senior notes due August 1, 2010 and $70 million senior notes
due August 1, 2013 shall have been repaid in full prior to, or
contemporaneously with, the closing of this Agreement.


 


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


 


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


 


(a)                                 The
representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in Sections 5.05(a) and
(b) shall be deemed to refer to the most recent statements
furnished pursuant to Sections 6.01(a) and (b),
respectively.


 


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


 


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


 


Each
Request for Credit Extension (other than a Committed Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V


REPRESENTATIONS AND WARRANTIES


 


Each
of the General Partner and the Borrower represents and warrants to the
Administrative Agent and the Lenders that:


 


5.01                        Existence, Qualification and Power. The MLP, each Loan Party
and each of its Subsidiaries (a) is duly organized or formed under the
Laws of the jurisdiction of its incorporation or organization, (b) is
validly existing and, as applicable, in good standing under the Laws of the
jurisdiction of its incorporation or organization, (c) has all requisite
power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own or lease its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (d) is duly qualified and is


 


64
















 


licensed and, as applicable,
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or license; except (x) in each case referred to in clause (c)(i) or
(d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect and (y) in the case of clause (b) with
respect to Unrestricted Subsidiaries, to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.


 


5.02                        Authorization; No Contravention. The execution and delivery
by each Loan Party of each Loan Document to which such Person is a party have
been duly authorized by all necessary corporate or other organizational action,
and do not and will not (a) contravene the terms of any of such Person’s
or the MLP’s Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under (i) any
Contractual Obligation to which the MLP or such Person is a party or affecting
the properties of such Person or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject except where the creation of any such Lien would be
a Permitted Lien; or (c) violate any Law in any material respect. The
performance by each Loan Party of each Loan Document to which such Person is a
party has been duly authorized by all necessary corporate or other
organizational action, and does not and will not (A) contravene the terms
of any of such Person’s or the MLP’s Organization Documents; (B) conflict
with or result in any breach or contravention of, in any material respect, or
the creation of any Lien under (i) any Contractual Obligation to which the
MLP or such Person is a party or affecting the properties of such Person or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject except where the creation
of any such Lien would be a Permitted Lien; or (c) violate any Law in any
material respect.


 


5.03                        Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution or delivery by any Loan Party of this
Agreement or any other Loan Document, (b) the performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document, (c) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (d) the perfection or maintenance of
the Liens created under the Collateral Documents (including the first priority
nature thereof), or (e) the exercise by the Administrative Agent or any
Lender of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents; except in each case for such
approvals, consents, exemptions, authorizations or other actions, notices or
filings (i) as have been obtained, (ii) as may be required under
state securities or Blue Sky laws, (iii) with respect to clause (b) only,
as are of a routine or administrative nature and are either (A) not customarily
obtained or made prior to the consummation of transactions such as the
transactions described in clause (b) or (B) ordinarily obtained in
the ordinary course of business, (iv) as are necessary to perfect or
maintain the perfection or priority of the Liens created by the Collateral
Documents, and (v) as are required under applicable Law prior to
exercising remedies in respect of the Collateral.


 


5.04                        Binding Effect. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered


 


65

















 


will constitute, a legal,
valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms, except to the extent
such enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally or by
generally applicable principles of equity relating to enforceability.


 


5.05                        Financial Statements; No Material Adverse Effect. (a) The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of
the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness.


 


(b)                                 The unaudited
consolidated balance sheets of the Borrower and its Subsidiaries dated October 31,
2008, January 31, 2009, and April 30, 2009, respectively, and the
related consolidated statements of income or operations, partners’ capital and
cash flows for the fiscal quarters ended on such dates (i) were prepared
in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
dates thereof and their results of operations for the periods covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments.


 


(c)                                  Since the date
of the Audited Financial Statements, there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.


 


(d)                                 The
consolidated forecasted balance sheets, statements of income and cash flows of
the Borrower and its Subsidiaries delivered pursuant to Section 4.01
or Section 6.01(c) were prepared in good faith based on
assumptions believed to be reasonable at the time, and represented, at the time
of delivery, the Borrower’s best estimate of its future financial condition and
performance.


 


5.06                        Litigation. There are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of the Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the General Partner, the MLP, the Borrower or any of
its Subsidiaries or against any of their properties or revenues that (a) purport
to affect or pertain to this Agreement, any other Loan Document, or (b) either
individually or in the aggregate, if determined adversely, could reasonably be
expected to have a Material Adverse Effect.


 


5.07                        No Default. Neither any Loan Party nor any Restricted
Subsidiary is in default under or with respect to any Contractual Obligation
that could, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. No Default has occurred


 


66

















 


and is continuing or would
result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.


 


5.08                        Ownership of Property; Liens; Investments. (a) Each Loan Party
and each of its Restricted Subsidiaries has good record and defensible title
to, or valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The property of each Loan Party and each of its
Restricted Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.


 


(b)                                 Schedule
5.08(b) sets forth a complete and accurate list of all real property (not
including leasehold interests) owned by each Loan Party and each of its
Restricted Subsidiaries with an initial cost book value in excess of
$15,000,000, showing as of the date hereof the street address, county or other
relevant jurisdiction, state, record owner and book and the initial cost book
value thereof. Each Loan Party and each of its Subsidiaries has good,
marketable and insurable fee simple title to such real property described in
this Section 5.08(b), free and clear of all Liens, other than Liens
created or permitted by the Loan Documents.


 


(c)                                  Schedule
5.08(c) sets forth a complete and accurate list of all Investments (other
than Cash Equivalents) held by any Loan Party or any Subsidiary of a Loan Party
on the date hereof, showing as of the date hereof the amount, obligor or issuer
and maturity, if any, thereof.


 


5.09                        Environmental Compliance. (a) The Loan Parties
and their respective Restricted Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties,
and as a result thereof the Borrower has reasonably concluded that such
Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 Neither any
Loan Party nor any of its Restricted Subsidiaries is undertaking, and has not
completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action
relating to any material actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any Governmental Authority or the requirements of any
Environmental Law. All Hazardous Materials generated, used, treated, handled or
stored at, or transported to or from, any property currently or formerly owned
or operated by any Loan Party or any of its Restricted Subsidiaries have been
disposed of in a manner not reasonably expected to result in material liability
to any Loan Party or any of its Restricted Subsidiaries.


 


5.10                        Insurance. All material properties of the Borrower and its
Restricted Subsidiaries which are necessary for the operation of their
respective businesses are (a) insured with financially sound and reputable
insurance companies not Affiliates of the Borrower (or insured through a self
insurance program with a Loan Party or an Affiliate thereof in the ordinary
course of business) and (b) insured in such amounts, with such deductibles
and covering such


 


67

















 


risks as are customarily
carried by companies engaged in similar businesses and owning similar
properties in localities where the Borrower or the applicable Restricted
Subsidiary operates.


 


5.11                        Taxes. The Borrower and its Subsidiaries have filed all
Federal, all material state and other material tax returns and reports required
to be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those
which are being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in accordance with
GAAP. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect. Neither any
Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.


 


5.12                        ERISA Compliance. (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower and the General
Partner, nothing has occurred which would prevent, or cause the loss of, such
qualification. The Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any
Plan.


 


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


 


(c)                                  (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability which could reasonably be
expected to result in a liability in excess of the aggregate amount of
$5,000,000; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) neither the Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA.


 


5.13                        Subsidiaries; Equity Interests; Loan Parties. Except as
from time to time disclosed in writing to the Administrative Agent, the
Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and non-assessable and,
with respect to outstanding Equity Interests in Restricted Subsidiaries, are
owned by a Loan Party in the amounts specified on Part (a) of Schedule
5.13 free and clear of all Liens except those Liens permitted under Section 7.01(a),
(c), or (h). Except as from time to time disclosed in writing to
the Administrative Agent or such investments permitted pursuant to Section 7.03,
the


 


68

















 


Borrower has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13. All of the outstanding
Equity Interests in the Borrower have been validly issued, are fully paid and
non-assessable and are owned by the General Partner and the MLP in the amounts
specified on Part (c) of Schedule 5.13 free and clear of all
Liens. Set forth on Part (d) of Schedule 5.13 is a complete and
accurate list of all Loan Parties, showing as of the Closing Date (as to each
Loan Party) the jurisdiction of its incorporation, the address of its principal
place of business and its U.S. taxpayer identification number.


 


5.14                        Margin Regulations; Investment Company Act. (a)  The Borrower is
not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock, and no proceeds of any Credit Extension
will be used to purchase or carry margin stock.


 


(b)                                 None of the
Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment
Company Act of 1940. The Borrower is not subject to regulation under the
Federal Power Act, the Interstate Commerce Act, any state public utilities
code, or any other federal or state statute or regulation limiting its ability
to incur Indebtedness.


 


5.15                        Disclosure. The Borrower has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Restricted Subsidiaries is subject, and
all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report,
financial statement, certificate or other written information furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or under any other Loan Document (in each
case as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.


 


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


 


5.17                        Intellectual Property; Licenses, Etc. The Borrower and each of its
Restricted Subsidiaries own, or possess the right to use, all of the material
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their


 


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respective businesses,
without conflict with the rights of any other Person, except for those patents,
trademarks, service marks, trade names, copyrights, contractual franchises,
authorizations and other rights the failure of which to obtain could not
reasonably be expected to have a Material Adverse Effect. Schedule 5.17
sets forth a complete and accurate list of all IP Rights owned or used by the
Borrower and each of its Restricted Subsidiaries as of the date hereof, and as
of the date such Schedule is supplemented and updated pursuant to Section 6.02(e).
To the best knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Borrower or any of its Restricted
Subsidiaries infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the best knowledge
of the Borrower, threatened, which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.


 


5.18                        Solvency. Each Loan Party is, individually and together with
its Subsidiaries on a consolidated basis, Solvent.


 


5.19                        Casualty, Etc. Neither the businesses nor the properties of
any Loan Party or any of its Restricted Subsidiaries are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that, in any event, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


 


ARTICLE VI


AFFIRMATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, each of the General Partner and the Borrower
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, 6.03 and 6.11) cause each Restricted
Subsidiary or Subsidiary (as applicable) to:


 


6.01                        Financial Statements. Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:


 


(a)                                 as soon as
available, but in any event within 100 days after the end of each fiscal year
of the Borrower (commencing with the fiscal year ended July 31, 2009), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related consolidated statements of income or
operations, changes in partners’ equity, and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
such consolidated statements to be audited and accompanied by a report and
opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Administrative Agent, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification
or exception or any qualification or exception as to the scope of such audit,
and such consolidated statements to be certified by the chief executive
officer, president, or chief financial officer of the General Partner as fairly
presenting the financial condition, results of


 


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operations, partners’ equity
and cash flows of the Borrower and its Subsidiaries in accordance with GAAP;


 


(b)                                 as soon as
available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations, changes
in partners’ equity, and cash flows for such fiscal quarter and for the portion
of the Borrower’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, such consolidated statements to be certified by the
chief executive officer, president, or chief financial officer of the General
Partner as fairly presenting the financial condition, results of operations,
partners’ equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes;


 


(c)                                  as soon as
available, but not later than 60 days after the end of each fiscal year of the
Borrower (commencing with the fiscal year ended July 31, 2010) projected
consolidated balance sheets of the Borrower and its Subsidiaries as at the end
of each of the current and following two fiscal years and related projected
consolidated statements of income, partners’ equity and cash flows for each
such fiscal year, including therein a budget for the current fiscal year,
certified by the chief executive officer, president, or chief financial officer
of the General Partner as having been developed and prepared by the Borrower in
good faith and based upon the Borrower’s best estimates and best available
information;


 


(d)                                 as soon as
available, but in any event within 100 days after the end of each fiscal year of
the General Partner (commencing with the fiscal year ended July 31, 2009),
a copy of the unaudited (or audited, if available) consolidated balance sheet
of the General Partner as of the end of such fiscal year and the related
consolidated statements of income, partners’ capital and cash flows for such
fiscal year, certified by the chief executive officer, president, or chief
financial officer of the General Partner as fairly presenting, in accordance
with GAAP, the financial position and the results of operations of the General
Partner and its Subsidiaries (or, if available, accompanied by an opinion of
independent public certified accountants as described in Section 6.01(a));
and


 


(e)                                  to the extent
not contained in the reports, proxies and statements delivered pursuant to Section 6.02(b),
as soon as available, but not later than 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower and, with
respect to the final fiscal quarter, concurrently with the financial statements
referred to in Section 6.01(a), a summary of the risk management
trading activities, substantially in the form as disclosed in the management’s
discussion and analysis of financial condition and results of operations
section of the MLP’s form 10-K dated July 31, 2008, certified by the chief
executive officer, president, or chief financial officer of the General
Partner.


 


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


 


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


 


(b)                                 concurrently
with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of the General Partner;


 


(c)                                  promptly after
the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the partners or stockholders
of the General Partner, the MLP, the Borrower or any Subsidiary, and copies of
all annual, regular, periodic and special reports and registration statements
which any such Person may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, or with any national
securities exchange, and in any case not otherwise required to be delivered to
the Administrative Agent pursuant hereto;


 


(d)                                 promptly after
the assertion or occurrence thereof, notice of any action or proceeding against
or of any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any real property
described in the deeds of trust or mortgages constituting Collateral Documents
(if any) to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law in any material respect;


 


(e)                                  as soon as
available, but in any event within 100 days after the end of each fiscal year
of the Borrower, (i) a report supplementing Schedule 5.08(b),
including a list and description (including the street address, county or other
relevant jurisdiction, state, record owner, book value thereof) of all real
property (other than leasehold interests) owned by a Loan Party with an initial
cost book value in excess of $15,000,000 acquired such fiscal year and a
description of such other changes in the information included in such Schedule
as may be necessary for such Schedule to be accurate and complete in all
material respects as of such fiscal year end; (ii) a report supplementing Schedule
5.17, setting forth a list of registration numbers for all patents,
trademarks, service marks, trade names and copyrights awarded to the Borrower
or any Restricted Subsidiary during such fiscal year; and (iii) a report
supplementing Schedules 5.08(c) and 5.13 containing a
description of all changes in the information included in such Schedules as may
be necessary for such Schedules to be accurate and complete in all material
respects as of such fiscal year end, each such report to be certified by a
Responsible Officer of the General Partner in a form reasonably satisfactory to
the Administrative Agent;


 


(f)                                   on the last day
of each month (or, if such day not a Business Day, the next succeeding Business
Day), a certificate of a Responsible Officer of the General Partner setting
forth, as of the preceding Business Day of such month, a schedule of all
propane gallons subject to Swap Contracts of the Borrower and the other Loan
Parties, the net mark-to-market value therefor, any margin required or supplied
under any such Swap Contracts, the counterparty to each Swap Contract, a
sensitivity analysis with respect to commodity swaps included therein


 


72

















 


reflecting the incremental
margin that would be required to be supplied under any such credit support
document if (all other things being equal) commodity prices were at different
price levels as specified by the Administrative Agent to the Borrower, and such
other information with respect to such Swap Contracts as may be reasonably
requested by the Administrative Agent or any Lender;


 


(g)                                  on the last day
of each month (or, if such day not a Business Day, the next succeeding Business
Day), a report setting forth, as of the preceding Business Day of such month, a
report summarizing the amount of gallons of propane anticipated to be sold to
customers during the following 12 month period subject to fixed price or cap or
collar price sales contracts, together with such other information with respect
to such sales contracts as may be reasonably requested by the Administrative
Agent or any Lender; and


 


(h)                                 promptly, such
additional information regarding the business, financial, legal or corporate
affairs of the General Partner, the MLP, the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative Agent
may from time to time reasonably request.


 


Documents
required to be delivered pursuant to Section 6.01(a), (b),
or (d) or Section 6.02(c) (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at the
website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) upon request by the
Administrative Agent or a Lender, the Borrower shall deliver paper copies of
such documents to the Administrative Agent until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender
(by facsimile or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained
herein, in every instance the Borrower shall be required to provide paper
copies of the Compliance Certificates required by Section 6.02(b) to
the Administrative Agent. Except for such Compliance Certificates and delivery
to the Administrative Agent or any requesting Lender of paper copies as set
forth in the proviso in the immediately preceding sentence, the Administrative
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arranger will make available to the Lenders and the L/C Issuers materials
and/or information provided by or on behalf of the 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 (each, a “Public Lender”) may have personnel who do not
wish to receive material non-public information with respect to the Borrower or
its Affiliates,


 


73

















 


or the respective securities
of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The
Borrower hereby agrees that so long as the Borrower is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to
a private offering or is actively contemplating issuing any such securities it
will use commercially reasonable efforts to identify that portion of the
Borrower Materials that may be distributed to the Public Lenders and that (w) all
such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Arranger, the L/C Issuers and the Lenders to treat such Borrower
Materials as not containing any material non-public information (although it
may be sensitive and proprietary) with respect to the Borrower or its
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and the Arranger 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 Side Information.”


 


6.03                        Notices. Promptly notify the Administrative Agent and each
Lender:


 


(a)                                 of the
occurrence of any Default;


 


(b)                                 of any matter
that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Borrower or any Subsidiary that has
resulted or could reasonably be expected to result in a Material Adverse
Effect; (ii) any dispute, litigation, investigation, proceeding or suspension
between the Borrower or any Subsidiary and any Governmental Authority that has
resulted or could reasonably be expected to result in a Material Adverse
Effect; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws that has resulted or could
reasonably be expected to result in a Material Adverse Effect;


 


(c)                                  of the
occurrence of any ERISA Event; and


 


(d)                                 of any material
change in accounting policies or financial reporting practices by any Loan
Party or any Subsidiary thereof, including any determination by the Borrower
referred to in Section 2.10(b).


 


Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the General Partner setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


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6.04                        Payment of Obligations. Pay and discharge as the
same shall become due and payable, all its obligations and liabilities,
including (a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by the
Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would
by law become a Lien upon its property that would not constitute a Permitted
Lien; and (c) all Indebtedness in excess of the Threshold Amount, as and
when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness.


 


6.05                        Preservation of Existence, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.


 


6.06                        Maintenance of Properties. (a) Maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary
wear and tear excepted; (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.


 


6.07                        Maintenance of Insurance. Maintain with financially
sound and reputable insurance companies not Affiliates of the Borrower (or
maintain a self insurance program with a Loan Party or an Affiliate thereof in
the ordinary course of business), insurance with respect to its material properties
which are necessary for the operation of their respective businesses, and
business, against loss or damage of the kinds customarily insured by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons and
providing for not less than 10 days’ prior notice from the applicable insurance
company to the Administrative Agent of termination, lapse or cancellation of
such insurance.


 


6.08                        Compliance with Laws. Comply in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.


 


6.09                        Books and Records. Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the
case may be.


 


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6.10                        Inspection Rights. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at the expense of the Borrower and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower; provided, however,
that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any
of the foregoing at the expense of the Borrower at any time during normal
business hours and without advance notice.


 


6.11                        Use of Proceeds. Use the proceeds of the Credit Extensions
for general corporate purposes not in contravention of any Law or of any Loan
Document.


 


6.12                        Covenant to Give Security and Guarantee Obligations Security. (a) Deliver,
at the Borrower’s expense, whenever requested by the Administrative Agent in
its discretion from time to time, deeds of trust, mortgages, chattel mortgages,
security agreements, financing statements and other Collateral Documents, in
form and substance reasonably satisfactory to the Administrative Agent, for the
purpose of granting, confirming, and perfecting first and prior liens or security
interests (subject to Permitted Liens) in any real or personal property now
owned or hereafter acquired by any Loan Party, provided that


 


(i)                                     such liens and
security interests shall not cover any deposit account other than the Pledged
Deposit Accounts or other deposit accounts approved by the Administrative Agent
from time to time in writing;


 


(ii)                                  such liens and
security interests shall not cover (1) any accounts receivable sold
pursuant to an Accounts Receivable Securitization permitted by Section 7.02
and 7.05, (2) any related Securitization Assets that are sold along
with such accounts receivable, and (3) other assets expressly excluded by
the terms of the Security Agreement;


 


(iii)                               such liens and
security interests in any rolling stock of the Loan Parties subject to an
applicable certificate of title act will not be required to be noted on the
certificates of title related thereto, except upon the request of the
Administrative Agent during the continuance of an Event of Default;


 


(iv)                              such liens and
security interests shall not cover any Equity Interests in Unrestricted
Subsidiaries;


 


(v)                                 such liens and
security interests shall not cover any other “Excluded Collateral”, as defined
in the Security Agreement; and


 


(vi)                              so long as no
Event of Default exists that is continuing, no Loan Party shall be required to
deliver any Collateral Document with respect to real property owned by it with
an initial cost book value of less than $15,000,000.


 


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(b)                                 Upon the
formation or acquisition of any new direct or indirect Subsidiary (other than
an Unrestricted Subsidiary or a Subsidiary that is held directly or indirectly
by an Unrestricted Subsidiary) by any Loan Party, then the Borrower shall, at
the Borrower’s expense:


 


(i)                                     within 10
Business Days after such formation or acquisition, cause such Subsidiary, and
cause each direct and indirect parent of such Subsidiary (if it has not already
done so), to duly execute and deliver to the Administrative Agent a supplement
to the Guaranty substantially in the form attached thereto; and


 


(ii)                                  as promptly as
practicable after such formation or acquisition and subject to Section 6.12(a),
cause such Subsidiary and each direct and indirect parent of such Subsidiary
(if it has not already done so) to duly execute and deliver to the
Administrative Agent Collateral Documents, as specified by and in form and
substance satisfactory to the Administrative Agent, securing payment of all the
Secured Obligations of such Subsidiary or such parent, as the case may be,
under the Loan Documents.


 


(c)                                  At any time
upon the request of the Administrative Agent, promptly (i) execute and
deliver any and all further instruments and documents and take all such other
action as the Administrative Agent may reasonably deem necessary or desirable
in order to perfect, protect, and preserve the Liens of, such Collateral
Documents and (ii) deliver a signed copy of a favorable opinion, addressed
to the Administrative Agent and the other Secured Parties, of counsel for the
Loan Parties acceptable to the Administrative Agent with respect to the matters
contained in this Section 6.12 in connection with any Material
Acquisition or the execution and delivery of any Collateral Document described
in Section 6.12(a)(vi). In connection with the delivery of any
deeds or trust or mortgages of real property to the Administrative Agent
pursuant to this Section 6.12, as promptly as practicable upon the
request of the Administrative Agent in its sole discretion, deliver to the Administrative
Agent real property title reports, surveys and engineering, soils and other
reports, and environmental assessment reports, each in scope, form and
substance satisfactory to the Administrative Agent.


 


6.13                        Compliance with Environmental Laws. Comply in all material
respects, with all applicable Environmental Laws and Environmental Permits;
obtain and renew all material Environmental Permits necessary for its
operations and properties; and conduct, in all material respects, any
investigation, study, sampling and testing, and undertake, in all material
respects, any cleanup, removal, remedial or other action necessary to remove
and clean up all Hazardous Materials from any of its properties, in accordance
with the requirements of all Environmental Laws; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.


 


6.14                        Preparation of Environmental Reports. At the request of the
Required Lenders from time to time, provide to the Lenders within 60 days after
such request, at the expense of the Borrower, an environmental site assessment
report for any of its real properties then constituting Collateral and
described in such request, prepared by an environmental consulting firm
reasonably acceptable to the Administrative Agent, indicating the presence or
absence of Hazardous Materials and the estimated cost of any compliance,
removal or remedial action in


 


77

















 


connection with any
Hazardous Materials on such properties; without limiting the generality of the
foregoing, if an Event of Default has occurred and is continuing and the
Administrative Agent determines at any time that a material risk exists that
any such report will not be provided within the time referred to above, the
Administrative Agent may retain an environmental consulting firm to prepare
such report at the expense of the Borrower, and the Borrower hereby grants and
agrees to cause any Restricted Subsidiary that owns any property described in
such request to grant at the time of such request to the Administrative Agent,
the Lenders, such firm and any agents or representatives thereof an irrevocable
non-exclusive license, subject to the rights of tenants, to enter onto their
respective properties to undertake such an assessment.


 


6.15                        Further Assurances. Promptly upon the reasonable request by the
Administrative Agent, or any Lender through the Administrative Agent, (a) correct
any material defect or error that may be discovered in any Loan Document or in
the execution, acknowledgment, filing or recordation thereof, and (b) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to (i) carry
out more effectively the purposes of the Loan Documents, (ii) to the
fullest extent permitted by applicable Law, subject any Loan Party’s or any of
its Restricted Subsidiaries’ properties, assets, rights or interests to the
Liens now or hereafter intended to be covered by any of the Collateral
Documents, (iii) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder and (iv) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured
Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its
Restricted Subsidiaries is a party, and cause each of its Restricted Subsidiaries
to do so.


 


6.16                        Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property to
which the Borrower or any of its Subsidiaries is a party, keep such leases in
full force and effect and not allow such leases to lapse or be terminated or
any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases
and cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so, except, in any case,
where the failure to do so, either individually or in the aggregate, could not
be reasonably likely to have a Material Adverse Effect.


 


6.17                        Material Contracts. Perform and observe all the terms and
provisions of each Material Contract to be performed or observed by it,
maintain each such Material Contract in full force and effect, enforce each
such Material Contract in accordance with its terms, take all such action to
such end as may be from time to time requested by the Administrative Agent and,
upon request of the Administrative Agent, make to each other party to each such
Material Contract such demands and requests for information and reports or for
action as any Loan Party or any of its Subsidiaries is entitled to make under
such Material Contract, and cause each of its Subsidiaries to do so, except, in
any case, where the failure to do so, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.


 


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6.18                        Designation as Senior Debt. Designate all Obligations
as “senior indebtedness” under any subordinated note or indenture documents
applicable to it, to the extent provided for therein.


 


6.19                        Unrestricted Subsidiaries. Cause the management,
business and affairs of each of the Borrower and its Restricted Subsidiaries to
be conducted in such a manner (including by keeping separate books of account
and furnishing separate financial statements of Unrestricted Subsidiaries to
creditors and potential creditors thereof) so that each Unrestricted Subsidiary
that is a corporation or other legal entity will be treated as an entity
separate and distinct from the Borrower and the Restricted Subsidiaries.


 


ARTICLE VII


NEGATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit
any Restricted Subsidiary to, directly or indirectly:


 


7.01                        Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, or sign or file or suffer to exist under the Uniform Commercial Code
of any jurisdiction a financing statement that names the Borrower or any of its
Restricted Subsidiaries as debtor, or assign any accounts or other right to
receive income, other than the following:


 


(a)                                 Liens pursuant
to any Loan Document;


 


(b)                                 [Reserved];


 


(c)                                  Liens for Taxes
not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves or other appropriate
provisions with respect thereto are maintained in accordance with GAAP;


 


(d)                                 carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period
of more than 30 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves or other
appropriate provisions with respect thereto are maintained;


 


(e)                                  pledges or
deposits of cash in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;


 


(f)                                   deposits of
cash to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business;


 


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(g)                                  zoning
restrictions, easements, rights-of-way, restrictions, licenses, covenants,
reservations, restrictions on use, and other similar encumbrances affecting
real property which, in the aggregate, do not materially detract from the value
of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;


 


(h)                                 Liens securing
judgments for the payment of money not constituting an Event of Default under Section 8.01(h);


 


(i)                                     Liens on or
transfers of Securitization Assets arising solely in connection with an
Accounts Receivable Securitization pursuant to Section 7.05(f);


 


(j)                                    Liens on cash
(in an aggregate amount not exceeding the Facility amount at any time) that are
granted in the ordinary course of business of the Borrower or any Restricted
Subsidiary to secure obligations arising under Permitted Commodity Swap
Contracts permitted under Section 7.02(a);


 


(k)                                 Liens securing
Indebtedness permitted under Section 7.02(g); provided that (i) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness and the proceeds thereof, including any insurance
proceeds, and, if required by the terms of the instrument originally creating
the Lien, other property which is an improvement to or is acquired for use
specifically in connection with the acquired property, and (ii) the
Indebtedness secured thereby does not exceed the cost or fair market value,
whichever is lower, of the property being acquired or leased on the date of
acquisition or lease;


 


(l)                                     Liens of
landlords or mortgages of landlords on fixtures and movable property located on
premises leased by the Borrower or any of its Subsidiaries in the ordinary
course of business;


 


(m)                             Liens incurred
and financing statements filed or recorded in each case with respect to
property leased by the Borrower and its Subsidiaries in the ordinary course of
business to the owners of such property which are operating leases; provided,
that such Lien does not extend to any other property of the Borrower and its
Subsidiaries;


 


(n)                                 Liens such as
banker’s liens, rights of set-off or similar rights and remedies and burdening
only deposit accounts or other funds maintained with a depository institution
in the ordinary course of business;


 


(o)                                 deposits of
cash or the issuance of a Letter of Credit made to secure liability to
insurance carriers under insurance or self-insurance arrangements; and


 


(p)                                 other Liens
securing Indebtedness outstanding in an aggregate principal amount not to
exceed (when combined with the aggregate amount of Indebtedness securing Liens
permitted by Section 7.01(k)) $25,000,000.


 


7.02                        Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)                                 obligations
(contingent or otherwise) existing or arising under any Permitted Commodity
Swap Contract or under any Permitted Interest Swap Contract, provided that (i) such


 


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obligations are (or were)
entered into by such Person in the ordinary course of business, and (ii) such
Swap Contracts do not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;


 


(b)                                 unsecured
Indebtedness of a Loan Party owing to another Loan Party, which Indebtedness
shall (i) in the case of Indebtedness owed to a Loan Party, constitute
Collateral under the Security Agreement, and (ii) be otherwise permitted
under the provisions of Section 7.03;


 


(c)                                  Indebtedness
under the Loan Documents;


 


(d)                                 Indebtedness
outstanding on the date hereof and listed on Schedule 7.02 and any refinancings,
refundings, renewals or extensions thereof; provided that the amount of
such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder and the direct or any contingent obligor with
respect thereto is not changed, as a result of or in connection with such
refinancing, refunding, renewal or extension; and provided, still
further, that the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material
terms taken as a whole, of any such refinancing, refunding, renewing or
extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect
to the Loan Parties or the Lenders than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded, renewed or
extended and the interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the then applicable market
interest rate; and provided, still  further, that, with
respect to maturity, if the Weighted Average Life to Maturity of such
refinancing, refunding, renewal or extension is equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being refinanced,
refunded, renewed, or extended, such maturity shall be deemed to be no less
favorable to the Loan Parties and the Lenders;


 


(e)                                  Permitted
Unsecured Debt;


 


(f)                                   Guarantees of
the Borrower or any Guarantor in respect of Indebtedness otherwise permitted
hereunder of the Borrower or any other Guarantor;


 


(g)                                  Indebtedness in
respect of Capitalized Leases and purchase money obligations for fixed or
capital assets within the limitations set forth in Section 7.01(k);
provided, however, that the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $25,000,000;


 


(h)                                 Indebtedness,
not to exceed the aggregate amount of $145,000,000 at any time outstanding,
incurred in connection with an Accounts Receivable Securitization pursuant to Section 7.05(f);
and


 


(i)                                     unsecured
Indebtedness in an aggregate principal amount not to exceed $25,000,000 at any
time outstanding.


 


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7.03                        Investments. Make or hold any Investments, except:


 


(a)                                 Investments
held by the Borrower and its Subsidiaries in the form of Cash Equivalents;


 


(b)                                 (i) Investments
by the Borrower and its Subsidiaries in Loan Parties (other than the General
Partner), and (ii) Investments by the Borrower or any Restricted
Subsidiary in Unrestricted Subsidiaries, provided that the amount of cash or
property contributed, loaned or otherwise advanced by the Borrower or such
Restricted Subsidiaries in respect of such Investments pursuant to this clause (ii) may
not exceed at any time an aggregate amount equal to the greater of (x) $25,000,000
and (y) 10% of Consolidated EBITDA for the most recently ended four fiscal
quarters of the Borrower;


 


(c)                                  Investments
made by the Borrower or any Restricted Subsidiary in any SPE consisting of (i) capital
contributions of Securitization Assets to such SPE and (ii) promissory
notes issued by such SPE payable to the order of the Borrower or any Restricted
Subsidiary representing the noncash portion of the purchase price for Securitization
Assets sold to such SPE, in each case in connection with Accounts Receivable
Securitizations permitted hereunder;


 


(d)                                 Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(e)                                  Guarantees
permitted by Section 7.02;


 


(f)                                   Investments
existing on the date hereof (other than those referred to in Section
7.03(c)(i)) and set forth on Schedule 5.08(c);


 


(g)                                  loans and
advances to employees incurred in the ordinary course of business; and


 


(h)                                 the purchase or
other acquisition of all of the Equity Interests in, or all or substantially
all of the property of or of any business or division of, any Person that, upon
the consummation thereof, will be wholly-owned directly by the Borrower or one
or more of its wholly-owned Subsidiaries (including as a result of a merger or
consolidation); provided that, with respect to each purchase or other
acquisition made pursuant to this Section 7.03(h):


 


(i)                                     any such
newly-created or acquired Subsidiary shall comply with the requirements of Section 6.12;


 


(ii)                                  no Default or
Event of Default will occur or be continuing and each of the representations
and warranties of the Borrower in this Agreement will be true on and as of the
date of such purchase or acquisition, both before and after giving effect
thereto;


 


(iii)                             if the total
cash and noncash consideration (including the fair market value of all Equity
Interests issued or transferred to the sellers thereof, all earnouts and other
contingent payment obligations (other than indemnities) to, and the aggregate
amounts paid or to be paid under noncompete agreements with, the sellers
thereof, and all


 


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assumptions
of debt and other liabilities or obligations quantifiable and known on the date
that such purchase or other acquisition is consummated) paid by or on behalf of
the Borrower and its Restricted Subsidiaries for any such purchase or other
acquisition (or related series with the same seller (or Affiliate of such
seller) over a 4 month period) exceeds the aggregate amount of $15,000,000 (a “Material
Acquisition”), then immediately after giving effect to such purchase or
other acquisition, the Borrower and its Restricted Subsidiaries shall be in pro
forma compliance with all of the covenants set forth in Section 7.11,
such compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or
(b) as though such purchase or other acquisition had been
consummated as of the first day of the fiscal period covered thereby; and


 


(iv)                              in connection
with any Material Acquisition, if, after giving pro forma effect to such
Material Acquisition, Consolidated EBITDA (calculated on a pro forma basis
consistent with past practices of the Borrower (including as described in
clause (b) of the last sentence in the definition of Consolidated Interest
Coverage Ratio) or, if requested by the Borrower, calculated on a pro forma
basis in such other manner reasonably acceptable to the Administrative Agent)
exceeds 15% of the Consolidated EBITDA reflected in the most recently audited
financial statements of the Borrower, the Borrower shall have delivered to the
Administrative Agent and each Lender, at least five Business Days prior to the
date on which any such Material Acquisition is to be consummated, (A) a
certificate of a Responsible Officer of the General Partner, in form and
substance reasonably satisfactory to the Administrative Agent, certifying that all
of the requirements set forth in this clause (vi) have been satisfied or
will be satisfied on or prior to the consummation of such purchase or other
acquisition, and (B) audited financial statements of the company or
companies acquired pursuant to such acquisition (the “Target Audited
Financials” and the “Target Company”), which shall for clarification
purposes include the following for the most recent fiscal year then ended of
such Target Company: (i) consolidated statement of income, (ii) consolidated
statement of cash flows, (iii) consolidated balance sheet, (iv) consolidated
statement of changes in shareholders equity, and (v) notes to the audit.


 


7.04                        Fundamental Changes. Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default exists or would result therefrom:


 


(a)                                 any Restricted
Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or
more other Restricted Subsidiaries;


 


(b)                                 any Loan Party
may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Loan Party (other than
the General Partner); and


 


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(c)                                  so long as no
Default has occurred and is continuing or would result therefrom, any Loan
Party (other than the General Partner) may merge with an Unrestricted
Subsidiary, provided that a Loan Party shall be the continuing or
surviving Person.


 


7.05                        Dispositions. Make any Disposition or enter into any agreement
to make any Disposition, except:


 


(a)                                 Dispositions of
obsolete or worn out property, whether now owned or hereafter acquired, in the
ordinary course of business;


 


(b)                                 Dispositions of
inventory in the ordinary course of business;


 


(c)                                  Dispositions of
equipment in the ordinary course of business to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement property;


 


(d)                                 Dispositions of
property by any Restricted Subsidiary to the Borrower or to a wholly-owned
Restricted Subsidiary;


 


(e)                                  Dispositions
permitted by Section 7.04;


 


(f)                                   sales or
transfers of Securitization Assets by the Borrower or any Restricted Subsidiary
to an SPE and by an SPE to any other Person in connection with any Accounts
Receivable Securitization permitted by Section 7.02(h);


 


(g)                                  Dispositions by
the Borrower and its Restricted Subsidiaries of property pursuant to
sale-leaseback transactions, provided that the fair market value of all
property so Disposed of shall not exceed $25,000,000 from and after the Closing
Date;


 


(h)                                 Dispositions by
the Borrower and its Restricted Subsidiaries not otherwise permitted under this
Section 7.05; provided that:


 


(i)                                     at the time of
such Disposition, no Default shall exist or would result from such Disposition;


 


(ii)                                  if such
Disposition includes the Equity Interests of a Restricted Subsidiary, then 100%
of the issued and outstanding Equity Interests of such Restricted Subsidiary
must be included in such Disposition;


 


(iii)                               if the fair
market value of assets subject to any such Disposition or related series of
Dispositions exceeds the aggregate amount of $10,000,000 (a “Material Disposition”),
then at least 75% of the consideration therefor received by the Borrower or
such Restricted Subsidiary must be in the form of cash; provided, however, that
the amount of (1) any liabilities (as shown on the Borrower’s or such
Restricted Subsidiary’s most recent balance sheet or in the notes thereto), of
the Borrower or any Restricted Subsidiary (other than liabilities that are by
their terms subordinated in right of payment to the Obligations) that are
assumed by the transferee of any such assets and (2) any notes


 


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or
other obligations received by the Borrower or any such Restricted Subsidiary
from such transferee that are immediately converted by the Borrower or such
Restricted Subsidiary into cash (to the extent of the cash received), shall be
deemed to be cash for purposes of this provision;


 


(iv)                              if such
Disposition is a Material Disposition, then the Borrower must apply the net
cash proceeds received therefrom in excess of $10,000,000 by the Borrower or
such Restricted Subsidiary within 360 days of such receipt (or within 180 days
with respect to any such net cash proceeds in excess of $50,000,000) (i) to
the acquisition of substantially similar assets so disposed of or other
Reinvestments or purchases of operating assets permitted by this Agreement, or (ii) to
the extent not applied pursuant to the immediately preceding clause (i), to
prepay the Loans (and the Aggregate Commitments shall be automatically and
permanently reduced by such amount); and


 


(v)                                 if the fair
market value of assets subject to any such Disposition or related series of
Dispositions exceeds the aggregate amount of $50,000,000, then immediately
after giving effect to such Disposition and to the application of the proceeds
thereof, the Borrower must be in compliance on a pro forma basis with Section 7.11
of this Agreement, calculated for the most recent four fiscal quarter period
for which the financial statements described in Section 6.01(a) and
(b) are available to the Lenders, as evidenced by a certificate
signed by a Responsible Officer of the General Partner delivered to the
Administrative Agent prior to consummating such Disposition in reasonable
detail reflecting compliance with the foregoing requirements;


 


provided, however,
that any Disposition pursuant to Section 7.05(a) through Section 7.05(h) shall
be for fair market value.


 


7.06                        Restricted Payments. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, or issue or sell any Equity Interests, except that:


 


(a)                                 each Subsidiary
may make Restricted Payments to the Borrower and to any Subsidiaries of the
Borrower that are Guarantors and to the General Partner;


 


(b)                                 so long as no
Default would result therefrom, the Borrower may issue and sell its common
limited partnership Equity Interests;


 


(c)                                  the Borrower
and each Restricted Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity
Interests of such Person;


 


(d)                                 the Borrower
and each Subsidiary may purchase, redeem or otherwise acquire its common Equity
Interests with the net cash proceeds received from the substantially concurrent
issue of new common Equity Interests; and


 


(e)                                  the Borrower
may declare and make cash Restricted Payments in addition to those listed above
if, both before and after the declaration and the making thereof, all of the
following conditions are satisfied:


 


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(i)                                  the
representations and warranties of the Borrower and the General Partner
contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects on and as of
the date of such Restricted Payment, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier
date, and except that for purposes of this Section 7.06, the
representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01.


 


(ii)                               no Default
shall exist, and no Default would result from such proposed Restricted
Payments;


 


(iii)                            the
Consolidated Interest Coverage Ratio for the Borrower’s most recently ended
four full fiscal quarters for which quarterly or annual financial statements
are available immediately preceding the date on which such Restricted Payment
is made, calculated on a pro forma basis as if such Restricted Payment had been
made at the beginning of such four-quarter period, would have been more than
2.25 to 1.00 for each such period; and


 


(iv)                           such Restricted
Payment, together with the aggregate of all other Restricted Payments (other
than Restricted Payments permitted by subsections (a) through (d) of
this Section 7.06) made by the Borrower and its Subsidiaries in the
fiscal quarter during which such Restricted Payment is made, shall not exceed
an amount equal to (x) Available Cash of the Borrower for the immediately
preceding fiscal quarter plus (y) the lesser of (i) the amount of any
Available Cash of the Borrower accrued during the first 45 days of such fiscal
quarter and (ii) the excess of the aggregate amount of Loans that the
Borrower could have borrowed over the actual amount of Loans outstanding, in
each case as of the last day of the immediately preceding fiscal quarter.


 


The foregoing subsection (e) will
not prohibit (i) the payment of any Restricted Payment within 60 days
after the date on which the Borrower declares or otherwise becomes committed to
make such Restricted Payment, if such declaration or commitment is allowed
under subsection (e) at the time it is made, or (ii) refinancings
permitted by Section 7.02(d). Not later than the date on which any
Restricted Payment is made, the General Partner shall deliver to the
Administrative Agent an officer’s certificate signed by a Responsible Officer
of Borrower stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 7.06
were computed, which calculations may be based upon the Borrower’s latest
available financial statements.


 


7.07                        Change in Nature of Business. Engage in any material
line of business substantially different from those lines of business conducted
by the Borrower and its Subsidiaries on the date hereof or any business
substantially related or incidental thereto.


 


7.08                        Transactions with Affiliates. Enter into any transaction
of any kind with any Affiliate of the Borrower, whether or not in the ordinary
course of business, other than on fair


 


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and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate; provided that
the foregoing restriction shall not apply to (a) transactions between or
among the Loan Parties (excluding the General Partner), (b) any employment
agreement, stock option agreement, restricted stock agreement, employee stock
ownership plan related agreements, or similar agreement and arrangements, in
the ordinary course of business and consistent with past practice of the
Borrower (or the General Partner) or such Restricted Subsidiary, (c) Restricted
Payments permitted by the provisions of Section 7.06, (d) transactions
in the ordinary course of business in connection with reinsuring the
self-insurance programs or other similar forms of retained insurable risks of
the retail propane business operated by the Borrower, its Subsidiaries and
Affiliates, (e) Accounts Receivable Securitization to the extent permitted
under Section 7.02; provided that, nothing in this Section 7.08
shall authorize the payments by the Borrower to the General Partner or any
other Affiliate of the Borrower for administrative expenses incurred by such
Person other than such out-of-pocket administrative expenses as such Person
shall incur and the Borrower shall pay in the ordinary course of business.


 


7.09                        Burdensome Agreements. Enter into or permit to
exist any Contractual Obligation (other than this Agreement or any other Loan
Document) that (a) limits the ability (i) of any Restricted
Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to
otherwise transfer property to or invest in the Borrower or any Guarantor, (ii) of
any Restricted Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of
the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to
exist Liens on property of such Person, provided, however, that
this clause (iii) shall not prohibit any negative pledge incurred or
provided in favor of any holder of Indebtedness permitted under Section 7.02(g) solely
to the extent any such negative pledge relates to the property financed by or
the subject of such Indebtedness; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person, except, in each case, for any agreement in
effect (1) on the date hereof and set forth on Schedule 7.09, (2) at
the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such
agreement was not entered into solely in contemplation of such Person becoming
a Subsidiary of the Borrower and so long as such agreement does not constitute
a Prohibited Covenant, (3) in connection with customary non-assignment
provisions of contracts governing leasehold interests, and (4) with
respect to any Indebtedness mentioned in the preceding clauses (1) or (2) refinanced
pursuant to Section 7.02(d) and subject to the limits set
forth in such clauses, provided that the restrictions contained in the
agreements governing such refinanced Indebtedness are no more restrictive than
those contained in the agreements governing the Indebtedness being refinanced.


 


7.10                        Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such
purpose.


 


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7.11                        Financial Covenants.


 


(a)                                 Consolidated
Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 2.50
to 1.00.


 


(b)                                 Consolidated
Senior Secured Leverage Ratio. Permit the Consolidated
Senior Secured Leverage Ratio as of the end of any period of four fiscal
quarters of the Borrower to be greater than 2.50 to 1.0.


 


(c)                                  Consolidated
Leverage Ratio. Permit the Consolidated Leverage Ratio as of the
end of any period of four fiscal quarters of the Borrower to be greater than
5.0 to 1.0.


 


7.12                        Amendments of Organization Documents. (a) Amend,
supplement, modify, or replace any of its Organization Documents in any respect
that would adversely affect the Lenders, the Borrower’s ability to perform the
Obligations, or any Guarantor’s ability to perform its obligations under its
Guaranty, in each such case without the prior written consent of the
Administrative Agent and the Required Lenders, or (b) permit any
amendment, supplement, modification, or replacement of the Organization
Documents of the MLP that would have a material effect on the Borrower without
the prior written consent of the Administrative Agent and the Required Lenders.


 


7.13                        Accounting Changes. Make any change in (a) accounting
policies or reporting practices, except in conformity with GAAP, or (b) fiscal
year.


 


7.14                        Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Indebtedness, except (a) the prepayment of the Credit Extensions in accordance
with the terms of this Agreement, (b) regularly scheduled or required
repayments or redemptions of Indebtedness set forth in Schedule 7.02 and
Indebtedness permitted under Section 7.02(h) and refinancings
and refundings of such Indebtedness in compliance with Section 7.02(d),
(c) Restricted Payments in respect of such Indebtedness in compliance with
Section 7.06(e), and (d) so long as no Event of Default exists
or would result therefrom, other prepayments of such Indebtedness not described
in the immediately preceding clauses (a), (b), and (c).


 


7.15                        Amendment, Etc. of Indebtedness. Amend, supplement, modify
or change in any manner the 2004 Fixed Rate Senior Notes, the 2004 Indenture,
the 2008 Fixed Rate Senior Notes, the 2008 Indenture, the 2009 Fixed Rate
Senior Notes or the 2009 Indenture or any document executed and delivered in
connection with any of the foregoing, in any respect that would adversely
affect the Lenders (other any refinancings, refundings, renewals or extensions
thereof permitted under Section 7.02(d)), the Borrower’s ability to
perform the Obligations, or any Guarantor’s ability to perform its obligations
under its Guaranty, in each such case without the prior written consent of the
Administrative Agent and the Required Lenders.


 


7.16                        General Partner. In the case of General Partner, engage in
any business or activity other than (a) the ownership of all outstanding
general partnership Equity Interests in the Borrower and the MLP, (b) maintaining
its corporate existence, (c) participating in tax, accounting and other
administrative activities as the parent of the consolidated group of companies,
including the Loan Parties and the MLP, (d) the execution and delivery of
the Loan


 


88

















 


Documents to which it is a
party and the performance of its obligations thereunder, (e) the ownership
of limited partnership Equity Interests in the MLP, and (f) activities
incidental to the businesses or activities described in clauses (a) through
(e) of this Section.


 


7.17                        Designation of Senior Debt. Designate any Indebtedness
(other than the Indebtedness under the Loan Documents) of the Borrower or any
of its Subsidiaries as “senior debt” (or any similar term) under any of its
subordinated notes or indentures.


 


7.18                        Commodity Risk Management Policy. (i) Replace or
terminate the Commodity Risk Management Policy, (ii) amend Section 2
of the Commodity Risk Management Policy entitled “Role of Commodity Risk Within
Ferrellgas” or Section 4 of the Commodity Risk Management Policy entitled
“Risked to be Managed”, (iii) amend the definitions of “VAR,” “Current
Risk Limit,” “Maximum Risk Limit,” and “Year-to-Date Loss Limit” contained in
the Commodity Risk Management Policy, (iv) amend Appendix C of the
Commodity Risk Management Policy to increase the Year-to-Date Loss Limit or the
Value-at-Risk limits above $10,000,000, respectively, or (v) otherwise
amend the Commodity Risk Management Policy in a manner could reasonably be
expected to have a Material Adverse Effect.


 


7.19                        Deposit Accounts. Permit any monies, checks, notes, drafts and
other payments constituting proceeds of Wholesale Accounts Receivable to be
forwarded to or deposited to any “deposit account” (as such term is defined in
the UCC) other than a Pledged Deposit Account over which the Administrative
Agent has “control” (as such term is defined in the UCC); provided that
the foregoing restriction shall not apply to (a) collections of such
proceeds that are deposited into field collection deposit accounts that are deposited
or transferred to a Pledged Deposit Account over which the Administrative Agent
has “control” (as such term is defined in the UCC) within one Business Day of
such collection, or (b) transfers of such proceeds from a Pledged Deposit
Account to an operating account of a Loan Party in accordance with the
provisions of the Loan Documents.


 


ARTICLE VIII


EVENTS OF DEFAULT AND REMEDIES


 


8.01                        Events of Default. Any of the following shall constitute an
Event of Default:


 


(a)                                 Non-Payment. The Borrower
or any other Loan Party fails to (i) pay when and as required to be paid
herein, any amount of principal of any Loan or any L/C Obligation or, if
required under Section 2.05(b), deposit any funds as Cash
Collateral in respect of L/C Obligations, or (ii) pay within five days
after the same becomes due, any interest on any Loan or on any L/C Obligation,
or any fee due hereunder, or, other than as required under Section 2.05(b),
deposit any funds as Cash Collateral in respect of L/C Obligation, or (iii) pay
within five days after the same becomes due, any other amount payable hereunder
or under any other Loan Document; or


 


(b)                                 Specific
Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03 (other than
clause (d) thereof), 6.05, 6.10, 6.11, 6.17, 6.18,
or Article VII; or


 


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(c)                                  Other Defaults.  Any
Loan Party fails to perform or observe any other covenant or agreement (not
specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of (i) the date upon which
a Responsible Officer of Borrower or such other Loan Party knew or reasonably
should have known of such failure or (ii) the date upon which written
notice thereof is given to Borrower by the Administrative Agent or any Lender;
or


 


(d)                                 Representations
and Warranties.  Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or


 


(e)                                  Cross-Default.  (i) Any
Loan Party or any Subsidiary thereof (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise, but after giving effect to any applicable grace periods) in
respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing
to all creditors under any combined or syndicated credit arrangement) of more
than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating
thereto (in each case, after giving effect to any applicable grace periods), or
any other event occurs, the effect of which default or other event is to cause,
or to permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness or such Guarantee to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap Contract
an Early Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which a Loan Party or any
Restricted Subsidiary thereof is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which a Loan Party or any Restricted Subsidiary thereof is an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by such Loan Party or such Subsidiary as a result thereof is greater than
the Threshold Amount; or


 


(f)                                   Insolvency
Proceedings, Etc.  The MLP, any Loan Party or any
Subsidiary thereof institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or any
material part of its property is instituted without the consent of such Person
and continues undismissed or unstayed for 60 calendar days, or an order for
relief is entered in any such proceeding; or


 


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(g)                                  Inability to
Pay Debts; Attachment.  (i) The MLP, any Loan Party
or any Restricted Subsidiary thereof becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or
levy; or


 


(h)                                 Judgments.  There
is entered against any Loan Party or any Subsidiary thereof (i) one or
more final judgments or orders for the payment of money in an aggregate amount
(as to all such judgments and orders) exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the insurer
has been notified of the potential claim and does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or


 


(i)                                     ERISA.  (i) An
ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of the
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or


 


(j)                                    Invalidity of
Loan Documents.  Except to the extent covered by Section 8.01(l),
any provision of any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any provision of any Loan Document; or any
Loan Party denies that it has any or further liability or obligation under any
provision of any Loan Document, or purports to revoke, terminate or rescind any
provision of any Loan Document; or


 


(k)                                 Change of
Control.  There occurs any Change of Control; or


 


(l)                                     Collateral
Documents.  Any Collateral Document after delivery
thereof pursuant to Section 4.01 or 6.12 shall for any
reason (other than pursuant to the terms thereof) cease to create a valid and
perfected first priority Lien (subject to Permitted Liens) on all of the
Collateral purported to be covered thereby or on any portion of the Collateral
purported to be covered thereby with a value (as reasonably determined by the
Administrative Agent) in excess of $5,000,000 individually or in the aggregate;
or


 


(m)                             Certain
Indenture Defaults, Etc.  To the extent not otherwise
within the scope of Section 8.01(e) above, (i) any “Event
of Default” shall occur and be continuing under and as defined in the 2004
Indenture, the 2008 Indenture, or the 2009 Indenture or (ii) any of the
following shall occur under or with respect to any Indebtedness guaranteed by
the Borrower or its Subsidiaries (collectively, the “Guaranteed Indebtedness”):
(A) any demand for payment


 


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shall be made under any such
Guaranty Obligation with respect to the Guaranteed Indebtedness or (B) so
long as any such Guaranty Obligation shall be in effect (x) the Borrower
or any such Subsidiary shall fail to pay principal of or premium, if any, or
interest on such Guaranteed Indebtedness after the expiration of any applicable
notice or cure periods or (y) any “event of default” (however defined)
shall occur and be continuing under such Guaranteed Indebtedness which results
in the acceleration of such Guaranteed Indebtedness.


 


8.02                        Remedies upon Event of Default.  If any Event of
Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders, take any or all
of the following actions:


 


(a)                                 declare the
commitment of each Lender to make Loans and any obligation of each L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;


 


(b)                                 declare the
unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Borrower;


 


(c)                                  require that
the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and


 


(d)                                 exercise on
behalf of itself, the Lenders and the L/C Issuers all rights and remedies
available to it, the Lenders and the L/C Issuers under the Loan Documents;


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of each L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


 


8.03                        Application of Funds.  After the
exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on
account of the Secured Obligations shall be applied by the Administrative Agent
in the following order:


 


First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;


 


Second, to payment of
that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal, interest and Letter of Credit Fees) payable to
the Lenders


 


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and the L/C Issuers
(including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuers) arising under the Loan Documents and amounts payable under
Article III, ratably among them in proportion to the respective
amounts described in this clause Second payable to them;


 


Third, to payment of
that portion of the Obligations constituting accrued and unpaid Letter of
Credit Fees and interest on the Loans, L/C Borrowings and other Obligations
arising under the Loan Documents, ratably among the Lenders and the L/C Issuers
in proportion to the respective amounts described in this clause Third
payable to them;


 


Fourth, to payment of
that portion of the Secured Obligations constituting unpaid principal of the
Loans, L/C Borrowings, Secured Cash Management Obligations then owing under
Secured Cash Management Agreements, and Secured Hedge Obligations then owing
under Secured Hedge Agreements ratably among the Lenders, the L/C Issuers, the
Secured Cash Management Banks, and the Hedge Banks in proportion to the
respective amounts described in this clause Fourth held by them;


 


Fifth, to the
Administrative Agent for the account of the L/C Issuers, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and


 


Last, the balance,
if any, after all of the Secured Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.


 


Subject to Section 2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully
drawn or expired, such remaining amount shall be applied to the other Secured
Obligations, if any, in the order set forth above.


 


Notwithstanding the
foregoing, Secured Cash Management Obligations and Secured Hedge Obligations
arising under Secured Cash Management Agreements and Secured Hedge Agreements,
respectively, shall be excluded from the application described above if the
Administrative Agent has not received written notice thereof, together with
such supporting documentation as the Administrative Agent may request, from the
applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash
Management Bank or Hedge Bank not a party to the Credit Agreement that has
given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the
Administrative Agent pursuant to the terms of Article IX hereof for
itself and its Affiliates as if a “Lender” party hereto.


 


ARTICLE IX


ADMINISTRATIVE AGENT


 


9.01                        Appointment and Authority.  (a)  Each
of the Lenders and each of the L/C Issuers hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the


 


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Administrative Agent 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 Administrative Agent, the Lenders and the L/C Issuers,
and the Borrower shall not have rights as a third party beneficiary of any of
such provisions.


 


(b)                                 The
Administrative Agent shall also act as the “collateral agent” under the
Loan Documents, and each of the Lenders (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and each of the L/C
Issuers hereby irrevocably appoints and authorizes the Administrative Agent to
act as the agent of such Lender and such L/C Issuer for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the
Loan Parties to secure any of the Secured Obligations, together with such
powers and discretion as are reasonably incidental thereto. In this connection,
the Administrative Agent, as “collateral agent” and any co-agents, sub-agents
and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX and Article X
(including Section 10.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan Documents) as
if set forth in full herein with respect thereto.


 


9.02                        Rights as a Lender.  The Person serving as the
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 the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


 


9.03                        Exculpatory Provisions.  The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting
the generality of the foregoing, the Administrative Agent:


 


(a)                                 shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;


 


(b)                                 shall not 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 the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that the Administrative Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable law; and


 


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(c)                                  shall not,
except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


(d)                                 The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in
the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative
Agent by the Borrower, a Lender or an L/C Issuer.


 


(e)                                  The Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document, or the
creation, perfection or priority of any Lien purported to be created by the
Collateral Documents, (v) the value or the sufficiency of any Collateral,
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.


 


9.04                        Reliance by Administrative Agent.  The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume
that such condition is satisfactory to such Lender or such L/C Issuer unless
the Administrative Agent shall have received notice to the contrary from such
Lender or such L/C Issuer prior to the making of such Loan or the issuance of
such Letter of Credit. The Administrative Agent may consult with legal counsel
(who may be counsel for the 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.


 


9.05                        Delegation of Duties.  The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and


 


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powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


9.06                        Resignation of Administrative Agent.  The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the L/C Issuers,
appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the
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 (a) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other
Loan Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuers under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and each L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative 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 Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative 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 Administrative
Agent was acting as Administrative Agent.


 


Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as an L/C Issuer and Swing Line Lender. Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer and Swing Line Lender, (ii) the
retiring L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (iii) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make


 


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other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of the retiring L/C Issuer with respect to such Letters of Credit.


 


9.07                        Non-Reliance on Administrative Agent and Other Lenders.  Each
Lender and each L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and each L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


9.08                        No Other Duties, Etc.  Anything herein
to the contrary notwithstanding, none of the Book Managers, Arrangers,
Syndication Agents, or 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 the
Administrative Agent, a Lender or an L/C Issuer hereunder.


 


9.09                        Administrative Agent May File Proofs of Claim.  In
case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise.


 


(a)                                 to file and
prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that
are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the L/C Issuers and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuers and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections
2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and


 


(b)                                 to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender and each L/C
Issuer to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.09 and 10.04.


 


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Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or any L/C Issuer to authorize the
Administrative Agent to vote in respect of the claim of any Lender or any L/C
Issuer or in any such proceeding.


 


9.10                        Collateral and Guaranty Matters.  Each of the
Lenders (including in its capacities as a potential Cash Management Bank and a
potential Hedge Bank) and each of the L/C Issuers irrevocably authorize the
Administrative Agent, at its option and in its discretion,


 


(a)                                 to release any
Lien on any property granted to or held by the Administrative Agent under any
Loan Document (i) upon termination of the Aggregate Commitments and
payment in full of all Secured Obligations (other than (A) contingent
indemnification obligations for which no claim shall have been made, (B) Secured
Cash Management Obligations as to which arrangements satisfactory to the
applicable Cash Management Bank shall have been made, and (C) Secured
Hedge Obligations as to which arrangements satisfactory to the applicable Hedge
Bank shall have been made) and the expiration or termination of all Letters of
Credit (other than Letters of Credit as to which other arrangements
satisfactory to the Administrative Agent and the applicable L/C Issuer shall
have been made), (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document,
or (iii) if approved, authorized or ratified in writing in accordance with
Section 10.01;


 


(b)                                 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; and


 


(c)                                  to subordinate
(or release) any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 7.01(i) or Section 7.01(k).


 


Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.
In each case as specified in this Section 9.10, the Administrative
Agent will, at the Borrower’s expense, execute and deliver to the applicable
Loan Party such documents as such Loan Party may reasonably request to evidence
the release of such item of Collateral from the assignment and security
interest granted under the Collateral Documents or to subordinate its interest
in such item, or to release such Guarantor from its obligations under the
Guaranty, in each case in accordance with the terms of the Loan Documents and
this Section 9.10.


 


9.11                        Secured Cash Management Agreements and Secured Hedge Agreements. No Cash
Management Bank or Hedge Bank that obtains the benefits of Section 8.03,
the Guaranty or any Collateral by virtue of the provisions hereof or of the
Guaranty or any Collateral Document shall have any right to notice of any
action or to consent to, direct or object to any action hereunder or under any
other Loan Document or otherwise in respect of the Collateral (including the release
or impairment of any Collateral) other than in its capacity as a Lender and, in
such case, only to the extent expressly provided in the Loan Documents.
Notwithstanding any


 


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other provision of this Article IX
to the contrary, the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made with respect
to, Secured Cash Management Obligations or Secured Hedge Obligations unless the
Administrative Agent has received written notice of such Secured Cash
Management Obligations or Secured Hedge Obligations, as the case may be,
together with such supporting documentation as the Administrative Agent may
request, from the applicable Cash Management Bank or Hedge Bank, as the case
may be.


 


ARTICLE X


MISCELLANEOUS


 


10.01                 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:


 


(a)                                 waive any
condition set forth in Section 4.01 (other than Section 4.01(b)(i) or
(c)), or, in the case of the initial Credit Extension, Section 4.02,
without the written consent of each Lender;


 


(b)                                 extend or
increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such
Lender;


 


(c)                                  postpone any
date fixed by this Agreement or any other Loan Document for any payment  of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under such other Loan
Document without the written consent of each Lender entitled to such payment;


 


(d)                                 reduce the
principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
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 Rate
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 entitled to such
amount; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate”
or to waive any obligation of the Borrower to pay interest or Letter of Credit
Fees at the Default Rate;


 


(e)                                  change (i) Section 8.03
or Section 2.05(b) in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender
or (ii) the order of application of any reduction in the Commitments from
the application thereof set forth in the applicable provisions of Section 2.05(b) or
2.06(b), respectively, in any manner that materially and adversely
affects the Lenders under this Agreement without the written consent of the
Required Lenders;


 


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(f)                                   change (i) any
provision of this Section 10.01 or the definition of “Required
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 (other than the
definitions specified in clause (ii) of this Section 10.01(g)),
without the written consent of each Lender or (ii) the definition of “Required
Lenders” without the written consent of each Lender;


 


(g)                                  release all or
substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender;


 


(h)                                 release all or
substantially all of the value of the Guaranty, without the written consent of
each Lender, except to the extent the release of any Subsidiary from the
Guaranty is permitted pursuant to Section 9.10 (in which case such
release may be made by the Administrative Agent acting alone); or


 


(i)                                     impose any
greater restriction on the ability of any Lender to assign any of its rights or
obligations hereunder without the written consent of the Required Lenders;


 


and provided, further,
that (i) no amendment, waiver or consent shall, unless in writing and
signed by each L/C Issuer in addition to the Lenders required above, affect the
rights or duties of such L/C Issuer under this Agreement or any Issuer Document
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the 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 in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document; and (iv) 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 Impacted Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that (a) the
Commitment of such Lender may not be increased or extended without the consent
of such Lender, and (b) the principal of, or the accrued interest on, any
Loan or L/C Borrowing owing to such Lender may not be reduced without the
consent of such Lender, unless the such reduction applies to all Lenders on a
ratable basis.


 


If
any Lender does not consent to a proposed amendment, waiver, consent or release
with respect to any Loan Document that requires the consent of each Lender and
that has been approved by the Required Lenders, the Borrower may replace such
non-consenting Lender in accordance with Section 10.13; provided that such
amendment, waiver, consent or release can be effected as a result of the
assignment contemplated by such Section (together with all other such assignments
required by the Borrower to be made pursuant to this paragraph).


 


10.02                 Notices; Effectiveness; Electronic Communications.


 


(a)                                 Notices
Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be


 


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delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)                                     if to the
General Partner, the Borrower, the Administrative Agent, the L/C Issuers or the
Swing Line Lender, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 10.02; and


 


(ii)                                  if to any other
Lender, to the address, telecopier number, electronic mail address or telephone
number specified in its Administrative Questionnaire.


 


Notices and other
communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by telecopier shall be deemed to have
been given when sent (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient). Notices and other
communications delivered through electronic communications to the extent
provided in subsection (b) below shall be effective as provided in such
subsection (b).


 


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


 


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


 


(c)                                  The Platform.  THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY


 


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OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION
WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the General Partner, the Borrower, any
Lender, any L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrower’s or the Administrative Agent’s transmission of
Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the General
Partner, the Borrower, any Lender, any L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).


 


(d)                                 Change of
Address, Etc.  Each of the General Partner, the
Borrower, the Administrative Agent, the L/C Issuers and the Swing Line Lender
may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower, the Administrative
Agent, the L/C Issuers and the Swing Line Lender. In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender. Furthermore, each Public Lender agrees to cause
at least one individual at or on behalf of such Public Lender to at all times
have selected the “Private Side Information” or similar designation on the
content declaration screen of the Platform in order to enable such Public
Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and
that may contain material non-public information with respect to the Borrower
or its securities for purposes of United States Federal or state securities
laws.


 


(e)                                  Reliance by
Administrative Agent, L/C Issuers and Lenders.  The
Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the 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. The Borrower shall indemnify the Administrative Agent, each L/C
Issuer, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All telephonic
notices to and other telephonic communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.


 


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10.03                 No Waiver; Cumulative Remedies; Enforcement.  No
failure by any Lender, any L/C Issuer or the Administrative Agent to exercise,
and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided, and provided under each other Loan
Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.


 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuers; provided, however, that the foregoing shall
not prohibit (a) the Administrative Agent from exercising on its own
behalf the rights and remedies that inure to its benefit (solely in its
capacity as Administrative Agent) hereunder and under the other Loan Documents,
(b) any L/C Issuer or the Swing Line Lender from exercising the rights and
remedies that inure to its benefit (solely in its capacity as a L/C Issuer or
Swing Line Lender, as the case may be) hereunder and under the other Loan
Documents, (c) any Lender from exercising setoff rights in accordance with
Section 10.08 (subject to the terms of Section 2.13),
or (d) any Lender from filing proofs of claim or appearing and filing pleadings
on its own behalf during the pendency of a proceeding relative to any Loan
Party under any Debtor Relief Law; and provided, further,
that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall
have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02
and (ii) in addition to the matters set forth in clauses (b), (c) and
(d) of the preceding proviso and subject to Section 2.13, any
Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.


 


10.04                 Expenses; Indemnity; Damage Waiver.


 


(a)                                 Costs and
Expenses.  The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by any
L/C Issuer in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or any
L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or any L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with Loans made or Letters of Credit issued
hereunder, including


 


103

















 


all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.


 


(b)                                 Indemnification
by the Borrower.  The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each L/C
Issuer, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Loan Documents, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower or any
other Loan Party or any of the Borrower’s or such Loan Party’s directors,
shareholders or creditors, and regardless of whether any Indemnitee is a party
thereto, IN ALL CASES, WHETHER OR NOT CAUSED
BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE
NEGLIGENCE OF THE INDEMNITEE;  provided that such indemnity
shall not, as to an Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.


 


(c)                                  Reimbursement
by Lenders.  To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to the Administrative Agent (or
any sub-agent thereof), any L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), such L/C Issuer or such Related Party, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or such
L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or any
L/C Issuer in connection with such


 


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capacity. The obligations of
the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).


 


(d)           Waiver of Consequential Damages, Etc.  To
the fullest extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred
to in subsection (b) above shall be liable for any damages arising from
the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for such direct or actual damages
resulting from the gross negligence or willful misconduct of such Indemnitee or
from a breach in bad faith of such Indemnitee’s obligations hereunder or under
any Loan Document, in any case, as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


(e)           Payments.  All amounts due under this Section shall
be payable not later than ten Business Days after demand therefor.


 


(f)            Survival.  The agreements in this Section shall
survive the resignation of the Administrative Agent, any L/C Issuer and the
Swing Line Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


10.05      Payments Set Aside.  To
the extent that any payment by or on behalf of the Borrower is made to the
Administrative Agent, any L/C Issuer or any Lender, or the Administrative
Agent, any L/C 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 the Administrative Agent,
such L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any 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 each L/C Issuer
severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the
Administrative 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. The obligations of the Lenders and the L/C
Issuers under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


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10.06      Successors and Assigns.


 


(a)           Successors and Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of Section 10.06(b), (ii) by
way of participation in accordance with the provisions of Section 10.06(d),
or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 10.06(f) (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 Related
Parties of each of the Administrative Agent, the L/C Issuers and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)           Assignments by Lenders.  Any Lender may
at any time assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment(s) and
the Loans (including for purposes of this Section 10.06(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the
following conditions:


 


(i)            Minimum Amounts.


 


(A)          in the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans at the time owing to it hereunder or in the case of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount
need be assigned; and


 


(B)           in any case not described in
subsection (b)(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if the Commitment is not then in effect, the principal outstanding balance of
the Loans of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;


 


(ii)           Proportionate Amounts.  Each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that


 


106

















 


this clause (ii) shall
not (A) apply to the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or a
portion of its rights and obligations among separate Facilities on a non-pro
rata basis;


 


(iii)          Required Consents.  No
consent shall be required for any assignment except to the extent required by
subsection (b)(i)(B) of this Section and, in addition:


 


(A)          the consent of the Borrower (such
consent not to be unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such assignment
or (2) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund;


 


(B)           the consent of the Administrative
Agent (such consent not to be unreasonably withheld or delayed) shall be
required for assignments in respect of any Commitment if such assignment is to
a Person that is not a Lender with a Commitment, an Affiliate of such Lender or
an Approved Fund with respect to such Lender;


 


(C)           the consent of the L/C Issuers (such
consent not to be unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then outstanding);
and


 


(D)          the consent of the Swing Line Lender
(such consent not to be unreasonably withheld or delayed) shall be required for
any assignment hereunder.


 


(iv)          Assignment and Assumption.  The
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


(v)           No Assignment to Borrower.  No
such assignment shall be made to the Borrower or any of the Borrower’s Affiliates
or Subsidiaries.


 


(vi)          No Assignment to Natural Persons.  No
such assignment shall be made to a natural person.


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party


 


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hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05
and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with Section 10.06(d).


 


(c)           Register.  The Administrative Agent,
acting solely for this purpose as an agent of the Borrower, shall maintain at
the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of the Loans and
L/C Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.


 


(d)           Participations.  Any Lender may at any
time, without the consent of, or notice to, the Borrower or the Administrative
Agent, sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the Lenders
and the L/C Issuers shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 10.06(b).
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08  as
though it were a Lender, provided such Participant agrees to be subject
to Section 2.13 as though it were a Lender.


 


(e)           Limitations upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04  than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is
notified of the participation sold to such Participant and


 


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such Participant agrees, for
the benefit of the Borrower, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)            Certain Pledges.  Any Lender may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including under its Note, if any) to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.


 


(g)           Resignation as L/C Issuer or Swing Line Lender after
Assignment.  Notwithstanding anything to the contrary contained
herein, if at any time Bank of America assigns all of its Commitment and
Revolving Credit Loans pursuant to Section 10.06(b), Bank of
America may, (i) upon 30 days’ notice to the Borrower and the Lenders,
resign as an L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as an L/C
Issuer or the Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as an L/C Issuer or the Swing
Line Lender, as the case may be. If Bank of America resigns as an L/C Issuer,
it shall retain all the rights, powers, privileges and duties of an L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as an L/C Issuer and all L/C 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 2.03(c)).
If Bank of America resigns as the 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 2.04(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 L/C Issuer or Swing Line Lender, as the
case may be, and (b) the successor L/C 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.


 


10.07      Treatment of Certain Information;
Confidentiality.  Each of the Administrative Agent, the
Lenders and the L/C Issuers 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, trustees, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the


 


109

















 


enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to
be a Lender pursuant to Section 2.14(c), (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, or (iii) any
actual or prospective credit insurance provider relating to the Borrower and
the Obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Lender, any L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower;
provided that such disclosure is not in breach of a confidentiality agreement
with a Loan Party, which breach is known to the Administrative Agent or such
Lender or L/C Issuer.


 


For purposes of this
Section, “Information” means all information received from any Loan
Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary
thereof or their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or any L/C Issuer on a
nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary
thereof, provided that, in the case of information received from a Loan
Party or any such 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.


 


Each of the Administrative
Agent, the Lenders and the L/C Issuers acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable
Law, including United States Federal and state securities Laws.


 


10.08      Right of Setoff.  If an Event of Default shall have occurred and be
continuing, each Lender, each L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, such L/C Issuer or any such Affiliate to or for the
credit or the account of the Borrower or any other Loan Party against any and
all of the obligations of the Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or such
L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower or such Loan Party may be contingent
or unmatured or are owed to a branch or office of such Lender or such L/C
Issuer different from the branch or office holding such deposit or obligated on
such indebtedness. The rights of each Lender, each L/C Issuer and their
respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, such L/C
Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer
agrees to notify the Borrower and the


 


110

















 


Administrative Agent
promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.


 


10.09      Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the
interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall receive interest in
an amount that exceeds the Maximum Rate, the excess interest shall be applied
to the principal of the Loans or, if it exceeds such unpaid principal, refunded
to the Borrower. In determining whether the interest contracted for, charged,
or received by the Administrative Agent or a Lender exceeds the Maximum Rate,
such Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


10.10      Counterparts; Integration; Effectiveness.  This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof that,
when taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement
by telecopy or other electronic imaging means shall be effective as delivery of
a manually executed counterpart of this Agreement.


 


10.11      Survival of Representations and Warranties.  All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


 


10.12      Severability.  If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The


 


111

















 


invalidity of a provision in
a particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


10.13      Replacement of Lenders.  If
any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, or if any
Lender is a Defaulting Lender or an Impacted Lender or if any other
circumstance exists hereunder that gives the Borrower the right to replace a
Lender as a party hereto, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.06),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided
that:


 


(a)           the Borrower shall have paid to the Administrative Agent
the assignment fee specified in Section 10.06(b);


 


(b)           such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under
the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);


 


(c)           in the case of any such assignment resulting from a claim
for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a
reduction in such compensation or payments thereafter; and


 


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


 


A Lender shall not be
required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.


 


10.14      Governing Law; Jurisdiction; Etc.


 


(a)           GOVERNING LAW.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.


 


(b)           SUBMISSION TO JURISDICTION.  THE BORROWER
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT


 


112

















 


OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS
BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY
HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY HERETO OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


(c)           WAIVER OF VENUE.  EACH PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


 


(d)           SERVICE OF PROCESS.  EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW


 


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.


 


10.16      No Advisory or Fiduciary Responsibility.  In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), each of the Borrower and the General Partner acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (i) (A)


 


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the arranging and other
services regarding this Agreement provided by the Administrative Agent and the
Arranger are arm’s-length commercial transactions between the Borrower, General
Partner and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, (B) each of the
Borrower and the General Partner has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) each
of the Borrower and the General Partner is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and the Arranger each is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary
for the Borrower, the General Partner or any of their respective Affiliates, or
any other Person and (B) neither the Administrative Agent nor the Arranger
has any obligation to the Borrower, the General Partner or any of their
respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; and (iii) the Administrative Agent and the Arranger and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower, the General Partner
and their respective Affiliates, and neither the Administrative Agent nor the
Arranger has any obligation to disclose any of such interests to the Borrower,
the General Partner or any of their respective Affiliates. To the fullest
extent permitted by law, each of the Borrower and the General Partner hereby
waives and releases any claims that it may have against the Administrative
Agent and the Arranger with respect to any breach or alleged breach of agency
or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.


 


10.17      Electronic Execution of Assignments and
Certain Other Documents.  The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents)
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.


 


10.18      USA PATRIOT Act.  Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of each Loan Party
and other information that will allow such Lender or the Administrative Agent,
as applicable, to identify each Loan Party in accordance with the Act. The Borrower
shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” an anti-money laundering rules and
regulations, including the Act.


 


10.19      ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND


 


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MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.


 


[The remainder of this page is intentionally left
blank.]


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date first above written.


 


	
   

  	
   

  	
  FERRELLGAS,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  Ferrellgas, Inc., as its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  James R. VanWinkle

  
	
   

  	
   

  	
   

  	
  James
  R. VanWinkle

  
	
   

  	
   

  	
   

  	
  Senior
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FERRELLGAS,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  James R. VanWinkle

  
	
   

  	
   

  	
   

  	
  James
  R. VanWinkle

  
	
   

  	
   

  	
   

  	
  Senior
  Vice President and Chief Financial Officer

  



 


S-1

















 


	
   

  	
   

  	
  BANK
  OF AMERICA, N.A., as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jay Salitza

  
	
   

  	
   

  	
  Name:

  	
  Jay Salitza

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


S-2

















 


	
   

  	
   

  	
  BANK
  OF AMERICA, N.A., as a Lender, an L/C Issuer and Swing Line Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jay Salitza

  
	
   

  	
   

  	
  Name:

  	
  Jay Salitza

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


S-3

















 


	
   

  	
   

  	
  WELLS
  FARGO BANK, N.A., as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Tom K. Martin

  
	
   

  	
   

  	
  Name:

  	
  Tom
  K. Martin

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


S-4

















 


	
   

  	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Stephanie B. Casas

  
	
   

  	
   

  	
  Name:

  	
  Stephanie
  B. Casas

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


S-5

















 


	
   

  	
   

  	
  BNP
  PARIBAS, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Richard J. Wernli

  
	
   

  	
   

  	
  Name:

  	
  Richard
  J. Wernli

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  Keith Cox

  
	
   

  	
   

  	
  Name:

  	
  Keith
  Cox

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


S-6

















 


	
   

  	
   

  	
  SOCIÉTÉ GÉNÉRALE, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Chung-Taek Oh

  
	
   

  	
   

  	
  Name:

  	
  Chung-Taek
  Oh

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  Sebastien Ribatto

  
	
   

  	
   

  	
  Name:

  	
  Sebastien
  Ribatto

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


S-7

















 


	
   

  	
   

  	
  FIFTH
  THIRD BANK, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Janice Knwanek

  
	
   

  	
   

  	
  Name:

  	
  Janice
  Knwanek

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


S-8

















 


	
   

  	
   

  	
  M&I
  BANK, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David T. Hunt

  
	
   

  	
   

  	
  Name:

  	
  David
  T. Hunt

  
	
   

  	
   

  	
  Title:

  	
  VP

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  Michael H Doyle

  
	
   

  	
   

  	
  Name:

  	
  Michael
  H Doyle

  
	
   

  	
   

  	
  Title:

  	
  VP

  



 


S-9
















 


	
   

  	
   

  	
  PNC
  BANK, N.A., as a Lender and an L/C Issuer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Mukunthan Panchalingam

  
	
   

  	
   

  	
  Name:

  	
  Mukunthan
  Panchalingam

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


S-10

















 


	
   

  	
   

  	
  BARCLAYS
  BANK PLC, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  RITAM BHALLA

  
	
   

  	
   

  	
  Name:

  	
  RITAM
  BHALLA

  
	
   

  	
   

  	
  Title:

  	
  VICE
  PRESIDENT

  



 


S-11

















 


	
   

  	
   

  	
  THE
  PRIVATEBANK & TRUST COMPANY, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Allison C. Sims

  
	
   

  	
   

  	
  Name:

  	
  Allison
  C. Sims

  
	
   

  	
   

  	
  Title:

  	
  Assoc.
  Managing Director

  



 


S-12

















 


	
   

  	
   

  	
  CAPITAL
  ONE, N.A., as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Gina Monette

  
	
   

  	
   

  	
  Name:

  	
  Gina
  Monette

  
	
   

  	
   

  	
  Title:

  	
  Vice-President

  



 


S-13

















 


	
   

  	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Gaylen John Frazier

  
	
   

  	
   

  	
  Name:

  	
  Gaylen
  John Frazier

  
	
   

  	
   

  	
  Title:

  	
  Officer

  



 


S-14

















 


	
   

  	
   

  	
  UBS
  Loan Finance LLC, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Irja R. Otsa

  
	
   

  	
   

  	
  Name:

  	
  Irja
  R. Otsa

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  



 


 


	
   

  	
   

  	
  By:

  	
  /s/
  Mary E. Evans

  
	
   

  	
   

  	
  Name:

  	
  Mary
  E. Evans

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  



 


S-15
















 


SCHEDULE 2.01


 


COMMITMENTS


AND APPLICABLE PERCENTAGES


 


	
  LENDER

  	
   

  	
  COMMITMENT

  	
   

  	
  LETTER OF

  CREDIT

  SUBLIMIT

  PARTICIPATION

  	
   

  	
  APPLICABLE

  PERCENTAGE

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  12.500000000

  	
  %

  
	
  JPMorgan Chase Bank,
  N.A.

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  12.500000000

  	
  %

  
	
  Wells Fargo Bank, N.A.

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  12.500000000

  	
  %

  
	
  BNP Paribas

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  17,500,000

  	
   

  	
  8.750000000

  	
  %

  
	
  Société Générale

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  17,500,000

  	
   

  	
  8.750000000

  	
  %

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  17,500,000

  	
   

  	
  8.750000000

  	
  %

  
	
  M&I Bank

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  17,500,000

  	
   

  	
  8.750000000

  	
  %

  
	
  PNC Bank, N.A.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  7.500000000

  	
  %

  
	
  Barclays Bank PLC

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  5.000000000

  	
  %

  
	
  The
  PrivateBank & Trust Company

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  5.000000000

  	
  %

  
	
  Capital One, N.A.

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  7,500,000

  	
   

  	
  3.750000000

  	
  %

  
	
  U.S. Bank National
  Association

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  7,500,000

  	
   

  	
  3.750000000

  	
  %

  
	
  UBS Loan Finance LLC

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  2.500000000

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  400,000,000

  	
   

  	
  $

  	
  200,000,000

  	
   

  	
  100.000000000

  	
  %

  



 

















 


SCHEDULE 5.08(b)


 


OWNED REAL PROPERTY


 


NONE.


 

















 


SCHEDULE 5.08(c)


 


EXISTING INVESTMENTS


 


Equity Investments:


 


	
  Owner

  	
   

  	
  Issuer

  	
   

  	
  Outstanding

  Equity Interests

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, L.P.

  	
   

  	
  Ferrellgas Real
  Estate, Inc.

  	
   

  	
  1,000
  Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, L.P.

  	
   

  	
  Ferrellgas Receivables,
  LLC

  	
   

  	
  N/A

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, L.P.

  	
   

  	
  Ferrellgas Finance Corp.

  	
   

  	
  1,000
  Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, L.P.

  	
   

  	
  Blue Rhino
  Canada, Inc., a Delaware corporation

  	
   

  	
  100
  Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, L.P.

  	
   

  	
  Uni Asia, Ltd, a
  Seychelles limited company

  	
   

  	
  1,000
  Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, L.P.

  	
   

  	
  Blue Rhino Global
  Sourcing, Inc.

  	
   

  	
  100
  Shares

  



 


Other Investments:


 


Securitization Subordinated
Note dated April 15, 2009 made by Ferrellgas Receivables, LLC, a Delaware
limited liability company, payable to the order of the Borrower in the
aggregate principal sum outstanding of all Subordinated Loans (as defined in
the Second Amended and Restated Receivable Sale Agreement dated as of April 15,
2009, between Ferrellgas Receivables, LLC and Borrower). Maturity date is the
date when (i) the “Receivables Interest” (as defined in the Receivable
Sale Agreement described above) has been reduced to zero and (ii) the
“Collection Date” as defined therein.


 


Investments permitted under Section 7.03(d) and
7.03(g) and existing as of the date hereof.


 

















 


SCHEDULE 5.13


 


SUBSIDIARIES AND OTHER


EQUITY INVESTMENTS; LOAN PARTIES


 


A.                                    Subsidiaries


 


	
  Subsidiary

  	
   

  	
  Outstanding

  Equity Interests

  	
   

  	
  Equity Ownership

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas
  Real Estate, Inc., a  Delaware corporation 

  	
   

  	
  1,000
  Shares 

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas
  Receivables, LLC,  a Delaware limited
  liability  company 

  	
   

  	
  N/A
  

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas
  Finance Corp., a  Delaware corporation 

  	
   

  	
  1,000
  Shares 

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Blue
  Rhino Canada, Inc., a  Delaware corporation 

  	
   

  	
  100
  Shares 

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Uni
  Asia, Ltd, a Seychelles  limited company 

  	
   

  	
  1,000
  Shares 

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Blue
  Rhino Global Sourcing,  Inc., a Delaware
  corporation 

  	
   

  	
  100
  Shares 

  	
   

  	
  100

  	
  %

  



 


B.                                    Equity
Investments


 


NONE.


 


C.                                    Equity Interests in the Borrower


 


	
  Party

  	
   

  	
  Equity Ownership of Borrower

  
	
   

  	
   

  	
   

  
	
  Ferrellgas, Inc.
  (General Partner)

  	
   

  	
  1%
  General Partnership Interest.

  
	
   

  	
   

  	
   

  
	
  Ferrellgas Partners, L.P.
  (MLP)

  	
   

  	
  99%
  Limited Partnership Interest

  



 

















 


D.                                    Loan
Parties


 


	
  Name of Loan Party

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Address of Principal Place of

  Business

  	
   

  	
  EIN

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, L.P. (Borrower)

  	
   

  	
  Delaware

  	
   

  	
  7500 College Boulevard, Suite

  1000 Overland Park, KS 66210

  	
   

  	
  43-1698481

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, Inc.
  (General Partner)

  	
   

  	
  Delaware

  	
   

  	
  7500 College Boulevard, Suite

  1000 Overland Park, KS 66210

  	
   

  	
  73-1285864

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Blue Rhino Global Sourcing, Inc.

  	
   

  	
  Delaware

  	
   

  	
  7500 College Boulevard, Suite

  1000 Overland Park, KS 66210

  	
   

  	
  48-1022301

  



 

















 


SCHEDULE 5.17


 


PATENTS


 


A.                                   Patents


 


	
  Patent No.

  	
   

  	
  Owner

  	
   

  	
  Issue Date

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6057012

  	
   

  	
  Ferrell
  gas, L.P.

  	
   

  	
  5/2/2000

  	
   

  	
  Method
  for Reconditioning a Propane Gas Tank

  



 


TRADEMARK REGISTRATIONS


 


A.            Trademarks and Trademark
Registrations


 


	
  Trademark

  	
   

  	
  Listed Owner

  	
   

  	
  Registration No.

  	
   

  	
  Registration Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A
  BETTER WAY

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  3184665

  	
   

  	
  2/9/2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BLUE
  RHINO

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  2912949

  	
   

  	
  8/6/2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BLUE
  RHINO

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  3160502

  	
   

  	
  1/25/2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BLUE
  RHINO & Design

  	
   

  	
  Blue
  Rhino Global Sourcing, Inc.

  	
   

  	
  1898501

  	
   

  	
  5/23/1994

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Blue
  Rhino Design

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  3181738

  	
   

  	
  1/25/2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DROP,
  SWAP, AND GO

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  3042691

  	
   

  	
  3/26/2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ENDLESS
  SUMMER

  	
   

  	
  Blue
  Rhino Global Sourcing, Inc.

  	
   

  	
  2493024

  	
   

  	
  9/25/2001

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ENDLESS
  SUMMER

  	
   

  	
  Blue
  Rhino Global Sourcing, Inc.

  	
   

  	
  2759584

  	
   

  	
  9/2/2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FERRELLMETER

  	
   

  	
  Ferrellgas, Inc.

  	
   

  	
  1852964

  	
   

  	
  1/7/1993

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IT’S
  YOUR BACKYARD. ENJOY IT MORE WITH SKEETERVAC.

  	
   

  	
  Blue
  Rhino Global Sourcing, Inc.

  	
   

  	
  2903398

  	
   

  	
  11/16/2004

  



 

















 


	
  LESS
  BITING INSECTS.  MORE BACKYARD FUN

  	
   

  	
  Blue
  Rhino  Global Sourcing,  Inc.

  	
   

  	
  2891400

  	
   

  	
  10/5/2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PATRIOT

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  2945165

  	
   

  	
  7/17/2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RHINO
  POWER

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  3181708

  	
   

  	
  11/30/2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SKEETERVAC

  	
   

  	
  Blue
  Rhino  Global Sourcing,  Inc.

  	
   

  	
  2760084

  	
   

  	
  9/2/2009

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SPARK
  SOMETHING FUN

  	
   

  	
  Ferrellgas,
  L.P.

  	
   

  	
  2945012

  	
   

  	
  4/18/2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UNIFLAME

  	
   

  	
  Blue
  Rhino  Global Sourcing,  Inc.

  	
   

  	
  2952809

  	
   

  	
  5/17/2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VAC &
  TAC

  	
   

  	
  Blue
  Rhino  Global Sourcing,  Inc.

  	
   

  	
  2914598

  	
   

  	
  12/28/2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WAVEDRAWER

  	
   

  	
  Blue
  Rhino  Global Sourcing,  Inc.

  	
   

  	
  2905041

  	
   

  	
  11/23/2004

  



 

















 


SCHEDULE 6.12


 


GUARANTORS


 


Blue Rhino Global Sourcing, Inc.,
a Delaware Corporation


Ferrellgas, Inc., a
Delaware Corporation


 

















 


SCHEDULE 7.02


 


EXISTING INDEBTEDNESS


 


	
  Indenture (Dated
  September 14, 2009)

  	
   

  	
  $

  	
  300.0mm

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Indenture (Dated
  April 20, 2004)

  	
   

  	
  $

  	
  250.0mm

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Indenture (Dated as of
  August 4, 2008)

  	
   

  	
  $

  	
  200.0mm

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Notes Payable 8.4%
  weighted average interest rate

  	
   

  	
  $

  	
  5.3mm

  	
   

  



 


1

















 


SCHEDULE 7.09


 


BURDENSOME AGREEMENTS


 


1.             Indenture dated as of April 20, 2004, with form of
Note attached, among Ferrellgas Escrow LLC and Ferrellgas Finance Escrow
Corporation and U.S. Bank National Association, as trustee, relating to 63/4%
Senior Notes due 2014.


 


2.             Indenture, dated August 4, 2008, among Ferrellgas,
L.P., Ferrellgas Finance Corp. and U.S. Bank National Association, as trustee.


 


3.             Indenture dated September 14, 2009 among
Ferrellgas, L.P., Ferrellgas Finance Corp., and U.S. Bank
National Association, as trustee.


 


4.             Second Amended and Restated
Receivables Sale Agreement, dated as of April 15, 2009 between Ferrellgas,
L.P., as originator, and Ferrellgas Receivables, LLC, as buyer agent.


 


5.             Third Amended and Restated Receivables Purchase
Agreement dated as of April 15, 2009, by and among Ferrellgas Receivables,
LLC, as seller, Ferrellgas, L.P., as servicer, Falcon Asset Securitization
Company, LLC, the financial institutions from time to time party thereto, Fifth
Third Bank, and JP Morgan Chase Bank, NA, as agent.


 


2
















 


SCHEDULE 10.02


 


ADMINISTRATIVE AGENT’S OFFICE,


CERTAIN ADDRESSES FOR NOTICES


 


BORROWER:


 


Ferrellgas, L.P.


7500 College Blvd., Suite 1000


Overland Park, Kansas 66210


Attention: Chief Financial
Officer


Telephone: (913) 661-1500


Facsimile: (913) 661-1537


Electronic Mail:
ryanvanwinkle@ferrellgas.com


Website Address:
www.ferrellgas.com


 


ADMINISTRATIVE
AGENT:


 


Administrative
Agent’s Office


Bank of America, N.A.


901 Main St.


Mail Code: TX1-492-14-12


Dallas, Texas 75202-3714


 


(for
payments and Requests for Credit Extensions):  


Attention: Mary Porter 


Telephone: (214) 209-9192 


Facsimile: (214) 290-9674 


Electronic Mail:
mary.h.porter@bankofamerica.com 


Account No.: (**)


Ref: Ferrellgas LP


ABA# (**)


 


Other
Notices as Administrative Agent:


Agency Management 


901 Main St.


Mail Code: TX1-492-14-11 


Dallas, Texas 75202-3714 


Attention: Renita Cummings 


Telephone: (214) 209-4130 


Facsimile: (214) 290-8371


Electronic Mail:
renita.m.cummings@bankofamerica.com


 


(**) Confidential treatment
requested


 


1

















 


L/C
ISSUERS:


 


BANK OF
AMERICA, N.A.


700 Louisiana, 8th Floor


Mail Code: TX4-213-08-14 


Houston, Texas 77002 


Attention: Pamela Rodgers 


Telephone: 713-247-7246 


Facsimile: 713-247-7202


Electronic Mail:
pamela.rodgers@bankofamerica.com


 


PNC BANK,
N.A.


500 First Avenue 


Mailstop: P7-PFSC-04-Z 


Pittsburgh, Pennsylvania
15219 


Attention: Susannah Scherer 


Telephone: 412-762-4753 


Facsimile: 412-768-4586


Electronic Mail:
susannah.scherer@pnc.com


 


SWING LINE
LENDER:


 


Bank of America, N.A.


901 Main St. 


TX1-492-14-12 


Dallas, Texas 75202-3714 


Attention: Mary Porter 


Telephone: (214) 209-9192 


Facsimile: (214) 290-9674


Electronic Mail:
mary.h.porter@bankofamerica.com 


Account No.: (**)


Ref: Ferrellgas LP


ABA# (**)


 


(**) Confidential treatment
requested


 


2

















 


EXHIBIT A


 


FORM OF COMMITTED LOAN NOTICE


 


Date:
                  ,
20  


 


To:          Bank of America, N.A., as Administrative Agent


 


Ladies and Gentlemen:


 


Reference is made to that
certain Credit Agreement, dated as of November 2, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as
therein defined), among Ferrellgas, L.P., a Delaware limited partnership (the “Borrower”),
Ferrellgas, Inc., a Delaware corporation and sole general partner of the
Borrower (the “General Partner”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and
Swing Line Lender.


 


The undersigned hereby
requests (select one):


 


A Borrowing of Revolving
Credit Loans


 


A conversion or continuation
of Revolving Credit Loans


 




	
  1.

  	
   

  	
  On

  	
   

  	
  (a Business Day).

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  In the amount of $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Comprised of

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Type
  of Loan requested]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  For Eurodollar Rate Loans:
  with an Interest Period of

  	
   

  	
   months.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
										






The Revolving Credit
Borrowing requested herein complies with the proviso to the first sentence of Section 2.01
of the Agreement.


 


The Borrower hereby represents
and warrants that the conditions specified in Section 4.02 of the
Agreement shall be satisfied on and as of the date of the Credit Extension.


 


	
   

  	
  FERRELLGAS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Ferrellgas, Inc.,
  as its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-1

















 


EXHIBIT B


 


FORM OF SWING LINE LOAN NOTICE


 


Date:
                  ,
20   


 


	
  To:

  	
  Bank of America, N.A., as
  Swing Line Lender

  
	
   

  	
  Bank of America, N.A., as
  Administrative Agent

  



 


Ladies and Gentlemen:


 


Reference is made to that
certain Credit Agreement, dated as of November 2, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as
therein defined), among Ferrellgas, L.P., a Delaware limited partnership (the “Borrower”),
Ferrellgas, Inc., a Delaware corporation and sole general partner of the
Borrower (the “General Partner”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and
Swing Line Lender.


 


The undersigned hereby
requests a Swing Line Loan:


 




	
  1.

  	
   

  	
  On

  	
   

  	
   (a Business Day).

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  In the amount of $

  	
   

  	
  .

  
						






 


The Swing Line Borrowing
requested herein complies with the requirements of the provisos to the first
sentence of Section 2.04(a) of the Agreement.


 


The Borrower hereby
represents and warrants that the conditions specified in Section 4.02
of the Agreement shall be satisfied on and as of the date of the Credit
Extension.


 


	
   

  	
  FERRELLGAS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Ferrellgas, Inc.,
  as its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-1

















 


EXHIBIT C


 


FORM OF NOTE


 


,
20  


 


FOR VALUE RECEIVED, the
undersigned (the “Borrower”), hereby promises to pay to                                      
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each
Revolving Credit Loan from time to time made by the Lender to the Borrower
under that certain Credit Agreement, dated as of November 2, 2009 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used
herein as therein defined), among the Borrower, Ferrellgas, Inc., a
Delaware corporation and sole general partner of the Borrower (the “General
Partner”), the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, an L/C Issuer and Swing Line Lender.


 


The Borrower promises to pay
interest on the unpaid principal amount of each Revolving Credit Loan from the
date of such Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Agreement. Except as otherwise
provided in Section 2.04(f) of the Agreement with respect to
Swing Line Loans, all payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent’s Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.


 


This Note is one of the
Notes referred to in the Agreement, is entitled to the benefits thereof and may
be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty and is
secured by the Collateral. Upon the occurrence and continuation of one or more
of the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Revolving Credit Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount and maturity of its Revolving
Credit Loans and payments with respect thereto.


 


The Borrower, for itself,
its successors and assigns, hereby waives diligence, presentment, protest and
demand and notice of protest, demand, dishonor and non-payment of this Note.


 


C-1

















 


THIS NOTE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


	
   

  	
  FERRELLGAS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Ferrellgas, Inc.,
  as its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


C-2

















 


LOANS AND PAYMENTS WITH RESPECT THERETO


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Amount
  of

  	
   

  	
  Outstanding

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  End
  of

  	
   

  	
  Principal
  or

  	
   

  	
  Principal

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Type
  of

  	
   

  	
  Amount
  of

  	
   

  	
  Interest

  	
   

  	
  Interest
  Paid

  	
   

  	
  Balance
  This

  	
   

  	
  Notation

  	
   

  
	
  Date

  	
   

  	
  Loan
  Made

  	
   

  	
  Loan
  Made

  	
   

  	
  Period

  	
   

  	
  This
  Date

  	
   

  	
  Date

  	
   

  	
  Made
  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-3
















 


EXHIBIT D


 


FORM OF COMPLIANCE CERTIFICATE


 


Financial Statement Date:                 ,
20  


 


To:                              Bank of
America, N.A., as Administrative Agent


 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of November 2, 2009 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used herein as
therein defined), among Ferrellgas, L.P., a Delaware limited partnership (the “Borrower”),
Ferrellgas, Inc., a Delaware corporation and sole general partner of the
Borrower (the “General Partner”), the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing
Line Lender.


 


The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the                     
of the General Partner, and that, as such, he/she is authorized to execute and
deliver this Certificate to the Administrative Agent on the behalf of the
Borrower, and that:


 


[Use following paragraph 1 for fiscal year-end
financial statements]


 


1.                                       The Borrower
has delivered the year-end audited financial statements required by Section 6.01(a) of
the Agreement for the fiscal year of the Borrower ended as of the above date,
together with the report and opinion of an independent certified public
accountant required by such section. Such consolidated financial statements
fairly present the financial condition, results of operations, partners’ equity
and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as
at such date and for such period.


 


[Use following paragraph 1 for fiscal quarter-end
financial statements]


 


1.                                       The Borrower
has delivered the unaudited financial statements required by Section 6.01(b) of
the Agreement for the fiscal quarter of the Borrower ended as of the above
date. Such consolidated financial statements fairly present the financial
condition, results of operations, partners’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.


 


2.                                       The undersigned
has reviewed and is familiar with the terms of the Agreement and has made, or
has caused to be made under his/her supervision, a detailed review of the
transactions and condition (financial or otherwise) of the Borrower during the
accounting period covered by such financial statements.


 


3.                                       A review of the
activities of the Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such


 


D-1

















 


fiscal period the Borrower
performed and observed all its Obligations under the Loan Documents, and


 


[select one:]


 


[to
the best knowledge of the undersigned, during such fiscal period the Borrower
performed and observed each covenant and condition of the Loan Documents
applicable to it, and no Default has occurred and is continuing.]


 


—or—


 


[to
the best knowledge of the undersigned, the following covenants or conditions
have not been performed or observed and the following is a list of each such
Default and its nature and status:]


 


4.                                       The
representations and warranties of the Borrower and the General Partner
contained in Article V of the Agreement and all representations and
warranties of any Loan Party that are contained in any document furnished at
any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except that for purposes of this
Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Agreement
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01 of the
Agreement, including the statements in connection with which this Compliance
Certificate is delivered.


 


5.                                       The financial
covenant analyses and information set forth on Schedule 1 attached hereto
are true and accurate on and as of the date of this Certificate.


 


IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of           ,      .


 


	
   

  	
  FERRELLGAS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Ferrellgas, Inc.,
  as its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-2

















 


For the Quarter/Year ended
                  ,
20     (“Statement Date”)


 


SCHEDULE 1


to the Compliance
Certificate


($ in 000’s)


 




	
  I.

  	
  Section 7.11
  (a) – Consolidated Interest Coverage Ratio.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
  Consolidated EBITDA for
  Measurement Period ending on above date (“Subject Period”):

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
   

  	
  Consolidated Net Income
  for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
   

  	
  Extraordinary losses
  (including expenses related to the early extinguishment of Indebtedness) plus
  any net loss realized in connection with an asset sale for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
   

  	
  Provision for income taxes
  for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
   

  	
  Consolidated Interest
  Charges for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.

  	
   

  	
  Depreciation expenses for
  Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.

  	
   

  	
  Amortization expenses
  (including intangibles) for Subject Period:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
  7

  	
   

  	
  Non-recurring non-cash
  reductions of Consolidated Net Income for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  a.   amount
  of non-cash items relating to Dispositions: $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  b.   amount
  of non-cash items relating to SFAS 133: $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  8.

  	
   

  	
  Non-cash employee
  compensation expenses for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.

  	
   

  	
  Non-cash increases to
  Consolidated Net Income for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  a.   amount
  of non-cash items relating to Dispositions: $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  b.   amount
  of non-cash items relating to SFAS 133: $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.

  	
   

  	
  Pro forma adjustment (see
  attached detail)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11.

  	
   

  	
  Consolidated EBITDA (Lines
  I.A.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 - 9 [+ / -] 10):

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
   

  	
   

  	
  Consolidated Interest
  Charges for Subject Period, with pro forma adjustment (see attached detail):

  	
   

  	
  $

  
										






 


D-1

















 




	
   

  	
  C.

  	
   

  	
   

  	
  Consolidated Interest
  Coverage Ratio (Line I.A.10 ÷ Line I.B):

  	
   

  	
     to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Minimum
  required: 2.50 to 1.00

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  Section 7.11(b) —
  Consolidated Senior Secured Leverage Ratio.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
   

  	
   

  	
  Consolidated Funded Senior
  Secured Indebtedness (excluding Indebtedness in respect of Accounts
  Receivable Securitizations permitted by the Credit Agreement) at Statement
  Date, with pro forma adjustment (see attached detail):

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
   

  	
   

  	
  Consolidated EBITDA for
  Subject Period (Line I.A.10 above):

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C.

  	
   

  	
   

  	
  Consolidated Senior
  Secured Leverage Ratio (Line II.A ÷ Line II.B):

  	
   

  	
     to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Maximum
  permitted: 2.50 to 1.0

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 




	
  III.

  	
  Section 7.11(c) -
  Consolidated Leverage Ratio.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
   

  	
   

  	
  Consolidated Funded
  Indebtedness (excluding Indebtedness in respect of Accounts Receivable
  Securitizations permitted by the Credit Agreement) at Statement Date, with
  pro forma adjustment (see attached detail):

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
   

  	
   

  	
  Consolidated EBITDA for
  Subject Period (Line I.A.10 above):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
  C.

  	
   

  	
   

  	
  Consolidated Leverage
  Ratio (Line III.A ÷ Line III.B):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
        to
  1

  
	
   

  	
   

  	
   

  	
   

  	
  Maximum
  permitted: 5.00 to 1.0

  	
   

  	
   

  






 


D-2

















 


EXHIBIT E-1


 


ASSIGNMENT AND ASSUMPTION


 


This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between
[the][each] (1) Assignor identified in item 1 below ([the][each, an] “Assignor”)
and [the][each](2) Assignee identified in item 2 below ([the][each, an] “Assignee”).
[It is understood and agreed that the rights and obligations of [the
Assignors][the Assignees](3) hereunder are several and not joint.](4) Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.


 


For
an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee
hereby irrevocably purchases and assumes from [the Assignor][the respective
Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the
respective Assignors’] rights and obligations in [its capacity as a
Lender][their respective capacities as Lenders] under the Credit Agreement and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including, without
limitation, the Letters of Credit and the Swing Line Loans included in such
facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the
Assignor (in its capacity as a Lender)][the respective Assignors (in their
respective capacities as Lenders)] against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein
collectively as [the][an] “Assigned Interest”). Each such sale
and assignment is without recourse to


 






(1)               For bracketed language here
and elsewhere in this form relating to the Assignor(s), if the assignment is
from a single Assignor, choose the first bracketed language. If the assignment
is from multiple Assignors, choose the second bracketed language.


 


(2)               For bracketed language here
and elsewhere in this form relating to the Assignee(s), if the assignment is to
a single Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.


 


(3)               Select as appropriate.


 


(4)               Include bracketed language if
there are either multiple Assignors or multiple Assignees.


 


E-1-1

















 


[the][any] Assignor and,
except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the][any] Assignor.


 


	
  1.

  	
  Assignor[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [for each Assignee,
  indicate [Affiliate][Approved Fund] of [identify
  Lender]]

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower(s):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative Agent: Bank of
  America, N.A., as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit Agreement: Credit
  Agreement, dated as of November 2, 2009, among Ferrellgas, L.P., a
  Delaware limited partnership (the “Borrower”), Ferrellgas, Inc., a
  Delaware corporation and sole general partner of the Borrower (the “General
  Partner”), the Lenders from time to time party thereto, and Bank of America,
  N.A., as Administrative Agent, an L/C Issuer, and Swing Line Lender

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned Interest:

  
						



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Aggregate

  	
   

  	
  Amount of

  	
   

  	
  Percentage

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Amount of

  	
   

  	
  Commitment

  	
   

  	
  Assigned of

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Facility

  	
   

  	
  Commitment/Loans

  	
   

  	
  /Loans

  	
   

  	
  Commitment/

  	
   

  	
  CUSIP

  	
   

  
	
  Assignor[s](5)

  	
   

  	
  Assignee[s](6)

  	
   

  	
  Assigned

  	
   

  	
  for all Lenders(7)

  	
   

  	
  Assigned

  	
   

  	
  Loans(8)

  	
   

  	
  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


	
  [7

  	
  Trade
  Date:                       ](9)

  
	
   

  	
   

  	
   

  
	
  Effective
  Date:                       ,
  20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
  WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
  THEREFOR.]

  



 






(5)                                  List each
Assignor, as appropriate.


 


(6)                                  List each
Assignee, as appropriate.


 


(7)                                  Amounts in this
column and in the column immediately to the right to be adjusted by the
counterparties to take into account any payments or prepayments made between
the Trade Date and the Effective Date.


 


(8)                                  Set forth, to
at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.


 


(9)                                  To be completed
if the Assignor and the Assignee intend that the minimum assignment amount is
to be determined as of the Trade Date.


 


E-1-2

















 


The
terms set forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
     Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
     Title:

  



 


	
  [Consented to
  and](10) Accepted:

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A., as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  [Consented to:](11)

  	
   

  
	
   

  	
   

  	
   

  
	
  FERRELLGAS, L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Ferrellgas, Inc., as
  its general partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(10)                            To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.


 


(11)                            To be added only if the consent of the
Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer) is
required by the terms of the Credit Agreement.


 


E-1-3
















 


ANNEX 1 TO ASSIGNMENT AND ASSUMPTION


 


CREDIT AGREEMENT DATED AS OF NOVEMBER 2, 2009 AMONG FERRELLGAS, L.P.,
FERRELLGAS, INC., BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, AND THE
LENDER PARTY THERETO.


 


STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION


 


1.                                       Representations
and Warranties.


 


1.1.          Assignor.
[The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no responsibility
with respect to (i) any statements, warranties or representations made in
or in connection with the Credit Agreement or any other Loan Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document.


 


1.2.          Assignee. [The][Each] Assignee (a) represents
and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(iii) of
the Credit Agreement), (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and,
to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect
to decisions to acquire assets of the type represented by [the][such] Assigned
Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring
assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the
most recent financial statements delivered pursuant to Section 6.01
thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if
it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance upon the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and
information as it


 


E-1-4

















 


shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.


 


2.             Payments. From and after the
Effective Date, the Administrative Agent shall make all payments in respect of
[the][each] Assigned Interest (including payments of principal, interest, fees
and other amounts) to [the][the relevant] Assignor for amounts which have
accrued to but excluding the Effective Date and to [the][the relevant] Assignee
for amounts which have accrued from and after the Effective Date.


 


3.             General Provisions. This Assignment
and Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of
this Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.


 


E-1-5

















 


EXHIBIT E-2


 


FORM OF ADMINISTRATIVE QUESTIONNAIRE


 


E-2-1

















 


ADMINISTRATIVE DETAILS REPLY FORM – US DOLLAR ONLY


 


CONFIDENTIAL


 


	
  FAX ALONG WITH COMMITMENT LETTER TO: Renita Cummings

  
	
   

  	
  FAX #214-290-8371

  
	
   

  	
   

  
	
  I.

  	
  Borrower Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  Type of Credit Facility

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  Legal Name of Lender of Record for Signature Page:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ·

  	
  Signing Credit Agreement

  	
  o YES

  	
  o  NO

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ·

  	
  Coming in via Assignment

  	
  o YES

  	
  o  NO

  
								



 


III.   Type
of Lender 


 


(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance
Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated
Investment Fund, Special Purpose Vehicle, Other – please specify)


 


	
  IV.  Domestic Address:

  	
  V. Eurodollar Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


VI. Contact
Information:


 


Syndicate level
information (which may contain material non-public information about the
Borrower and its related parties or their respective securities will be made
available to the Credit Contact(s). The Credit Contacts identified must be able
to receive such information in accordance with his/her institution’s compliance
procedures and applicable laws, including Federal and State securities laws.


 


	
   

  	
   

  	
   

  	
   

  	
  Primary

  	
   

  	
  Secondary

  
	
   

  	
   

  	
  Credit
  Contact

  	
   

  	
  Operations
  Contact

  	
   

  	
  Operations
  Contact

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E Mail Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IntraLinks E Mail
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Does Secondary
Operations Contact need copy of notices?   o YES   o NO


 


	
  

  	
  12/2007

  



 


1

















 


	
   

  	
   

  	
  Letter
  of Credit

  	
   

  	
  Draft
  Documentation

  	
   

  	
   

  
	
   

  	
   

  	
  Contact

  	
   

  	
  Contact

  	
   

  	
  Legal
  Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E Mail Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


VII.     Lender’s
Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance
Fed Wire Payment Instructions (if applicable):


 


	
  Pay to:

  	
   

  	
   

  	
   

  
	
   

  	
  (Bank
  Name)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ABA
  #)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Account
  #) 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Attention)

  	
   

  	
   

  



 


VIII.   Lender’s Fed Wire Payment
Instructions:


 


	
  Pay to:

  	
   

  	
   

  
	
   

  	
  (Bank
  Name)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (ABA
  #)

  	
  (City/State)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Account
  #) 

  	
  (Account
  Name)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Attention)

  	
   

  	
   

  
					



 


2

















 


IX. Organizational Structure and Tax Status


 


Please refer to the enclosed withholding tax
instructions below and then complete this section accordingly:


 


Lender
Taxpayer Identification Number (TIN):                                                                                               -


 


Tax
Withholding Form Delivered to Bank of America*:


 


	
   

  	
  W-9

  
	
   

  	
   

  
	
   

  	
  W-8BEN

  
	
   

  	
   

  
	
   

  	
  W-8ECI

  
	
   

  	
   

  
	
   

  	
  W-8EXP

  
	
   

  	
   

  
	
   

  	
  W-8IMY

  



 


Tax
Contact


 


	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  E
  Mail Address:

  	
   

  	
   

  



 


NON–U.S. LENDER INSTITUTIONS 


 


1. Corporations:


 


If
your institution is incorporated outside of the United States for U.S. federal
income tax purposes, and is the beneficial owner of the interest and other
income it receives, you must complete one of the following three tax forms, as
applicable to your institution: a.) Form W-8BEN (Certificate of Foreign
Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected
to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign
Government or Governmental Agency).


 


A
U.S. taxpayer identification number is required for any institution submitting
a Form W-8 ECI. It is also required on Form W-8BEN for certain
institutions claiming the benefits of a tax treaty with the U.S. Please refer
to the instructions when completing the form applicable to your institution. In
addition, please be advised that U.S. tax regulations do not permit the
acceptance of faxed forms. An original tax
form must be submitted.


 


3

















 


2. Flow-Through Entities


 


If your institution is
organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified
Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY
(Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain
U.S. branches for United States Tax Withholding) must be completed by the
intermediary together with a withholding statement. Flow- through entities
other than Qualified Intermediaries are required to include tax forms for each
of the underlying beneficial owners.


 


Please refer to the
instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted.


 


U.S.
LENDER INSTITUTIONS:


 


If your institution is
incorporated or organized within the United States, you must complete and
return Form W-9 (Request for Taxpayer Identification Number and
Certification). Please be advised that we
require an original form W-9.


 


Pursuant to the language contained in the tax section of the
Credit Agreement, the applicable tax form for your institution must be
completed and returned on or prior to the date on which your institution
becomes a lender under this Credit Agreement. Failure to provide the proper tax
form when requested will subject your institution to U.S. tax withholding.


 






*Additional guidance and
instructions as to where to submit this documentation can be found at this
link:


 





 


X. Bank
of America Payment Instructions:


 


	
  Pay to:

  	
  Bank of America, N.A.

  ABA # (**)

  New York, NY

  Acct. # (**)

  Attn: Large Corporate Loans 

  Ref: Ferrellgas LP

   

  (**) Confidential
  treatment requested

  	
   

  



 


4

















 


EXHIBIT F


 


FORM OF GUARANTY


 


F-1
















 


GUARANTY


 


THIS
GUARANTY (this “Guaranty”) is made as of November 2, 2009, by each
of the undersigned guarantors and the Additional Guarantors (as hereinafter
defined) (whether one or more “Guarantor”, and if more than one jointly
and severally), in favor of BANK OF AMERICA, N.A., as administrative agent for
the Lenders under the Credit Agreement as defined below (in such capacity, “Administrative
Agent”).


 


FOR
VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to Ferrellgas, L.P., a Delaware
limited partnership (the “Borrower”), by the Administrative Agent, the
Lenders, the L/C Issuer, the Secured Cash Management Banks, and/or the Hedge
Banks, and their successors and assigns, pursuant to the Credit Agreement, the
Secured Cash Management Agreements  entered
into from time to time between the Borrower or any Guarantor and a Secured Cash
Management Bank, and/or the Secured Hedge Agreements entered into from time to
time between the Borrower or any Guarantor and a Hedge Bank, the undersigned
hereby furnishes its guaranty of the Guaranteed Obligations (as hereinafter
defined) as follows:


 


1.             Guaranty. The Guarantor hereby absolutely and unconditionally
guarantees, as a guaranty of payment and performance and not merely as a
guaranty of collection, prompt payment when due, whether at stated maturity, by
required prepayment, upon acceleration, demand or otherwise, and at all times thereafter,
of any and all existing and future indebtedness and liabilities of every kind,
nature and character, direct or indirect, absolute or contingent, liquidated or
unliquidated, voluntary or involuntary and whether for principal, interest,
premiums, fees indemnities, damages, costs, expenses or otherwise, of the
Borrower to:


 


(a)           the Administrative Agent and the
Lenders arising under that certain Credit Agreement of even date herewith by
and among the Borrower, the Administrative Agent, and the Lenders from time to
time party thereto (as amended, supplemented, or restated from time to time,
the “Credit Agreement”; terms used and not defined herein shall have the
meanings given to such terms in the Credit Agreement) and all other Loan
Documents (including all renewals, extensions, amendments, refinancings and
other modifications thereof and all costs, attorneys’ fees and expenses
incurred by the Administrative Agent or any Lender in connection with the
collection or enforcement thereof),


 


(b)           any Secured Cash Management Bank in
respect of or in connection with Secured Cash Management Obligations,


 


(c)           any Hedge Bank in respect of or in
connection with Secured Hedge Obligations, and


 


(d)           the L/C Issuer in respect of or in
connection with L/C Obligations or arising out of or in connection with any
Letter of Credit issued by the L/C Issuer (including by or through 


 

















 


an offshore branch or
affiliate of the L/C Issuer) pursuant to the Credit Agreement, including any
reimbursement, indemnity or similar agreements given by the Borrower to the L/C
Issuer in connection therewith, in each case, whether recovery upon such
indebtedness and liabilities may be or hereafter become unenforceable or shall
be an allowed or disallowed claim under any proceeding or case commenced by or
against the Guarantor or the Borrower under any Debtor Relief Laws, and
including interest that accrues after the commencement by or against the
Borrower of any proceeding under any Debtor Relief Laws (collectively, the “Guaranteed
Obligations”). The Administrative Agent’s and the Lenders’ books and
records showing the amount of the Guaranteed Obligations shall be admissible in
evidence in any action or proceeding, and shall be binding upon the Guarantor
and conclusive, absent manifest error, for the purpose of establishing the
amount of the Guaranteed Obligations. This Guaranty shall not be affected by
the genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or any instrument or agreement evidencing any Guaranteed Obligations,
or by the existence, validity, enforceability, perfection, non-perfection or
extent of any collateral therefor, or by any fact or circumstance relating to
the Guaranteed Obligations which might otherwise constitute a defense to the
obligations of the Guarantor under this Guaranty (other than Payment in Full
(as defined below)), and the Guarantor hereby irrevocably waives any defenses
it may now have or hereafter acquire in any way relating to any or all of the
foregoing. Anything contained herein to the contrary notwithstanding, the
obligations of each Guarantor hereunder (other than the General Partner),
together with any Collateral pledged by such Guarantor to secure the Guaranteed
Obligations, at any time shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder or under any
Loan Document by which such Collateral is granted subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code
(Title 11, United States Code) or any comparable provisions of any similar
federal or state law. (The Administrative Agent, the L/C Issuer, the Lenders,  the Secured Cash Management Banks, and the
Hedge Banks are herein collectively called the “Lender Parties”). For
purposes of this Guaranty, (a) “Payment in Full” means the payment
in full in cash of the Guaranteed Obligations, other than Permitted Remaining
Obligations; and (b) “Permitted Remaining Obligations” means (i) contingent
indemnification obligations for which no claim shall have been made, (ii) Secured
Cash Management Obligations as to which arrangements satisfactory to the
applicable Cash Management Bank shall have been made, (iii) Secured Hedge
Obligations as to which arrangements satisfactory to the applicable Hedge Bank
shall have been made, and (iv) outstanding Letters of Credit as to which
other arrangements satisfactory to the Administrative Agent and the applicable
L/C Issuer shall have been made.


 


2.             No Setoff or Deductions; Taxes; Payments. The Guarantor represents
and warrants that it is organized and resident in the United States of America.
The Guarantor shall make all payments hereunder without setoff or counterclaim
and free and clear of and without deduction for any Taxes now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless the Guarantor is compelled by law to
make such deduction or withholding. If any such obligation (other than one
arising with respect to Excluded Taxes) is imposed upon the Guarantor with
respect to any amount payable by it hereunder, the Guarantor will pay to the
applicable Lender Party, on the date on which such amount is due and payable
hereunder, such additional amount in U.S. dollars as shall be


 


2

















 


necessary to enable such
Lender Party to receive the same net amount which such Lender Party would have
received on such due date had no such obligation been imposed upon the
Guarantor. The Guarantor will deliver promptly to such Lender Party
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Guarantor hereunder. The
obligations of the Guarantor under this paragraph shall survive the payment in
full of the Guaranteed Obligations and termination of this Guaranty.


 


3.             Rights of Lender Parties. The Guarantor consents and
agrees that the Lender Parties may, at any time and from time to time, without
notice or demand, and without affecting the enforceability or continuing
effectiveness hereof: (a) amend, extend, renew, compromise, discharge,
accelerate or otherwise change the time for payment or the terms of the
Guaranteed Obligations or any part thereof; (b) take, hold, exchange, enforce,
waive, release, fail to perfect, sell, or otherwise dispose of any security for
the payment of this Guaranty or any Guaranteed Obligations; (c) apply such
security and direct the order or manner of sale thereof as the Lender Parties
in their sole discretion may determine; and (d) release or substitute one
or more of any endorsers or other guarantors of any of the Guaranteed
Obligations. Without limiting the generality of the foregoing, the Guarantor
consents to the taking of, or failure to take, any action which might in any
manner or to any extent vary the risks of the Guarantor under this Guaranty or
which, but for this provision, might operate as a discharge of the Guarantor.


 


4.             Certain Waivers. The Guarantor waives (a) any defense
arising by reason of any disability or other defense of the Borrower or any
other guarantor, or the cessation from any cause whatsoever (including any act
or omission of the Lender Parties) of the liability of the Borrower (other than
Payment in Full); (b) any defense based on any claim that the Guarantor’s
obligations exceed or are more burdensome than those of the Borrower; (c) the
benefit of any statute of limitations affecting the Guarantor’s liability
hereunder; (d) any right to require the Lender Parties to proceed against
the Borrower, proceed against or exhaust any security for the Guaranteed
Obligations, or pursue any other remedy in the Lender Parties’ power
whatsoever; (e) any benefit of and any right to participate in any
security now or hereafter held by the Lender Parties; and (f) to the
fullest extent permitted by law, any and all other defenses or benefits that
may be derived from or afforded by applicable law limiting the liability of or
exonerating guarantors or sureties. The Guarantor expressly waives, to the
maximum extent permitted by applicable Law, all setoffs and counterclaims and
all presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Guaranteed Obligations, and all notices of acceptance of this Guaranty or of
the existence, creation or incurrence of new or additional Guaranteed
Obligations.


 


5.             Obligations Independent. The obligations of the
Guarantor hereunder are those of primary obligor, and not merely as surety, and
are independent of the Guaranteed Obligations and the obligations of any other
guarantor, and a separate action may be brought against the Guarantor to
enforce this Guaranty whether or not the Borrower or any other person or entity
is joined as a party.


 


6.             Subrogation. The Guarantor shall not exercise any right of
subrogation, contribution, indemnity, reimbursement or similar rights with
respect to any payments it makes under this Guaranty until all of the
Guaranteed Obligations and any amounts payable under this


 


3

















 


Guaranty have been paid and
performed in full (other than Permitted Remaining Obligations) and any commitments
of the Lender Parties or facilities provided by the Lender Parties with respect
to the Guaranteed Obligations are terminated. If any amounts are paid to the
Guarantor in violation of the foregoing limitation, then such amounts shall be
held in trust for the benefit of the Lender Parties and shall forthwith be paid
to the Administrative Agent to be applied as set forth in the Credit Agreement
to reduce the amount of the Guaranteed Obligations, whether matured or
unmatured.


 


7.             Termination; Reinstatement. This Guaranty is a
continuing and irrevocable guaranty of all Guaranteed Obligations now or
hereafter existing and shall remain in full force and effect until all
Guaranteed Obligations and any other amounts payable under this Guaranty are
paid in full in cash (other than Permitted Remaining Obligations) and any
commitments of the Lender Parties or facilities provided by the Lender Parties
with respect to the Guaranteed Obligations are terminated. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect or be revived,
as the case may be, if any payment by or on behalf of the Borrower or the
Guarantor is made, or any Lender Party exercises its right of setoff, in
respect of the Guaranteed Obligations 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 any Lender Party in its discretion) to be repaid to
a trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Laws or otherwise, to the extent of such payment, all as if
such payment had not been made or such setoff had not occurred and whether or
not such Lender Party is in possession of or has released this Guaranty and
regardless of any prior revocation, rescission, termination or reduction. The
obligations of the Guarantor under this paragraph shall survive termination of
this Guaranty.


 


8.             Subordination. The Guarantor hereby subordinates the payment of
all obligations and indebtedness of the Borrower owing to the Guarantor,
whether now existing or hereafter arising, including but not limited to any
obligation of the Borrower to the Guarantor as subrogee of the Lender Parties or
resulting from the Guarantor’s performance under this Guaranty, to the
indefeasible payment in full in cash of all Guaranteed Obligations (other than
Permitted Remaining Obligations). If the Administrative Agent so requests, any
such obligation or indebtedness of the Borrower to the Guarantor shall be
enforced and performance received by the Guarantor as trustee for the Lender
Parties and the proceeds thereof shall be paid over to the Administrative
Agent, for the benefit of the Lender Parties, to be applied to the Guaranteed
Obligations as provided in the Credit Agreement, but without reducing or
affecting in any manner the liability of the Guarantor under this Guaranty.


 


9.             Stay of Acceleration. In the event that
acceleration of the time for payment of any of the Guaranteed Obligations is
stayed, in connection with any case commenced by or against the Guarantor or
the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall
nonetheless be payable by the Guarantor immediately upon demand by the
Administrative Agent.


 


10.          Expenses. The Guarantor shall pay on demand all
out-of-pocket expenses (including attorneys’ fees and expenses) in any way
relating to the enforcement or protection of the Lender Parties’ rights under
this Guaranty or in respect of the Guaranteed Obligations,


 


4

















 


including any incurred
during any “workout” or restructuring in respect of the Guaranteed Obligations
and any incurred in the preservation, protection or enforcement of any rights
of the Lender Parties in any proceeding under any Debtor Relief Laws. The
obligations of the Guarantor under this paragraph shall survive the payment in
full of the Guaranteed Obligations and termination of this Guaranty.


 


11.          Miscellaneous; Interpretive Provisions. No provision of this
Guaranty may be waived, amended, supplemented or modified, except by a written
instrument executed by the Administrative Agent (with the consent of the
Required Lenders or Lenders to the extent required under the Credit Agreement)
and the Guarantor. No failure by any Lender Party to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law or in equity. The
unenforceability or invalidity of any provision of this Guaranty shall not
affect the enforceability or validity of any other provision herein. Unless
otherwise agreed by the Administrative Agent and the Guarantor in writing, this
Guaranty is not intended to supersede or otherwise affect any other guaranty
now or hereafter given by the Guarantor for the benefit of the Lender Parties
or any term or provision thereof. Section 1.02 of the Credit
Agreement is incorporated herein by reference herein as if fully set forth.


 


12.          Condition of Borrower. The Guarantor acknowledges
and agrees that it has the sole responsibility for, and has adequate means of,
obtaining from the Borrower and any other guarantor such information concerning
the financial condition, business and operations of the Borrower and any such
other guarantor as the Guarantor requires, and that no Lender Party has any
duty, and the Guarantor is not relying on any Lender Party at any time, to
disclose to the Guarantor any information relating to the business, operations
or financial condition of the Borrower or any other guarantor (the guarantor
waiving any duty on the part of the Lender Parties to disclose such information
and any defense relating to the failure to provide the same).


 


13.          Setoff. If an Event of Default shall have occurred and be
continuing, each Lender Party and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by applicable law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by
such Lender Party or any such Affiliate to or for the credit or the account of
the Borrower or any other Loan Party against any and all of the obligations of
the Borrower or such Loan Party now or hereafter existing under this Guaranty,
any other Loan Document, any Secured Cash Management Agreement, or any Secured
Hedge Agreement to such Lender Party, irrespective of whether or not such
Lender Party shall have made any demand under this Guaranty, any other Loan
Document, any Secured Cash Management Agreement, or any Secured Hedge Agreement
and although such obligations of the Borrower or such Loan Party may be
contingent or unmatured or are owed to a branch or office of such Lender Party
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender Party and their respective Affiliates
under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender Party or their respective Affiliates
may have. Each Lender Party agrees to notify the Borrower and the
Administrative Agent promptly after


 


5

















 


any such setoff and
application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


14.          Covenants. The Guarantor will at all times perform and observe
the covenants contained in the Credit Agreement that are applicable to
Guarantor (whether made by the Borrower or otherwise) for so long as this
Guaranty is in effect.


 


15.          Representations and Warranties. The Guarantor represents and
warrants that each representation and warranty made by the Borrower with
respect to the Guarantor in any other Loan Document is correct (after giving
effect to any materiality qualifier applicable to such representation and
warranty). The Guarantor is, individually and together with its Subsidiaries on
a consolidated basis, Solvent.


 


16.        Indemnification and Survival.


 


(a)           Indemnification. The Guarantor
shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender, each L/C Issuer, each Secured Cash Management Bank, each Hedge Bank,
and each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Guarantor or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Guaranty, any other Loan Document, any Secured Cash Management Agreement, any
Secured Hedge Agreement, or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this
Guaranty and the other Loan Documents, (ii) any Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
an L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any
of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Guarantor or any other Loan Party or any of
the Guarantor’s or such Loan Party’s directors, shareholders or creditors, and
regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN
WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF
THE INDEMNITEE;  provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Guarantor or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan


 


6

















 


Document, if the Guarantor
or such Loan Party has obtained a final and nonappealable judgment in its favor
on such claim as determined by a court of competent jurisdiction.


 


(b)           Waiver of Consequential Damages,
Etc. To the fullest extent permitted by applicable law, the Guarantor shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Guaranty, any other Loan Document, any Secured Cash
Management Agreement, any Secured Hedge Agreement, or any agreement or
instrument contemplated hereby or thereby, 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 (a) above shall be liable for any
damages arising from the use by unintended recipients of any information or
other materials distributed to such unintended recipients by such Indemnitee
through telecommunications, electronic or other information transmission
systems in connection with this Guaranty or the other Loan Documents or the
transactions contemplated hereby or thereby other than for such direct or
actual damages resulting from the gross negligence or willful misconduct of
such Indemnitee or from a breach in bad faith of such Indemnitee’s obligations
hereunder or under any Loan Document, in any case, as determined by a final and
nonappealable judgment of a court of competent jurisdiction.


 


(c)           Payments. All amounts due
under this Section shall be payable not later than ten Business Days after
demand therefor.


 


(d)           Survival. The agreements in
this Section shall survive the resignation of the Administrative Agent,
any L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Guaranteed Obligations.


 


17.          Additional Guarantors. Upon the execution and
delivery by any Person of a guaranty supplement in substantially the form of Exhibit A
hereto (each, a “Guaranty Supplement”), (i) such Person shall be
referred to as an “Additional Guarantor” and shall become and be a Guarantor
hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean
and be a reference to such Additional Guarantor, and each reference in any
other Loan Document to a “Guarantor” shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to “this Guaranty,” “hereunder,”
“hereof” or words of like import referring to this Guaranty, and each reference
in any other Loan Document to the “Guaranty,” “thereunder,” “thereof” or words
of like import referring to this Guaranty, shall mean and be a reference to
this Guaranty as supplemented by such Guaranty Supplement.


 


18.        Loan Document. This Guaranty is a Loan Document, as defined
in the Credit Agreement, and is subject to the provisions of the Credit
Agreement governing Loan Documents. The Guarantor hereby ratifies, confirms and
approves the Credit Agreement and the other Loan Documents and, in particular,
any provisions thereof which relate to such Guarantor.


 


19.          GOVERNING LAW; Jurisdiction; Etc.


 


7

















 


(a)           GOVERNING LAW. THIS GUARANTY
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.


 


(b)           SUBMISSION TO JURISDICTION. EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT AGAINST THE GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(c)           WAIVER OF VENUE. EACH PARTY
HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


 


(d)           SERVICE OF PROCESS. EACH PARTY
HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 21. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.


 


20.          WAIVER OF JURY
TRIAL. THE GUARANTOR AND THE LENDER PARTIES EACH 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 GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE


 


8

















 


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 GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


21.          Assignment; Notices. This Guaranty shall (a) bind
the Guarantor and its successors and assigns, provided that the Guarantor may
not assign its rights or obligations under this Guaranty without the prior
written consent of the Administrative Agent (and any attempted assignment
without such consent shall be void), and (b) inure to the benefit of the
Lender Parties and their successors and permitted assigns and the Lender
Parties may, without notice to the Guarantor and without affecting the
Guarantor’s obligations hereunder, assign, sell or grant participations in the
Guaranteed Obligations and this Guaranty, in whole or in part, pursuant to the
provisions of Section 10.06 of the Credit Agreement. The Guarantor
agrees that each Lender Party may disclose to any assignee of or participant
in, or any prospective assignee of or participant in, any of its rights or
obligations of all or part of the Guaranteed Obligations any and all
information in such Lender Party’s possession concerning the Guarantor, this
Guaranty and any security for this Guaranty, pursuant to the provisions of Section 10.07
of the Credit Agreement. Any notice or communication required or permitted
hereunder shall be given in writing or by electronic transmission, sent in the
manner provided in the Credit Agreement, if to the Administrative Agent, to the
address set forth in the Credit Agreement and for the Guarantor, to the address
specified on the signature page hereto, or to such other address or to the
attention of such other individual as hereafter shall be designated in writing
by the applicable party sent in accordance with the Credit Agreement. Any such
notice or communication shall be deemed to have been given as provided in the
Credit Agreement for notices given thereunder.


 


22.          USA PATRIOT Act. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Guarantor that pursuant to the requirements
of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Guarantor, which information includes the name and address
of the Guarantor and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Guarantor in accordance
with the Act. The Guarantor shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to
comply with its ongoing obligations under applicable “know your customer” an
anti-money laundering rules and regulations, including the Act.


 


23.          FINAL AGREEMENT. THIS
GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL


 


9

















 


AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


[Remainder of page intentionally
left blank.]


 


10
















 


Executed
as of the date first written above.


 


	
   

  	
  FERRELLGAS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  James R. VanWinkle

  
	
   

  	
  Senior Vice President

  
	
   

  	
  and Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BLUE RHINO GLOBAL
  SOURCING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  James R. VanWinkle

  
	
   

  	
  Chief Financial Officer and
  Vice President

  
	
   

  	
  of Corporate Development

  



 


 


Address of each Guarantor:


 


7500 College Blvd., Suite 1000


Overland Park, Kansas 66210 


Attention: Chief Financial
Officer 


Telephone: (913) 661-1500 


Facsimile: (913) 661-1537


Electronic Mail:
ryanvanwinkle@ferrellgas.com 


Website Address:
www.ferrellgas.com


 

















 


EXHIBIT A


 


FORM OF GUARANTY SUPPLEMENT


 


                                    ,
20


 


THIS
GUARANTY SUPPLEMENT is made as of [mm/dd/yy] (this “Supplement”) and is
delivered pursuant to that certain Guaranty, dated as of November 2, 2009
(as it may be amended, supplemented or otherwise modified, the “Guaranty”;
the terms defined therein and not otherwise defined herein being used herein as
therein defined), by the initial Guarantors party thereto in favor of BANK OF
AMERICA, N.A., as administrative agent (“Administrative  Agent”).


 


1.                                      Guaranty. Pursuant to Section 17 of the Guaranty, the
undersigned hereby:


 


(a)           agrees that this Supplement may be
attached to the Guaranty and that by the execution and delivery hereof, the
undersigned becomes a Guarantor under the Guaranty and the Loan Documents and
agrees to be bound by all of the terms thereof;


 


(b)           represents and warrants that each of
the representations and warranties set forth in the Guaranty, the Credit Agreement
and each other Loan Document and applicable to the undersigned is true and
correct both before and after giving effect to this Supplement, except to the
extent that any such representation and warranty relates solely to any earlier
date, in which case such representation and warranty is true and correct as of
such earlier date;


 


(c)           no event has occurred or is
continuing as of the date hereof, or will result from the transactions
contemplated hereby on the date hereof, that would constitute an Event of
Default or a Default; and


 


(d)           agrees to absolutely and
unconditionally guarantee, as a guaranty of payment and performance and not
merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by required prepayment, upon acceleration, demand or otherwise, and
at all times thereafter, of any and all Guaranteed Obligations as provided by Section 1
of the Guaranty.


 


2.             Further
Assurances. The undersigned agrees from time to time, upon
request of the Administrative Agent, to take such additional actions and to
execute and deliver such additional documents and instruments as the
Administrative Agent may request to effect the transactions contemplated by,
and to carry out the intent of, this Supplement. Any notice or other communication
herein required or permitted to be given shall be given in pursuant to Section 19
of the Guaranty, and for all purposes thereof, the notice address of the
undersigned shall be the address as set forth on the signature page hereof.


 


This Guaranty shall be governed by, and construed in
accordance with, the internal laws of the State of New York.


 


Executed
as of the date first written above.


 

















 


	
   

  	
  [NAME OF SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
	
   

  	
  Telecopier:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND ACCEPTED

  	
   

  
	
  as of the date above first
  written:

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A.,

  	
   

  
	
  as Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
					



 


2

















 


EXHIBIT G


 


FORM OF SECURITY AGREEMENT


 


G-3
















 


SECURITY AGREEMENT


 


 


dated as of November 2, 2009


 


 


of


 


 


FERRELLGAS, L.P.,


 


each other Grantor listed on the signature pages hereof and each
other Grantor that otherwise may become a party hereto


 


 


in favor of


 


 


BANK OF AMERICA, N.A.,


 


as Administrative Agent


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I Definitions and
  References

  	
  1

  
	
  Section 1.1.

  	
  Definitions in Credit
  Agreement

  	
  1

  
	
  Section 1.2.

  	
  Definitions in the UCC,
  etc.

  	
  1

  
	
  Section 1.3.

  	
  Definitions in this
  Agreement

  	
  2

  
	
  Section 1.4.

  	
  Interpretive Provisions

  	
  4

  
	
  ARTICLE II Security
  Interest

  	
  4

  
	
  Section 2.1.

  	
  Grant of Security Interest

  	
  4

  
	
  Section 2.2.

  	
  Secured Obligations
  Secured

  	
  6

  
	
  ARTICLE III
  Representations and Warranties

  	
  6

  
	
  Section 3.1.

  	
  Representations and
  Warranties

  	
  6

  
	
  ARTICLE IV Covenants

  	
  10

  
	
  Section 4.1.

  	
  General Covenants
  Applicable to Collateral

  	
  10

  
	
  Section 4.2.

  	
  Covenants for Specified
  Types of Collateral

  	
  12

  
	
  ARTICLE V Voting and
  Distribution Rights in Respect Of Pledged Equity

  	
  15

  
	
  Section 5.1.

  	
  Voting Rights

  	
  15

  
	
  Section 5.2.

  	
  Dividend Rights While No
  Event of Default Exists

  	
  15

  
	
  Section 5.3.

  	
  Actions by Secured Party

  	
  15

  
	
  Section 5.4.

  	
  Rights While an Event of
  Default Exists

  	
  16

  
	
  ARTICLE VI Remedies,
  Powers and Authorizations

  	
  16

  
	
  Section 6.1.

  	
  Normal Provisions
  Concerning the Collateral

  	
  16

  
	
  Section 6.2.

  	
  Remedies

  	
  18

  
	
  Section 6.3.

  	
  Application of Proceeds

  	
  21

  
	
  Section 6.4.

  	
  Deficiency

  	
  22

  
	
  Section 6.5.

  	
  Private Sales of
  Investment Property and Other Pledged Equity

  	
  22

  
	
  Section 6.6.

  	
  Indemnity and Expenses

  	
  22

  
	
  Section 6.7.

  	
  Non-Judicial Remedies

  	
  23

  
	
  Section 6.8.

  	
  Limitation on Duty of the
  Secured Party in Respect of Collateral

  	
  23

  
	
  Section 6.9.

  	
  Appointment of Other
  Agents

  	
  23

  
	
  ARTICLE VII Miscellaneous

  	
  24

  
	
  Section 7.1.

  	
  Notices

  	
  24

  



 


i

















 


	
  Section 7.2.

  	
  Amendments and Waivers

  	
  24

  
	
  Section 7.3.

  	
  Additional Grantors

  	
  24

  
	
  Section 7.4.

  	
  Preservation of Rights

  	
  24

  
	
  Section 7.5.

  	
  Severability

  	
  24

  
	
  Section 7.6.

  	
  Survival

  	
  25

  
	
  Section 7.7.

  	
  Binding Effect and
  Assignment

  	
  25

  
	
  Section 7.8.

  	
  Release of Collateral;
  Termination

  	
  25

  
	
  Section 7.9.

  	
  Limitation on Interest

  	
  26

  
	
  Section 7.10.

  	
  Governing Law

  	
  26

  
	
  Section 7.11.

  	
  Final Agreement

  	
  26

  
	
  Section 7.12.

  	
  Counterparts; Facsimile

  	
  26

  
	
  Section 7.13.

  	
  Acceptance by the Secured
  Party

  	
  26

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
  Schedule 1

  	
  Address for Notices and
  Jurisdiction of Organization

  	
   

  
	
  Schedule 2

  	
  Scheduled Collateral

  	
   

  
	
  Schedule 3

  	
  Information Schedule

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Grantor
  Accession Agreement

  	
   

  
	
  Exhibit B

  	
  Form of Intellectual
  Property Security Agreement

  	
   

  



 


ii

















 


THIS SECURITY AGREEMENT is
made as of November 2, 2009, by Ferrellgas, L. P., a Delaware limited
partnership (the “Borrower”), and each other Grantor listed on the
signature pages hereof and that may become parties hereto pursuant to Section 7.3
in favor of Bank of America, N. A., as administrative agent under the Credit
Agreement (the “Secured Party”) for the benefit of the Beneficiaries.


 


RECITALS


 


A.                                   The Borrower,
the Secured Party, certain lenders (collectively, the “Lenders”) and the
L/C Issuers are parties to the Credit Agreement dated of even date herewith (as
amended, supplemented, or restated from time to time, the “Credit Agreement”).


 


B.                                     Pursuant to the
Credit Agreement, the Lenders have agreed to extend credit to the Borrower,
pursuant to the Secured Cash Management Agreements certain Lenders have entered
into or will enter into, or Affiliates of Lenders have entered into or will
enter into, certain cash management arrangements with the Borrower, and
pursuant to the Secured Hedge Agreements certain Lenders have entered into or
will enter into, or Affiliates of Lenders have entered into or will enter into,
certain interest rate hedging arrangements with the Borrower. 


 


C.                                     In order to
induce the Beneficiaries to extend such credit, to issue letters of credit, to
enter into the Secured Cash Management Agreements, and to enter into the
Secured Hedge Agreements each Grantor has agreed to grant to the Secured Party,
for the benefit of the Beneficiaries, a security interest in the Collateral.


 


NOW, THEREFORE, in
consideration of the premises and for other valuable consideration, the receipt
and sufficiency of which the parties acknowledge, each Grantor agrees as
follows:


 


ARTICLE
I


 


Definitions
and References


 


Section 1.1.                                   Definitions in
Credit Agreement. Capitalized terms used herein and not otherwise
defined have the respective meanings specified in the Credit Agreement.


 


Section 1.2.                                   Definitions in
the UCC, etc. The following terms have the meanings specified in
the UCC:


 


(a)                                  Account.


 


(b)                                 Chattel Paper.


 


(c)                                  Commercial Tort Claim.


 


(d)                                 Deposit Account.


 


(e)                                  Document.


 

















 


(f)                                    Electronic
Chattel Paper.


 


(g)                                 Equipment.


 


(h)                                 General
Intangible.


 


(i)                                     Instrument.


 


(j)                                     Inventory.


 


(k)                                  Investment
Property.


 


(l)                                     Letter of
Credit Right.


 


(m)                               Payment
Intangible.


 


(n)                                 Proceeds.


 


(o)                                 Securities
Account.


 


(p)                                 Security.


 


(q)                                 Uncertificated
Security.


 


Other terms used in this
Agreement that are defined in the UCC and not otherwise defined herein or in
the Credit Agreement have the meanings specified in the UCC, unless the context
otherwise requires.


 


Section 1.3.                                   Definitions in
this Agreement. The following terms have the following meanings:


 


“Beneficiaries” means
the Secured Party, each L/C Issuer, the Lenders, any Secured Cash Management
Bank to which any Secured Cash Management Obligation is owed, and Hedge Bank to
which any Secured Hedge Obligation is owed, and any other Person to which any Secured
Obligation is owed.


 


“Collateral” means,
with respect to any Grantor, all property (other than Excluded Collateral)
described in Section 2.1 in which such Grantor has any right, title
or interest. References to Collateral herein with respect to a Grantor are
intended to refer to Collateral in which such Grantor has any right, title or
interest and not to Collateral in which any other Grantor has any right, title
or interest.


 


“Collateral Access
Agreement” means a landlord waiver, mortgagee waiver, bailee letter or
similar acknowledgment of any lessor, warehouseman or processor in possession
of any Collateral or on whose property any Collateral is located, in form and
substance satisfactory to the Secured Party.


 


“Credit Agreement”
has the meaning specified in Recital A.


 


2

















 


“ESGNCA” means the
Electronic Signatures in Global and National Commerce Act.


 


“Excluded Collateral”
means (a) the Excluded Equity Interests, (b) Securitization Assets that
have been sold, transferred or otherwise conveyed by a Grantor to an SPE in
connection with an Accounts Receivable Securitization permitted under Sections
7.02 (h) and 7.05 (f) of the Credit Agreement, and (c) the
Operating Account.


 


“Excluded Equity
Interests” means (a) the Equity Interests of each Grantor in each Unrestricted
Subsidiary owned by such Grantor, (b) thirty-four percent (34%) of the
Equity Interests of each Grantor in each Subsidiary directly owned by such
Grantor that is a CFC, and (c) any Equity Interests owned by the General
Partner, other than the general partner Equity Interests in the Borrower or any
Subsidiary thereof.


 


“Field Deposit Accounts”
means (a) Deposit Accounts into which monies, checks, notes, drafts and
other payments constituting proceeds of Wholesale Accounts Receivable are forwarded
or deposited, which amounts are deposited or transferred to a Pledged Deposit Account
over which the Secured Party has “control” (as such term is defined in the UCC)
within one Business Day and (b) other field level accounts that maintain a
balance of less than $10,000.


 


“Grantor” means each
Person granting a security interest in any Collateral pursuant to this
Agreement. References to “Grantor” in this Agreement are intended to refer to
each such Person as if such Person were the only grantor pursuant to this
Agreement, except:


 


(a)                                  that references
to “any Grantor” or “each Grantor” and similar references are meant to refer to
each Person that is a Grantor,


 


(b)                                 that references
to “the Grantors” are meant to refer to collectively to all Persons that are
Grantors and


 


(c)                                  as otherwise
may be specifically set forth herein.


 


“Intellectual Property Collateral”
has the meaning specified in Exhibit B.


 


“Intellectual Property
License” has the meaning specified in Exhibit B.


 


“Intellectual Property
Security Agreement” means the Intellectual Property Security Agreement
substantially in the form of Exhibit B.


 


“Lenders” has the
meaning specified in Recital A.


 


“Operating Account”
means deposit account number 4518054085 owned by the Borrower at JPMorgan Chase
Bank, N. A., together with any replacement deposit account designated by the
Borrower as its main operating account from time to time in writing to the Secured
Party.


 


“Pledged Debt” means
all Investment Property and General Intangibles constituting or pertaining to
Indebtedness owing by any Person to Grantor.


 


3

















 


“Pledged Deposit Accounts”
means all Deposit Accounts (including those Deposit Accounts listed on Schedule
2), provided that “Pledged Deposit Accounts” shall not include the Operating
Account.


 


“Pledged Equity”
means all Investment Property and General Intangibles constituting or pertaining
to Equity Interests in Persons, excluding the Excluded Collateral.


 


“Secured Obligations”
means (a) all Obligations, (b) all Secured Cash Management Obligations,
and (c) all Secured Hedge Obligations, in each case whether now or
hereafter arising.


 


“Secured Party” has
the meaning specified in the preamble.


 


“Securities Act”
means the Securities Act of 1933.


 


“Security Agreement
Supplement” means the security agreement supplement in substantially the
form of Exhibit A.


 


“UCC” means the
Uniform Commercial Code in effect in the State of New York from time to time;
provided that, if perfection or the effect of perfection or non-perfection or
the priority of any security interest in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of
New York, “UCC” means the Uniform Commercial Code as in effect from time to
time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.


 


“UETA” means the
Uniform Electronic Transactions Act, as in effect in any applicable jurisdiction.


 


Section 1.4                                      Interpretive
Provisions. Section 1.02 of the Credit Agreement
is incorporated herein by reference herein as if fully set forth.


 


ARTICLE
II


 


Security
Interest


 


Section 2.1.                                   Grant of
Security Interest. As collateral security for the payment and performance
of all Secured Obligations, Grantor pledges, collaterally assigns and grants to
the Secured Party for its benefit and the benefit of each other Beneficiary a
continuing security interest in all right, title and interest of Grantor in and
to all of the following property, whether now owned or existing or hereafter
acquired or arising, regardless of where located and howsoever Grantor’s
interests therein arise, whether by ownership, security interest, claim or otherwise:


 


(a)                                  Accounts.


 


(b)                                 All Equity
Interests listed on Schedule 2, whether constituting General Intangibles or
Investment Property.


 


4

















 


(c)                                  General
Intangibles, including all Payment Intangibles.


 


(d)                                 Documents.


 


(e)                                  Instruments,
including the Securitization Subordinated Note.


 


(f)                                    Inventory.


 


(g)                                 Equipment, all
parts thereof, all accessions thereto, and all replacements therefor.


 


(h)                                 Pledged Deposit
Accounts.


 


(i)                                     Investment
Property.


 


(j)                                     Commercial Tort
Claims that are listed opposite Grantor’s name on Schedule 2, as in effect on
the date hereof or as hereafter\modified pursuant to Section 4.2 (i).


 


(k)                                  Letter of
Credit Rights.


 


(l)                                     Chattel Paper.


 


(m)                               Intellectual
Property Collateral.


 


(n)                                 Books and
records (including customer lists, marketing information, credit files, price
lists, operating records, vendor and supplier price lists, sales literature,
computer software, computer hardware, computer disks and tapes and other
storage media, printouts and other materials and records) pertaining to any
Collateral.


 


(o)                                 Money and
property of any kind from time to time in the possession or under the control
of any Beneficiary.


 


(p)                                 Proceeds of the
foregoing.


 


provided that (i) if
the documents, agreements or instruments governing any of the foregoing Collateral
contain effective and enforceable restrictions on the assignment or transfer of
Grantor’s rights thereunder, or effective and enforceable restrictions on the
ability of the Grantor to grant a lien or other security interests therein,
then the liens and security interests granted under this Agreement shall be
limited only to the extent necessary to comply with such effective and
enforceable restrictions (with such limitation automatically ceasing upon
removal or, or receipt of any consent with respect to, such restrictions), and
will in any event attach to (x) the amounts payable to Grantor under any
such agreement and (y) any proceeds received by Grantor from the sale,
transfer or other disposition thereof other than to the extent the liens and
security interests granted under this Agreement on such proceeds would be
limited as provided in this proviso, and (ii) notwithstanding the
foregoing, this Section 2.1 does not grant a security interest in
any Excluded Collateral.


 


5

















 


Section 2.2.                                   Secured
Obligations Secured.


 


(a)                                  The security
interest created hereby in the Collateral secures the payment and performance
of all Secured Obligations.


 


(b)                                 Without
limiting the generality of the foregoing, this Agreement secures, as to Grantor,
the payment of all amounts that constitute part of the Secured Obligations and
would be owed by any Loan Party to any Beneficiary under the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving a Loan Party.


 


(c)                                  Notwithstanding
any other provision of this Agreement, with respect to any Grantor, the
liability of such Grantor hereunder and under each other Loan Document to which
it is a party shall be limited to the maximum liability that such Grantor may
incur without rendering this Agreement and such other Loan Documents subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provision of any applicable state or federal law. This subsection (c) shall
not apply to the Borrower or the General Partner.


 


ARTICLE
III


 


Representations
and Warranties


 


Section 3.1.                                   Representations
and Warranties. Grantor represents and warrants to the Beneficiaries
as follows:


 


(a)                                  If Grantor is
not the Borrower, each representation and warranty made by the Borrower with
respect to Grantor in any other Loan Document is correct (after giving effect
to any materiality qualifier applicable to such representation and warranty).


 


(b)                                 Grantor has and
will have at all times the right, power and authority to grant to the Secured
Party as provided herein a security interest in the Collateral, free and clear
of any Lien other than Permitted Liens (except as to Pledged Equity, which
security interest in such Collateral is free and clear of any Lien other than
those Liens permitted under Section 7.01 (a), (c), or (h) of
the Credit Agreement). This Agreement creates a valid and binding security
interest in favor of the Secured Party in the Collateral, securing the Secured
Obligations.


 


(c)                                  None of the
Collateral in which Grantor has granted a security interest that constitutes
goods:


 


(i)                                     is covered by
any Document with an individual or aggregate value of $1,000,000 or more unless
such Document has been delivered to the Secured Party;


 


(ii)                                  is subject to
any landlord’s lien or similar Lien, except for Permitted Liens;


 


(iii)                               is installed in
or affixed to other goods so as to be an accession to such other goods, unless
such other goods are included in the Collateral;


 


(iv)                              is in the
possession of any Person other than Grantor or the Secured Party, except for
Collateral held by third parties in the ordinary course of business; or


 


6

















 


 


(d)                                 With respect to
Pledged Equity:


 


(i)                                     All units and
other securities constituting Pledged Equity have been duly authorized and
validly issued, are fully paid and non-assessable, and were not issued in violation
of the preemptive rights of any Person or of any agreement by which Grantor or any
issuer of Pledged Equity is bound.


 


(ii)                                  The Pledged
Equity listed on Schedule 2 constitutes all Equity Interests owned by Grantor
in its Restricted Subsidiaries as of the date hereof, and as of the date a supplement
to this Agreement is effected as required under the Credit Agreement. All endorsements,
deliveries, notifications and other actions required by Section 4.2 (f) have
been taken with respect to Pledged Equity.


 


(iii)                               All
documentary, stamp or other taxes or fees owing in connection with the
issuance, transfer or pledge of any Pledged Equity (or rights in respect
thereof) have been paid.


 


(iv)                              No restriction
or condition exists with respect to the transfer, voting or capital of any
Pledged Equity except for restrictions and conditions set forth in the applicable
Organization Documents.


 


(v)                                 Except as disclosed
on Schedule 2, no Grantor or issuer of Pledged Equity has any outstanding
subscription agreement, option, warrant or convertible security outstanding or
any other right outstanding pursuant to which any Person would be entitled to
have issued to it units of ownership interest in any issuer of Pledged Equity.


 


(vi)                              Grantor has
taken or concurrently herewith is taking all actions necessary to perfect the
Secured Party’s security interest in Pledged Equity, including any registration,
filing or notice that may be necessary under Article 8 or 9 of the UCC or requested
by the Secured Party prior to the date hereof, and no other Person has any such
registration, filing or notice in effect.


 


(vii)                           Schedule 2
correctly and completely reflects all Pledged Equity owned by Grantor as of the
date hereof, other than Pledged Equity held for investment purposes, and
Schedule 2 accurately sets forth the percentage of each class or series of
Equity Interests issued by the issuer of such Pledged Equity that is held by Grantor.


 


(viii)                        All
partnership, limited liability company, equity operating, management, voting
and shareholder agreements to which Grantor is a party or by which it is bound and
that relate to Pledged Equity have been delivered to the Secured Party as of the
date hereof, and any such agreements entered into after the date hereof will be
delivered to the Secured Party.


 


(ix)                                No issuer of
Pledged Equity has made any call for capital that has not been fully paid by
the holders of Equity Interests of such issuer.


 


7

















 


(x)                                   Neither Grantor
nor, to Grantor’s knowledge, any other holder of equity issued by any issuer of
Pledged Equity is in default under any agreement relating to Pledged Equity.


 


(xi)                                The execution,
delivery or performance of this Agreement will not cause a default under any
partnership, limited liability company, equity operating, management, voting or
shareholder agreement in respect of Pledged Equity or otherwise adversely affect
or diminish any Pledged Equity. The exercise of any right or remedy of the Secured
Party hereunder will not cause a default under such agreements provided that any
necessary consents required therein to admit an assignee or successor of the
holder of equity into such partnership or membership have been received prior
to admitting such assignee or successor.


 


(xii)                             Grantor’s
rights under any partnership, limited liability company, equity operating,
management, voting or shareholder agreement in respect of Pledged Equity are 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 or by generally applicable principles of equity relating
to enforceability.


 


(e)                                  Grantor has
delivered to the Secured Party all Instruments and other writings evidencing
Pledged Debt with an individual or aggregate value of $1,000,000 or more and in
existence on the date hereof, in suitable form for transfer by delivery with
any necessary endorsement or accompanied by fully executed instruments of
transfer or assignment in blank.


 


(f)                                    Grantor has no
Deposit Account as of the date hereof other than (i) those listed on Schedule
2, (ii) the Field Deposit Accounts, (iii) the Operating Account, and (iv) Deposit
Accounts used solely for payroll payments and processing purposes.


 


(g)                                 Grantor has no
Securities Account as of the date hereof other than those listed on Schedule 2.


 


(h)                                 Grantor is the
beneficiary of no Letter of Credit Right other than those listed on Schedule 2
(as supplemented in writing to the Secured Party by Grantor from time to time)
or those with an individual or aggregate value of less than $1,000,000.


 


(i)                                     Grantor is not
aware of any Commercial Tort Claim that it may have other than those listed on
Schedule 2 (as supplemented in writing to the Secured Party by Grantor from
time to time).


 


(j)                                     As of the date
hereof, Grantor is an entity of the type specified on Schedule 1 (or Schedule 1
to any Security Agreement Supplement delivered by it pursuant to Section 7.3
(b)) opposite its name and is organized under the laws of the jurisdiction
specified in such Schedule opposite its name, which is Grantor’s location
pursuant to the UCC. Grantor has not conducted business under any legal name
except the name in which it has executed this Agreement, which is the exact
name that appears in Grantor’s Organization Documents.


 


8
















 


(k)           Grantor has good and
marketable title to the Collateral, free and clear of all Liens, except for the
security interest created by this Agreement and any Permitted Liens (except as
to Collateral that constitutes Equity Interest, which may only be subject to
Liens permitted under Section 7.01(a), (c), or (h) of
the Credit Agreement). No effective financing statement or other registration
or instrument similar in effect covering any Collateral is on file in any
recording office except any that have been filed in favor of the Secured Party
relating to this Agreement or to perfect or protect any Permitted Lien.


 


(l)            Except as expressly
contemplated in the Loan Documents, no consent, approval, authorization or
order of, and no notice to or filing with, any Governmental Authority or any
other Person is required in connection with the grant by Grantor of the
security interest hereunder, or the exercise by the Secured Party of its rights
and remedies hereunder, except for such approvals, consents, exemptions, authorizations
or other actions, notices or filings (i) as have been obtained, (ii) as
may be required under state securities or Blue Sky laws, (iii) as are
necessary to perfect or maintain the perfection or priority of the Liens
created by this Agreement, and (iv) as are required under applicable Law
prior to exercising remedies in respect of the Collateral.


 


(m)          Grantor, if other than the
Borrower, has, independently and without reliance upon any Beneficiary and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and each other
Loan Document to which it is or is to be a party, and Grantor, if other than
the Borrower, has established adequate means of obtaining from each other Loan
Party on a continuing basis information pertaining to, and is now and on a
continuing basis will be familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of each other
Loan Party.


 


(n)           After giving effect to all
rights of subrogation and contribution of Grantor, the direct or indirect value
of the consideration received and to be received by Grantor in connection
herewith is reasonably worth at least as much as the liability of Grantor hereunder
and under each other Loan Document to which Grantor is a party, and the
incurrence of such liability in return for such consideration may reasonably be
expected to benefit Grantor, directly or indirectly. Grantor is, individually
and together with its Subsidiaries on a consolidated basis, Solvent.


 


(o)           Grantor has delivered an
Intellectual Property Security Agreement in respect of all Intellectual
Property Collateral that is material to Grantor’s business, and all such
material Intellectual Property Collateral is listed on Schedule 1 to such
Intellectual Property Security Agreement. All such Intellectual Property
Collateral is valid and enforceable and is not subject to any claim, judgment
or administrative or arbitral decision that questions its validity or
enforceability, Grantor’s purported rights thereunder or Grantor’s right to use
the same in its business.


 


(p)           Except as disclosed on
Schedule 3, no Equipment or Inventory with an initial cost book value of
$15,000,000 or more has become so related to particular real property that an
interest arises in them under real property law.


 


9

















 


(q)           The taking and maintaining
possession by Secured Party of all money constituting Collateral from time to
time will perfect Secured Party’s security interest hereunder in such
Collateral. Secured Party’s control of all Investment Property, Deposit
Accounts, and Letter of Credit Rights constituting Collateral from time to time
will perfect Secured Party’s security interest hereunder in such Collateral.
The filing of a financing statement with the secretary of state (or equivalent
governmental official) of the state in which Grantor is organized that
sufficiently indicates all other Collateral will perfect, and establish the
first priority (subject only to Permitted Liens) of, Secured Party’s security
interest hereunder in that portion of such Collateral in which a security
interest may be perfected by filing a financing statement with the secretary of
state of the state in which Grantor is organized. The filing of the
Intellectual Property Security Agreement with the United States Patent and
Trademark Office and the United States Copyright Office (together with the
filing of the financing statements referred to above) will perfect, and
establish the first priority (subject only to Permitted Liens) of, Secured
Party’s security interest in all domestic Intellectual Property Collateral.


 


ARTICLE IV


 


Covenants


 


Section 4.1.            General Covenants Applicable
to Collateral. Grantor will at all times perform and observe the
covenants contained in the Credit Agreement that are applicable to Grantor
(whether made by the Borrower or otherwise) for so long as any Secured
Obligation is outstanding. In addition, Grantor will, so long as this Agreement
shall be in effect, perform and observe the following:


 


(a)           Without limitation of any
other covenant herein, Grantor shall not cause or permit any change in its
name, identity or organizational structure, or any change to its jurisdiction
of organization, unless Grantor shall have first:


 


(i)            notified the
Secured Party of such change at least 10 Business Days prior to the effective
date of such change (or such shorter notice as the Secured Party may approve),


 


(ii)           taken all
action requested by the Secured Party (under the following subsection (b) or
otherwise) for the purpose of further confirming and protecting the Secured
Party’s security interest and rights under this Agreement and the perfection
and priority thereof, and


 


(iii)          if requested by
the Secured Party, provided to the Secured Party a legal opinion to the Secured
Party’s satisfaction related to the perfection or continued perfection of the
Secured Party’s security interest and rights under this Agreement to the extent
required herein or in the other Loan Documents.


 


In any notice delivered
pursuant to this subsection, Grantor will expressly state that the notice is
required by this Agreement and contains facts that may require additional
filings of financing 


 


10

















 


statements or other notices
for the purposes of continuing perfection of the Secured Party’s security
interest in the Collateral.


 


(b)           Grantor will, at its expense
and as from time to time requested by the Secured Party, promptly execute and
deliver all further instruments, agreements, filings and registrations, and
take all further action, in order:


 


(i)            to correct any
error or omission in the description herein of the Secured Obligations or the
Collateral or in any other provision hereof;


 


(ii)           to perfect,
register and protect the security interest and rights created or purported to
be created hereby or to maintain or upgrade (subject to Permitted Liens) in
rank the priority of such security interests and rights;


 


(iii)          to enable the
Secured Party to exercise and enforce its rights and remedies hereunder; or


 


(iv)          otherwise to
give the Secured Party the full benefits of the rights and remedies described
in or granted under this Agreement.


 


As part of the foregoing,
Grantor will, whenever requested by the Secured Party execute and file any
financing statement, continuation statement or other filing or registration
relating to the Secured Party’s security interest and rights hereunder, and any
amendment thereto.


 


(c)           Upon the request from time
to time by the Secured Party during the continuance of any Default or Event of
Default, Grantor will furnish to the Secured Party statements and schedules
identifying and describing the Collateral and other reports and information
requested in connection with the Collateral, all in reasonable detail.


 


(d)           Grantor will:


 


(i)            Maintain good
and marketable title to all Collateral, free and clear of all Liens except for
the security interest created by this Agreement and the Permitted Liens, and not
grant or allow any such Lien to exist.


 


(ii)           Not allow to
remain in effect, and cause to be terminated, any financing statement or other
registration or instrument similar in effect covering any Collateral, except
any that has been filed in favor of the Secured Party relating to this
Agreement or those filed to perfect or protect Permitted Liens.


 


(iii)          Defend the
Secured Party’s security interest in the Collateral against the claims of any
Person (other than claims relating to the priority in rank of Permitted Liens
described in subsections (d), (e), (f), (i), (j), (k), (l), (m), (n),
and (o) of Section 7.01 of the Credit Agreement).


 


(e)           Grantor shall not take any
action that would, or fail to take any action if such failure would, impair the
enforceability, perfection or priority (subject to Permitted Liens) of the
Secured Party’s security interest in any Collateral.


 


11

















 


Section 4.2.            Covenants for Specified
Types of Collateral. For so long as any Secured Obligation is
outstanding:


 


(a)           Grantor will, promptly upon
request by the Secured Party, mark Chattel Paper included in the Collateral and
that have an individual or aggregate value of $1,000,000 or more with a legend
indicating that such item is subject to the security interest granted by this
Agreement.


 


(b)           Grantor will, upon request
by the Secured Party promptly deliver to the Secured Party all Documents and
Instruments included in the Collateral, in each case, that have an individual
or aggregate value of $1,000,000 or more. All such Documents and Instruments
shall be held by or on behalf of the Secured Party pursuant hereto and shall be
delivered in suitable form for transfer by delivery with any necessary
endorsement or shall be accompanied by fully executed instruments of transfer
or assignment in blank, all in form and substance reasonably satisfactory to
the Secured Party.


 


(c)           Grantor will:


 


(i)            Maintain,
preserve and protect all of its material properties and Equipment necessary in
the operation of its business in good working order and condition, ordinary
wear and tear excepted.


 


(ii)           Make all
necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.


 


(iii)          Not allow any
Inventory to be evidenced by a Document.


 


(iv)          Promptly
furnish to the Secured Party a statement describing any material loss or damage
to any Equipment or Inventory with an initial cost book value in excess of
$5,000,000.


 


(v)           Mark all
Equipment and Inventory that is leased to other Persons to clearly identify its
serial number and note such serial number in its books and records relating to
such Equipment and Inventory as being owned by Grantor.


 


(d)           If at any time there exists
Collateral in which a security interest may be perfected by a notation on the
certificate of title or similar evidence of ownership of such Collateral,
Grantor will, promptly upon request by the Secured Party during the continuance
of any Event of Default, deliver to the Secured Party all certificates of title
and similar evidences of ownership, all applications therefor, and all other
documents that are necessary in order to register the Secured Party’s security
interest in such Collateral on such certificate of title or other evidence of
ownership or in otherwise perfecting the Secured Party’s security interest in
such Collateral.


 


(e)           For each Pledged Deposit
Account that Grantor at any time maintains, Grantor will, pursuant to an
agreement in form and substance satisfactory to the Secured Party, at the
Secured Party’s option, cause the depository bank that maintains such Deposit
Account to enter into a deposit account control agreement to provide the
Secured Party with “control” of such


 


12

















 


Pledged Deposit Account
within the meaning of Section 9-104 of the UCC, or take such other action
as the Secured Party may approve in order to perfect the Secured Party’s
security interest in such Pledged Deposit Account. This subsection shall not
apply to (i) any Field Deposit Account, (ii) any Pledged Deposit
Account for which the Secured Party is the depository bank, or (iii) any
Deposit Accounts used solely for payroll payments and processing purposes.


 


(f)            (i)            If Grantor shall at any time
hold or acquire any certificated Security that constitutes Collateral, Grantor
will forthwith endorse, assign, and deliver the same to the Secured Party,
accompanied by such instruments of transfer or assignment duly executed in blank.


 


(ii)           If any Security
now or hereafter acquired by Grantor that constitutes Collateral is an
Uncertificated Security and is issued to Grantor or its nominee directly by the
issuer thereof, Grantor will promptly notify the Secured Party of such issuance
and, pursuant to an agreement in form and substance satisfactory to the Secured
Party, cause the issuer thereof to agree to comply with instructions from the
Secured Party as to such Security, without further consent of Grantor or such
nominee, or take such other action as the Secured Party may approve in order to
perfect the Secured Party’s security interest in such Security.


 


(iii)          If any
Security, whether certificated or uncertificated, or other Investment Property
or other asset now or hereafter acquired by Grantor that constitutes
Collateral, is held by Grantor or its nominee through a securities intermediary
or commodity intermediary, Grantor will immediately notify the Secured Party
thereof, and, at the Secured Party’s request and option, pursuant to an
agreement in form and substance satisfactory to the Secured Party, cause
Secured Party to obtain “control” (as such term is defined in the UCC) over
such Collateral. The provisions of the immediately preceding sentence shall not
apply to any financial asset credited to a Securities Account for which the
Secured Party is the securities intermediary or commodity intermediary.


 


(iv)          Grantor shall
not permit any Pledged Equity that is an Equity Interest in a limited liability
company or a limited partnership and that is a General Intangible to become
Investment Property unless it shall have given the Secured Party at least 10
Business Days’ prior notice (or such shorter notice as the Secured Party may
approve) and shall have taken such steps as the Secured Party shall request in
connection with the perfection or priority of the Secured Party’s security
interest therein as provided in subsections (i) and (ii) above.


 


(v)           Grantor shall
not:


 


(A)          adjust, settle,
compromise, amend or modify any right in respect of any Pledged Equity in a
manner that could adversely affect the security interest of the Secured Party;


 


(B)           permit the
creation of any additional Equity Interest in any issuer of Pledged Equity,
unless promptly upon creation the same is pledged to the Secured Party pursuant
hereto to the extent necessary to give the Secured Party a first-priority
security interest (subject to Liens permitted under Section 7.01(a),


 


13

















 


(c), or (h) of
the Credit Agreement) in such Pledged Equity after such creation that is in the
aggregate at least the same percentage of such Pledged Equity as was subject
hereto before such issue, whether such additional interest is presently vested
or will vest upon the payment of money or the occurrence or nonoccurrence of
any other condition; or


 


(C)           enter into any
agreement, other than the Loan Documents, creating, or otherwise permit to
exist, any restriction or condition upon the transfer or exercise of any rights
in respect of any Pledged Equity, including any restriction or condition upon
the transfer, voting or control of any Pledged Equity except for any such
restrictions in Organization Documents.


 


(g)           If Grantor at any time has
an interest in any electronic chattel paper or any “transferable record”, as
that term is defined in Section 201 of ESGNCA, on in Section 16 of
UETA with an individual or aggregate value of $1,000,000 or more, Grantor shall
promptly notify the Secured Party thereof and, at the request and option of the
Secured Party, take such action as the Secured Party shall reasonably request
to vest in the Secured Party control under UCC Section 9-105 of such
electronic chattel paper or control under Section 201 of ESGNCA or Section 16
of UETA, as applicable, of such transferable record.


 


(h)           If Grantor is at any time a
beneficiary under letters of credit now or hereafter issued in favor of Grantor
with an individual or aggregate value of $1,000,000 or more, Grantor shall
promptly notify the Secured Party thereof and, at the request and option of the
Secured Party, pursuant to an agreement in form and substance satisfactory to
the Secured Party, either:


 


(i)            use
commercially reasonable efforts to cause the issuer and any confirmer of such
letter of credit to consent to an assignment to the Secured Party of the
proceeds of any drawing under such letter of credit, or


 


(ii)           use
commercially reasonable efforts to cause the Secured Party to become the
transferee beneficiary of such letter of credit.


 


(i)            If Grantor shall at any time
after the date hereof have a Commercial Tort Claim, Grantor shall promptly
notify the Secured Party in writing of the details thereof and execute and
deliver to the Secured Party a supplement to Schedule 2 listing such Commercial
Tort Claim, which supplement shall take effect without further action on the
part of any party hereto or beneficiary hereof and shall make such Commercial
Tort Claim collateral security subject to this Agreement.


 


(j)            Grantor will:


 


(i)            Continue to maintain and protect the validity and
enforceability of all Intellectual Property Collateral that is material to
Grantor’s business.


 


(ii)           Defend and protect the Intellectual Property
Collateral that is material to Grantor’s business and its rights thereunder
against any infringement, dilution, or misappropriation and will defend any
claim or administrative or arbitral challenge that questions the validity or
enforceability of Intellectual Property Collateral that is material 


 


14

















 


to Grantor’s business, Grantor’s purported rights therein and
thereunder or Grantor’s rights to register or patent the same or to use and
practice the same in its business.


 


(iii)          Give the Secured Party notice of any proceeding in
which such defense or protection is being carried on.


 


(iv)          Diligently prosecute and maintain all applications
and registrations for any Intellectual Property Collateral that is material to
Grantor’s business, and notify the Secured Party whenever it learns that any
application or registration relating to any such Intellectual Property
Collateral has been (or is alleged to have been) abandoned or otherwise
terminated other than in the ordinary course of business in Grantor’s
reasonable business judgment.


 


ARTICLE V


 


Voting and Distribution Rights in Respect Of Pledged Equity


 


Section 5.1.            Voting Rights. Grantor shall
be entitled to exercise all voting and other consensual rights pertaining to
the Pledged Equity or any part thereof for any purpose; provided that
Grantor shall not exercise or refrain from exercising any such right if such
action would have a material adverse effect on the value of any Pledged Equity
or on the Secured Party’s security interest or the value thereof.


 


Section 5.2.            Dividend Rights While No
Event of Default Exists. Grantor shall be entitled to receive and
retain all dividends, interest and other distributions paid in respect of the
Pledged Equity if and to the extent that the payment thereof is not otherwise
prohibited by the Loan Documents; provided that:


 


(a)           all dividends, interest and
other distributions paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise distributed in
respect of, or in exchange for, any Pledged Equity;


 


(b)           all dividends and other
distributions paid or payable in cash in respect of any Pledged Equity in
connection with a partial or total liquidation or dissolution or in connection
with a reduction of capital, capital surplus or paid in surplus; and


 


(c)           all cash paid, payable or
otherwise distributed in respect of principal of, or in redemption of, or in
exchange for, any Pledged Equity,


 


shall be, and shall be
forthwith delivered to the Secured Party to hold as, Collateral and shall, if
received by Grantor, be received in trust for the benefit of the Secured Party,
be segregated from the other property or funds of Grantor and be forthwith
delivered by Grantor to the Secured Party as Pledged Equity in the same form as
so received (with any necessary indorsement).


 


Section 5.3.            Actions by Secured Party. The Secured
Party will execute and deliver (or cause to be executed and delivered) to
Grantor all such instruments as Grantor may reasonably request for the purpose
of enabling Grantor to receive the benefits of Section 5.1 and to receive


 


15

















 


the dividends or interest
payments that it is authorized to receive and retain pursuant to Section 5.2.


 


Section 5.4.            Rights While an
Event of Default Exists.  Upon
the occurrence and during the continuance of an Event of Default:


 


(a)           All rights of Grantor to
receive the dividends, interest and other distributions that it would otherwise
be authorized to receive and retain pursuant to Section 5.2 shall
automatically cease, and all such rights shall thereupon become vested in the
Secured Party, which shall thereupon have the sole right to receive and hold as
Pledged Equity such dividends, interest and other distributions.


 


(b)           All dividends, interest and
other distributions that are received by Grantor contrary to subsection (a) above
shall be received in trust for the benefit of the Secured Party, shall be
segregated from other funds of Grantor and shall be forthwith paid over to the
Secured Party as Pledged Equity in the same form as so received (with any
necessary indorsement).


 


ARTICLE VI


 


Remedies, Powers and Authorizations


 


Section 6.1.            Normal Provisions Concerning
the Collateral.


 


(a)           Grantor irrevocably
authorizes the Secured Party at any time and from time to time to file, without
the signature of Grantor, in any jurisdiction any amendments to existing
financing statements and any initial financing statements and amendments
thereto that:


 


(i)            indicate the Collateral as being:


 


(A)          “all assets of
Grantor and all proceeds thereof, and all rights and privileges with respect
thereto” or words of similar effect, regardless of whether any particular asset
comprised in the Collateral falls within the scope of Article 9 of the UCC
or the granting clause of this Agreement, or


 


(B)           of an equal or lesser scope
or with greater detail;


 


(ii)           contain any
other information required for the sufficiency or filing office acceptance of
any financing statement or amendment, including whether Grantor is an
organization, the type of organization and any organization identification
number issued to Grantor; and


 


(iii)          properly
effectuate the transactions described in the Loan Documents, as determined by
the Secured Party in its discretion.


 


Grantor will furnish any
such information to the Secured Party promptly upon request. A carbon,
photographic or other reproduction of this Agreement or any financing statement
describing any Collateral is sufficient as a financing statement and may be
filed in any jurisdiction by the Secured Party so long as such filing is
necessary to perfect Secured Party’s 


 


16

















 


interest in the Collateral.
Grantor ratifies and approves all financing statements heretofore filed by or
on behalf of the Secured Party in any jurisdiction in connection with the
transactions contemplated hereby.


 


(b)           Grantor appoints the Secured
Party as Grantor’s attorney in fact and proxy, with full authority in the place
and stead of Grantor and in the name of Grantor or otherwise, from time to time
in the Secured Party’s discretion during the continuance of an Event of
Default, to take any action and to execute any instrument that the Secured
Party may deem necessary or advisable to accomplish the purposes of this
Agreement including any action or instrument:


 


(i)            to obtain and
adjust any insurance required to be paid to the Secured Party pursuant hereto;


 


(ii)           to ask for,
demand, collect, sue for, recover, compound, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any Collateral;


 


(iii)          to receive,
indorse and collect any drafts or other Instruments or Documents that
constitute Collateral;


 


(iv)          to enforce any
obligations included in the Collateral; and


 


(v)           to file any
claims or take any action or institute any proceedings that the Secured Party
may deem necessary or desirable for the collection of any Collateral or
otherwise to enforce the rights of Grantor or the Secured Party with respect to
any Collateral.


 


Such power of attorney and
proxy are coupled with an interest, are irrevocable, and are to be used by the
Secured Party for the sole benefit of the Beneficiaries.


 


(c)           If Grantor fails to perform
any agreement or obligation contained herein, the Secured Party may, but shall
have no obligation to, itself perform, or cause performance of, such agreement
or obligation, and the expenses of the Secured Party incurred in connection
therewith shall be payable by Grantor under Section 6.6.


 


(d)           If any Collateral in which
Grantor has granted a security interest hereunder with a fair market value in
excess of $1,000,000 is at any time located on premises leased by Grantor or in
the possession or control of any warehouseman, bailee, operator of any storage
facility or any of Grantor’s agents, Grantor shall, upon the request of the Secured
Party during the continuance of any Default (other than a Default arising under
Section 6.01 or 6.02 of the Credit Agreement for which the
applicable period of grace to cure such Default has not expired), (i) notify
such warehouseman, bailee, operator or agent of the Secured Party’s rights
hereunder and instruct such Person to hold all such Collateral for the Secured
Party’s account subject to the Secured Party’s instructions, and (ii) cause
such Collateral to become subject to a Collateral Access Agreement. No such
request by the Secured Party shall be deemed a waiver of any provision hereof
that was otherwise violated by such Collateral being held by such Person prior
to such instructions by Grantor.


 


17

















 


(e)           The Secured Party may
arrange, pursuant to procedures satisfactory to the Secured Party, for Grantor
to make alterations to electronic chattel paper and transferable records
permitted under UCC Section 9-105 or Section 201 of ESGNCA or Section 16
of UETA with an individual or aggregate value of $1,000,000 that may be made
without loss of the Secured Party’s control, unless an Event of Default has
occurred and is continuing or would occur after taking into account any action
by a Grantor with respect to such electronic chattel paper or transferable
record.


 


(f)            The Secured Party shall have
the right, at any time in its discretion during the continuance of an Event of
Default and without notice to Grantor, to transfer to or to register in the
name of the Secured Party or any of its nominees any Investment Property that
constitutes Collateral or other Pledged Equity, subject only to the rights
retained pursuant to Section 5.1 and applicable Law.


 


(g)           Anything herein to the
contrary notwithstanding:


 


(i)            Grantor shall remain liable to perform all duties
and obligations under the agreements included in the Collateral to the same
extent as if this Agreement had not been executed.


 


(ii)           The exercise by the Secured Party of any right
hereunder shall not release Grantor from any duty or obligation under any
agreement included in the Collateral.


 


(iii)          No Beneficiary shall have any obligation or
liability under the agreements included in the Collateral by reason of this
Agreement or any other Loan Document, nor shall any Beneficiary be obligated to
perform any duty or obligation of Grantor thereunder or take any action to
collect or enforce any claim for payment assigned hereunder.


 


Section 6.2.            Remedies. If a Default
shall have occurred and be continuing, the Secured Party may from time to time
in its discretion and to the fullest extent permitted by applicable Law,
without limitation and without notice, give an instruction to any depository
bank that maintains a Pledged Deposit Account for Grantor with respect to the
disposition of funds credited thereto or restrict the ability of Grantor to
withdraw funds credited thereto, except as authorized by the Secured Party. If
an Event of Default shall have occurred and be continuing, the Secured Party
may from time to time in its discretion and to the fullest extent permitted by
applicable Law, without limitation and without notice except as expressly
provided below:


 


(a)           Exercise in respect of the
Collateral, in addition to any other right and remedy provided for herein,
under the other Loan Documents, or otherwise available to it, all the rights
and remedies of a secured party on default under the UCC (whether or not the
UCC applies to the affected Collateral) and any other applicable law.


 


(b)           Require Grantor to, and Grantor
will at its expense and upon request of the Secured Party forthwith, assemble
all or part of the Collateral as directed by the Secured Party and make it
(together with all books, records and information of Grantor relating thereto)
available to the Secured Party at a place to be designated by the Secured Party
that is reasonably convenient to both parties.


 


18
















 


(c)           Prior to the
disposition of any Collateral:


 


(i)            to the extent permitted by applicable Law, enter,
with or without process of law and without breach of the peace, any premises
where any Collateral is or may be located, and without charge or liability to
the Secured Party seize and remove such Collateral from such premises;


 


(ii)           have access to and use the Company’s books, records,
and information as it relates to the Collateral; and


 


(iii)          store or transfer any Collateral without charge in
or by means of any storage or transportation facility owned or leased by
Grantor, process, repair or recondition any Collateral or otherwise prepare it
for disposition in any manner and to the extent the Secured Party deems
appropriate and, in connection with such preparation and disposition, use
without charge any copyright, trademark, trade name, patent or technical
process used by Grantor.


 


(d)           Reduce its claim to judgment
or foreclose or otherwise enforce, in whole or in part, the security interest
created hereby by any available judicial procedure.


 


(e)           Dispose of, at its office,
on the premises of Grantor or elsewhere, any Collateral, as a unit or in
parcels, by public or private proceedings, and by way of one or more contracts
(but that the sale of any Collateral shall not exhaust the Secured Party’s
power of sale, and sales may be made from time to time, and at any time, until
all of the Collateral has been sold or until the Secured Obligations have been
paid and performed in full), and at any such sale it shall not be necessary to
exhibit any Collateral.


 


(f)            Buy (or allow any
Beneficiary to buy) Collateral, or any part thereof, at any public sale.


 


(g)           Buy (or allow any
Beneficiary to buy) Collateral, or any part thereof, at any private sale if any
Collateral is of a type customarily sold in a recognized market or is of a type
that is the subject of widely distributed standard price quotations.


 


(h)           Apply by appropriate
judicial proceedings for appointment of a receiver for the Collateral, or any
part thereof, and Grantor consents to any such appointment.


 


(i)            Comply with any applicable
state or federal Law requirement in connection with a disposition of Collateral
and such compliance shall not be considered to affect adversely the commercial
reasonableness of any sale of Collateral.


 


(j)            Sell Collateral without
giving any warranty, with respect to title or any other matter and for cash, on
credit or for non-cash consideration as the Secured Party determines is
appropriate.


 


(k)           Notify (or to require
Grantor to notify) any and all obligors under any Account, Payment Intangible,
Instrument or other right to payment included in the Collateral of the
assignment thereof to the Secured Party under this Agreement and to direct such
obligors to


 


19

















 


make payment of all amounts
due or to become due to Grantor thereunder directly to the Secured Party and,
upon such notification and at the expense of Grantor and to the extent
permitted by law, to enforce collection of any such Account, Payment
Intangible, Instrument or other right to payment and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as Grantor could have done. After Grantor receives notice from the
Secured Party that the Secured Party has given (or after the Secured Party has
required Grantor to give) any notice referred to above in this subsection:


 


(i)            all amounts and proceeds (including instruments and
writings) received by Grantor in respect of any Account, Payment Intangible,
Instrument or other right to payment included in the Collateral shall be
received in trust for the benefit of the Secured Party hereunder, shall be
segregated from other funds of Grantor and shall be forthwith paid over to the
Secured Party in the same form as so received (with any necessary indorsement)
to be, at the Secured Party’s discretion, either:


 


(A)          held as cash
collateral and released to Grantor upon the remedy of all Defaults and Events
of Default, or


 


(B)           while an Event
of Default is continuing, applied as specified in Section 6.3, and 


 


(ii)           Grantor shall
not adjust, settle or compromise the amount or payment of any Account, Payment
Intangible, Instrument, or other right to payment included in the Collateral or
release wholly or partly any account debtor or obligor thereon or allow any
credit or discount thereon.


 


(l)            Give any entitlement order,
instruction or direction in respect of any Investment Property or Pledged
Deposit Account to any issuer, bank, securities intermediary, or commodity
intermediary, and to withhold its consent to the exercise of any withdrawal
rights or dealing rights by Grantor.


 


(m)          Give an instruction to any
depository bank that maintains a Pledged Deposit Account for Grantor with
respect to the disposition of funds credited thereto or restrict the ability of
Grantor to withdraw funds credited thereto, except as authorized by the Secured
Party.


 


(n)           Do any of the following:


 


(i)            License, or
sublicense, whether by a general or special license or otherwise, and whether
on an exclusive or non-exclusive basis, any Intellectual Property Collateral
throughout the world for such term or terms, on such conditions and in such
manner as the Secured Party shall in its sole discretion determine.


 


(ii)           Without assuming
any obligation or liability thereunder, at any time and from time to time, in
its sole discretion, enforce (and shall have the exclusive right to enforce)
against any licensee or sublicense all rights and remedies of Grantor in, to
and under any Intellectual Property License and take or refrain from taking any
action under any thereof, and GRANTOR RELEASES THE BENEFICIARIES FROM, AND WILL
HOLD THE BENEFICIARIES FREE AND HARMLESS FROM AND AGAINST,


 


20

















 


ANY
CLAIM OR EXPENSE ARISING OUT OF ANY LAWFUL ACTION SO TAKEN OR OMITTED TO BE
TAKEN WITH RESPECT THERETO.


 


(iii)          Direct Grantor
to, and upon receiving such direction Grantor will, execute and deliver to the
Secured Party a power of attorney, in form and substance satisfactory to the
Secured Party, for the implementation of any lease, assignment, license,
sublicense, grant of option, sale or other disposition of any Intellectual
Property Collateral or any action related thereto.


 


(iv)          Following any
disposition of Intellectual Property Collateral pursuant to this subsection,
direct Grantor to, and upon receiving such direction Grantor will, supply its
know-how and expertise relating to the manufacture and sale of the products
relating thereto or the products or services made or rendered in connection
therewith, and its customer lists and other records relating thereto and to the
distribution of said products, to the Secured Party.


 


To the extent notice of sale
shall be required by law with respect to Collateral, at least 10-days’ notice
to Grantor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification; provided
that, if the Secured Party fails in any respect to give such notice, its liability
for such failure shall be limited to the liability (if any) imposed on it by
law under the UCC. The Secured Party shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Secured Party
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.


 


Section 6.3.            Application of Proceeds. If an Event
of Default shall have occurred and be continuing, any cash held by or on behalf
of the Secured Party and all cash proceeds received by or on behalf of the
Secured Party in respect of any sale of, collection from, or other realization
upon any Collateral may, in the discretion of the Secured Party, be held by the
Secured Party as collateral for, and/or then or at any time thereafter applied
in whole or in part by the Secured Party for the benefit of the Beneficiaries
against, any Secured Obligation, in the following manner:


 


(a)           First, paid to the
Secured Party for any amounts then owing to the Secured Party pursuant to the
Credit Agreement or otherwise under the Loan Documents or that has otherwise
been incurred by the Secured Party in connection with the payment or other
satisfaction of any Lien, encumbrance or adverse claim upon or against any
Collateral or any other action that the Secured Party determines is reasonably
appropriate in connection with the preservation or maintenance of the
Collateral.


 


(b)           Second, paid to the
Beneficiaries in payment of the Secured Obligations, ratably in accordance with
the respective amounts thereof then owing to the Beneficiaries or as otherwise
provided in Section 8.03 of the Credit Agreement.


 


(c)           Third, any surplus
of such cash or cash proceeds held by or on the behalf of the Secured Party and
remaining after payment in full of all the Secured Obligations shall be paid


 


21

















 


over to the applicable
Grantor or to whatever Person may be lawfully entitled to receive such surplus.


 


Section 6.4.            Deficiency. If the
proceeds of any sale, collection or realization of or upon the Collateral of
the Grantors by the Secured Party are insufficient to pay all Secured
Obligations and all other amounts to which the Secured Party is entitled,
Grantor shall be liable for the deficiency, together with interest thereon as
provided in the Loan Documents or (if no interest is so provided) at such other
rate as shall be fixed by applicable law, together with the costs of collection
and the reasonable fees of any attorneys employed by the Secured Party and/or
the other Beneficiaries to collect such deficiency. Collateral may be sold at a
loss to Grantor, and the Secured Party shall have no liability or responsibility
to Grantor for such loss. Grantor acknowledges that a private sale may result
in less proceeds than a public sale.


 


Section 6.5.            Private Sales of Investment
Property and Other Pledged Equity. The Beneficiaries may deem
it impracticable to effect a public sale of any Investment Property or other
Pledged Equity and may determine to make one or more private sales of such
Investment Property or other Pledged Equity to a restricted group of purchasers
that will be obligated to agree, among other things, to acquire the same for
their own account, for investment and not with a view to the distribution or
resale thereof. Any such private sale may be at a price and on other terms less
favorable to the seller than the price and other terms that might have been
obtained at a public sale. Neither the Secured Party nor any other Beneficiary
shall have any obligation to delay sale of any such Investment Property or
other Pledged Equity for the period of time necessary to permit their
registration for public sale under the Securities Act. Any offer to sell any
such Collateral that has been:


 


(i)            publicly
advertised on a bona-fide basis
in a newspaper or other publication of general circulation in the financial
community of New York, New York (to the extent that such an offer may be so
advertised without prior registration under the Securities Act), or


 


(ii)           made privately
in the manner described above to not less than 15 bonafide offerees, 


 


shall be deemed to involve a
“public disposition” under Section 9-610(c) of the UCC,
notwithstanding that such sale may not constitute a “public offering” under the
Securities Act, and any Beneficiary may bid for such Collateral.


 


Section 6.6.            Indemnity and Expenses. In addition
to, but not in qualification or limitation of, any similar obligations under
other Loan Documents:


 


(a)           Grantors jointly and
severally will indemnify the Secured Party, each other Beneficiary and any
agent appointed pursuant to Section 6.9 from and against all
claims, losses and liabilities growing out of or resulting from this Agreement
(including enforcement of this Agreement), WHETHER
OR NOT SUCH CLAIMS, LOSSES AND LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT
CAUSED BY OR ARISING OUT OF SUCH INDEMNIFIED PARTY’S OWN NEGLIGENCE,
except to the extent such claims, losses or liabilities are proximately caused
by such indemnified party’s individual gross negligence or


 


22

















 


willful misconduct or result
from a claim brought by Grantors against any indemnitee for breach in bad faith
of such indemnitee’s obligations hereunder or under any other Loan Document.


 


(b)           Grantors
jointly and severally will upon demand pay to the Secured Party: 


 


(i)            the amount of all reasonable costs and expenses,
including the reasonable fees and disbursements of the Secured Party’s counsel
and of any experts and agents, that the Secured Party may incur in connection
with the perfection and preservation of this security interest created under
this Agreement;


 


(ii)           the amount of all costs and expenses, including the
fees and disbursements of the Secured Party’s counsel and of any experts and
agents, that the Secured Party may incur in connection with the custody,
preservation, use or operation of, or the sale of, collection from, or other realization
upon, any Collateral; or


 


(iii)          the amount of all costs and expenses, including the
fees and disbursements of the Secured Party’s counsel and of any experts and
agents, that the Secured Party may incur in connection with the exercise or
enforcement of any right of the Secured Party hereunder.


 


Section 6.7.            Non-Judicial Remedies. In granting
to the Secured Party the power to enforce its rights hereunder without prior
judicial process or judicial hearing, to the extent permitted by applicable
Law, Grantor waives, renounces and knowingly relinquishes any legal right that
might otherwise require the Secured Party to enforce its rights by judicial
process and confirms that such remedies are consistent with the usage of trade,
are responsive to commercial necessity and are the result of a bargain at arm’s
length. The Secured Party may, however, in its discretion, resort to judicial
process.


 


Section 6.8.            Limitation on Duty of the
Secured Party in Respect of Collateral. Beyond the exercise of
reasonable care in the custody thereof, the Secured Party shall have no duty as
to any Collateral in its possession or control or in the possession or control
of any agent or bailee or as to the preservation of rights against prior
parties or any other rights pertaining thereto. The Secured Party shall be
deemed to have exercised reasonable care in the custody of Collateral in its
possession if such Collateral is accorded treatment substantially equal to
which that it accords its own property, and the Secured Party shall not be
liable or responsible for any loss or damage to any Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any
warehouseman, carrier, forwarding agency, consignee or other agent or bailee
selected by the Secured Party in good faith.


 


Section 6.9.            Appointment of Other Agents. At any time,
in order to comply with any legal requirement in any jurisdiction, the Secured
Party may appoint any bank or trust company or one or more other Persons,
either to act as co-agent or co-agents, jointly with the Secured Party, or to
act as separate agent or agents on behalf of the Secured Party, with such power
and authority as may be necessary for the effective operation of the provisions
hereof and may be specified in the instrument of appointment.


 


23

















 


ARTICLE VII


 


Miscellaneous


 


Section 7.1.            Notices. Any notice or
communication required or permitted hereunder shall be given in writing or by
electronic transmission, sent in the manner provided in the Credit Agreement,
if to the Secured Party or to a Grantor that is a party to the Credit
Agreement, to the address set forth in the Credit Agreement and, for any other
Grantor, to the address specified opposite its name on Schedule 1, or to such
other address or to the attention of such other individual as hereafter shall
be designated in writing by the applicable party sent in accordance herewith.
Any such notice or communication shall be deemed to have been given as provided
in the Credit Agreement for notices given thereunder.


 


Section 7.2.            Amendments and Waivers. Except as
provided in Section 4.2(i) or 7.3 or in the Credit
Agreement, no amendment of this Agreement shall be effective unless it is in
writing and signed by Grantor and the Secured Party, and no waiver of this
Agreement or consent to any departure by Grantor herefrom shall be effective
unless it is in writing and signed by the Secured Party, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for that given and to the extent specified in such writing. In
addition, all such amendments and waivers shall be effective only if given with
the necessary approvals required in the Credit Agreement. No such amendment
shall bind any Grantor not a party thereto, but no such amendment with respect
to any Grantor shall require the consent of any other Grantor.


 


Section 7.3.            Additional Grantors. Upon the
execution and delivery, or authentication, by any Person of a Security
Agreement Supplement:


 


(a)           such Person
shall become a Grantor hereunder, each reference in this Agreement and the
other Loan Documents to “Grantor” shall also mean and be a reference to such
Person, and each reference in this Agreement and the other Loan Documents to “Collateral”
shall also mean and be a reference to the Collateral of such Person, and


 


(b)           Schedule 2
attached to such security agreement supplement shall be incorporated into and
become a part of and supplement Schedule 2 hereto, and the Secured Party may
attach such supplemental schedule to such Schedule; and each reference to such
Schedule shall mean and be a reference to such Schedule as supplemented
pursuant to such supplement.


 


Section 7.4.            Preservation of Rights. No failure on
the part of the Secured Party or any other Beneficiary to exercise, and no
delay in exercising, any right hereunder or under any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of
any other right. The rights and remedies of the Secured Party provided herein
and in the other Loan Documents are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law or otherwise.


 


Section 7.5.            Severability. Any provision
of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such


 


24

















 


prohibition or invalidity
without invalidating the remaining portions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.


 


Section 7.6.            Survival. Each
representation and warranty, covenant and other obligation of Grantor herein
shall survive the execution and delivery of this Agreement, the execution and
delivery of any other Loan Document and the creation of the Secured
Obligations.


 


Section 7.7.            Binding Effect and
Assignment. This Agreement shall:


 


(a)           be binding on Grantor and
its successors, and


 


(b)           inure, together with all
rights and remedies of the Secured Party hereunder, to the benefit of the
Secured Party and the other Beneficiaries and their respective successors,
transferees and assigns.


 


Without limiting the generality
of the foregoing, the Secured Party and any other Beneficiary may (except as
otherwise provided in any Loan Document) pledge, assign or otherwise transfer
any right under this Agreement to any other Person, and such other Person shall
thereupon become vested with all benefits in respect thereof granted herein or
otherwise. No right or duty of Grantor hereunder may be assigned or otherwise
transferred without the prior written consent of the Secured Party.


 


Section 7.8.            Release of Collateral;
Termination.


 


(a)           Upon any sale, lease,
transfer or other disposition of any Collateral of Grantor in accordance with
the Loan Documents (other than sales of Inventory in the ordinary course of
business) or if approved, authorized or ratified in writing in accordance with Section 10.01
of the Credit Agreement, the Secured Party will, at Grantor’s expense, execute
and deliver to Grantor such documents as Grantor shall reasonably request to
evidence the release of such Collateral from the assignment and security interest
granted hereby; provided that:


 


(i)            at the time of
such request and such release no Event of Default shall have occurred and be
continuing;


 


(ii)           Grantor shall
have delivered to the Secured Party, at least 10 Business Days prior to the
date of the proposed release (or by such lesser notice as the Secured Party may
approve), a written request for release describing the item of Collateral,
together with a form of release for execution by the Secured Party and a
certificate of Grantor to the effect that the transaction is in compliance with
the Loan Documents and such other matters as the Secured Party may reasonably
request; and


 


(iii)          if any Loan
Document provides for any mandatory application of the proceeds of any such
sale, lease, transfer or other disposition, or any mandatory payment to be
made, in connection therewith, such proceeds shall have been applied or payment
made as provided therein.


 


(b)           Upon, and only upon the
payment in full in cash of the Secured Obligations (other than (i) contingent
indemnification obligations for which no claim shall have been made, (ii)


 


25

















 


Secured Cash Management
Obligations as to which arrangements satisfactory to the applicable Cash
Management Bank shall have been made, (iii) Secured Hedge Obligations as
to which arrangements satisfactory to the applicable Hedge Bank shall have been
made, and (iv) outstanding Letters of Credit as to which other
arrangements satisfactory to the Administrative Agent and the applicable L/C
Issuer shall have been made) and the termination or expiration of all
Commitments of the Lenders under the Credit Agreement and of the Credit
Agreement in accordance with the terms thereof, this Agreement and the security
interest created hereby shall terminate, all rights in the Collateral shall
revert to Grantors and the Secured Party, at a Grantor’s request and at its
expense, will:


 


(i)            return to Grantor such of
Grantor’s Collateral in the Secured Party’s possession as shall not have been
sold or otherwise disposed of or applied pursuant to the terms hereof, and


 


(ii)           execute and deliver to
Grantor such documents as Grantor shall reasonably request to evidence such
termination.


 


No Grantor is authorized to
file any financing statement or amendment or termination statement with respect
to any financing statement originally filed in connection with this Agreement
without the prior written consent of the Secured Party, subject to Grantors’
rights under Sections 9-509(d)(2) and 9-518 of the UCC. Notwithstanding
the foregoing, Sections 6.6, 7.9, and 7.10 shall survive
the termination of this Agreement.


 


Section 7.9.            Limitation on Interest. Section 10.09
of the Credit Agreement, which limits the interest for which Grantor is
obligated, is incorporated herein by reference.


 


Section 7.10.          Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.


 


Section 7.11.          Final Agreement. This
Agreement and the other Loan Documents represent the final agreement between
the parties hereto and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties hereto. There are
no unwritten oral agreements between the parties hereto.


 


Section 7.12.          Counterparts; Facsimile. This
Agreement may be separately executed in any number of counterparts, all of that
when so executed shall be deemed to constitute one and the same Agreement. This
Agreement may be validly delivered by facsimile or other electronic
transmission of an executed counterpart of the signature page hereof.


 


Section 7.13.          Acceptance by the Secured
Party. By their acceptance of the benefits hereof, the Secured Party and the
Beneficiaries shall be deemed to have agreed to be bound hereby and to perform
any obligation on their part set forth herein.


 


[The remainder of this page is intentionally
left blank. ]


 


26

















 


IN
WITNESS WHEREOF, Grantor has executed and delivered this Agreement as of the
date first-above written.


 


	
  FERRELLGAS, L. P.

  	
   

  	
  FERRELLGAS, INC.

  
	
   

  	
   

  	
   

  
	
  By: Ferrellgas, Inc.,
  as its general partner

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  James R. VanWinkle

  
	
  By:

  	
   

  	
   

  	
   

  	
  Senior Vice President 

  
	
   

  	
  James R. VanWinkle

  	
   

  	
   

  	
  and Chief Financial
  Officer

  
	
   

  	
  Senior Vice President 

  	
   

  	
   

  
	
   

  	
  and Chief Financial Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BLUE RHINO GLOBAL
  SOURCING, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  James R. VanWinkle

  	
   

  	
   

  
	
   

  	
  Chief Financial Officer
  and Vice President 

  of Corporate Development

  	
   

  	
   

  



 
















 


SCHEDULE
1


to


SECURITY AGREEMENT


 


Address for Notices and
Jurisdiction of Organization


 


	
   

  	
   

  	
  Type of

  	
   

  	
  Jurisdiction of

  	
   

  	
   

  
	
  Name of Grantor

  	
   

  	
  Organization

  	
   

  	
  Organization

  	
   

  	
  Address for Notices

  
	
  Ferrellgas, L. P.

  	
   

  	
  Limited Partnership

  	
   

  	
  Delaware

  	
   

  	
  7500 College Boulevard, Suite
  1000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Overland Park, KS 66210

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ferrellgas, Inc.

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  7500 College Boulevard, Suite
  1000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Overland Park, KS 66210

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Blue Rhino Global Sourcing, Inc.

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  7500 College Boulevard, Suite
  1000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Overland Park, KS 66210

  



 

















 


SCHEDULE 2 


to 


SECURITY AGREEMENT


 


Scheduled Collateral


 


PLEDGED DEPOSIT ACCOUNTS


 


JP Morgan (Ferrellgas, L.
P.):


FNA
Operating Account #(**) 


FNA
ACH Account #(**)


FNA
Lockbox Account #(**) Lockbox #(**)


 


Bank of America (Blue Rhino
Global Sourcing, Inc.): 


Blue
Rhino Operating Account #(**) 


Blue
Rhino Master COD Account #(**)


 


EQUITY AND RELATED MATTERS


 


	
   

  	
   

  	
  Outstanding

  	
   

  	
   

  	
   

  
	
  Subsidiary

  	
   

  	
  Equity Interests

  	
   

  	
  Equity Ownership

  	
   

  
	
  Blue Rhino Global Sourcing, Inc., a Delaware corporation

  	
   

  	
  100 Shares

  	
   

  	
  100

  	
  %

  



 


LETTER OF CREDIT RIGHTS


 


None.


 


SECURITIES ACCOUNTS


 


None.


 


COMMERCIAL TORT CLAIMS


 


None.


(**) Confidential treatment
requested


 

















 


SCHEDULE 3


to


SECURITY AGREEMENT


 


Information Schedule


 


None.


 

















 


EXHIBIT A


to


SECURITY AGREEMENT


 


FORM OF GRANTOR ACCESSION AGREEMENT


 


              
    , 20


 


	
  Bank of America, N. A.,

  	
   

  
	
  as the Secured Party for the Beneficiaries referred to in the
  Security Agreement referred to below

  	
   

  
	
  Bank of America, N.A.

  	
   

  
	
  700 Louisiana Street

  	
   

  
	
  Houston, Texas 77002

  	
   

  



 


Ladies and Gentlemen:


 


The undersigned refers to:


 


(i)            the Credit
Agreement dated as of November 2, 2009 (as from time to time amended,
supplemented and restated, the “Credit Agreement”) among Ferrellgas, L.P.,
a Delaware limited partnership, the Lenders party thereto, and you, as
administrative agent, and


 


(ii)           the Security
Agreement dated of even date with the Credit Agreement (as from time to time
amended, supplemented and restated, the “Security Agreement”) made by
the Grantors from time to time party thereto in your favor for the benefit of
the Beneficiaries.


 


Terms defined in the Credit
Agreement or the Security Agreement and not otherwise defined herein are used
herein as defined in the Credit Agreement or the Security Agreement.


 


SECTION 1.           Grant of Security. The
undersigned grants to you, for the benefit of the Beneficiaries, a security
interest in all of its right, title and interest in and to all of the
Collateral of the undersigned, whether now owned or hereafter acquired by the
undersigned, wherever located and whether now or hereafter existing or arising,
including the property of the undersigned set forth on the attached
supplemental schedules to the Schedules to the Security Agreement.


 


SECTION 2.           Security for Obligations. The grant of
a security interest in, the Collateral by the undersigned under this Agreement
and the Security Agreement secures the payment of the Secured Obligations.
Without limiting the generality of the foregoing, this Security Agreement
Supplement and the Security Agreement secures the payment of all amounts that
constitute part of the Secured Obligations and that would be owed by any Loan
Party to any Beneficiary under the Loan Documents but for the fact that such
Secured Obligations are unenforceable or not allowable due to the existence of
a bankruptcy, reorganization or similar proceeding involving a Loan Party.


 

















 


SECTION 3.           Information Relating to the
Undersigned. The undersigned is an entity of the type specified
on Schedule 1 and is organized under the laws of the jurisdiction specified on
Schedule 1 and its address for notices is specified on Schedule 1.


 


SECTION 4.           Supplement to Security
Agreement Schedule 2. The undersigned has attached hereto a supplemental
Schedule 2 to Schedule 2 to the Security Agreement, and the undersigned
certifies, as of the date first-above written, that such supplemental schedule
has been prepared by the undersigned in substantially the form of Schedule to
the Security Agreement and is true and complete.


 


SECTION 5.           Representations, Warranties,
Agreements and Waivers. The undersigned as of the date hereof makes
each representation, warranty agreement (including indemnification agreements)
waiver and acknowledgment set forth in the Security Agreement (as supplemented
by the attached supplemental schedules).


 


SECTION 6.           Obligations Under the
Security Agreement. As of the date first-above written, the
undersigned joins the Security Agreement as a party thereto and as a Grantor
thereunder and agrees to be bound by all of the terms and provisions of the
Security Agreement. As of the date first-above written, each reference in the
Security Agreement to a “Grantor” shall also mean and be a reference to the
undersigned.


 


SECTION 7.           Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the jurisdiction whose laws the Security Agreement provides will govern such
agreement.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [GRANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  ACCEPTED AND AGREED AS OF
  THE DATE 

  FIRST-ABOVE STATED.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANK OF AMERICA, N. A., as

  	
   

  	
   

  
	
  Secured Party

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


2

















 


SCHEDULE 1 


to


SECURITY AGREEMENT SUPPLEMENT


 


Address for Notices and Jurisdiction of Organization


 


	
   

  	
   

  	
   

  	
   

  	
  Jurisdiction of

  	
   

  	
   

  
	
  Name of Grantor

  	
   

  	
  Type of Organization

  	
   

  	
  Organization

  	
   

  	
  Address for Notices

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE 2 


to


SECURITY AGREEMENT SUPPLEMENT


 


Scheduled Collateral


 


DEPOSIT ACCOUNTS


 


[List]


 


EQUITY AND RELATED MATTERS


 


[Include descriptions of equity,
percentage ownership.]


 


LETTER OF CREDIT RIGHTS


 


[List]


 


SECURITIES ACCOUNTS


 


[List]


 


COMMERCIAL TORT CLAIMS


 


[List]


 

















 


EXHIBIT B


to


SECURITY AGREEMENT


 


FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT


 


THIS
INTELLECTUAL PROPERTY SECURITY AGREEMENT is made as of
                    ,
20     , by the Person listed on the signature page hereof
(“Grantor”), in favor of Bank of America, N.A., as administrative agent
under the Credit Agreement (the “Secured Party”) for the benefit of the
Beneficiaries.


 


RECITALS


 


A.            Grantor owns
certain intellectual property.


 


B.            Grantor and the
Secured Party, together with the lenders party thereto, are parties to a Credit
Agreement dated as of November 2, 2009 (as from time to time amended,
supplemented and restated, the “Credit Agreement”).


 


C.            Pursuant to the Security
Agreement dated of even date with the Credit Agreement (as from time to time
amended, supplemented and restated, the “Security Agreement”;
capitalized terms used herein and not otherwise defined have the respective
meanings specified in the Security Agreement) of Grantor and certain other
grantors of security interests in favor of the Secured Party, Grantor has
granted to the Secured Party for the benefit of the Beneficiaries a continuing
security interest in certain assets of Grantor, including all right, title and
interest of Grantor in, to and under the Intellectual Property Collateral
(defined below) whether now owned or existing or hereafter acquired or arising,
to secure the Secured Obligations.


 


NOW,
THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt and sufficiency of that the parties acknowledge,
Grantor agrees as follows:


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
that are hereby acknowledged, Grantor does hereby grant to the Secured Party,
to secure the Secured Obligations, a continuing security interest in all of
Grantor’s right, title and interest in, to and under the following (all of the
following items or types of property being herein collectively referred to as
the “Intellectual Property Collateral”), whether now owned or existing
or hereafter acquired or arising:


 


(a)           each Copyright
in which Grantor has any interest;


 


(b)           each Patent in
which Grantor has any interest;


 


(c)           each Trademark
in which Grantor has any interest;


 


(d)           each
Intellectual Property License to which Grantor is a party; and


 

















 


(e)           all proceeds of
and revenues from the foregoing, including all proceeds of and revenues from
any claim by Grantor against third parties for past, present or future
infringement of any of the foregoing, and all rights and benefits of Grantor
under any Intellectual Property License.


 


“Copyright”
means any the following:


 


(a)           any copyright under the laws
of any country (whether or not the underlying works of authorship have been
published), all registrations and recordings thereof, all intellectual property
rights to works of authorship (whether or not published), and all application
for copyrights under the laws of any country, including registrations,
recordings and applications in the United States Copyright Office or in any
similar office or agency of the United States, any State thereof or other
country, or any political subdivision thereof, including those described under
the heading “Copyrights” on Schedule 1;


 


(b)           any reissue,
renewal or extension thereof;


 


(c)           any claim for,
or right to sue for, past or future infringement of any of the foregoing; and


 


(d)           any income, royalties,
damages and payments now or hereafter due or payable with respect to any of the
foregoing, including damages and payments for past or future infringements
thereof.


 


“Intellectual
Property License” means any license or other agreement, whether now or
hereafter in existence, under which is granted or authorized any right:


 


(a)           to use, copy, reproduce,
distribute, prepare derivative works, display or publish any records or other
materials on which a Copyright is in existence or may come into existence;


 


(b)           with respect to any Patent
or any invention now or hereafter in existence, whether patentable or not,
whether a patent or application for patent is in existence on such invention or
not, and whether a patent or application for patent on such invention may come
into existence; or


 


(c)           to use any Trademark, in
each case including the agreements described under the heading “Intellectual
Property Licenses on Schedule 1 hereto.


 


“Patent”
means any the following:


 


(a)           any letter patent and design
letter patent of any country and all applications for letters patent and design
letters patent of any country, including applications in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or other country, or any political subdivision
thereof, including those described under the heading “Patents” on Schedule 1
hereto;


 


2

















 


(b)           any reissue, division,
continuation, continuation-in-part, renewal or extension thereof;


 


(c)           any claim for, or right to
sue for, past or future infringement of any of the foregoing; and


 


(d)           any income, royalties,
damages and payments now or hereafter due or payable with respect to any of the
foregoing, including damages and payments for past or future infringements
thereof.


 


“Trademark”
means any of the following:


 


(a)           any trademark, trade name,
corporate name, company name, business name, fictitious business name, trade
style, service mark, logo, brand name, trade dress, domain name, design,
slogan, print or label on which any of the foregoing have appeared or appear,
package and other designs, and any other source or business identifiers, and
general intangibles of like nature, and the rights in any of the foregoing that
arise under applicable law;


 


(b)           the goodwill of the business
symbolized thereby or associated with each of them;


 


(c)           any registration or
application in connection therewith, including any registration or application
in the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof, any other country, or any
political subdivision of any thereof, including those described under the
heading “U.S. Trademark Registrations and Applications” on Schedule 1 hereto;


 


(d)           any reissue, extension or
renewal thereof;


 


(f)            any claim for, or right to
sue for, past or future infringements of any of the foregoing; and


 


(f)            any income, royalties,
damages and payments now or hereafter due or payable with respect to any of the
foregoing, including damages and payments for past or future infringements
thereof.


 


Grantor
irrevocably constitutes and appoints the Secured Party and any officer or agent
thereof, with full power of substitution, as its true and lawful attorney in
fact with full power and authority in the name of Grantor or in its name, from
time to time, in the Secured Party’s discretion, so long as any Default or
Event of Default (as defined in the Credit Agreement) has occurred and is
continuing, to take with respect to the Intellectual Property Collateral any
and all appropriate action that Grantor might take with respect to the
Intellectual Property Collateral and to execute any and all documents and
instruments that may be necessary or desirable to carry out the terms of this
Intellectual Property Security Agreement and to accomplish the purposes hereof.


 


Except
to the extent allowed in the Security Agreement, Grantor shall not sell,
license, exchange, assign or otherwise transfer or dispose of, or grant any rights
with respect to, or mortgage or otherwise encumber, any of the Intellectual
Property Collateral.


 


3
















 


This
security interest is granted in conjunction with the security interests granted
to the Secured Party pursuant to the Security Agreement. The rights and
remedies of the Secured Party with respect to the security interest in the
Intellectual Property Collateral made and granted hereby are more fully set
forth in the Security Agreement, the terms and provisions of which are
incorporated by reference herein as if fully set forth herein.


 


IN
WITNESS WHEREOF, Grantor has caused this Intellectual Property Security
Agreement to be duly executed by its officer thereunto duly authorized as of
the          day of
                        ,
20     .


 


	
   

  	
   

  	
  *[NAME OF GRANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [insert address]

  
	
   

  	
   

  	
   

  
	
  Acknowledged:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANK OF AMERICA, N. A., as
  

  	
   

  	
   

  
	
  Secured Party

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [insert address]

  	
   

  	
   

  



 


4

















 


Schedule 1 


to


INTELLECTUAL PROPERTY SECURITY AGREEMENT


 


COPYRIGHTS


 


*[List]


 


PATENTS


 


A.                                   U.S. Patents and
Design Patents


 


	
  I.D. No.

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *[List]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B.                                     U.S. Patent
Applications


 


	
  Serial No.

  	
   

  	
  Date Filed

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *[List]

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C.                                     Foreign Patents


 


	
  I.D. No.

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *[List]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. TRADEMARK REGISTRATIONS AND APPLICATIONS


 


A.                                   U.S. Trademarks
and Trademark Registrations


 


	
  Trademark

  	
   

  	
  Registration No.

  	
   

  	
  Registration Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *[List]

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B.                                     U. S. Trademark
Applications


 


	
  Trademark

  	
   

  	
  Application No.

  	
   

  	
  Filing Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *[List]

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


INTELLECTUAL PROPERTY
LICENSES


 


	
  Name of

  	
   

  	
  Parties

  	
   

  	
  Date of

  	
   

  	
  Subject

  	
   

  
	
  Agreement

  	
   

  	
  Licensor/Licensee

  	
   

  	
  Agreement

  	
   

  	
  Matter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *[List]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2

















 


EXHIBIT H


 


FORM OF SECURED


CASH MANAGEMENT BANK NOTICE


 


Date:                      ,
20   


 


	
  To:

  	
   

  	
  Bank of America, N.A., as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
  Re:

  	
   

  	
  [insert description of Secured Cash Management
  Agreement]

  



 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of November 2, 2009 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used
herein as therein defined), among Ferrellgas, L.P., a Delaware limited
partnership (the “Borrower”), Ferrellgas, Inc., a Delaware
corporation and sole general partner of the Borrower (the “General Partner”),
the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, an L/C Issuer and Swing Line Lender.


 


The
undersigned hereby designates the Cash Management Agreement described above in
this notice as a Secured Cash Management Agreement and designates
                      
as a Secured Cash Management Bank. All Secured Cash Management Obligations in
respect thereof will constitute Secured Obligations.


 


	
   

  	
   

  	
  FERRELLGAS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Ferrellgas, Inc.,
  as its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
   

  	
  Title:

  



 


H-1

















 


EXHIBIT I


 


OPINION MATTERS


 


The
subject matters contained in the following Sections of the Credit Agreement
should be covered by the legal opinion:


 


·   Section 5.01
(a), (b) and (c)


 


·   Section 5.02


 


·   Section 5.03


 


·   Section 5.04


 


·   Section 5.14 (b)


 


The
opinion should also cover appropriate Lien creation and perfection opinions.


 


I-1