Exhibit 10.1

 

Execution Version

 

THIRD AMENDMENT TO AMENDED AND RESTATED

SENIOR SECURED CREDIT AGREEMENT

 

This THIRD AMENDMENT TO AMENDED AND RESTATED  SENIOR SECURED CREDIT AGREEMENT (this “Third Amendment”), dated as of March 27, 2013, is among EXLP OPERATING LLC, a limited liability company formed under the laws of the state of Delaware (the “Borrower”), EXTERRAN PARTNERS, L.P., a limited partnership formed under the laws of the state of Delaware (“EXLP”), the Lenders listed on the signature pages attached hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

 

R E C I T A L S

 

The Borrower, EXLP, the Administrative Agent and the Lenders are parties to that certain Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010 (as amended, restated, supplemented or otherwise modified, the “Credit Agreement”), pursuant to which the Lenders have made certain extensions of credit available to and on behalf of the Borrower;

 

In connection with this Third Amendment and the transactions contemplated hereby, (a) JPMorgan Chase Bank, N.A., Royal Bank of Canada and The Royal Bank of Scotland plc have been appointed as Co-Syndication Agents, (b) Credit Agricole Corporate and Investment Bank has been appointed as Documentation Agent and (c) Wells Fargo Securities, LLC, Credit Agricole Corporate and Investment Bank, J.P. Morgan Securities LLC, RBC Capital Markets and RBS Securities Inc. have been appointed as Joint Lead Arrangers and Joint Book Runners; and

 

The Borrower has requested that the Lenders amend, and the Lenders party hereto have agreed to amend, certain provisions of the Credit Agreement as more fully provided herein.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Section 1.              Defined Terms.  Each capitalized term used herein but not otherwise defined herein has the meaning given such term in the Credit Agreement.  Unless otherwise indicated, all references to Sections, Articles, Annexes and Schedules in this Third Amendment refer to Sections, Articles, Annexes and Schedules of the Credit Agreement.

 

Section 2.              Reduction of Aggregate Revolving Commitments.  The Borrower desires to reduce the Aggregate Revolving Commitments by $100,000,000 as of the Third Amendment Effective Date upon effectiveness of this Third Amendment so that, after giving effect to such reduction, the Aggregate Revolving Commitments shall equal $650,000,000 (the “Aggregate Revolving Commitment Reduction”).  The parties hereto hereby acknowledge the Aggregate Revolving Commitment Reduction, and each Lender hereby waives the requirements contained in Section 2.06(b)(ii) of the Credit Agreement that the Borrower provide advance notice to the Administrative Agent of the Aggregate Revolving Commitment Reduction.  As of the Third Amendment Effective Date, the Aggregate Revolving Commitments shall be $650,000,000.

 











 

Section 3.              Amendments to Credit Agreement.

 

3.1          The Credit Agreement is hereby amended to incorporate the changes reflected in the version of the Credit Agreement attached hereto as Exhibit A.

 

3.2          Annex I to the Credit Agreement is hereby amended by deleting it in its entirety and replacing it with Exhibit B attached hereto.

 

Section 4.              Conditions Precedent.  This Third Amendment shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 12.02 of the Credit Agreement) (the “Third Amendment Effective Date”):

 

4.1          The Administrative Agent shall have received from each Lender and the Borrower, counterparts (in such number as may be requested by the Administrative Agent) of this Third Amendment signed on behalf of such Persons.

 

4.2          The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the Third Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.

 

4.3          The Administrative Agent shall have received duly executed Notes payable to each Lender that has requested a Note and dated as of the Third Amendment Effective Date.

 

4.4          EXLP shall have issued senior unsecured notes in an aggregate principal amount equal to or greater than $200,000,000.

 

4.5          No Default or Event of Default shall have occurred and be continuing as of the date hereof, after giving effect to the terms of this Third Amendment.

 

4.6          The Administrative Agent shall have received an opinion addressed to the Administrative Agent and the Lenders from the Borrower’s counsel.

 

4.7          The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary (or its equivalent) of each of the Borrower, EXLP and each other Obligor, setting forth (A) resolutions of its board of directors (or equivalent governing body) with respect to the authorization of such Obligor to execute and deliver this Third Amendment and, if applicable, the Reaffirmation and Ratification attached hereto (collectively, the “Amendment Documents”) and to enter into the transactions contemplated thereby, (B) the officers (or the equivalent thereof) of such Obligor (I) who will be signing the Amendment Documents to which such Obligor is a party and (II) who will, until replaced by another officer or officers (or the equivalent thereof) duly authorized for that purpose, act as a representative of such Obligor for the purposes of signing documents and giving notices and other communications in connection with the Amendment Documents to which it is a party and the transactions contemplated thereby, (C) specimen signatures of the authorized officers (or the equivalent thereof) referred to in clause (I), and (D) the Organization Documents of such Obligor, certified as being true and complete.  The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from such party to the contrary.

 

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4.8          The Administrative Agent shall have received such other documents as the Administrative Agent (or its counsel) may reasonably request.

 

Section 5.              Assignment and Assumption.

 

5.1          For an agreed consideration, each Lender (individually an “Assignor” and collectively, the “Assignors”) hereby irrevocably sells and assigns, severally and not jointly (the assignments described in this Section 5.1, the “Specified Assignments”), (i) all of such Assignor’s rights and obligations in its capacity as Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to its Revolving Commitment and Term Loans, as the case may be, identified in Exhibit C attached hereto (which sets forth each Lender’s Revolving Commitment and the aggregate outstanding principal amount of its Term Loans, in each case immediately prior to the effectiveness of the Specified Assignments but after giving effect to the Aggregate Revolving Commitment Reduction) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of such Assignor (in its capacity as a Lender) 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 transactions governed thereby or in any way based on or related to any of the foregoing, including 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 pursuant to clauses (i) and (ii) above being referred to herein collectively for all Assignors as the “Assigned Interests”) to the Lenders (or Persons that will become Lenders as a result of the Specified Assignments) (individually, an “Assignee” and, collectively, the “Assignees”) set forth on Exhibit B attached hereto (which shall replace the existing Annex I to the Credit Agreement as of the Third Amendment Effective Date), and each Assignee hereby irrevocably purchases and assumes from each Assignor such Assignee’s percentage (as set forth on Annex I attached hereto) of the Assigned Interests, subject to and in accordance with the Credit Agreement and this Third Amendment, as of the Third Amendment Effective Date.  Such sale and assignment is without recourse to the Assignors and, except as expressly provided in this Third Amendment, without representation or warranty by the Assignors.

 

5.2          From and after the Third Amendment Effective Date, the Administrative Agent shall distribute all payments in respect of the Assigned Interests (including payments of principal, interest, fees and other amounts) to the appropriate Assignors for amounts which have accrued to but excluding the Third Amendment Effective Date and to the appropriate Assignees for amounts which have accrued from and after the Third Amendment Effective Date.

 

5.3          After giving effect to the Specified Assignments in Section 5.1 of this Third Amendment, each of Amegy Bank, N.A., Barclays Bank plc, Citibank, N.A., and Credit Suisse AG, Cayman Islands Branch (collectively, the “Exiting Lenders” and individually, an “Exiting Lender”) shall cease to be a party to the Credit Agreement as of the Third Amendment Effective Date and shall no longer be a “Lender”.  Each Exiting Lender joins in the execution of this Third Amendment solely for purposes of effectuating this Third Amendment pursuant to Section 4 hereof, effecting the amendment to the definition of “Indebtedness” and assigning their Assigned Interests pursuant to this Section 5.

 

3











 

Section 6.              Miscellaneous.

 

6.1          Confirmation.  The provisions of the Credit Agreement, as amended by this Third Amendment, shall remain in full force and effect following the effectiveness of this Third Amendment.

 

6.2          Representations and Warranties.

 

(a)           Ratification and Affirmation. The Borrower and EXLP hereby: (i) acknowledge the terms of this Third Amendment; (ii) ratify and affirm their obligations under, and acknowledge, renew and extend their continued liability under, each Loan Document to which they are a party and agree that each Loan Document to which they are a party remains in full force and effect, except as expressly amended hereby, after giving effect to the amendments contained herein; (iii) agree that, from and after the Third Amendment Effective Date, each reference to the Credit Agreement in the Security Instruments and the other Loan Documents shall be deemed to be a reference to the Credit Agreement, as amended by this Third Amendment; and (iv) represent and warrant to the Lenders that as of the date hereof, after giving effect to the terms of this Third Amendment: (A) all of the representations and warranties made by the Borrower contained in each Loan Document to which they are a party are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof), unless such representations and warranties are stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date and (B) no Default or Event of Default has occurred and is continuing.

 

(b)           Corporate Authority; Enforceability; No Conflicts.  The Borrower and EXLP hereby represent and warrant to the Lenders that (i) they have all necessary power and authority to execute, deliver and perform their respective obligations under this Third Amendment; (ii) the execution, delivery and performance by the Borrower and EXLP of this Third Amendment has been duly authorized by all necessary action on their part; (iii) this Third Amendment has been duly executed and delivered by the Borrower and EXLP and constitutes the legal, valid and binding obligation of the Borrower and EXLP in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditor’s rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) the execution and delivery of this Third Amendment by the Borrower and EXLP and the performance of their respective obligations hereunder require no authorizations, approvals or consent, or registration or filing with, or further action by, any Governmental Authority, except for those that have been obtained or made and are in effect; and (v) neither the execution and delivery of this Third Amendment nor compliance with the terms hereof will contravene, or result in a breach of, the charter or by-laws of the Borrower or EXLP, any Governmental Requirement, any agreement or instrument to which the Borrower or EXLP is a party (other than any agreement or instrument the contravention of which or breach of which could not reasonably be expected to be materially adverse to any Secured Party) or by which it is bound or to which it or its Properties are subject, or constitute a default under any such agreement or instrument.

 

4











 

6.3          Loan Document.  This Third Amendment is a “Loan Document” as defined and described in the Credit Agreement and all of the terms and provisions of the Credit Agreement relating to Loan Documents shall apply hereto.

 

6.4          Counterparts.  This Third Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument.  Delivery of this Third Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.

 

6.5          NO ORAL AGREEMENT.  THIS THIRD AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.

 

6.6          GOVERNING LAW.  THIS THIRD AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.

 

[Signatures Pages Follow]

 

5











 

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

 

	
 
    	
EXLP   OPERATING LLC, as Borrower
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   David S. Miller
    
	
 
    	
Name:   
    	
David   S. Miller
    
	
 
    	
Title:   
    	
Senior   Vice President and Chief Financial Officer
    


 

Signature Page to Third Amendment

 












 

	
 
    	
EXTERRAN   PARTNERS, L.P., as Guarantor
    
	
 
    	
 
    
	
 
    	
By:
    	
EXTERRAN   GENERAL PARTNER, 
   L.P., its general partner
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
EXTERRAN   GP LLC, its general partner
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   David S. Miller
    
	
 
    	
Name:   
    	
David   S. Miller
    
	
 
    	
Title:   
    	
Senior   Vice President and Chief Financial Officer
    


 

Signature Page to Third Amendment

 











 

	
 
    	
WELLS   FARGO BANK, NATIONAL
    
	
 
    	
ASSOCIATION, as   Administrative Agent and
    
	
 
    	
Swingline   Lender and as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Donald W. Herrick, Jr.
    
	
 
    	
Name:   
    	
Donald   W. Herrick, Jr.
    
	
 
    	
Title:   
    	
Director
    


 

Signature Page to Third Amendment

 











 

	
 
    	
JPMORGAN   CHASE BANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Thomas Okamoto
    
	
 
    	
Name:   
    	
Thomas   Okamoto
    
	
 
    	
Title:   
    	
Authorized   Officer
    


 

Signature Page to Third Amendment

 











 

	
 
    	
BARCLAYS   BANK PLC, as an Exiting Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   May Huang
    
	
 
    	
Name:   
    	
May Huang
    
	
 
    	
Title:   
    	
Assistant   Vice President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
THE   ROYAL BANK OF SCOTLAND PLC, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Brian Williams
    
	
 
    	
Name:   
    	
Brian   Williams
    
	
 
    	
Title:   
    	
Authorised   Signatory
    


 

Signature Page to Third Amendment

 











 

	
 
    	
ROYAL   BANK OF CANADA, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jay T. Sartain
    
	
 
    	
Name:   
    	
Jay   T. Sartain
    
	
 
    	
Title:   
    	
Authorized   Signatory
    


 

Signature Page to Third Amendment

 











 

	
 
    	
CREDIT   SUISSE AG, CAYMAN ISLANDS 
    
	
 
    	
BRANCH, as an   Exiting Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Vipul Dhadda
    
	
 
    	
Name:   
    	
Vipul   Dhadda
    
	
 
    	
Title:   
    	
President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Wei-Jen Yuan
    
	
 
    	
Name:   
    	
Wei-Jen   Yuan
    
	
 
    	
Title:   
    	
Associate
    


 

Signature Page to Third Amendment

 











 

	
 
    	
SUMITOMO   MITSUI BANKING 
    
	
 
    	
CORPORATION,   as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Shuji Yabe
    
	
 
    	
Name:   
    	
Shuji   Yabe
    
	
 
    	
Title:   
    	
Managing   Director
    


 

Signature Page to Third Amendment

 











 

	
 
    	
REGIONS   BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   David Valentine
    
	
 
    	
Name:   
    	
David   Valentine
    
	
 
    	
Title:   
    	
Vice   President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
COMPASS   BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Michael Dixon
    
	
 
    	
Name:   
    	
Michael   Dixon
    
	
 
    	
Title:   
    	
Vice   President
    


 

Signature Page to Third Amendment

 












 

	
 
    	
CITIBANK, N.A., as an Exiting Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Ivan Davey
    
	
 
    	
Name:
    	
Ivan Davey
    
	
 
    	
Title:
    	
Vice President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
BANK OF NOVA SCOTIA, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mark Sparrow
    
	
 
    	
Name:
    	
Mark Sparrow
    
	
 
    	
Title:
    	
Director
    


 

Signature Page to Third Amendment

 











 

	
 
    	
CREDIT   AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ David Gurghtgran
    
	
 
    	
Name:
    	
David Gurghtgran
    
	
 
    	
Title:
    	
Managing Director
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michael D. Willis
    
	
 
    	
Name:
    	
Michael D. Willis
    
	
 
    	
Title:
    	
Managing Director
    


 

Signature Page to Third Amendment

 











 

	
 
    	
BRANCH BANKING AND TRUST, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Elizabeth Willis
    
	
 
    	
Name:
    	
Elizabeth Willis
    
	
 
    	
Title:
    	
Assistant Vice President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
UNION BANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brian Caddell
    
	
 
    	
Name:
    	
Brian Caddell
    
	
 
    	
Title:
    	
Vice President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
TRUSTMARK NATIONAL BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jeff Deutsch
    
	
 
    	
Name:
    	
Jeff Deutsch
    
	
 
    	
Title:
    	
SVP
    


 

Signature Page to Third Amendment

 











 

	
 
    	
PNC BANK, NA, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brett R. Schweikle
    
	
 
    	
Name:
    	
Brett R. Schweikle
    
	
 
    	
Title:
    	
Senior Vice President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
AMEGY BANK, N.A., as an Exiting   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brad Ellis
    
	
 
    	
Name:
    	
Brad Ellis
    
	
 
    	
Title:
    	
Senior Vice President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
RAYMOND JAMES BANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Scott G. Axelrod
    
	
 
    	
Name:
    	
Scott G. Axelrod
    
	
 
    	
Title:
    	
Vice President
    


 

Signature Page to Third Amendment

 











 

	
 
    	
BOKF, N.A. D/B/A BANK OF TEXAS,   as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Daniel Fain
    
	
 
    	
Name:
    	
Daniel Fain
    
	
 
    	
Title:
    	
Officer
    


 

Signature Page to Third Amendment

 












 

	
 
    	
BANK OF AMERICA, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Adam Roce
    
	
 
    	
Name:
    	
Adam Roce
    
	
 
    	
Title:
    	
SVP
    


 

Signature Page to Third Amendment

 











 

	
 
    	
GOLDMAN SACHS BANK USA, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mark Walton
    
	
 
    	
Name:
    	
Mark Walton
    
	
 
    	
Title:
    	
Authorized Signatory
    


 

Signature Page to Third Amendment

 











 

REAFFIRMATION AND RATIFICATION: Each Guarantor hereby (a) acknowledges the terms of this Amendment; (b) ratifies and affirms its obligations under, and acknowledges its continued liability under, each Loan Document to which it is a party, including the Guaranty Agreement, and agrees that each Loan Document to which it is a party, including the Guaranty Agreement, remains in full force and effect as expressly amended hereby; and (c) represents and warrants to the Lenders that, as of the date hereof, after giving effect to the terms of this Amendment: (i) all of the representations and warranties made by such Guarantor contained in each Loan Document to which such Guarantor is a party, including the Guaranty Agreement, are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) as though made on and as of the Third Amendment Effective Date (unless such representations and warranties are stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing.

 

 

	
ACKNOWLEDGED AND RATIFIED:
    	
EXTERRAN PARTNERS, L.P.
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
EXTERRAN   GENERAL PARTNER, L.P., its general partner
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
EXTERRAN GP LLC, its general   partner
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ David S. Miller
    
	
 
    	
Name:
    	
David S. Miller
    
	
 
    	
Title:
    	
Senior Vice President and Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
EXLP LEASING LLC
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ David S. Miller
    
	
 
    	
Name:
    	
David S. Miller
    
	
 
    	
Title:
    	
Senior Vice President and Chief Financial Officer
    


 











 

EXHIBIT A

 












 

EXHIBIT A TO THIRD AMENDMENT TO
 AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT

 


 



AMENDED AND RESTATED
 SENIOR SECURED CREDIT AGREEMENT

 

Initially Dated as of November 3, 2010

 

Among

 

EXLP OPERATING LLC,
  as Borrower,

 

EXTERRAN PARTNERS, L.P.,
  as Guarantor,

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
  as Administrative Agent,

 

JPMORGAN CHASE BANK, N.A.,

ROYAL BANK OF CANADA

and

THE ROYAL BANK OF SCOTLAND PLC,
  as Co-Syndication Agents,

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
  as Documentation Agent,

 

AND

 

THE LENDERS SIGNATORY HERETO

 

Arranged by:

 

WELLS FARGO SECURITIES, LLC,

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
 J.P. MORGAN SECURITIES LLC,
 RBC CAPITAL MARKETS,

and

RBS SECURITIES INC.
  as Joint Lead Arrangers and Joint Book Runners(1)

 

Senior Secured Credit Facility

 


 






(1)  Entities identified as Co-Syndication Agents, Documentation Agent and Joint Lead Arrangers and Joint Book Runners above were appointed to such roles in connection with the Third Amendment (as defined below).

 











 

TABLE OF CONTENTS

 

	
 
    	
Page
    
	
 
    	
 
    
	
ARTICLE I
    	
 
    
	
Definitions   and Accounting Matters
    	
 
    
	
 
    	
 
    	
 
    
	
Section 1.01
    	
Terms Defined Above
    	
1
    
	
Section 1.02
    	
Certain Defined Terms
    	
1
    
	
Section 1.03
    	
Types of Loans and Borrowings
    	
28
    
	
Section 1.04
    	
Terms Generally; Rules of Construction
    	
28
    
	
Section 1.05
    	
Accounting Terms and Determinations; GAAP
    	
28
    
	
 
    	
 
    
	
ARTICLE II
    	
 
    
	
The   Credits
    	
 
    
	
 
    	
 
    
	
Section 2.01
    	
Commitments
    	
29
    
	
Section 2.02
    	
Loans and Borrowings
    	
29
    
	
Section 2.03
    	
Requests for Borrowings
    	
30
    
	
Section 2.04
    	
Interest Elections
    	
31
    
	
Section 2.05
    	
Funding of Borrowings
    	
33
    
	
Section 2.06
    	
Termination, Reduction and Increase of Aggregate   Commitments
    	
33
    
	
Section 2.07
    	
Letters of Credit
    	
37
    
	
Section 2.08
    	
Swingline Loans
    	
42
    
	
 
    	
 
    
	
ARTICLE III
    	
 
    
	
Payments   of Principal and Interest; Prepayments; Fees
    	
 
    
	
 
    	
 
    
	
Section 3.01
    	
Repayment of Loans
    	
44
    
	
Section 3.02
    	
Interest
    	
44
    
	
Section 3.03
    	
Alternate Rate of Interest
    	
45
    
	
Section 3.04
    	
Prepayments
    	
45
    
	
Section 3.05
    	
Fees
    	
47
    
	
 
    	
 
    
	
ARTICLE IV
    	
 
    
	
Payments;   Pro Rata Treatment; Sharing of Set-offs
    	
 
    
	
 
    	
 
    
	
Section 4.01
    	
Payments Generally; Pro Rata Treatment; Sharing of Set-offs
    	
48
    
	
Section 4.02
    	
Presumption of Payment by the Borrower
    	
49
    
	
Section 4.03
    	
Certain Deductions by the Administrative Agent; Defaulting   Lenders
    	
49
    
	
 
    	
 
    
	
ARTICLE V
    	
 
    
	
Increased   Costs; Break Funding Payments; Taxes; Illegality
    	
 
    
	
 
    	
 
    
	
Section 5.01
    	
Increased Costs
    	
52
    
	
Section 5.02
    	
Break Funding Payments
    	
53
    
	
Section 5.03
    	
Taxes
    	
53
    
	
Section 5.04
    	
Mitigation Obligations; Replacement of Lenders
    	
55
    
	
Section 5.05
    	
Illegality
    	
56
    


 

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ARTICLE VI
    	
 
    
	
Conditions   Precedent
    	
 
    
	
 
    	
 
    
	
Section 6.01
    	
Effective Date
    	
56
    
	
Section 6.02
    	
Each Credit Event
    	
58
    
	
 
    	
 
    
	
ARTICLE VII
    	
 
    
	
Representations   and Warranties
    	
 
    
	
 
    	
 
    
	
Section 7.01
    	
Legal Existence
    	
59
    
	
Section 7.02
    	
Financial Condition
    	
59
    
	
Section 7.03
    	
Litigation
    	
59
    
	
Section 7.04
    	
No Breach
    	
60
    
	
Section 7.05
    	
Authority
    	
60
    
	
Section 7.06
    	
Approvals
    	
60
    
	
Section 7.07
    	
Use of Loans and Letters of Credit
    	
60
    
	
Section 7.08
    	
ERISA
    	
61
    
	
Section 7.09
    	
Taxes
    	
61
    
	
Section 7.10
    	
Titles, Etc.
    	
61
    
	
Section 7.11
    	
No Material Misstatements
    	
62
    
	
Section 7.12
    	
Investment Company Act
    	
62
    
	
Section 7.13
    	
Subsidiaries
    	
62
    
	
Section 7.14
    	
Location of Business and Offices
    	
62
    
	
Section 7.15
    	
Defaults
    	
62
    
	
Section 7.16
    	
Environmental Matters
    	
62
    
	
Section 7.17
    	
Compliance with Laws
    	
63
    
	
Section 7.18
    	
Insurance
    	
63
    
	
Section 7.19
    	
Hedging Agreements
    	
64
    
	
Section 7.20
    	
Restriction on Liens
    	
64
    
	
Section 7.21
    	
Solvency
    	
64
    
	
Section 7.22
    	
Security Instruments
    	
64
    
	
 
    	
 
    
	
ARTICLE VIII
    	
 
    
	
Affirmative   Covenants
    	
 
    
	
 
    	
 
    
	
Section 8.01
    	
Reporting Requirements
    	
65
    
	
Section 8.02
    	
Litigation
    	
67
    
	
Section 8.03
    	
Maintenance, Etc.
    	
67
    
	
Section 8.04
    	
Environmental Matters
    	
68
    
	
Section 8.05
    	
Further Assurances
    	
69
    
	
Section 8.06
    	
Performance of Obligations under Loan Documents
    	
69
    
	
Section 8.07
    	
Collateral and Guarantees
    	
69
    
	
Section 8.08
    	
Notice of an ERISA Event
    	
71
    
	
Section 8.09
    	
Commodity Exchange Act Keepwell Provisions
    	
72
    
	
 
    	
 
    
	
ARTICLE IX
    	
 
    
	
Negative Covenants
    	
 
    
	
 
    	
 
    
	
Section 9.01
    	
Debt
    	
72
    
	
Section 9.02
    	
Liens
    	
74
    


 

ii











 

	
Section 9.03
    	
Investments
    	
74
    
	
Section 9.04
    	
Dividends, Distributions and Redemptions
    	
75
    
	
Section 9.05
    	
Nature of Business
    	
76
    
	
Section 9.06
    	
Mergers, Etc.
    	
76
    
	
Section 9.07
    	
Proceeds of Notes; Letters of Credit
    	
76
    
	
Section 9.08
    	
Sale or Discount of Receivables
    	
76
    
	
Section 9.09
    	
Fiscal Year Change
    	
76
    
	
Section 9.10
    	
Certain Financial Covenants
    	
76
    
	
Section 9.11
    	
Transfer of Properties
    	
77
    
	
Section 9.12
    	
Environmental Matters
    	
77
    
	
Section 9.13
    	
Transactions with Affiliates
    	
78
    
	
Section 9.14
    	
Subsidiaries; Unrestricted Subsidiaries
    	
78
    
	
Section 9.15
    	
Restrictive Agreements
    	
79
    
	
 
    	
 
    
	
ARTICLE X
    	
 
    
	
Events of   Default; Remedies
    	
 
    
	
 
    	
 
    
	
Section 10.01
    	
Events of Default
    	
80
    
	
Section 10.02
    	
Remedies
    	
82
    
	
 
    	
 
    
	
ARTICLE XI
    	
 
    
	
The   Agents
    	
 
    
	
 
    	
 
    
	
Section 11.01
    	
Appointment; Powers
    	
83
    
	
Section 11.02
    	
Duties and Obligations of Administrative Agent
    	
83
    
	
Section 11.03
    	
Action by Administrative Agent
    	
84
    
	
Section 11.04
    	
Reliance by Administrative Agent
    	
84
    
	
Section 11.05
    	
Subagents
    	
85
    
	
Section 11.06
    	
Resignation or Removal of Administrative Agent
    	
85
    
	
Section 11.07
    	
Agents as Lenders
    	
85
    
	
Section 11.08
    	
No Reliance
    	
86
    
	
Section 11.09
    	
Administrative Agent May File Proofs of Claim
    	
86
    
	
Section 11.10
    	
Authority of Administrative Agent to Release Collateral and   Liens
    	
87
    
	
Section 11.11
    	
The Joint Lead Arrangers, the Co-Syndication Agents and the   Co-Documentation Agents
    	
87
    
	
 
    	
 
    
	
ARTICLE XII
    	
 
    
	
Miscellaneous
    	
 
    
	
 
    	
 
    
	
Section 12.01
    	
Notices
    	
87
    
	
Section 12.02
    	
Waivers; Amendments
    	
88
    
	
Section 12.03
    	
Expenses, Indemnity; Damage Waiver
    	
89
    
	
Section 12.04
    	
Successors and Assigns
    	
92
    
	
Section 12.05
    	
Survival; Revival; Reinstatement
    	
94
    
	
Section 12.06
    	
Counterparts; Integration; Effectiveness
    	
95
    
	
Section 12.07
    	
Severability
    	
95
    
	
Section 12.08
    	
Right of Setoff
    	
95
    
	
Section 12.09
    	
Governing Law; Jurisdiction; Consent to Service of Process
    	
96
    
	
Section 12.10
    	
Headings
    	
97
    
	
Section 12.11
    	
Confidentiality
    	
97
    


 

iii











 

	
Section 12.12
    	
Interest Rate Limitation
    	
98
    
	
Section 12.13
    	
Exculpation Provisions
    	
99
    
	
Section 12.14
    	
Collateral Matters; Hedging Agreements; Treasury Management   Agreements
    	
99
    
	
Section 12.15
    	
No Third Party Beneficiaries
    	
99
    
	
Section 12.16
    	
USA Patriot Act Notice
    	
99
    
	
Section 12.17
    	
No General Partner’s Liability
    	
100
    
	
Section 12.18
    	
Existing Credit Agreement; Existing Facility Termination
    	
100
    
	
Section 12.19
    	
No Fiduciary Duty
    	
100
    


 

iv











 

EXHIBITS AND SCHEDULES

 

	
Annex   I
    	
Aggregate   Commitments
    
	
 
    	
 
    
	
Exhibit A-1
    	
Form of   Revolving Credit Note
    
	
Exhibit A-2
    	
Form of   Term Note
    
	
Exhibit B
    	
Form of   Borrowing Request
    
	
Exhibit C
    	
Form of   Interest Election Request
    
	
Exhibit D-1
    	
Form of   Effective Date Compliance Certificate
    
	
Exhibit D-2
    	
Form of   Ongoing Compliance Certificate
    
	
Exhibit E
    	
Form of   Assignment and Assumption
    
	
Exhibit F
    	
Security   Instruments
    
	
Exhibit G-1
    	
Form of   Commitment Increase Certificate
    
	
Exhibit G-2
    	
Form of   Additional Lender Certificate
    
	
Exhibit G-3
    	
Form of   Term Loan Assumption Agreement
    
	
Exhibit H
    	
Form of   Letter of Credit Request
    
	
 
    	
 
    
	
Schedule 1.02
    	
Existing   Letters of Credit
    
	
Schedule 6.01(c)
    	
Excepted   Property
    
	
Schedule 7.03
    	
Litigation
    
	
Schedule 7.09
    	
Taxes
    
	
Schedule 7.10
    	
Titles, Etc.
    
	
Schedule 7.13
    	
Subsidiaries
    
	
Schedule 7.19
    	
Hedging   Agreements
    
	
Schedule 7.20
    	
Restriction   on Liens
    
	
Schedule 7.22
    	
Jurisdictions   for Security Instrument Filings
    
	
Schedule 8.07
    	
Excluded   Collateral
    
	
Schedule 9.01
    	
Debt
    
	
Schedule 9.02
    	
Liens
    
	
Schedule 9.03
    	
Investments,   Loans and Advances
    
	
Schedule 9.13
    	
Transactions   with Affiliates
    


 

v











 

THIS AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT dated as of November 3, 2010, is among: EXLP OPERATING LLC, a limited liability company formed under the laws of the state of Delaware (the “Borrower”), EXTERRAN PARTNERS, L.P., a limited partnership formed under the laws of the state of Delaware (“EXLP”), WELLS FARGO BANK, NATIONAL ASSOCIATION, individually and as administrative agent for the Lenders (herein, together with its successors in such capacity, the “Administrative Agent”); JPMORGAN CHASE BANK, N.A., ROYAL BANK OF CANADA and THE ROYAL BANK OF SCOTLAND PLC (collectively, and together with their successors in such capacity, the “Co-Syndication Agents”); CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK (together with its successors in such capacity, the “Documentation Agent”); each of the Lenders from time to time party hereto; and WELLS FARGO SECURITIES, LLC, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, J.P. MORGAN SECURITIES LLC, RBC CAPITAL MARKETS, LLC and RBS SECURITIES INC., as joint lead arrangers and joint book runners (collectively, and together with their successors in such capacity, the “Joint Lead Arrangers”).  (2)

 

R E C I T A L S

 

A.                                    The Borrower, the Administrative Agent and the lenders party thereto previously entered into that certain Credit Agreement, dated as of October 20, 2006 (as heretofore amended, restated, supplemented and otherwise modified, the “Existing Credit Agreement”).

 

B.                                    The Borrower has requested that the Lenders amend and restate the Existing Credit Agreement and provide certain loans to and extensions of credit on behalf of the Borrower.

 

C.                                    Subject to the terms and conditions of this Agreement, the Lenders have agreed to amend and restate the Existing Credit Agreement and make such loans and extensions of credit.

 

D.                                    In consideration of the mutual covenants and agreements herein contained and of the loans, extensions of credit and commitments hereinafter referred to, the parties hereto agree as follows:

 

ARTICLE I
 Definitions and Accounting Matters

 

Section 1.01                             Terms Defined Above.  As used in this Agreement, each term defined above has the meaning indicated above.

 

Section 1.02                             Certain Defined Terms.  As used in this Agreement, the following terms have the meanings specified below:

 

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Base Rate.

 




(2)  Entities identified as Co-Syndication Agents, Documentation Agent and Joint Lead Arrangers and Joint Book Runners were appointed to such roles in connection with the Third Amendment (as defined below).

 

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“Additional Lender” has the meaning assigned to such term in Section 2.06(c)(i).

 

“Additional Lender Certificate” has the meaning assigned to such term in Section 2.06(c)(ii)(F).

 

“Administrative Agent” has the meaning assigned to such term in the preamble hereto.

 

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

 

“Affected Loans” has the meaning assigned to such term in Section 5.05.

 

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

 

“Agents” means, collectively, the Administrative Agent, the Co-Syndication Agents and the Co-Documentation Agents; and “Agent” means either the Administrative Agent, the Co-Syndication Agents or the Co-Documentation Agents, as the context requires.

 

“Aggregate Commitments” means, collectively, the Aggregate Revolving Commitments and the Aggregate Term Commitments.

 

“Aggregate Revolving Commitments” at any time shall equal the sum of the Revolving Commitments at such time.  As of the Third Amendment Effective Date, the Aggregate Revolving Commitments are $650,000,000.

 

“Aggregate Term Commitments” at any time shall equal the sum of the Term Commitments of all Term Lenders at such time. As of the Third Amendment Effective Date, the Aggregate Term Commitments are $150,000,000.

 

“Agreement” means this Amended and Restated Senior Secured Credit Agreement, as the same has been amended by the First Amendment, by the Second Amendment and by the Third Amendment, and as the same may from time to time be further amended, modified, supplemented or restated.

 

“Applicable Lending Office” means, for each Lender and for each Type of Loan, the lending office of such Lender designated for such Type of Loan on the signature pages hereof or such other offices of such Lender as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office from which its Loans of such Type are to be made and maintained.

 

“Applicable Margin” means: in respect of each of the Term Loan Facility and the Revolving Credit Facility, the rate per annum set forth in the table below, determined by reference to the Total Leverage Ratio as of the most recent date of determination:

 

2











 

Applicable Margin

 

	
Level
    	
 
    	
Total Leverage Ratio
    	
 
    	
LIBOR
   Loans (bps)
    	
 
    	
ABR Loans
   (bps)
    	
 
    	
Commitment
   Fees (bps)
    	
 
    
	
I
    	
 
    	
Greater   than 4.75 to 1.0
    	
 
    	
300
    	
 
    	
200
    	
 
    	
50
    	
 
    
	
II
    	
 
    	
Less   than or equal to 4.75 to 1.0 but greater than 4.25 to 1.0
    	
 
    	
275
    	
 
    	
175
    	
 
    	
50
    	
 
    
	
III
    	
 
    	
Less   than or equal to 4.25 to 1.0 but greater than 3.75 to 1.0
    	
 
    	
250
    	
 
    	
150
    	
 
    	
50
    	
 
    
	
IV
    	
 
    	
Less   than or equal to 3.75 to 1.0 but greater than 3.25 to 1.0
    	
 
    	
225
    	
 
    	
125
    	
 
    	
37.5
    	
 
    
	
V
    	
 
    	
Less   than or equal to 3.25 to 1.0
    	
 
    	
200
    	
 
    	
100
    	
 
    	
37.5
    	
 
    


 

For purposes of determining the Applicable Margin for the period commencing on the Third Amendment Effective Date and ending upon the date of the first delivery after the Third Amendment Effective Date of financial statements and compliance calculations pursuant to Section 8.01(a) and (g), the Total Leverage Ratio will be deemed to be that which corresponds to Level IV.  Each change in the Applicable Margin resulting from a change in the Total Leverage Ratio (which shall be calculated quarterly) shall take effect as of the fifth Business Day following the receipt of the compliance certificate delivered pursuant to Section 8.01(g).

 

“Applicable Percentage” means, with respect to any Revolving Lender at any time, the percentage of the Aggregate Revolving Commitments represented by such Revolving Lender’s Revolving Commitment at such time.

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 12.04), and accepted by the Administrative Agent, in the form of Exhibit E or any other form reasonably approved by the Administrative Agent.

 

“Availability Period” means the period from and including the Effective Date to but excluding the Revolving Credit Maturity Date.

 

“Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

 

“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1% and (c) the LIBO Rate for a one month interest period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that, for purposes of

 

3











 

this definition, the LIBO Rate for any day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, on such day.  Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Rate, respectively.

 

“Board” means the Board of Governors of the Federal Reserve System of the United States of America or any successor Governmental Authority.

 

“Borrower” has the meaning assigned to such term in the preamble hereto.

 

“Borrowing” means Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

 

“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03.

 

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Houston, Texas are authorized or required by law to remain closed; and if such day relates to a Borrowing or continuation of, a payment or prepayment of principal of or interest on, or a conversion of or into, or the Interest Period for, a Eurodollar Loan or a notice by the Borrower with respect to any such Borrowing or continuation, payment, prepayment, conversion or Interest Period, any day which is also a day on which dealings in dollar deposits are carried out in the London interbank market.

 

“Capital Lease” means a lease of (or other arrangement conveying the right to use) real and/or personal Property, or a combination thereof, with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a Debt in accordance with GAAP.

 

“Capital Lease Obligations” means, as to any Person, all obligations of such Person as lessee under any Capital Lease, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

“CERCLA” has the meaning given such term in the definition of “Environmental Laws”.

 

“Change in Control” means the occurrence of one or more of the following events:  (a) EXLP ceases to own, directly or indirectly, 100% of the Equity Interests in the Borrower; (b) the adoption of a plan relating to the liquidation or dissolution of the Borrower; (c) the General Partner ceases to be the sole general partner of EXLP; or (d) Holdings ceases to (i) Control the General Partner or (ii) own, directly or indirectly, at least 90% of the Equity Interests in the General Partner.

 

4












 

“Change in Law” means (a) the adoption of any law, rule or regulation by any Governmental Authority after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 5.01(b)), by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that  notwithstanding anything herein to the contrary (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives made or issued by any Governmental Authority thereunder or in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy (A) promulgated by the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor similar authority) and made or issued by any Governmental Authority or (B) made or issued by the United States financial regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated, made or issued.

 

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

 

“Co-Syndication Agents” has the meaning assigned to such term in the preamble hereto.

 

“Collateral” means all Property of the Borrower and the Guarantors that is subject to a Lien in favor of the Administrative Agent, for the benefit of the Secured Parties, under one or more of the Security Instruments.

 

“Collateral Agreement” means that certain Amended and Restated Collateral Agreement, dated as of the date hereof, among the Borrower, the Guarantors and the Administrative Agent.

 

“Commitment Fee” has the meaning assigned to such term in Section 3.05(a).

 

“Commitment Increase Certificate” has the meaning assigned to such term in Section 2.06(c)(ii)(E).

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“Compression Assets” means all or any portion of any Person’s compression services contracts, compression services customer relationships and compression equipment.

 

“Confidential Information” has the meaning assigned to such term in Section 12.11.

 

“Consolidated Net Income” means for any period, the aggregate of the net income (or loss) of EXLP and its Consolidated Subsidiaries after allowances for taxes for such period, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein) the following:  (a) the net income (or loss) of any Person in which EXLP or any Consolidated Subsidiary has an interest (which interest does not cause the net income of such other Person to be consolidated with the

 

5











 

net income of EXLP and its Consolidated Subsidiaries in accordance with GAAP), except to the extent of the amount of cash dividends or distributions actually paid in such period by such other Person to EXLP or to a Consolidated Subsidiary, as the case may be; (b) the net income (but not loss) of any Consolidated Subsidiary to the extent that the declaration or payment of dividends or similar distributions by that Consolidated Subsidiary is not at the time permitted by operation of the terms of its charter or any agreement, instrument or Governmental Requirement applicable to such Consolidated Subsidiary, or is otherwise prohibited, in each case determined in accordance with GAAP; provided that upon the removal of such restriction, the aggregate net income of such Consolidated Subsidiary previously excluded within the last four (4) fiscal quarters shall be added to the net income of EXLP and its Consolidated Subsidiaries for the same quarters; (c) any gains or losses not in the ordinary course of business; (d) the cumulative effect of a change in accounting principles and any gains or losses attributable to writeups or write downs of assets; (e) gains, losses or other charges as a result of the early retirement of Debt, including gains, losses and other charges as a result of the early termination of obligations under Hedging Agreements; (f) non-cash gains or losses as a result of foreign currency adjustments; and (g) costs related to the issuance of long term debt to the extent such costs are paid from the proceeds of such debt or are paid substantially concurrently with the issuance of such debt.

 

“Consolidated Net Tangible Assets” means, with respect to EXLP as of any date, the sum of the amounts that would appear on a consolidated balance sheet of EXLP and its Consolidated Subsidiaries as the total assets of such Person and its Consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP and after deducting therefrom, to the extent otherwise included, unamortized debt discount and expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or development expenses and other intangible items.

 

“Consolidated Subsidiary” means each Restricted Subsidiary of EXLP (whether now existing or hereafter created or acquired), the financial statements of which shall be (or should have been) consolidated with the financial statements of EXLP in accordance with GAAP.

 

“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 Exposure” means, at any time, for any Lender (a) for the Revolving Credit Facility, such Revolving Lender’s Revolving Credit Exposure and (b) for the Term Loan Facility, such Term Lender’s Term Credit Exposure.

 

“Debt” means, for any Person the sum of the following (without duplication):  (a) all obligations of such Person (whether created or assumed) for borrowed money or evidenced by bonds, debentures, notes or other similar instruments; (b) all obligations of such Person (whether contingent or otherwise) in respect of bankers’ acceptances, letters of credit, surety or other bonds and similar instruments; (c) all obligations of such Person to pay the deferred purchase price of Property or services (other than for borrowed money); (d) all Capital Lease Obligations in respect of which such Person is liable (whether contingent or otherwise); (e) all Debt (as described in the other clauses of this definition) of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, provided that the amount of Debt

 

6











 

for purposes of this clause (e) shall be an amount equal to the lesser of the unpaid amount of such Debt and the fair market value of the encumbered Property; (f) all Debt (as described in the other clauses of this definition) of others guaranteed by such Person or in respect of which such Person otherwise assures a creditor against loss; (g) all obligations or undertakings of such Person to maintain or cause to be maintained the financial position of others or to purchase the Debt of others; (h) Disqualified Capital Stock; (i) any Debt (as described in the other clauses of this definition) of a Special Entity for which such Person is liable either by agreement or because of a Governmental Requirement, but only to the extent of the maximum liability of such Person under such agreement or Governmental Requirement; and (j) all net mark to market obligations of such Person under Hedging Agreements.

 

“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

“Defaulting Lender” means, at any time, any Lender that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans within three (3) Business Days of the date required to be funded by it hereunder, (b) notified any Obligor, the Administrative Agent, any Issuing Bank, the Swingline Lender or any Lender in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement, or generally under other agreements in which it commits to extend credit, (c) failed, within three (3) Business Days after request by the Borrower or the Administrative Agent, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit, (d) otherwise failed to pay over to the Administrative Agent, any Issuing Bank or any Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, administrator, trustee, custodian or similar Person appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, administrator, trustee, custodian or similar Person appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not become a Defaulting Lender solely as the result of (A) the acquisition or maintenance of an ownership interest in such Lender or its parent company or (B) the exercise of control over such Lender or its parent company, by a Governmental Authority or an instrumentality thereof.

 

“Disclosing Parties” has the meaning assigned to such term in Section 12.11.

 

“Disqualified Capital Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event, matures or is mandatorily redeemable for any consideration other than other Equity Interests (which would not constitute Disqualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is convertible or exchangeable for Debt or redeemable for any consideration other than other Equity Interests (which would not constitute Disqualified Capital Stock) at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after the earlier of (a) the Revolving Credit Maturity Date and (b) the date on which

 

7











 

there are no Loans, LC Exposure or other obligations hereunder outstanding and all of the Commitments are terminated.

 

“Documentation Agent” has the meaning assigned to such term in the preamble hereto.

 

“dollars” or “$” refers to lawful money of the United States of America.

 

“Domestic Subsidiary” means each Restricted Subsidiary of EXLP which is not a Foreign Subsidiary.

 

“EBITDA” means, for any period, the sum of Consolidated Net Income for such period plus the following consolidated expenses or charges to the extent deducted from Consolidated Net Income in such period:  total interest expense, taxes, depreciation, amortization, non-cash charges, and reimbursements for any amounts that exceed the SG&A Limit or Cost of Sales Limit (as defined and set forth in the Omnibus Agreement); provided that any cash actually paid with respect to such non-cash charges shall be deducted from EBITDA when paid.  EBITDA will be adjusted on a pro forma basis (determined by the Borrower and supported by information in reasonable detail and approved by the Administrative Agent) for individual acquisitions and divestitures with a purchase or sale price in excess of $25,000,000, including projected synergies.

 

“Effective Date” means the date on which the conditions specified in Section 6.01 are satisfied (or waived in accordance with Section 12.02).

 

“Environmental Laws” means any and all Governmental Requirements pertaining in any way to health, safety, the environment or the preservation or reclamation of natural resources, in effect in any and all jurisdictions in which EXLP or any Subsidiary is conducting, or at any time has conducted, business, or where any Property of EXLP or any Subsidiary is located, including without limitation, the Oil Pollution Act of 1990 (“OPA”), the Clean Air Act, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (“CERCLA”), the Federal Water Pollution Control Act, the Occupational Safety and Health Act of 1970, the Resource Conservation and Recovery Act of 1976 (“RCRA”), the Safe Drinking Water Act, the Toxic Substances Control Act, the Superfund Amendments and Reauthorization Act of 1986, the Hazardous Materials Transportation Act, Texas Natural Resources Code Chapter 91, Subchapter D (Prevention of Pollution), as each of these laws are amended from time to time, and other environmental conservation or Governmental Requirements.  The term “oil” shall have the meaning specified in OPA, the terms “hazardous substance” and “release” (or “threatened release”) have the meanings specified in CERCLA, the terms “solid waste” and “disposal” (or “disposed”) have the meanings specified in RCRA and the term “oil and gas waste” shall have the meaning specified in Section 91.1011 of the Texas Natural Resources Code (“Section 91.1011”); provided, however, that to the extent the laws of the state or other jurisdiction in which any Property of EXLP or any Subsidiary is located establish a meaning for “oil,” “hazardous substance,” “release,” “solid waste,” “disposal” or “oil and gas waste” which is broader than that specified in either OPA, CERCLA, RCRA or Section 91.1011, such broader meaning shall apply.

 

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership

 

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interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such Equity Interests.

 

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

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with EXLP or any Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) failure to satisfy the minimum funding standards under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by EXLP, any Subsidiary or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by EXLP, any Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by EXLP, any Subsidiary or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA; or (g) the receipt by EXLP, any Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from EXLP, any Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or receipt by EXLP, any Subsidiary or any ERISA Affiliate of any notice that a Multiemployer Plan is insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the LIBO Rate.

 

“Event of Default” has the meaning assigned to such term in Section 10.01.

 

“Excepted Liens” means  (a) Liens for Taxes, assessments, public or statutory obligations or other governmental charges or levies which (i) are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP or (ii) could not reasonably be expected to have a Material Adverse Effect individually or in the aggregate for all Excepted Liens contained in clauses (a), (b), (c), (d) and (e) of this definition; (b) Liens in connection with workmen’s compensation, unemployment insurance or other social security, old age pension or public liability obligations not yet due or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP or which could not reasonably be expected to have a Material Adverse Effect individually or in the aggregate for all Excepted Liens contained in clauses (a), (b), (c), (d) and (e) of this definition; (c) operators’, vendors’, carriers’, warehousemen’s, repairmen’s, mechanics’, workmen’s, materialmen’s, construction or other like

 

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Liens arising by operation of law in the ordinary course of business or statutory landlord’s liens, each of which (i) is in respect of obligations that have not been overdue more than 90 days or (ii) is being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP or (iii) could not reasonably be expected to have a Material Adverse Effect individually or in the aggregate for all Excepted Liens contained in clauses (a), (b), (c), (d) and (e) of this definition; (d) any Liens reserved in leases for rent or royalties and for compliance with the terms of the leases in the case of leasehold estates, if such Lien (i) does not materially impair the use of the Property covered by such Lien for the purposes for which such Property is held by EXLP or any Subsidiary, (ii) is being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP or (iii) such Lien could not reasonably be expected to have a Material Adverse Effect individually or in the aggregate for all Excepted Liens contained in clauses (a), (b), (c), (d) and (e) of this definition; (e) encumbrances (other than to secure the payment of borrowed money or the deferred purchase price of Property or services), easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations in any rights of way or other Property of EXLP or any Subsidiary for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines for the removal of gas, oil, coal, minerals, timber, metals, steam or other natural resources or timber, and other like purposes, or for the joint or common use of real estate, rights of way, facilities and equipment, and defects, irregularities, zoning restrictions and deficiencies in title of any rights of way or other Property which in the aggregate do not materially impair the use of such rights of way or other Property for the purposes of which such rights of way and other Property are held by EXLP or any Subsidiary or materially impair the value of such Property subject thereto or which could not reasonably be expected to have a Material Adverse Effect individually or in the aggregate for all Excepted Liens contained in clauses (a), (b), (c), (d) and (e) of this definition; (f) Liens on cash, securities or, for Foreign Subsidiaries only, Property pledged to secure the performance of bids, trade contracts, leases, performance bonds, return-of-money or payment bonds, surety and appeal bonds, contracts or leases to which EXLP or any of its Subsidiaries is a party, statutory obligations, regulatory obligations, and other obligations of a like nature incurred in the ordinary course of business; provided  that, with respect to Liens on Property of Foreign Subsidiaries, such Property shall be the subject of, or used in connection with, the contracts, bonds or other obligations so secured; (g) Liens permitted by the Security Instruments; (h) judgment and attachment Liens not giving rise to an Event of Default; (i) Liens for EXLP’s or any Subsidiary’s title to Property leased under Capital Leases; (j) Liens resulting from the deposit of funds or evidence of Debt in trust for the purpose of defeasing Debt of EXLP or any of its Subsidiaries to the extent any such defeasance is permitted by this Agreement; (k) customary Liens on cash or cash equivalents held by a trustee for fees, costs and expenses of such trustee pursuant to an indenture; (l) Liens pursuant to merger agreements, stock purchase agreements, asset sale agreement and similar agreements on earnest money deposits, good faith deposits, purchase price adjustment escrows and similar deposits and escrow arrangements made or established thereunder; (m) Limited Recourse Equity Pledges; and (n) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies (including any such banker’s liens, rights of set-off or similar rights and remedies that are contractually agreed upon in deposit account agreements, securities account agreements or commodities account agreements entered into in the ordinary course of business) and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the

 

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depositor in excess of those set forth by regulations promulgated by the Board and no such deposit account is intended by EXLP or any other Obligor to provide collateral to the depository institution; provided that no intention to subordinate the first priority Lien granted in favor of the Administrative Agent and the Lenders is to be hereby implied or expressed by the permitted existence of such Excepted Liens.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.

 

“Exchange Rate” shall mean, with respect to any Offshore Currency on a particular date, the rate at which such Offshore Currency may be exchanged into dollars, as set forth at 11:00 a.m., London time, on such date on the applicable Reuters currency page with respect to such Offshore Currency.  If such rate does not appear on the applicable Reuters currency page, the Exchange Rate with respect to such Offshore Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower or, in the absence of such agreement, such Exchange Rate shall instead be the spot rate of exchange of the Administrative Agent in the London Interbank market or other market where its foreign currency exchange operations in respect of such Offshore Currency are then being conducted, at or about 11:00 a.m., London time, at such date for the purchase of dollars with such Offshore Currency, for delivery two Business Days later.

 

“Excluded Hedging Obligation” means, with respect to any Obligor, any Hedging Obligation if, and to the extent that, all or a portion of the guarantee of such Obligor of, or the grant by such Obligor of a security interest to secure, such Hedging Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Obligor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time such guarantee or grant of a security interest becomes effective with respect to such Hedging Obligation.

 

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower or any Guarantor hereunder or under any other Loan Document, (a) Taxes imposed on (or measured by) its net income (including backup withholding) and franchise taxes or gross margin taxes imposed on it (in lieu of net income taxes) by the United States of America or such other jurisdiction 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 Office is located), (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower or any Guarantor is located or in which its principal office is located (or, in the case of any Lender, in which is Applicable Lending Office is located), (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 5.04(b)), any withholding tax that is imposed on amounts payable (directly or indirectly) to such Foreign Lender pursuant to applicable law in force at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure or inability

 

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(other than as a result of a change in applicable law after such Foreign Lender becomes a party hereto) to comply with Section 5.03(e) (or to any inaccuracy or deficiency of any documentation provided by such Foreign Lender under Section 5.03(e)), 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 5.03(a), (d) any United States withholding tax that is imposed by FATCA, and (e) any interest, additions to tax and penalties applicable to the taxes described in (a), (b), (c) and (d) above.

 

“Existing ABS Facility” means that certain asset backed securitization facility established pursuant to an Indenture, dated as of October 13, 2009, among EXLP ABS 2009 LLC, as issuer, EXLP ABS Leasing 2009 LLC, as lessor, and Wells Fargo, as indenture trustee, as amended from time to time.

 

“Existing Credit Agreement” has the meaning assigned to such term in the recitals hereto.

 

“Existing Letters of Credit” means, collectively, those certain letters of credit set forth on Schedule 1.02.

 

“Exiting Lender” means any Lender (as defined in the Existing Credit Agreement) which is not a party to this Agreement, and does not have a Commitment hereunder, on the Effective Date.

 

“EXLP” has the meaning assigned to such term in the preamble hereto.

 

“EXLP Group” means EXLP and its Restricted Subsidiaries.

 

“EXLP Leasing” means EXLP Leasing LLC, a Delaware limited liability company.

 

“EXLP Partnership Agreement” means that certain First Amended and Restated Agreement of Limited Partnership of EXLP dated as of October 20, 2006, as amended by that certain Amendment No. 1 to the First Amended and Restated Agreement dated as of April 14, 2008, as amended, modified, supplemented or restated from time to time.

 

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (and any amended or successor version of such provisions that is substantively comparable and not materially more onerous to comply with), and any regulations or official interpretations thereof.

 

“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

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“Fee Letter” means that certain letter agreement from Wells Fargo and Wells Securities to the Borrower and EXLP dated October 12, 2010, concerning certain fees in connection with this Agreement, as the same may be amended or replaced from time to time.

 

“Financial Officer” means, for any Person, the chief financial officer, principal accounting officer, treasurer or controller of such Person.  Unless otherwise specified, all references herein to a Financial Officer means a Financial Officer of the Borrower.

 

“Financial Statements” means the financial statement or statements of EXLP most recently delivered pursuant to Section 8.01(a)(i) and, prior to the initial delivery of such financial statement or statements pursuant to Section 8.01(a)(i), the financial statement or statements of EXLP for the fiscal year ended December 31, 2009.

 

“First Amendment” means the First Amendment to the Amended and Restated Senior Secured Credit Agreement dated as of March 7, 2012, among the Borrower, EXLP, the Administrative Agent, the Swingline Lender and the Lenders party thereto.

 

“First Amendment Effective Date” means March 7, 2012.

 

“Foreign Credit Facility” means any credit facility of a Foreign Subsidiary that derives substantially all of its income from jurisdictions other than the United States of America.

 

“Foreign Lender” means any Lender that is organized (or that is otherwise resident for tax purposes) under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

“Foreign Subsidiary” means each Restricted Subsidiary of EXLP that is incorporated under the laws of any jurisdiction other than the United States of America, any State thereof, or any territory thereof.

 

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, subject to the terms and conditions set forth in Section 1.05.

 

“General Partner” means Exterran General Partner, L.P., a Delaware limited partnership and the general partner of EXLP.

 

“Governmental Authority” means the government of the United States of America, any other nation or 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 over EXLP, any Subsidiary, any of their Properties, any Agent, any Issuing Bank or any Lender.

 

“Governmental Requirement” means any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement of any Governmental Authority, whether now or hereinafter in effect, including, without limitation, Environmental Laws, energy

 

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regulations and occupational, safety and health standards or controls, of any Governmental Authority.

 

“Guarantors” means EXLP, each Significant Domestic Subsidiary and each Wholly-Owned Domestic Subsidiary that guarantees the Indebtedness pursuant to Section 8.07.

 

“Guaranty Agreement” means that certain Amended and Restated Guaranty Agreement, dated as of the date hereof, executed by the Guarantors in favor of the Administrative Agent.

 

“Hedging Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement, whether exchange traded, “over-the-counter” or otherwise, involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of EXLP or its Subsidiaries shall be a Hedging Agreement.

 

“Hedging Obligations” means any obligation to pay or perform under any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement, whether exchange traded, “over-the-counter” or otherwise, involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions (including any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act).

 

“Highest Lawful Rate” means, with respect to each Lender, the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Notes or on other Indebtedness under laws applicable to such Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws allow as of the date hereof.

 

“Holdings” means Exterran Holdings, Inc., a Delaware corporation.

 

“Indebtedness” means, without duplication, any and all amounts owing by any Obligor (including interest accruing at any post-default rate and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Obligor, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding): (a) to any Agent, any Issuing Bank or any Lender under any Loan Document; (b) to any Secured Hedging Provider under any Hedging Agreement between EXLP or any Restricted Subsidiary and such Secured Hedging Provider, including any Hedging Agreement in existence on the date hereof, but excluding any amounts owing in respect of any additional transactions or confirmations under such Hedging Agreement entered into after such Secured Hedging Provider ceases to be a Lender or an Affiliate of a Lender; (c) to any Secured Treasury Management Counterparty under a Treasury Management Agreement; (d) all renewals, extensions and/or rearrangements of any of the above, in each case whether direct or indirect 

 

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(including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising; provided that solely with respect to any Guarantor that is not an “eligible contract participant” at the relevant time under the Commodity Exchange Act or any regulations promulgated thereunder, Excluded Hedging Obligations of such Guarantor shall in any event be excluded from “Indebtedness” owing by such Guarantor.

 

“Indemnified Parties” has the meaning assigned to such term in Section 12.03(a)(ii).

 

“Indemnified Taxes” means Taxes other than Excluded Taxes.

 

“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of EXLP.

 

“Information Memorandum” means the Confidential Information Memorandum dated October, 2010 relating to the Borrower and the Transactions.

 

“Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) EBITDA for the most recently completed Testing Period to (b) Total Interest Expense for the most recently completed Testing Period.

 

“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.04.

 

“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December, (b) with respect to any Eurodollar Loan (other than a Swingline Loan), the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to a Swingline Loan, the day that such Loan is required to be repaid pursuant to Section 2.08(a).

 

“Interest Period” means with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, with the consent of each Revolving Lender or Term Lender, as applicable, nine or twelve months) thereafter, as the Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, (c) no Interest Period for a Revolving Borrowing may end after the Revolving Credit Maturity Date, (d) no Interest Period for a Term Loan Borrowing may end after the Term Loan Maturity Date, and (e) the last Interest Period may be such shorter period as to end on the Term Loan Maturity Date.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

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“Investment” means, as applied to any Person, any direct or indirect (a) purchase or other acquisition by such Person of any Equity Interests, Debt or other securities (including any option, warrant or other right to acquire any of the foregoing) of any other Person, (b) loan or advance made by such Person to any other Person, (c) guarantee, assumption or other incurrence of liability by such Person of or for any Debt of any other Person, (d) capital contribution or other investment by such Person in any other Person or (e) purchase or other acquisition (in one transaction or a series of transactions) of any assets of any other Person constituting a business unit.  The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment or interest earned on such Investment.  The term “Investment” shall exclude extensions of trade credit by EXLP and the Subsidiaries on commercially reasonable terms in accordance with normal trade practices of the EXLP or such Subsidiary, as the case may be.

 

“Investment Grade Rating” means, with respect to EXLP’s Index Debt, (a) (i) a rating of Baa3 or better by Moody’s or a rating of BBB- or better by S&P and (ii) a rating no lower than one notch below that specified in clause (a)(i) of this definition from the other agency, and (b) a stable outlook or better from both Moody’s and S&P.

 

“Issuing Bank” means each of Wells Fargo, JPMorgan and any other Lender that agrees to issue Letters of Credit hereunder (as designated by the Borrower and approved by the Administrative Agent in its reasonable discretion), in each case in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.07(f).  The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

“Joint Lead Arrangers” has the meaning assigned to such term in the preamble hereto.

 

“Joint Venture” means (i) a joint venture with a third party so long as such entity would not constitute a Subsidiary or (ii) a Subsidiary formed with the intention of establishing a joint venture; provided that if such entity still constitutes a Subsidiary ninety days after formation it shall no longer constitute a Joint Venture; provided, that in the case of (i) or (ii), all Investments by EXLP, the Borrower or any Restricted Subsidiary are made pursuant to and are permitted by Section 9.03(k) or Section 9.03(m).

 

“Joint Venture Obligations” means, with respect to any Joint Venture owned in part by an Obligor or any Restricted Subsidiary, (a) obligations owed by such Obligor or Restricted Subsidiary to the other holders of the Equity Interests in such Joint Venture (other than a holder that is an Affiliate of an Obligor or any Restricted Subsidiary) and (b) Debt of such Joint Venture that is non-recourse to any Obligor or any Restricted Subsidiary or to any Property of any Obligor or Restricted Subsidiary other than the Equity Interests in such Joint Venture.

 

“LC Disbursement” means a payment made by any Issuing Bank pursuant to a Letter of Credit.

 

“LC Exposure” means, at any time, the sum of (a) the US Dollar Equivalent of the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the US

 

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Dollar Equivalent of the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.

 

“Lenders” means the Revolving Lenders and the Term Lenders listed in Annex I hereto and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption or as an Additional Lender pursuant to Section 2.06(c), other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

 

“Letter of Credit” means each Existing Letter of Credit and any letter of credit issued pursuant to this Agreement, and shall include Offshore Currency Letters of Credit.

 

“Letter of Credit Agreements” means all letter of credit applications and other agreements submitted by the Borrower, or entered into by the Borrower, with any Issuing Bank relating to any Letter of Credit.

 

“Letter of Credit Request” means a request by the Borrower for the issuance, amendment, renewal or extension, as the case may be, of a Letter of Credit in accordance with Section 2.07(b), which shall be substantially in the form of Exhibit H.

 

“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) LIBOR for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

“LIBOR” means, with respect to any Eurodollar Borrowing for any Interest Period, the per annum rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period.  In the event that such rate does not appear on such page, then “LIBOR” with respect to such Eurodollar Borrowing for such Interest Period shall be the average of the respective rates per annum at which deposits in dollars are offered by reference banks selected by the Administrative Agent in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period for a period comparable to such Interest Period and in an amount substantially equal to the amount of such Eurodollar Borrowing.

 

“Lien” means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including but not limited to the lien or security interest arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes.  The term “Lien” shall include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting Property.  For the purposes of this Agreement, EXLP or any Subsidiary

 

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shall be deemed to be the owner of any Property which it has acquired or holds subject to a conditional sale agreement, or leases under a financing lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person in a transaction intended to create a financing.

 

“Limited Recourse Equity Pledge” means the pledge of Equity Interests in any Unrestricted Subsidiary to secure Non-Recourse Debt of such Unrestricted Subsidiary pursuant to an agreement that expressly states that the pledgee shall have no recourse to the pledgor or any of its assets or revenues under any circumstance other than recourse to the Equity Interests of the Unrestricted Subsidiary that are described in such pledge.

 

“Loan Documents” means this Agreement, the Term Loan Assumption Agreements, the Notes, the Letter of Credit Agreements, the Commitment Increase Certificates, the Additional Lender Certificates, the Letters of Credit, the Fee Letter, the Security Instruments and each compliance certificate, Borrowing Request, Letter of Credit Request or Interest Election Request executed by the Borrower pursuant to this Agreement.

 

“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement, including Swingline Loans.

 

“Majority Lenders” means, at any time while no Loans are outstanding or LC Exposure is outstanding, Lenders having at least a majority of the Aggregate Commitments; and at any time while any Loans or LC Exposure is outstanding, Lenders holding at least a majority of the outstanding aggregate principal amount of the Loans (other than Swingline Loans) and participation interests in Letters of Credit and Swingline Loans (without regard to any sale by a Lender of a participation in any Loan under Section 12.04); provided that the Revolving Commitment, the Term Commitment and the principal amount of the Credit Exposure of each Defaulting Lender (if any) shall be excluded from the determination of Majority Lenders to the extent set forth in Section 4.03(c)(ii).

 

“Material Adverse Effect” means any material and adverse effect on (a) the assets, liabilities, financial condition, business or operations of EXLP and its Restricted Subsidiaries, taken as a whole, as reflected in the Financial Statements after eliminating the financial condition and results of the Unrestricted Subsidiaries, or (b) the ability of EXLP, the Borrower and the other Obligors, taken as a whole, to perform their obligations under the Loan Documents in accordance with the terms thereof.

 

“Maximum Facility Amount” means, on any date, the sum of (a) the Aggregate Revolving Commitments on such date plus (b) the Aggregate Term Commitments on such date plus (c) the aggregate principal amount of Term Loans outstanding on such date.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto that is a nationally recognized rating agency.

 

“Mortgage” means each mortgage, deed of trust or any other document creating and evidencing a Lien on real or immovable Property to secure the Indebtedness, which shall be in a form reasonably satisfactory to the Administrative Agent.

 

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“Multiemployer Plan” means a Plan which is a multiemployer plan as defined in section 3(37) or 4001 (a)(3) of ERISA.

 

“Net Proceeds” means (a) with respect to any Transfer (other than any lease), the gross amount of cash received by EXLP or any Restricted Subsidiary from such Transfer minus the sum of (i) the amount, if any, of all Taxes paid or payable by EXLP or any Restricted Subsidiary directly resulting from such Transfer (including the amount, if any, estimated by EXLP or any Restricted Subsidiary in good faith at the time of such Transfer for Taxes payable by EXLP or any Restricted Subsidiary on or measured by net income or gain resulting from such Transfer), (ii) the costs, fees and expenses incurred by EXLP or any Restricted Subsidiary in connection with such Transfer (including brokerage, investment banking, legal, accounting and other professional fees paid to a Person other than an Affiliate of EXLP or any Restricted Subsidiary, but excluding any fees paid to an Affiliate of EXLP or any Restricted Subsidiary for the account of such Affiliate (it being understood that any amounts paid by EXLP or any Restricted Subsidiary to Holdings or any of its Subsidiaries (other than EXLP and its Subsidiaries) for purposes of reimbursing Holdings or such Subsidiary for costs incurred by Holdings or such Subsidiary in connection with such Transfer or for purposes of paying EXLP’s or such Restricted Subsidiary’s reasonable share of any shared costs or expenses in connection with such Transfer shall not be excluded from this clause (ii)), (iii) appropriate amounts required to be reserved (in accordance with GAAP) for post-closing adjustments by EXLP or any Restricted Subsidiary in connection with such Transfer, against any liabilities retained by EXLP or any Restricted Subsidiary after such Transfer, which liabilities are associated with the Property being disposed, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such Transfer, and (iv) deduction for Debt secured by the Property being disposed, which Debt is repaid as a result of such Transfer, and (b) with respect to any issuance of Senior Notes by EXLP or the Borrower, the gross amount of cash received by EXLP or the Borrower from such issuance minus all underwriter discount and commissions, investment banking fees, legal, accounting and other professional fees and expenses and Taxes incurred by EXLP or the Borrower in connection with such transaction.  Any proceeds received in a currency other than dollars shall, for purposes of any calculation of the amount of Net Proceeds, be in an amount equal to the US Dollar Equivalent thereof as of the date of receipt thereof by EXLP or any Restricted Subsidiary.

 

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

“Non-Recourse Debt” means Debt of any Subsidiary:

 

(a)                                 as to which neither EXLP nor any Restricted Subsidiary (i) provides credit support of any kind (including any guaranty, undertaking, agreement or instrument that would constitute Debt), other than a Limited Recourse Equity Pledge, (ii) is directly or indirectly liable as a guarantor or otherwise or (iii) is the lender; and

 

(b)                                 no default with respect to which (including any rights that the holders thereof may have to take an enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of Debt of EXLP, the Borrower or any Restricted Subsidiary to declare a default on such Debt or cause the payment thereof to be accelerated or payable prior to its stated maturity.

 

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“Non-Recourse Foreign Debt” means Debt of any Foreign Subsidiary as to which neither EXLP nor any Domestic Subsidiary (a) provides credit support of any kind (including any guaranty, undertaking, agreement or instrument that would constitute Debt), other than a Limited Recourse Equity Pledge, (b) is directly or indirectly liable as a guarantor or otherwise or (c) is the lender.

 

“Note” means a Revolving Credit Note or Term Note, as the context may require.

 

“Obligors” means the Borrower and the Guarantors.

 

“Offshore Currency” means any lawful currency (other than dollars) that the relevant Issuing Bank with respect to any Offshore Currency Letter of Credit, in its sole reasonable opinion, at any time determines to be (a) freely traded in the offshore interbank foreign exchange markets, (b) freely transferable and (c) freely convertible into dollars.

 

“Offshore Currency Letter of Credit” means any Letter of Credit denominated in an Offshore Currency.

 

“Omnibus Agreement” shall mean that certain Second Amended and Restated Omnibus Agreement dated November 10, 2009 among Holdings, Exterran Energy Solutions, L.P., Exterran GP LLC, General Partner and the Borrower, as amended by that certain First Amendment to Second Amended and Restated Omnibus Amendment effective as of August 11, 2010, as amended, modified, supplemented or restated from time to time and all exhibits and schedules thereto.

 

“OPA” has the meaning assigned to such term in the definition of Environmental Laws.

 

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and the operating agreement or limited liability company 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 any and 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 any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement and any other Loan Document.

 

“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.

 

“Permitted Liens” has the meaning assigned to such term in Section 9.02.

 

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

 

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which EXLP, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“Post-Default Rate” means, in respect of any principal of any Loan or any other amount payable by the Borrower under this Agreement or any other Loan Document, a rate per annum equal to 2% per annum above the LIBO Rate for Eurodollar Borrowings with an Interest Period of one month as in effect from time to time plus the Applicable Margin (if any), but in no event to exceed the Highest Lawful Rate; provided, however, if any amount of principal of any Eurodollar Loan is not paid when due, the “Post-Default Rate” for such principal amount shall be 2% per annum above the interest rate for such Loan as provided in Section 3.02(a), but in no event to exceed the Highest Lawful Rate.

 

“Prime Rate” means the rate of interest per annum publicly announced from time to time by Wells Fargo as its prime rate in effect at its office in Charlotte, North Carolina; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.  Such rate is set by the Administrative Agent as a general reference rate of interest, taking into account such factors as the Administrative Agent may deem appropriate; it being understood that many of the Administrative Agent’s commercial or other loans are priced in relation to such rate, that it is not necessarily the lowest or best rate actually charged to any customer and that the Administrative Agent may make various commercial or other loans at rates of interest having no relationship to such rate.

 

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including, without limitation, cash, securities, accounts and contract rights.

 

“Purchase Money Indebtedness” means debt, the proceeds of which are used to finance the acquisition, construction or improvement of inventory, equipment or other property.

 

“Qualified ECP Guarantor” means in respect of any Hedging Obligation, each Obligor that (a) has total assets exceeding $10,000,000 at the time the relevant guaranty or grant of the relevant security interest becomes effective with respect to such Hedging Obligation or (b) otherwise constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

“RCRA” has the meaning assigned to such term in the definition of Environmental Laws.

 

“Register” has the meaning assigned to such term in Section 12.04(c).

 

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“Regulation D” means Regulation D of the Board, as the same may be amended, supplemented or replaced from time to time.

 

“Related Fund” means, with respect to any Term Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is advised or managed by the same investment advisor as such Term Lender or by an Affiliate of such investment advisor.

 

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, representatives, trustees, agents and advisors (including attorneys, accountants and experts) of such Person and such Person’s Affiliates.

 

“Responsible Officer” means, as to any Person, the Chief Executive Officer, the President, any Financial Officer or any Vice President of such Person.  Unless otherwise specified, all references to a Responsible Officer herein means a Responsible Officer of the Borrower.

 

“Restricted Person” has the meaning assigned such term in Section 12.11.

 

“Restricted Subsidiaries” means all Subsidiaries of EXLP that are not Unrestricted Subsidiaries.  The Borrower will always be a Restricted Subsidiary of EXLP.

 

“Revolving Borrowing” means a Borrowing comprised of Revolving Loans.

 

“Revolving Commitment” means, with respect to each Revolving Lender, the amount set forth opposite such Lender’s name under the caption “Revolving Commitments” on Annex I hereto, or in the Assignment and Assumption pursuant to which such Revolving Lender shall have assumed its Revolving Commitment, as applicable, as the same may be (a) reduced or terminated from time to time in connection with a reduction or termination of the Aggregate Revolving Commitments pursuant to Section 2.06(b), (b) increased from time to time pursuant to Section 2.06(c) or (c) modified from time to time pursuant to any assignment permitted by Section 12.04.

 

“Revolving Credit Exposure” means, with respect to any Revolving Lender at any time, the sum of the aggregate principal amount of such Revolving Lender’s Revolving Loans, LC Exposure and Swingline Exposure outstanding at such time.

 

“Revolving Credit Facility” means the Revolving Commitments, the Revolving Loans and the LC Exposure.

 

“Revolving Credit Maturity Date” means May 15, 2018.

 

“Revolving Credit Note” means a promissory note of the Borrower in favor of a Revolving Lender evidencing the Revolving Loans made by such Revolving Lender in substantially in the form of Exhibit A-1.

 

“Revolving Lender” means, at any time, a Lender with a Revolving Commitment or with outstanding Revolving Credit Exposure at such time.

 

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“Revolving Loan” means each revolving loan made pursuant to Section 2.01(a) and each Swingline Loan made pursuant to Section 2.08.

 

“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and any successor thereto that is a nationally recognized rating agency.

 

“SEC” means the Securities and Exchange Commission or any successor Governmental Authority.

 

“Second Amendment” means the Second Amendment to Amended and Restated Senior Secured Credit Agreement dated as of October 22, 2012, among the Borrower, EXLP, the Administrative Agent, the Swingline Lender and the Lenders party thereto.

 

“Second Amendment Effective Date” means October 22, 2012.

 

“Secured Hedging Provider” means any Person that is a party to a Hedging Agreement with EXLP or any Restricted Subsidiary that entered into such Hedging Agreement while such Person was, or before such Person becomes, a Lender or an Affiliate of a Lender, as the case may be.

 

“Secured Parties” means, collectively, the Administrative Agent, each Issuing Bank, each Lender, each Secured Hedging Provider and each Secured Treasury Management Counterparty.

 

“Secured Treasury Management Counterparty” means each Lender or Affiliate of a Lender that enters into a Treasury Management Agreement with EXLP or any Restricted Subsidiary; provided that if such Person at any time ceases to be a Lender or an Affiliate of a Lender, as the case may be, such Person shall no longer be a Secured Treasury Management Counterparty.

 

“Security Instruments” means the Guaranty Agreement, the Collateral Agreement, the Mortgages and the other agreements, instruments or certificates described or referred to in Exhibit F, and any and all other agreements and instruments now or hereafter executed and delivered by the Borrower or any other Person (other than Hedging Agreements with the Lenders or any Affiliate of a Lender or participation or similar agreements between any Lender and any other lender or creditor with respect to any Indebtedness pursuant to this Agreement or any Treasury Management Agreement) granting a Lien upon any Collateral or as security for the payment or performance of the Indebtedness.

 

“Senior Notes” means senior notes issued by EXLP or the Borrower pursuant to Section 9.01(e).

 

“Senior Notes Issuance Date” means the date on which any Senior Notes are issued by EXLP or the Borrower pursuant to Section 9.01(e) in an aggregate principal amount of not less than $150,000,000.

 

“Senior Secured Debt” means all Debt included in the calculation of Total Debt (including the Indebtedness to the extent included in the calculation of Total Debt) that is secured and that is not expressly subordinated by its terms to the Indebtedness.

 

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“Senior Secured Leverage Ratio” means, as of the last day of any Testing Period, the ratio of Senior Secured Debt as of such date to EBITDA for such Testing Period.

 

“Significant Domestic Subsidiary” means (a) EXLP Leasing, (b) each Wholly-Owned Domestic Subsidiary the EBITDA of which for the most recently ended Testing Period exceeds five percent (5%) of the EBITDA of the EXLP Group for such Testing Period, (c) each Domestic Subsidiary designated or deemed designated as a Significant Domestic Subsidiary pursuant to Section 8.07(b) and (d) each Wholly-Owned Domestic Subsidiary that guarantees any Debt in an aggregate principal amount equal to or greater than $10,000,000; provided that neither EXLP ABS Leasing 2009 LLC nor EXLP ABS 2009 LLC shall be a Significant Domestic Subsidiary, unless such Subsidiary meets the requirements of this definition on or after December 31, 2010.

 

“Significant Foreign Subsidiary” means any Foreign Subsidiary the EBITDA of which for the most recently ended Testing Period exceeds five percent (5%) of the EBITDA of the EXLP Group for such Testing Period.

 

“Solvent” means, with respect to any Person on any date, that (a) the fair value of the assets of such Person is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date, (b) as of such date, the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) as of such date, such Person is able to pay all liabilities of such Person as such liabilities mature, and (d) as of such date, such Person is not engaged in business for which such Person’s property would constitute an unreasonably small capital.  In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in 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.

 

“Special Entity” means any joint venture, limited liability company or partnership, general or limited partnership or any other type of partnership or company other than a corporation in which EXLP or one or more of its other Subsidiaries is a member, owner, partner or joint venturer and owns, directly or indirectly, at least a majority of the equity of such entity or controls such entity, but excluding any tax partnerships that are not classified as partnerships under state law.  For purposes of this definition, any Person which owns directly or indirectly an equity investment in another Person which allows the first Person to manage or elect managers who manage the normal activities of such second Person will be deemed to “control” such second Person (e.g. a sole general partner controls a limited partnership).

 

“Specified Acquisition” means any acquisition of assets (including, but not limited to, purchase of Compression Assets from Holdings or its Subsidiaries) or entities or operating lines or divisions for a purchase price of not less than $50,000,000.

 

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such reserve percentages shall include those imposed pursuant to

 

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such Regulation D.  Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“Subsidiary” of a Person means (a) any corporation, limited liability company, joint venture, partnership or other business entity (i) of which at least a majority of the outstanding Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors, managers or other governing body of such Person (irrespective of whether or not at the time Equity Interests of any other class or classes of such Person shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries or (ii) which is otherwise Controlled by such Person or one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries and (b) any partnership of which such Person or any of its Subsidiaries is a general partner.  Unless otherwise indicated herein, each reference to the term “Subsidiary” means a Subsidiary of EXLP.

 

“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.

 

“Swingline Lender” means Wells Fargo, in its capacity as a lender of Swingline Loans hereunder.

 

“Swingline Loan” means a Loan made pursuant to Section 2.08.

 

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

 

“Term Commitment” means (a) with respect to each Term Lender with a Term Commitment on the Third Amendment Effective Date, the amount set forth opposite such Term Lender’s name under the caption “Term Commitments” on Annex I hereto and (b) with respect to each Term Lender that provides an additional Term Commitment pursuant to a Term Loan Assumption Agreement, the amount specified as such Term Lender’s Term Commitment in such Term Loan Assumption Agreement.

 

“Term Credit Exposure” means, with respect to any Term Lender at any time, the principal amount of such Term Lender’s Term Loans.

 

“Term Lender” means, at any time, a Lender with a Term Commitment or an outstanding Term Loan at such time.

 

“Term Loan” means each term loan made pursuant to Section 2.01(b).

 

“Term Loan Assumption Agreement” has the meaning assigned to such term in Section 2.06(c)(ii)(G).

 

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“Term Loan Borrowing” means a Borrowing comprised of Term Loans.

 

“Term Loan Facility” means the Term Commitments and the Term Loans.

 

“Term Loan Funding Date” means each date on which any Term Lender makes a term loan to the Borrower pursuant to Section 2.01(b).

 

“Term Loan Maturity Date” means (a) with respect to the Term Loans made on the initial Term Loan Funding Date, May 15, 2018, and (b) with respect to any Term Loans made pursuant to a Term Loan Assumption Agreement, the date specified in such Term Loan Assumption Agreement; provided such date is no sooner than the Revolving Credit Maturity Date.

 

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

 

“Testing Period” means, at any date of determination, the period consisting of the four consecutive fiscal quarters of EXLP most recently ended (whether or not such quarters are all within the same fiscal year).

 

“Third Amendment” means the Third Amendment to Amended and Restated Senior Secured Credit Agreement dated as of March 27, 2013, among the Borrower, EXLP, the Administrative Agent, the Swingline Lender and the Lenders party thereto.

 

“Third Amendment Effective Date” means March 27, 2013.

 

“Total Debt” means, at any time (without duplication), the sum of (a) 100% of the long-term debt of EXLP and its Restricted Subsidiaries reflected on the consolidated balance sheet of EXLP in accordance with GAAP, plus (b) any Debt that is not reflected on the consolidated balance sheet of EXLP and its Restricted Subsidiaries which has been used to finance assets that generate income included in EBITDA, plus (c) the current portion of the debt set forth in (a) above, minus (d) all net mark to market obligations of EXLP and its Restricted Subsidiaries under Hedging Agreements.

 

“Total Interest Expense” means, for any period, the total consolidated interest expense net of cash interest income of EXLP and its Consolidated Subsidiaries for such period (including, without limitation, the cash equivalent of the interest expense associated with Capital Lease Obligations, but excluding (a) upfront fees paid in connection with this Agreement or any debt facility where the fees are paid from the proceeds of such debt, (b) Debt or lease issuance costs, debt discounts or premiums and other financing fees required to be amortized, (c) lease payments on any office equipment or real property, (d) any principal components paid on all lease payments, (e) gains, losses or other charges as a result of the early retirement of Debt and (f) any other non-cash interest expense).  Total Interest Expense will be adjusted on a pro forma basis (determined by the Borrower and supported by information in reasonable detail and approved by the Administrative Agent) for interest expense of financings, the proceeds of which are to be used for acquisitions and divestitures with a purchase or sale price in excess of $25,000,000 (to the extent not otherwise reflected in the calculation of Total Interest Expense).

 

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“Total Leverage Ratio” means, as of any date of determination, the ratio of Total Debt as of such date to EBITDA for the most recently completed Testing Period.

 

“Total Revolving Exposure” means, at any time, the sum of the Revolving Credit Exposures of all Revolving Lenders at such time.

 

“Transactions” means the execution, delivery and performance by the Obligors of the Loan Documents to which they are a party, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder, and the grant of Liens by the Obligors on Collateral pursuant to the Security Instruments.

 

“Transfer” means to sell, lease, assign, exchange, convey or otherwise transfer (excluding the granting of a Lien on) any Property.

 

“Treasury Management Agreement” means any agreements regarding bank services provided to EXLP or any Restricted Subsidiary for commercial credit cards, stored value cards and treasury management services, including, without limitation, deposit accounts, auto-borrow, zero balance accounts, returned check concentration, lockbox, controlled disbursements, automated clearinghouse transactions, return items, overdrafts, interstate depository network services and reporting and trade finance services provided by a Secured Treasury Management Counterparty.

 

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Base Rate or the LIBO Rate.

 

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of Texas or any other state the laws of which are required to be applied in connection with the issue of perfection of security interests.

 

“Unrestricted Subsidiary” means any Subsidiary designated as an Unrestricted Subsidiary in accordance with Section 9.14, and any of its Subsidiaries.

 

“US Dollar Equivalent” means, on any date of determination, (a) with respect to any amount denominated in dollars, such amount and (b) with respect to any amount denominated in an Offshore Currency, the equivalent in dollars of such amount determined by the Administrative Agent in accordance with normal banking industry practice using the Exchange Rate on such date of determination.

 

“USA Patriot Act” has the meaning assigned such term in Section 12.16.

 

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

 

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“Wells Fargo” means Wells Fargo Bank, National Association.

 

“Wells Securities” has the meaning assigned to such term in the preamble hereto.

 

“Wholly-Owned Domestic Subsidiary” means any Domestic Subsidiary of which all of the outstanding Equity Interests (other than any directors’ qualifying shares mandated by applicable law), on a fully-diluted basis, are owned by EXLP or one or more of the Wholly-Owned Domestic Subsidiaries or are owned by EXLP and one or more of the Wholly-Owned Domestic Subsidiaries; provided that neither EXLP ABS Leasing 2009 LLC nor EXLP ABS 2009 LLC shall be a Wholly-Owned Domestic Subsidiary, unless such Subsidiary meets the requirements of this definition on or after December 31, 2010.

 

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

Section 1.03                             Types of Loans and Borrowings.  For purposes of this Agreement, Loans and Borrowings, respectively, may be classified and referred to by Type (e.g., a “Eurodollar Loan” or a “Eurodollar Borrowing”).

 

Section 1.04                             Terms Generally; Rules of Construction.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein 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 in the Loan Documents), (b) any reference herein to any law shall be construed as referring to such law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to the restrictions contained in the Loan Documents), (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) with respect to the determination of any time period, the word “from” means “from and including” and the word “to” means “to and including” and (f) any reference herein to Articles, Sections, Annexes, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Annexes, Exhibits and Schedules to, this Agreement.  No provision of this Agreement or any other Loan Document shall be interpreted or construed against any Person solely because such Person or its legal representative drafted such provision.

 

Section 1.05                             Accounting Terms and Determinations; GAAP.  Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Administrative Agents or the Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the audited financial statements of EXLP and its Consolidated Subsidiaries

 

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referred to in Section 8.01(a) (except for changes concurred with by EXLP and its Consolidated Subsidiaries’ independent public accountants); provided that, if EXLP notifies the Administrative Agent that it requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies EXLP that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision  amended in accordance herewith.

 

ARTICLE II
 The Credits

 

Section 2.01                             Commitments.

 

(a)                                 Revolving Commitments.  Subject to the terms and conditions set forth herein, each Revolving Lender agrees to make Revolving Loans to the Borrower during the Availability Period in an aggregate principal amount that will not result in (i) such Revolving Lender’s Revolving Credit Exposure exceeding such Revolving Lender’s Revolving Commitment and (ii) the Total Revolving Credit Exposure exceeding the Aggregate Revolving Commitments.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, repay and reborrow the Revolving Loans.

 

(b)                                 Term Commitments. (i)  Subject to the terms and conditions set forth herein, each Term Lender agrees to make a Term Loan to the Borrower on the Third Amendment Effective Date in a principal amount equal to such Term Lender’s Term Commitment in effect on the Third Amendment Effective Date, and (ii) subject to the terms and conditions set forth herein and in any Term Loan Assumption Agreement, each Term Loan Lender party to such Term Loan Assumption Agreement agrees to make Term Loans to the Borrower on the Term Loan Funding Date specified in such Term Loan Assumption Agreement in an aggregate principal amount equal to such Term Loan Lender’s Term Commitment set forth in such Term Loan Assumption Agreement. Once repaid or prepaid, Term Loans may not be reborrowed.

 

Section 2.02                             Loans and Borrowings.

 

(a)                                 Borrowings; Several Obligations.  Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made by the Revolving Lenders ratably in accordance with their respective Revolving Commitments.  Each Term Loan shall be made as part of a Borrowing consisting of Term Loans made by the Term Lenders ratably in accordance with their respective Term Commitments.  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Revolving Commitments and Term Commitments are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b)                                 Types of Loans.  Subject to Section 3.03, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith.  Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign

 

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branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

(c)                                  Minimum Amounts; Limitation on Number of Borrowings.  At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000.  At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $100,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Revolving Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.07(e).  Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of ten (10) Eurodollar Borrowings outstanding.  Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable.

 

(d)                                 Notes.  Any Lender may request that the Loans made by such Lender be evidenced by a Revolving Credit Note or Term Note, as applicable, dated, in the case of (i) any Lender party hereto as of the date of this Agreement, as of the date of this Agreement, (ii) any Lender that becomes a party hereto pursuant to an Assignment and Assumption, as of the effective date of such Assignment and Assumption or (iii) any Lender that becomes a party hereto in connection with an increase in the Aggregate Revolving Commitments or Aggregate Term Commitments pursuant to Section 2.06(c), as of the effective date of such increase, payable to such Lender in a principal amount equal to its Revolving Commitment or Term Commitment, as applicable, as in effect on such date, and otherwise duly completed.  In the event that any Lender’s Revolving Commitment or Term Commitment increases or decreases for any reason (whether pursuant to Section 2.06, Section 12.04(c) or otherwise), at the request of such Lender, the Borrower shall deliver or cause to be delivered on the effective date of such increase or decrease, a new Revolving Credit Note or Term Note, as applicable, payable to such Lender in a principal amount equal to its Revolving Commitment or Term Commitment after giving effect to such increase or decrease, and otherwise duly completed.  The date, amount, Type, interest rate and, if applicable, Interest Period of each Loan made by each Lender and all payments made on account of the principal thereof, shall be recorded by such Lender on its books for its Note, and, prior to any transfer, may be endorsed by such Lender on a schedule attached to such Note or any continuation thereof or on any separate record maintained by such Lender.  Failure to make any such notation or to attach a schedule shall not affect any Lender’s or the Borrower’s rights or obligations in respect of such Loans or affect the validity of such transfer by any Lender of its Note.

 

Section 2.03                             Requests for Borrowings.  To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (or transmit by electronic communication, if arrangements for doing so have been approved by the Administrative Agent) (a) in the case of a Eurodollar Borrowing, not later than 12:00 p.m., Eastern time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 p.m., Eastern time, on the date of the proposed Borrowing; 

 

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provided that no such notice shall be required for any deemed request of an ABR Borrowing to finance the reimbursement of an LC Disbursement as provided in Section 2.07(e).  Each such telephonic or electronic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or email to the Administrative Agent of a written Borrowing Request in substantially the form of Exhibit B and signed by the Borrower.  Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

 

(i)                                     the aggregate amount of the requested Borrowing;

 

(ii)                                  the date of such Borrowing, which shall be a Business Day;

 

(iii)                               whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

 

(iv)                              in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

 

(v)                                 if a Revolving Borrowing is requested, the amount of the current Total Revolving Credit Exposure (without regard to the requested Revolving Borrowing) and the pro forma Total Revolving Credit Exposure (giving effect to the requested Revolving Borrowing); and

 

(vi)                              the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.

 

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.  Each request for a Revolving Borrowing shall constitute a representation that the amount of the requested Revolving Borrowing shall not cause the Total Revolving Credit Exposure to exceed the Aggregate Revolving Commitments.

 

Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

Section 2.04                             Interest Elections.

 

(a)                                 Conversion and Continuance.  Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.04.  The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such

 

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portion shall be considered a separate Borrowing.  This Section 2.04 shall not apply to Swingline Borrowings, which may not be converted or continued.

 

(b)                                 Interest Election Requests.  To make an election pursuant to this Section 2.04, the Borrower shall notify the Administrative Agent of such election by telephone (or transmit by electronic communication, if arrangements for doing so have been approved by the Administrative Agent) by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such telephonic or electronic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of a written Interest Election Request in substantially the form of Exhibit C and signed by the Borrower.

 

(c)                                  Information in Interest Election Requests.  Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i)                                     the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to Section 2.04(c)(iii) and (iv) shall be specified for each resulting Borrowing);

 

(ii)                                  the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)                               whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

 

(iv)                              if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

 

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

(d)                                 Notice to Lenders by the Administrative Agent.  Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Revolving Lender or Term Lender, as applicable, of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e)                                  Effect of Failure to Deliver Timely Interest Election Request and Event of Default.  If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent so notifies the Borrower, then, so long as an Event of Default is continuing:  (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing (and any Interest Election Request that

 

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requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective) and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

 

Section 2.05                             Funding of Borrowings.

 

(a)                                 Funding by Lenders.  Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., Eastern time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made by the time specified in Section 2.08(b).  The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that ABR Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.07(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for its 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 its Loan in any particular place or manner.

 

(b)                                 Presumption of Funding by the Lenders.  Except with respect to Swingline Loans made pursuant to Section 2.08, unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any 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 2.05(a) 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 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 (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans comprising such 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 such amount shall constitute such Lender’s Loan included in such Borrowing.  Any payment made by the Borrower pursuant to this Section 2.05(b) 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.

 

Section 2.06                             Termination, Reduction and Increase of Aggregate Commitments.

 

(a)                                 Scheduled Termination of Commitments.

 

(i)                                     Unless previously terminated, the Revolving Commitments shall terminate on the Revolving Credit Maturity Date.

 

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(ii)                                  The Term Commitments in existence on the Third Amendment Effective Date shall terminate immediately after the funding of the Term Loans on the Third Amendment Effective Date, and all Term Commitments provided after the Third Amendment Effective Date in accordance with Section 2.06(c) shall terminate immediately after the funding of the applicable additional Term Loans on the Term Loan Funding Date specified in the applicable Term Loan Assumption Agreement.

 

(b)                                 Optional Termination and Reduction of Aggregate Credit Amounts.

 

(i)                                     The Borrower may at any time terminate, or from time to time reduce, the Aggregate Revolving Commitments; provided that (A) each reduction of the Aggregate Revolving Commitments shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 and (B) the Borrower shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 3.04(c), the Total Revolving Credit Exposure would exceed the Aggregate Revolving Commitments.

 

(ii)                                  The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Aggregate Revolving Commitments under Section 2.06(b)(i) at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section 2.06(b)(ii) shall be irrevocable; provided that a notice of termination of the Aggregate Revolving Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities or the closing of a securities offering, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the Aggregate Revolving Commitments shall be permanent and may not be reinstated except pursuant to Section 2.06(c).  Each reduction of the Aggregate Revolving Commitments shall be made ratably among the Revolving Lenders in accordance with each Revolving Lender’s Applicable Percentage.

 

(c)                                  Optional Increase in Aggregate Commitments.

 

(i)                                     Subject to the conditions set forth in Section 2.06(c)(ii), the Borrower may increase the Aggregate Revolving Commitments and/or the Aggregate Term Commitments then in effect with the prior consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) by increasing the Revolving Commitment and/or Term Commitment of one or more Lenders or by causing one or more Persons that at such time are not already Lenders to become Lenders (each, an “Additional Lender”).

 

(ii)                                  Any increase in the Aggregate Revolving Commitments and/or the Aggregate Term Commitments shall be subject to the following additional conditions:

 

(A)                               such increase shall not be less than $25,000,000 and shall be in a whole multiple of $5,000,000 in excess thereof unless the Administrative Agent otherwise consents, and no such increase shall be permitted if, after giving effect thereto, the

 

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cumulative increases of the Aggregate Commitments pursuant to this Section 2.06(c) effected from and after the Third Amendment Effective Date would exceed $300,000,000;

 

(B)          no Default shall have occurred and be continuing at the effective date of such increase;

 

(C)          with respect to any increase in the Aggregate Revolving Commitments, on the effective date of such increase, no Eurodollar Borrowings shall be outstanding or if any Eurodollar Borrowings are outstanding, then the effective date of such increase shall be the last day of the Interest Period in respect of such Eurodollar Borrowings unless the Borrower pays any compensation required by Section 5.02;

 

(D)          no Lender’s Revolving Commitment and/or Term Commitment may be increased without the consent of such Lender;

 

(E)           if the Borrower elects to increase the Aggregate Revolving Commitments by increasing the Revolving Commitment of a Revolving Lender, the Borrower and such Lender shall execute and deliver to the Administrative Agent a certificate substantially in the form of Exhibit G-1 (a “Commitment Increase Certificate”), and, if requested by such Lender, the Borrower shall deliver a new Note payable to such Revolving Lender in a principal amount equal to its Revolving Commitment after giving effect to such increase, and otherwise duly completed; and

 

(F)           if the Borrower elects to increase the Aggregate Revolving Commitments by causing an Additional Lender to become a party to this Agreement, then the Borrower and such Additional Lender shall execute and deliver to the Administrative Agent a certificate substantially in the form of Exhibit G-2 (an “Additional Lender Certificate”), together with an Administrative Questionnaire, and, if requested by such Additional Lender, the Borrower shall deliver a Note payable to such Additional Lender in a principal amount equal to its Revolving Commitment, and otherwise duly completed.

 

(G)          if the Borrower elects to obtain additional Term Commitments after the Third Amendment Effective Date, the Borrower and each Term Lender that has agreed to provide an additional Term Commitment shall execute and deliver to the Administrative Agent an assumption agreement substantially in the form of Exhibit G-3 (a “Term Loan Assumption Agreement”) and such other documentation as the Administrative Agent shall reasonably specify to evidence the Term Commitment of such Term Lender and, if requested by such Term Lender, the Borrower shall deliver a Term Note payable to such Term Lender in a principal amount equal to its additional Term Commitment and otherwise duly completed.  Each Term Loan Assumption Agreement shall specify the Term Commitments being provided pursuant thereto, the Applicable Margins applicable to the Term Loans to be made pursuant to such Term Commitments, the Term Loan Funding Date with respect to such Term Loans, the Term Loan Maturity Date with respect to such Loans and any other additional terms not already specified in this Agreement with respect to the Term Loans to be made thereunder; provided, that no Term Loans shall be made unless the closing certificates and documentation required by the relevant Term Loan Assumption Agreement shall be delivered.  The Administrative Agent shall promptly notify each Term Lender as to the effectiveness of each Term Loan Assumption Agreement.

 

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(H)          the representations and warranties of EXLP, the Borrower and the Guarantors set forth in this Agreement and in the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) on and as of the effective date of such increase, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the effective date of such increase, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date.

 

(I)            the receipt by the Administrative Agent and the Lenders participating in the applicable increase in the Aggregate Revolving Credit Commitments or Aggregate Term Commitments of all fees and expenses payable by written agreement among the Borrower and the Administrative Agent or under Section 12.03 hereof on or before the applicable Term Loan Funding Date or the date on which any increase in the Revolving Commitments shall be effective.

 

(J)            the receipt by the Administrative Agent of the following documents which shall each be reasonably satisfactory to the Administrative Agent in form and substance: (x) documents of the type required to be delivered pursuant to clauses (i), (ii), (iii), (v), (vii) (if requested by the Administrative Agent) and (x) (if a Borrowing is being requested in connection with such increase) of Section 6.01(a), in each case to the extent relating to the new Term Loans and any increases in the Aggregate Revolving Commitments, as applicable, and (y) such other documents relating to the applicable increase in the Aggregate Revolving Commitments or Aggregate Term Commitments as the Administrative Agent or any Lender participating in such increase may reasonably request.

 

(iii)          Subject to acceptance and recording thereof pursuant to Section 2.06(c)(iv), from and after the effective date specified in each Term Loan Assumption Agreement, Commitment Increase Certificate or the Additional Lender Certificate (or if any Eurodollar Borrowings are outstanding, then the last day of the Interest Period in respect of such Eurodollar Borrowings, unless the Borrower has paid compensation required by Section 5.02), as the case may be: (C) the amount of the Aggregate Revolving Commitments and/or Aggregate Term Commitments shall be increased as set forth therein, and (D) in the case of an Additional Lender Certificate or Term Loan Assumption Agreement, any Additional Lender party thereto shall be a party to this Agreement and the other Loan Documents and have the rights and obligations of a Lender under this Agreement and the other Loan Documents.  In addition, in connection with an increase of the Aggregate Revolving Commitments, the Lender or the Additional Lender, as applicable, shall purchase a pro rata portion of the outstanding Revolving Loans (and participation interests in Letters of Credit) of each of the other Revolving Lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) such that each Revolving Lender (including any Additional Lender, if applicable) shall hold its Applicable Percentage of the outstanding Revolving Loans (and participation interests in Letters of Credit) after giving effect to the increase in the Aggregate Revolving Commitments.

 

(iv)          Upon its receipt of a duly completed Term Loan Assumption Agreement, Commitment Increase Certificate or an Additional Lender Certificate, as the case may be, executed by the Borrower and the Lender or the Borrower and the Additional Lender party thereto, as applicable, the Administrative Questionnaire referred to in Section 2.06(c)(ii), if

 

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applicable, the written consent of the Administrative Agent to such increase required by Section 2.06(c)(i), and such documents and opinions reasonably requested by the Administrative Agent, the Administrative Agent shall accept such Term Loan Assumption Agreement, Commitment Increase Certificate or Additional Lender Certificate, as the case may be, and record the information contained therein in the Register required to be maintained by the Administrative Agent pursuant to Section 12.04(c).  No increase in the Aggregate Revolving Commitments and/or the Aggregate Term Commitments shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 2.06(c)(iv).

 

Section 2.07          Letters of Credit.

 

(a)           During the period from and including the Effective Date to, but excluding, the 30th day prior to the Revolving Credit Maturity Date, each Issuing Bank agrees to extend credit for the account of the Borrower or any Restricted Subsidiary at any time and from time to time by issuing, renewing, extending or reissuing Letters of Credit; provided, however, the LC Exposure at any one time outstanding shall not exceed $50,000,000.  The Revolving Lenders shall participate in such Letters of Credit according to their respective Applicable Percentages.  Each of the Letters of Credit shall (1) be issued by the applicable Issuing Bank on a sight basis only, (2) contain such terms and provisions as are reasonably required by the applicable Issuing Bank, (3) be for the account of the Borrower or any Restricted Subsidiary and (4) expire not later than (A) 30 days before the Revolving Credit Maturity Date, with respect to commercial letters of credit, and (B) 10 days before the Revolving Credit Maturity Date, with respect to standby letters of credit.  The Borrower may request that one or more Letters of Credit be issued in an Offshore Currency denomination as part of the LC Exposure.  The aggregate US Dollar Equivalent of all Offshore Currency Letters of Credit, as of the issuance date of any such Offshore Currency Letter of Credit, shall not exceed $20,000,000.  No Issuing Bank shall be obligated to issue an Offshore Currency Letter of Credit if such Issuing Bank has determined, in its sole discretion, that it is unable to fund obligations in the requested Offshore Currency; provided, however, the Administrative Agent shall use its commercially reasonable efforts to locate suitable issuers if no Issuing Bank is able to fund obligations in the requested Offshore Currency.  From and after the Effective Date, the Existing Letters of Credit shall be deemed to be Letters of Credit issued pursuant to this Section 2.07.

 

Notwithstanding anything to the contrary contained in this Agreement, including, without limitation, this Section 2.07, the expiration date of one or more Letters of Credit may extend beyond the Revolving Credit Maturity Date; provided, however, it is hereby expressly agreed and understood that:

 

(i)            the US Dollar Equivalent of the aggregate face amount of all such Letters of Credit shall not at any time exceed $20,000,000;

 

(ii)           the expiration dates of such Letters of Credit shall not extend more than three (3) years beyond the Revolving Credit Maturity Date;

 

(iii)          the Borrower shall, not later than five (5) Business Days prior to the Revolving Credit Maturity Date, deposit in an account with the Administrative Agent, in the name of the Administrative Agent for the benefit of the Administrative Agent and each applicable Issuing Bank, an amount in cash equal to the aggregate amount available for drawing

 

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under all such Letters of Credit as of such date; provided that for all Offshore Currency Letters of Credit, the Borrower shall deposit an amount in cash equal to 110% of the US Dollar Equivalent of the aggregate amount available for drawing under all such Offshore Currency Letters of Credit and will have a continuing obligation to maintain in such account at least an amount in cash equal to 110% of the US Dollar Equivalent of the aggregate face amount available for drawing under all such Offshore Currency Letters of Credit, and the Administrative Agent shall have exclusive dominion and control (including the exclusive right of withdrawal) over such account;

 

(iv)          if any Issuing Bank makes any disbursement in connection with a Letter of Credit after the Revolving Credit Maturity Date, such disbursement shall be an advance on behalf of the Borrower under this Agreement and shall be reimbursed to such Issuing Bank either (A) first, by the Administrative Agent applying amounts in the cash collateral account referred to in clause (iii) of this paragraph until reimbursed in full, and (B) second, by the Borrower pursuant to Section 2.07(e) (except that the Borrower shall not have the right to request that the Lenders make, and the Lenders shall not have any obligation to make, a Loan under this Agreement after the Revolving Credit Maturity Date to fund any such disbursement); and

 

(v)           all such disbursements referred to in clause (iv) of this paragraph shall be secured only by the cash collateral referred to in clause (iii) of this paragraph and the Borrower hereby grants to the Administrative Agent a first-priority security interest in all such cash collateral (whether now or hereafter deposited in the cash collateral account referred to in clause (iii) of this paragraph), without any further action on the part of any Issuing Bank, the Borrower, the Administrative Agent, any Lender or any other Person now or hereafter party hereto (other than any action the Administrative Agent reasonably deems necessary to perfect such security interest, which action the Borrower hereby authorizes the Administrative Agent to take), until such disbursements are reimbursed in full.

 

If, on the later of the Revolving Credit Maturity Date or the Term Loan Maturity Date (A) the Revolving Commitments have been terminated, (B) the Loans, all interest thereon and all other amounts payable by the Borrower hereunder or in connection herewith (other than the LC Exposure in connection with any Letter of Credit having an expiration date extending beyond the Revolving Credit Maturity Date as permitted by Section 2.07(a)) have been paid in full, and (C) the conditions set forth in clause (iii) above have been fully satisfied, then from and after such date the following provisions of this Agreement shall not be operative: Sections 8.01 (other than Section 8.01(a), which shall remain operative), 8.02 (except as the same may affect a Letter of Credit), 8.03(b), 8.04, 8.05, 8.07, 8.08, 9.01, 9.02 (except for cash collateral securing Letters of Credit), 9.03, 9.04, 9.05, 9.06, 9.08, 9.09, 9.10, 9.11, 9.12, 9.13, 9.14 and 9.15.

 

(b)           Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit by any Issuing Bank (or the amendment, renewal or extension of an outstanding Letter of Credit issued by any Issuing Bank), the Borrower shall hand deliver or transmit by facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the Administrative Agent and such Issuing Bank) to such Issuing Bank and the Administrative Agent not later than 12:00 p.m., Eastern time, (i) three Business Days before the proposed date such Letter of Credit is to be issued and (ii) one  Business Day before the proposed date of any amendment, renewal or extension of a Letter of Credit, a Letter of Credit Request requesting the issuance of a Letter of Credit, or identifying the

 

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Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (a) of this Section 2.07), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.  If requested by any Issuing Bank, the Borrower shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended, renewed or extended only if (and with respect to each notice provided by the Borrower above and any issuance, amendment, renewal or extension of each Letter of Credit, the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (A) the LC Exposure does exceed $50,000,000, (B) the aggregate US Dollar Equivalent of all Offshore Currency Letters of Credit does not exceed $20,000,000, and (C) the Total Revolving Exposure does not exceed the Aggregate Revolving Commitments.

 

(c)           If, after payment in full of all Indebtedness of the Borrower under the Loan Documents (including without limitation, reimbursement obligations with respect to Letters of Credit, but excluding any indemnities and other contingent obligations not then due and payable and as to which no claim has been made at the time of determination) and the expiration or cancellation of all outstanding Letters of Credit, there remains any amount on deposit in the cash collateral account referred to in Section 2.07(a)(iii) above, the Administrative Agent shall, within three (3) Business Days after all such Indebtedness is paid in full and all outstanding Letters of Credit have expired or been cancelled, return such amount to the Borrower.

 

(d)           Participations.  In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 2.07(e), or of any reimbursement payment required to be refunded to the Borrower for any reason.  Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.07(d) in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit, the occurrence and continuance of a Default, or the reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

 

(e)           Reimbursement and Prepayment.

 

(i)            In connection with any Letter of Credit, the Borrower may make funds available for disbursement by the applicable Issuing Bank in connection with such Letter of Credit.  In such cases, the Issuing Bank shall use such funds which the Borrower has made available to fund such Letter of Credit.  In addition, the Borrower may give written instructions to an Issuing Bank and the Administrative Agent to make a Loan under this Agreement to fund any Letters of Credit issued by such Issuing Bank which may be drawn.  In all such cases, the Borrower shall give the appropriate notices required under this Agreement for an ABR Loan or a Eurodollar Loan.  If a disbursement by any Issuing Bank is made under any Letter of Credit, in cases in which the Borrower has not either provided its own funds to fund a draw on a Letter of

 

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Credit or given the Administrative Agent prior notice for a Loan under this Agreement, then the Borrower shall pay to the Administrative Agent within two (2) Business Days after notice of any such disbursement is received by the Borrower, the amount and, in the case of any Offshore Currency Letters of Credit, the US Dollar Equivalent determined on the date of such disbursement, of each such disbursement made by such Issuing Bank under such Letter of Credit (if such payment is not sooner effected as may be required under this Section 2.07(e) or under other provisions of the Letter of Credit), together with interest on the amount disbursed from and including the date of disbursement until payment in full of such disbursed amount at a varying rate per annum equal to (A) the then applicable interest rate for ABR Loans through the second Business Day after notice of such disbursement is received by the Borrower and (B) thereafter, the Post-Default Rate for ABR Loans (but in no event to exceed the Highest Lawful Rate) for the period from and including the third Business Day following the date of such disbursement to and including the date of repayment in full of such disbursed amount.  The obligations of the Borrower under this Agreement with respect to each Letter of Credit shall be absolute, unconditional and irrevocable and shall be paid or performed strictly in accordance with the terms of this Agreement under all circumstances whatsoever, including, without limitation, but only to the fullest extent permitted by applicable law, the following circumstances:  (U) any lack of validity or enforceability of this Agreement, any Letter of Credit or any of the Security Instruments; (V) any amendment or waiver of (including any default), or any consent to departure from this Agreement (except to the extent permitted by any amendment or waiver), any Letter of Credit or any of the Security Instruments; (W) the existence of any claim, set-off, defense or other rights which the Borrower may have at any time against the beneficiary of any Letter of Credit or any transferee of any Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), any Issuing Bank, the Administrative Agent, any Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the Security Instruments, the Transactions or any unrelated transaction; (X) any statement, certificate, draft, notice or any other document presented under any Letter of Credit proves to have been forged, fraudulent, insufficient or invalid in any respect or any statement therein proves to have been untrue or inaccurate in any respect whatsoever; (Y) payment by any Issuing Bank under any Letter of Credit against presentation of a draft or certificate which appears on its face to comply, but does not comply, with the terms of such Letter of Credit; and (Z) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

 

Notwithstanding anything in this Agreement to the contrary, the parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of any Issuing Bank (as finally determined by a court of competent jurisdiction), the Borrower shall not have a claim against such Issuing Bank, and such Issuing Bank shall not be liable to, the Borrower; provided, however that the Borrower shall have a claim against such Issuing Bank for any direct damages, as opposed to consequential damages, suffered by the Borrower caused by such Issuing Bank’s willful misconduct or gross negligence (as finally determined by a court of competent jurisdiction) in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.

 

(ii)           If (A) any Event of Default shall occur and be continuing and the Borrower receives notice from the Administrative Agent or the Majority Lenders demanding the deposit of cash collateral pursuant to this Section 2.07(e)(ii), or (B) the Borrower is required to

 

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pay to the Administrative Agent the excess attributable to an LC Exposure in connection with any prepayment pursuant to Section 3.04(c), then an amount equal to the LC Exposure (except for any outstanding Offshore Currency Letters of Credit which shall equal an amount equal to 110% of the aggregate face amount of all such Offshore Currency Letters of Credit) shall be deemed to be forthwith due and owing by the Borrower to the Administrative Agent, for the benefit of the Issuing Banks and the Revolving Lenders as of the date of any such occurrence.  So long as the Borrower is required to maintain such cash collateral, the Borrower will have a continuing obligation to maintain in such account at least an amount in cash equal to 110% of the US Dollar Equivalent of the aggregate amount available for drawing under all outstanding Offshore Currency Letters of Credit.  Such payments shall be held by the Administrative Agent for the benefit of the Issuing Banks and the Revolving Lenders as cash collateral securing the LC Exposure in an account or accounts at its principal office; and the Borrower hereby grants to, and by its deposit with the Administrative Agent grants to, the Administrative Agent a security interest in such cash collateral.  In the event of any such payment by the Borrower of amounts contingently owing under outstanding Letters of Credit and in the event that thereafter drafts or other demands for payment complying with the terms of such Letters of Credit are not made prior to the respective expiration dates thereof, the Administrative Agent agrees, if no Event of Default has occurred and is continuing or if no other amounts are outstanding under this Agreement, the Notes or the Security Instruments, to remit to the Borrower (i) amounts for which the contingent obligations evidenced by the Letters of Credit have ceased and (ii) amounts on deposit as cash collateral for Letters of Credit.

 

(iii)          Each Revolving Lender severally and unconditionally agrees that it shall promptly reimburse each Issuing Bank in dollars an amount equal to such Revolving Lender’s participation in any Letter of Credit issued by such Issuing Bank as provided in Section 2.07(a) of any disbursement made by such Issuing Bank under such Letter of Credit that is not reimbursed according to this Section 2.07 (other than with respect to disbursements described in the second paragraph of Section 2.07(e)(i)) and such obligation to reimburse is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Aggregate Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders.  Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to Section 2.07(e)(iii) to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear.  Any payment made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for any

 

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disbursement shall constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such disbursement.

 

(iv)          If no Event of Default has occurred and is continuing, and subject to availability under the Aggregate Revolving Commitments (after taking into account the LC Exposure), to the extent the Borrower has not reimbursed any Issuing Bank for any draw upon any Letter of Credit issued by such Issuing Bank within one (1) Business Day after notice of such disbursement has been received by the Borrower, the amount of such Letter of Credit reimbursement obligation shall automatically be funded by the Lenders as a Revolving Loan hereunder and used to pay such Letter of Credit reimbursement obligation in the percentages referenced in paragraph (iii) above.  If an Event of Default has occurred and is continuing, or if the funding of such Letter of Credit reimbursement obligation as a Revolving Loan would cause the aggregate amount of all Revolving Loans outstanding to exceed the Aggregate Revolving Commitments (after taking into account the LC Exposure), such Letter of Credit reimbursement obligation shall not be funded as a Revolving Loan, but instead shall accrue interest as provided in Section 2.07(e)(i) and be subject to reimbursement under Section 2.07(e)(iii).

 

(f)            Replacement of an Issuing Bank.  Any Issuing Bank may at any time be replaced by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank.  At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 3.05(a).  From and after the effective date of any replacement of an Issuing Bank, (ii) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued by such successor Issuing Bank thereafter and (iii) references herein to the term “Issuing Bank” shall be deemed to refer to any successor to any replaced Issuing Bank or to any previous Issuing Bank, or to any such successor Issuing Bank and all previous Issuing Banks, as the context shall require.  After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

 

Section 2.08          Swingline Loans.

 

(a)           Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the period from and including the Effective Date to and up to, but excluding, the Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $50,000,000, notwithstanding the fact that such Swingline Loans, when aggregated with the Revolving Credit Exposure of the Lender acting as the Swingline Lender, may exceed the amount of such Lender’s Revolving Commitment, or (ii) the aggregate Revolving Credit Exposure exceeding the Aggregate Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan.  The Borrower shall pay to the Administrative Agent, for the account of the Swingline Lender or each Revolving Lender, as applicable, pursuant to Section 2.08(c), the outstanding aggregate principal and accrued and unpaid interest under each Swingline Loan no later than thirty (30) days following such

 

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Swingline Borrowing.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.

 

(b)           To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by written notice (or telephonic notice promptly confirmed by such written notice), not later than 12:00 p.m., Eastern time, on the date of the proposed Swingline Loan.  Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender by 3:00 p.m., Eastern time, on the requested date of such Swingline Loan.

 

(c)           The Revolving Lenders shall participate in Swingline Loans according to their respective Applicable Percentages. Upon any Swingline Borrowing, the Administrative Agent shall give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Aggregate Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.05 with respect to Loans made by such Revolving Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders and shall distribute the payments received from the Borrower to the Swingline Lender and the other Revolving Lenders as their interests appear with respect to such Swingline Loans.  The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof. Notwithstanding the foregoing, a Lender shall not have any obligation to acquire a participation in a Swingline Loan pursuant to this paragraph if an Event of Default shall have occurred and be continuing at the time such Swingline Loan was made and such Lender shall have notified the Swingline Lender in writing, at least one (1) Business Day prior to the time such Swingline Loan was made, that such Event of Default has occurred and that such Lender will not acquire participations in Swingline Loans made while such Event of Default is continuing.

 

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ARTICLE III
 Payments of Principal and Interest; Prepayments; Fees

 

Section 3.01          Repayment of Loans.

 

(a)           Revolving Loans.  On the Revolving Credit Maturity Date, the Borrower shall pay to the Administrative Agent, for the account of each Revolving Lender, the outstanding aggregate principal amount of and accrued and unpaid interest on the Revolving Loans.

 

(b)           Term Loans.  On the Term Loan Maturity Date, the Borrower shall pay to the Administrative Agent, for the account of each Term Lender, the outstanding aggregate principal amount of and accrued and unpaid interest on the Term Loans.

 

Section 3.02          Interest.

 

(a)           ABR Loans.  The Loans comprising each ABR Borrowing shall bear interest at the Base Rate plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate.

 

(b)           Eurodollar Loans.  The Loans comprising each Eurodollar Borrowing shall bear interest at the LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate.

 

(c)           Swingline Loans.  Swingline Loans shall bear interest at the LIBO Rate for a one (1) month Interest Period that would be applicable to a Revolving Loan, as that rate may fluctuate in accordance with changes in the LIBO Rate as determined on a day-to-day basis, plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate.

 

(d)           Post-Default Rate.  Notwithstanding the foregoing, (i) if any amount of principal of any Loan is not paid when due (after giving effect to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at the Post-Default Rate, (ii) if any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (after giving effect to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Majority Lenders, such amount shall thereafter bear interest at the Post-Default Rate, and (iii) after an Event of Default described in Section 10.01(a) has occurred and is continuing, upon the request of the Majority Lenders, the Borrower shall pay interest on the principal amount of all Indebtedness at the Post-Default Rate until but excluding the date on which such Event of Default is cured or waived.

 

(e)           Interest Payment Dates.  Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 3.02(d) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than an optional prepayment of an ABR Loan prior to the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.  Any accrued and unpaid interest on the Revolving Loans shall be paid on the

 

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Revolving Credit Maturity Date. Any accrued and unpaid interest on the Term Loans shall be paid on the Term Loan Maturity Date.

 

(f)            Interest Rate Computations.  All interest with respect to Eurodollar Loans hereunder shall be computed on the basis of a year of 360 days, unless such computation would exceed the Highest Lawful Rate, in which case interest shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  All interest with respect to ABR Loans hereunder shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable Base Rate, LIBO Rate or LIBOR shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error, and be binding upon the parties hereto.

 

Section 3.03          Alternate Rate of Interest.  If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

 

(a)           the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the LIBO Rate or LIBOR for such Interest Period; or

 

(b)           the Administrative Agent is advised by the Majority Lenders that the LIBO Rate or LIBOR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

 

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.

 

Section 3.04          Prepayments.

 

(a)           Optional Prepayments.  The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with Section 3.04(b).

 

(b)           Notice and Terms of Optional Prepayment.  The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile) or transmit by electronic communication, if arrangements for doing so have been approved by the Administrative Agent, of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 12:00 p.m., Eastern time, three (3) Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 12:00 p.m., Eastern time, on the date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid (which shall be (x)

 

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in the case of a prepayment of any ABR Borrowing, in an amount that is an integral multiple of $100,000 or equal to the aggregate principal balance outstanding of such ABR Borrowing and (y) in the case of a prepayment of any Eurodollar Borrowing, in an amount that is an integral multiple of $500,000 and not less than $1,000,000 or equal to the aggregate principal balance outstanding of such Eurodollar Borrowing); provided that a notice of prepayment delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the closing of a securities offering, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied.  Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued interest to the extent required by Section 3.02.

 

(c)           Mandatory Prepayments.

 

(i)            If, after giving effect to any termination or reduction of the Aggregate Revolving Commitments pursuant to Section 2.06(b), the Total Revolving Credit Exposure exceeds the Aggregate Revolving Commitments, then the Borrower shall (A) prepay the Borrowings on the date of such termination or reduction in an aggregate principal amount equal to such excess, and (B) if any excess remains after prepaying all of the Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.07(e)(ii).

 

(ii)           [Deleted Pursuant to the First Amendment.]

 

(iii)          Upon any Transfers (other than leases) pursuant to Section 9.11(c) or (d) of any Property of EXLP or any Restricted Subsidiary to any Person other than EXLP or any Restricted Subsidiary, the Borrower shall prepay the outstanding Term Loans by an amount equal to 100% of the Net Proceeds received by EXLP or any Restricted Subsidiary in excess of $25,000,000 per fiscal year or $100,000,000 on a cumulative basis, as applicable, in connection with such Transfers, and such prepayment shall be made on the day that EXLP or a Restricted Subsidiary receives such Net Proceeds; provided that (A) such Net Proceeds shall not be required to be so applied on such date so long as no Event of Default then exists and such Net Proceeds will be used to purchase, maintain or improve Property (other than inventory or working capital) used or to be used in the business of EXLP and its Restricted Subsidiaries described in Section 9.05 in a transaction not prohibited by Section 9.03 within 360 days of the date of the receipt of such Net Proceeds; provided that if all or any portion of such Net Proceeds are not used within 360 days after the date of the receipt of such Net Proceeds (or such earlier date, if any, as EXLP or such relevant Restricted Subsidiary determines not to reinvest such Net Proceeds as set forth above), such remaining portion shall be applied to the outstanding Term Loans on the last day of such period and (B) this Section 3.04(c)(iii) shall not apply at any time that EXLP’s Index Debt has an Investment Grade Rating.

 

(iv)          Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied, first, in the case of any prepayment of the Revolving Loans, to any Swingline Loans then outstanding, second, ratably to any ABR Borrowings then outstanding, and, third, to any

 

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Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in such order as the Borrower shall elect.

 

(v)           Prepayments pursuant to this Section 3.04(c) shall be accompanied by accrued interest to the extent required by Section 3.02.  Any prepayments of the Term Loans may not be reborrowed.

 

(d)           No Premium or Penalty.  Prepayments permitted or required under this Section 3.04 shall be without premium or penalty, except as required under Section 5.02.

 

Section 3.05          Fees.

 

(a)           Commitment Fees.  The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee (the “Commitment Fee”), which shall accrue at the applicable rate set forth under the heading “Commitment Fees” in the table contained in the definition of “Applicable Margin” on the average daily amount (before deducting any outstanding Swingline Loans) of the unused amount of the Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the Revolving Credit Maturity Date.  Accrued Commitment Fees shall be payable in arrears on the last day of March, June, September and December of each year and on the Revolving Credit Maturity Date, commencing on the first such date to occur after the date hereof.  All Commitment Fees shall be computed on the basis of a year of 360 days, unless such computation would exceed the Highest Lawful Rate, in which case interest shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

 

(b)           Letter of Credit Fees.  The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Margin used to determine the interest rate applicable to Revolving Borrowings comprised of Eurodollar Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the date of this Agreement to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, (ii) to each Issuing Bank a fronting fee, which shall accrue at the rate of 0.25% per annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by such Issuing Bank during the period from and including the date of this Agreement to but excluding the later of the date of termination of the Aggregate Revolving Commitments and the date on which there ceases to be any LC Exposure attributable to Letters of Credit issued by such Issuing Bank and (iii) to each Issuing Bank, for its own account, its standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the date of this Agreement; provided that all such fees shall be payable on the Revolving Credit Maturity Date and any such fees accruing after the Revolving Credit Maturity Date shall be payable on demand.  Any other fees payable to any Issuing Bank pursuant to this Section 3.05(a) shall be payable within 10 days after demand.

 

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All participation fees and fronting fees shall be computed on the basis of a year of 360 days, unless such computation would exceed the Highest Lawful Rate, in which case such fees shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

 

(c)           Administrative Agent Fees.  The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent, including the fees set forth in the Fee Letter.

 

ARTICLE IV
 Payments; Pro Rata Treatment; Sharing of Set-offs

 

Section 4.01          Payments Generally; Pro Rata Treatment; Sharing of Set-offs.

 

(a)           Payments by the Borrower.  The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 5.01, Section 5.02, Section 5.03 or otherwise) prior to 12:00 p.m., Eastern time, on the date when due, in immediately available funds, without defense, deduction, recoupment, set-off or counterclaim.  Fees, once paid, shall be fully earned and shall not be refundable under any circumstances.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent as specified in Section 12.01, except payments to be made directly to any Issuing Bank as expressly provided herein and except that payments pursuant to Section 5.01, Section 5.02, Section 5.03 and Section 12.03 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All payments hereunder (including reimbursement of disbursements made under any Offshore Currency Letters of Credit) shall be made in dollars.

 

(b)           Application of Insufficient Payments.  If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards 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, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.

 

(c)           Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements or Swingline Loans and accrued interest thereon than the

 

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proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements or Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements or Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest and (ii) the provisions of this Section 4.01(c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this Section 4.01(c) 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 set-off 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.

 

Section 4.02          Presumption of Payment by the Borrower.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Revolving Lenders, Term Lenders or any Issuing Bank 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 Revolving Lenders, Term Lenders or such Issuing Bank, 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 Revolving Lenders or Term Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

Section 4.03          Certain Deductions by the Administrative Agent; Defaulting Lenders.

 

(a)           Certain Deductions by the Administrative Agent.  If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b), Section 2.07(d), Section 2.07(e), Section 4.02 or Section 12.03(b), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

(b)           Payments to Defaulting Lenders.  If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set off shall have received a payment in respect of such Lender’s Revolving Credit Exposure and fails to purchase participations in the Loans and LC Disbursements pursuant to Section 4.01(c), which results in such Lender’s Revolving Credit Exposure being less than its

 

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Applicable Percentage of the Revolving Credit Exposure or in such Lender’s Term Credit Exposure being less than its pro rata percent of the outstanding Term Loans, then no payment will be made to such Defaulting Lender until all amounts due and owing to the Revolving Lenders or Term Lenders, as applicable, have been equalized in accordance with each Revolving Lender’s and Term Lender’s respective pro rata share of the Indebtedness. Further, if at any time prior to the acceleration or maturity of the Loans, the Administrative Agent shall receive any payment in respect of principal of a Loan or a reimbursement of an LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Revolving Lender (including each Defaulting Lender) is owed its Applicable Percentage of all Revolving Loans then outstanding and each Term Lender (including the Defaulting Lender) is owed its pro rata share of all Term Loans outstanding.  After acceleration or maturity of the Loans, subject to the first sentence of this Section 4.03(b), all principal will be paid ratably as provided in Section 10.02(c).

 

(c)           Defaulting Lenders.  Notwithstanding any provision of any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

(i)            Fees otherwise payable pursuant to Section 3.05(a) shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender.

 

(ii)           The Revolving Commitment, the Term Commitment, the Revolving Credit Exposure and the outstanding Term Loans of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or each adversely affected Lender have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), and no consent of such Defaulting Lender shall be required to take any action hereunder that requires the consent of all Lenders, the Majority Lenders or each adversely affected Lender (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification (A) that would increase the Revolving Commitment or Term Commitment of such Defaulting Lender, (B) reduce the principal of any Loan owed to such Defaulting Lender or (C) requiring the consent of all Lenders or each adversely affected Lender which affects such Defaulting Lender differently than all other Lenders or all other adversely affected Lenders, as the case may be, shall require the consent of such Defaulting Lender.

 

(iii)          If any LC Exposure or Swingline Exposure exists at the time a Revolving Lender becomes a Defaulting Lender then:

 

(A)          all or any part of such LC Exposure or Swingline Exposure shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders with Revolving Commitments in accordance with their respective Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Revolving Commitment shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments, (y) the conditions set forth in

 

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Section 6.02(a) and (c) are satisfied at such time and (z) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Revolving Commitment;

 

(B)          if the reallocation described in clause (A) above cannot, or can only partially, be effected, then the Borrower shall, within three (3) Business Days following written notice from the Administrative Agent, cash collateralize such Defaulting Lender’s LC Exposure and Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (A) above) in accordance with the procedures set forth in Section 2.07(e)(ii) for so long as such LC Exposure or Swingline Exposure is outstanding and the relevant Defaulting Lender remains a Defaulting Lender;

 

(C)          if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to this Section 4.03, then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;

 

(D)          if the applicable LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 4.03(c), then the fees payable to the Lenders pursuant to Section 3.05(a) and Section 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Applicable Percentages; and

 

(E)           if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to Section 4.03(c)(iii), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) under Section 3.05(a) and letter of credit fees payable under Section 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks until such LC Exposure is cash collateralized and/or reallocated.

 

(d)           So long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be one hundred percent (100%) covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.03(c)(iii) (and Defaulting Lenders shall not participate therein).

 

(e)           In the event that the Administrative Agent, the Borrower, the Issuing Banks and the Swingline Lender agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure and Swingline Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date, if necessary as a result of a Revolving Loan funding pursuant to Section 2.07(e), such Revolving Lender shall purchase at par such of the Revolving Loans of the

 

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other Revolving Lenders as the Administrative shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage.

 

ARTICLE V
 Increased Costs; Break Funding Payments; Taxes; Illegality

 

Section 5.01          Increased Costs.

 

(a)           Eurodollar Changes in Law.  If any Change in Law shall:

 

(i)            impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate); or

 

(ii)           impose on any Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender;

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

 

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

 

(c)           Certificates.  A certificate of a Lender or any Issuing Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in Section 5.01(a) or (b) shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

 

(d)           Effect of Failure or Delay in Requesting Compensation.  Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate such Lender or

 

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such Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or such Issuing Bank, as the case may be, delivers written notice to the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor; provided  further that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

Section 5.02          Break Funding Payments.  In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan into an ABR Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 5.04(b), then, in any such event, the Borrower shall compensate each Revolving Lender or Term Lender, as the case may be, for the loss, cost and expense attributable to such event.  Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurodollar market.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 5.02 shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

 

Section 5.03          Taxes.

 

(a)           Payments Free of Taxes.  Any and all payments by or on account of any obligation of the Borrower or any Guarantor under any Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes unless such deduction is required by applicable law; provided that if the Borrower or any Guarantor shall be required by applicable law to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) to the extent that the deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 5.03(a)), the Administrative Agent, Lender or Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such Guarantor shall make such deductions as are determined by it to be required based upon the documentation it has received pursuant to Section 5.03(e), and (iii) the Borrower or such Guarantor shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

 

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(b)           Payment of Other Taxes by the Borrower.  The Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(c)           Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent, a Lender or each Issuing Bank, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 5.03) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate of the Administrative Agent, such Lender or an Issuing Bank as to the amount of such payment or liability under this Section 5.03 shall be delivered to the Borrower and shall be conclusive absent manifest error.  Notwithstanding any provision to the contrary herein or in any other Loan Document, neither the Borrower nor a Guarantor shall indemnify any Person for, or pay any additional amounts with respect to, any Excluded Taxes.

 

(d)           Evidence of Payments.  As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or a Guarantor to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e)           Certain Lenders and Issuing Bank; Tax Documentation.  Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement or any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate.  In addition, any Lender or Issuing Bank, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender or Issuing Bank is subject to backup withholding or information reporting requirements.  Each Lender or Issuing Bank shall promptly notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

 

(f)            Tax Refunds.  If the Administrative Agent, a Lender or any Issuing Bank determines, in its sole 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 5.03, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.03 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or such Issuing Bank, as the case may be, and without interest (other than any interest paid by the relevant Governmental

 

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Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent, such Lender or such Issuing Bank, agrees to repay the amount paid over to the Borrower (plus any penalties, additions to tax, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or such Issuing Bank in the event the Administrative Agent, such Lender or such Issuing Bank is required to repay such refund to such Governmental Authority.  This Section 5.03(f) shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.

 

Section 5.04          Mitigation Obligations; Replacement of Lenders.

 

(a)           Designation of Different Lending Office.  If any Lender requests compensation under Section 5.01, 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 5.03, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.01 or Section 5.03, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)           Replacement of Lenders.  If (i) any Lender requests compensation under Section 5.01, (ii) 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 5.03, (iii) in connection with any consent to or approval of any proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender or the consent of each Lender affected thereby, the consent of the Majority Lenders shall have been obtained but any Lender has not so consented to or approved such proposed amendment, waiver, consent or release or (iv) any Lender becomes a Defaulting Lender, 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 Section 12.04(c)), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, 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) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.01 or payments required to be made pursuant to Section 5.03, such assignment will result in a reduction in such compensation or payments.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver

 

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by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

Section 5.05          Illegality.  Notwithstanding any other provision of this Agreement, in the event that it becomes unlawful for any Lender or its Applicable Lending Office to honor its obligation to make or maintain Eurodollar Loans either generally or having a particular Interest Period hereunder, then (a) such Lender shall promptly notify the Borrower and the Administrative Agent thereof and such Lender’s obligation to make such Eurodollar Loans shall be suspended (the “Affected Loans”) until such time as such Lender may again make and maintain such Eurodollar Loans and (b) all Affected Loans which would otherwise be made by such Lender shall be made instead as ABR Loans (and, if such Lender so requests by notice to the Borrower and the Administrative Agent, all Affected Loans of such Lender then outstanding shall be automatically converted into ABR Loans on the date specified by such Lender in such notice) and, to the extent that Affected Loans are so made as (or converted into) ABR Loans, all payments of principal which would otherwise be applied to such Lender’s Affected Loans shall be applied instead to its ABR Loans.

 

ARTICLE VI
 Conditions Precedent

 

Section 6.01          Effective Date.  The effectiveness of this Agreement and the obligation of the Lenders to make Loans and of each Issuing Bank to issue Letters of Credit hereunder are subject to satisfaction (or waiver in accordance with Section 12.02) of the following conditions:

 

(a)           the receipt by the Administrative Agent of the following documents, each of which shall be reasonably satisfactory to the Administrative Agent in form and substance:

 

(i)            a certificate of the Secretary or an Assistant Secretary (or its equivalent) of each of the Borrower, EXLP and each other Obligor, setting forth (A) resolutions of its board of directors (or equivalent governing body) with respect to the authorization of such Obligor to execute and deliver the Loan Documents to which it is a party and to enter into the Transactions contemplated in those documents, (B) the officers (or the equivalent thereof) of such Obligor (I) who will be signing the Loan Documents to which such Obligor is a party and (II) who will, until replaced by another officer or officers (or the equivalent thereof) duly authorized for that purpose, act as a representative of such Obligor for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the Transactions contemplated hereby, (C) specimen signatures of the authorized officers (or the equivalent thereof) referred to in clause (I), and (D) the Organization Documents of such Obligor, certified as being true and complete.  The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from such party to the contrary;

 

(ii)           certificates with respect to the existence, qualification and good standing of EXLP, the Borrower and each other Obligor issued by the appropriate state agencies in the jurisdiction of organization of such Obligor;

 

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(iii)          a compliance certificate which shall be substantially in the form of Exhibit D-1, duly and properly executed by a Responsible Officer of the Borrower and dated as of the Effective Date;

 

(iv)          counterparts of this Agreement signed on behalf of each party hereto (in such number as may be reasonably requested by the Administrative Agent);

 

(v)           the Notes duly completed and executed for each Lender that has requested a Note at least one Business Day prior to the Effective Date;

 

(vi)          the Security Instruments described on Exhibit F, duly completed and executed in sufficient number of counterparts for recording, if necessary;

 

(vii)         an opinion of Baker Botts L.L.P., special counsel to the Obligors, in form and substance reasonably satisfactory to the Administrative Agent, as to such matters incident to the Transactions herein contemplated as the Administrative Agent may reasonably request;

 

(viii)        (A) a summary of insurance coverage of EXLP and its Restricted Subsidiaries evidencing that they are carrying insurance in accordance with Section 7.18, (B) certificates with respect to the insurance carried by EXLP and its Restricted Subsidiaries evidencing that the Administrative Agent has been named as an additional insured pursuant to Section 8.03(b) and (C) a Federal Emergency Management Agency Standard Flood Hazard Determination with respect to any real property Collateral subject to a Mortgage on which a building or a mobile home is located;

 

(ix)          copies of Requests for Information or Copies (Form UCC-11) or equivalent commercially obtained reports, listing all effective financing statements which name any Obligor (under their present names and any previous names maintained within the previous five years) as debtor and which are filed in all jurisdictions in which such Obligors are organized, together with copies of such financing statements;

 

(x)           a Borrowing Request in the form of Exhibit B with respect to any Borrowings to be made on the Effective Date, duly completed and executed by the Borrower; and

 

(xi)          a Letter of Credit Agreement pertaining to each new Letter of Credit to be issued on the Effective Date, if any, duly completed and executed by the Borrower.

 

(b)           The Borrower shall have paid (i) to the Administrative Agent and the Lenders all fees payable to them on or prior to the Effective Date pursuant to Section 3.05(c) and the Fee Letter, (ii) to the Lenders all fees otherwise agreed upon by such parties to be paid to the Lenders on or prior to the Effective Date, and (iii) to the extent Borrower has received an invoice at or before 12:00 p.m., Eastern time, one Business Day prior to the Effective Date, all out-of-pocket expenses required to be reimbursed or paid by the Borrower pursuant to Section 12.03 or any other Loan Document (including, without limitation, reasonable legal fees and expenses and recording taxes and fees).

 

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(c)           Except as set forth on Schedule 6.01(c), all Property in which the Administrative Agent shall, at such time, be entitled to have a Lien pursuant to this Agreement or any Security Instrument shall have been physically delivered to the possession of the Administrative Agent or any bailee accepted by the Administrative Agent to the extent that such possession is necessary for the purpose of perfecting the Administrative Agent’s Lien in such Collateral.

 

(d)           Each document (including any Uniform Commercial Code financing statement) required by this Agreement or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Permitted Liens), shall be in proper form for filing, registration or recordation.

 

(e)           The Administrative Agent shall have received evidence that the Existing ABS Facility has been terminated and that the Liens securing the Existing ABS Facility have been released (which termination and release may be contemporaneous with the satisfaction of the conditions under this Section and the application of proceeds of any Borrowings to occur on the Effective Date).

 

(f)            The Administrative Agent shall have received such other documents as the Administrative Agent or any Lender or special counsel to the Administrative Agent may reasonably request.

 

The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.  Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 12.02) at or prior to 2:00 p.m., Eastern time, on November 30, 2010 (and, in the event such conditions are not so satisfied or waived, the Aggregate Commitments shall terminate at such time).

 

Section 6.02          Each Credit Event.  The obligation of each Lender to make a Loan on the occasion of any Borrowing (including the initial funding), and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:

 

(a)           At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.

 

(b)           On the date of the initial funding, the representations and warranties of the Obligors set forth in this Agreement and in the other Loan Documents shall be true and correct, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of the initial funding, such representations and warranties shall continue to be true and correct as of such specified earlier date.

 

(c)           Except for the initial funding, the representations and warranties of the Obligors set forth in this Agreement and in the other Loan Documents shall be true and correct in all

 

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material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date.

 

(d)                                 The receipt by the Administrative Agent of a Borrowing Request in accordance with Section 2.03 or a request for the issuance, amendment, renewal or extension of a Letter of Credit, as applicable, in accordance with Section 2.07, as applicable.

 

Each request for a Borrowing and each request for the issuance, amendment, renewal or extension of any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in Section 6.02(a) and 6.02(b) or 6.02(c), as applicable.

 

ARTICLE VII
 Representations and Warranties

 

Each of EXLP, the Borrower and each Guarantor by its execution of a Guaranty Agreement, represents and warrants with respect to itself, as applicable, to the Administrative Agent, the Issuing Banks and the Lenders as follows:

 

Section 7.01                             Legal Existence.  Such Obligor and each of its Significant Domestic Subsidiaries:  (a) is a legal entity duly organized, legally existing and in good standing (if applicable) under the laws of the jurisdiction of its current organization, except as permitted by Section 9.06; (b) has all requisite power, and has all material governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted; and (c) is qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify would reasonably be expected to result in a Material Adverse Effect.

 

Section 7.02                             Financial Condition.  Since December 31, 2009, no change, event, development or circumstance has occurred or shall then exist that has had a Material Adverse Effect.

 

Section 7.03                             Litigation.  Except as disclosed to the Lenders in Schedule 7.03 hereto, at the Effective Date there is no litigation, legal, administrative or arbitral proceeding, investigation or other action of any nature pending against or, to its knowledge, threatened against or affecting it or any of its Subsidiaries as to which there is a reasonable likelihood of any judgment or liability against it or any of its Subsidiaries which would reasonably be expected to have a Material Adverse Effect.  No litigation is pending or, to its knowledge, threatened which enjoins, prohibits or restrains or, with respect to any threatened litigation, seeks to enjoin, prohibit or restrain, the making or repayment of any Loan, the issuance, amendment, renewal, or extension of any Letter of Credit or the reimbursement of disbursements under any Letter of Credit or the

 

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consummation of the Transactions contemplated by this Agreement or any other Loan Document.

 

Section 7.04                             No Breach.  Neither the execution and delivery of the Loan Documents to which it or any of its Restricted Subsidiaries is a party, nor compliance with the terms and provisions hereof, nor the borrowing of any Loan or the issuance, amendment, renewal or extension of any Letter of Credit will contravene or result in a breach of, the Organization Documents of such Obligor or any of its Restricted Subsidiaries, or any Governmental Requirement or any agreement or instrument to which it or any of its Restricted Subsidiaries is a party or by which it is bound or to which it or its Properties are subject (other than any agreement or instrument the contravention of which or breach of which could not reasonably be expected to be materially adverse to any Secured Party), or constitute a default under any such agreement or instrument, or result in the creation or imposition of any Lien upon any of the revenues or assets of it or any of its Restricted Subsidiaries pursuant to the terms of any such agreement or instrument, other than the Liens created by the Loan Documents.

 

Section 7.05                             Authority.  Such Obligor and each of its Restricted Subsidiaries has all necessary power and authority to execute, deliver and perform its obligations under the Loan Documents to which it is a party; and the execution, delivery and performance by such Obligor and each of its Restricted Subsidiaries of the Loan Documents to which it is a party have been duly authorized by all necessary action on its part; and the Loan Documents to which each Obligor and each of its Restricted Subsidiaries is a party constitute the legal, valid and binding obligations of such Obligor and each of its Restricted Subsidiaries, enforceable against such Obligor and each of its Restricted Subsidiaries in accordance with their terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

 

Section 7.06                             Approvals.  No authorizations, approvals or consents of, and no filings or registrations with, any Governmental Authority are necessary for the execution, delivery or performance by such Obligor or any of its Restricted Subsidiaries of the Loan Documents to which it is a party, for the borrowing of any Loan or the issuance, amendment, renewal or extension of a Letter of Credit hereunder, or for the validity or enforceability of any of the Loan Documents, except for those that have been obtained or made and are in effect and except for the recording and filing of the Security Instruments as required by this Agreement.

 

Section 7.07                             Use of Loans and Letters of Credit.  The Borrower will use the proceeds of the Loans and Letters of Credit for refinancing the Existing Credit Agreement, refinancing the Existing ABS Facility, terminating certain interest rate Hedging Agreements, paying fees and expenses in connection with the foregoing and this Agreement, for acquisitions permitted hereunder, to repay debt which is assumed and paid in connection with such acquisitions, to pay permitted distributions, and for working capital and other general corporate purposes not in contravention of any Governmental Requirement or of any Loan Document. The Borrower will use the proceeds of any Term Loans provided in connection with any additional Term Commitments under Section 2.06(c) as required in the applicable Term Loan Assumption Agreement. The Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying margin stock (within the meaning of Regulation T, U or X of the Board of 

 

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Governors of the Federal Reserve System), and no part of the proceeds of any Loan hereunder will be used to buy or carry any margin stock (other than units of EXLP).

 

Section 7.08                             ERISA.  No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.  The present value of all projected benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 158) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $500,000 the fair market value of the assets of such Plan, and the present value of all projected benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 158) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $1,000,000 the fair market value of the assets of all such underfunded Plans.

 

Section 7.09                             Taxes.  Except as set forth in Schedule 7.09, (a) such Obligor and its Domestic Subsidiaries have filed all United States Federal income tax returns and have paid all Taxes due pursuant to such returns except (i) such Taxes as are being contested in good faith by appropriate proceedings and for which such Obligor has set aside on its books adequate reserves in accordance with GAAP or (ii) where failure to file such tax returns and pay such Taxes would not result in a liability in excess of $5,000,000 in the aggregate and (b) such Obligor and its Domestic Subsidiaries have filed all tax returns which are required to be filed by them (other than those described in clause (a) above) and have paid all Taxes due pursuant to such returns or pursuant to any assessment received by it or any of its Domestic Subsidiaries, except (i) such Taxes as are being contested in good faith by appropriate proceedings and for which such Obligor has set aside on its books adequate reserves in accordance with GAAP or (ii) where failure to file such tax returns and pay such Taxes would not reasonably be expected to result in a Material Adverse Effect.  The charges, accruals and reserves on the books of each Obligor and its Domestic Subsidiaries in respect of Taxes and other governmental charges are, in the opinion of such Obligor, adequate.  No tax lien has been filed (except for liens for current period taxes not yet due and payable) and, to the knowledge of such Obligor, no claim for the collection or assessment of Taxes is being asserted which, if determined adversely to such Obligor, would result in a Material Adverse Effect.

 

Section 7.10                             Titles, Etc.

 

(a)                                 Except as set forth in Schedule 7.10, such Obligor and its Restricted Subsidiaries have good and marketable title to their material Properties, (i) except in cases where the failure to have said good and marketable title would not reasonably be expected to result in a Material Adverse Effect and (ii) free and clear of all Liens, except Permitted Liens.

 

(b)                                 All leases and agreements necessary for the conduct of the business of such Obligor and its Restricted Subsidiaries are valid and subsisting and in full force and effect except as would not reasonably be expected to result in a Material Adverse Effect, and there exists no default, or event or circumstance which with the giving of notice or the passage of time or both would give rise to a default, under any such lease or agreement which would reasonably be expected to result in a Material Adverse Effect.

 

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Section 7.11                             No Material Misstatements.  No written information, statement, exhibit, certificate, document or report (other than projections) furnished to the Administrative Agent and the Lenders (or any of them) by such Obligor or any of its Restricted Subsidiaries in connection with the negotiation of this Agreement, including the Information Memorandum, or delivered hereunder (as modified or supplemented by other information so furnished), when taken as a whole with all other written information, statements, exhibits, certificates, documents and reports so furnished or delivered, contains any material misstatement of fact or omits to state a material fact necessary to make the statements contained therein not materially misleading in the light of the circumstances in which made.  To the knowledge of such Obligor, there is no fact peculiar to such Obligor or any of its Restricted Subsidiaries which has a Material Adverse Effect and which has not been set forth in this Agreement or the other documents, certificates and statements furnished to the Administrative Agent by or on behalf of such Obligor or any of its Restricted Subsidiaries or otherwise prior to, or on, the Effective Date in connection with the Transactions contemplated hereby.  The financial projections concerning EXLP and its Restricted Subsidiaries that have been made available to the Administrative Agent and the Lenders (or any of them) by such Obligor or any of its Restricted Subsidiaries pursuant hereto or any other Loan Document have been prepared in good faith based upon assumptions believed by EXLP to be reasonable at the time made, it being understood that such projections are subject to significant uncertainties, many of which are beyond EXLP’s control, and actual results may vary materially from the projections.

 

Section 7.12                             Investment Company Act.  Neither EXLP nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

 

Section 7.13                             Subsidiaries.  As of the Effective Date, (a) except as set forth in Schedule 7.13, EXLP has no Subsidiaries and (b) all Subsidiaries listed on Schedule 7.13 are Restricted Subsidiaries.

 

Section 7.14                             Location of Business and Offices.  The Borrower’s principal place of business and chief executive office is located at the addresses stated on its signature page of this Agreement (or as set forth in a notice delivered to the Administrative Agent in writing pursuant to Section 12.01).

 

Section 7.15                             Defaults.  Neither such Obligor nor any of its Restricted Subsidiaries is in material default under, nor has any event or circumstance occurred which, but for the expiration of any applicable grace period or the giving of notice, or both, would constitute a material default under, any material agreement or instrument to which such Obligor or any of its Restricted Subsidiaries is a party or by which such Obligor or any of its Restricted Subsidiaries is bound, which default would reasonably be expected to result in a Material Adverse Effect.  No Default hereunder has occurred and is continuing.

 

Section 7.16                             Environmental Matters.  Except (a) as provided in a notice to all Lenders or (b) as would not reasonably be expected to result in a Material Adverse Effect:

 

(i)                                     Neither any Property of such Obligor or any of its Subsidiaries nor the operations conducted thereon violate any order or requirement of any court or Governmental Authority or any Environmental Laws;

 

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(ii)                                  Without limitation of clause (i) above, no Property of such Obligor or any of its Subsidiaries nor the operations currently conducted thereon or, to the best of its knowledge, by any prior owner or operator of such Property or operation, are in violation of or subject to any existing, pending or threatened action, suit, investigation, inquiry or proceeding by or before any court or Governmental Authority concerning compliance with Environmental Laws or to any remedial obligations under Environmental Laws;

 

(iii)                               All notices, permits, licenses or similar authorizations, if any, required by Environmental Laws to be obtained or filed by such Obligor or any of its Subsidiaries in connection with the operation or use of any and all Property of such Obligor or such Subsidiaries, including past or present treatment, storage, disposal or release of a hazardous substance or solid waste into the environment, have been duly obtained or filed, and it and each of its Subsidiaries are in compliance with the terms and conditions of all such notices, permits, licenses and similar authorizations;

 

(iv)                              To the best of its knowledge, all hazardous substances, solid waste, and oil and gas exploration and production wastes, if any, generated at any and all Property of such Obligor or any of its Subsidiaries have in the past been transported, treated and disposed of in accordance with Environmental Laws and all such transport carriers and treatment and disposal facilities have been and are operating in compliance with Environmental Laws, and are not the subject of any existing, pending or threatened action, investigation or inquiry by any Governmental Authority in connection with any Environmental Laws;

 

(v)                                 To the best of its knowledge, except in compliance with Environmental Laws, no hazardous substances, solid waste, or oil and gas exploration and production wastes, have been disposed of or otherwise released and there has been no threatened release of any hazardous substances on or to any Property of such Obligor or any of its Subsidiaries;

 

(vi)                              To the extent applicable, all Property of such Obligor and each of its Subsidiaries currently satisfies all design, operation, and equipment requirements imposed by the OPA or scheduled as of the Effective Date to be imposed by OPA during the term of this Agreement, and it does not have any reason to believe that such Property, to the extent subject to OPA, will not be able to maintain compliance with the OPA requirements during the term of this Agreement; and

 

(vii)                           Neither such Obligor nor any of its Subsidiaries has any known contingent liability under Environmental Laws in connection with any release or threatened release of any oil, hazardous substance or solid waste into the environment.

 

Section 7.17                             Compliance with Laws.  Neither such Obligor nor any of its Subsidiaries has violated any Governmental Requirement or failed to obtain any license, permit, franchise or other governmental authorization necessary for the ownership of any of its Properties or the conduct of its business, which violation or failure would (in the event such violation or failure were asserted by any Person through appropriate action) reasonably be expected to result in a Material Adverse Effect.

 

Section 7.18                             Insurance.  Such Obligor has, and has caused all of its Restricted Subsidiaries to have, insurance policies sufficient for compliance by each of them with all 

 

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applicable requirements of law and of all agreements to which such Obligor or any of its Restricted Subsidiaries is a party, except where non-compliance therewith would not reasonably be expected to result in a Material Adverse Effect; such policies are valid, outstanding and enforceable policies and provide insurance coverage in at least such amounts and against at least such risks (but including in any event public liability) as are usually insured against in the same general area by companies engaged in the same or a similar business for the assets and operations of the Obligors and their Restricted Subsidiaries.  The Administrative Agent and the Lenders have been named as additional insureds in respect of such liability insurance policies, and the Administrative Agent has been named as loss payee with respect to property loss insurance, to the extent any of the Obligors or their Restricted Subsidiaries have property loss insurance.  For the avoidance of doubt, unless an Event of Default has occurred and is continuing, any property loss insurance proceeds received by the Administrative Agent in its capacity as “loss payee” under the property loss insurance policies of any of the Obligors or their Restricted Subsidiaries shall be remitted to such Obligor or the applicable Restricted Subsidiary.

 

Section 7.19                             Hedging Agreements.  Schedule 7.19 sets forth, as of the Effective Date, a true and complete list of all Hedging Agreements (including commodity price swap agreements, forward agreements or contracts of sale which provide for prepayment for deferred shipment or delivery of oil, gas or other commodities) of such Obligor and each of its Restricted Subsidiaries, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net mark-to-market value thereof as of the last day of the immediately preceding calendar month, all credit support agreements relating thereto (including any margin required or supplied), and the counterparty to each such agreement.  The Borrower is an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder.

 

Section 7.20                             Restriction on Liens.  Except as set forth in Schedule 7.20 or as permitted under Section 9.15, neither such Obligor nor any of its Restricted Subsidiaries is a party to any agreement or arrangement (other than this Agreement and the Security Instruments), or subject to any order, judgment, writ or decree, which restricts or purports to restrict its ability to grant Liens pursuant to this Agreement and the Security Instruments to the Administrative Agent, for the benefit of the Secured Parties, on or in respect of its material Properties.

 

Section 7.21                             Solvency.  Before and after giving effect to the Transactions contemplated hereby, each Obligor is Solvent.

 

Section 7.22                             Security Instruments.

 

(a)                                 Collateral Agreement.  The provisions of the Collateral Agreement are effective to create, in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien on, and security interest in, all of the Collateral described therein, and (i) when financing statements and other filings in appropriate form are filed in the offices specified in the Collateral Agreement and (ii) upon the taking of possession or control by the Administrative Agent of the Collateral described therein with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Administrative Agent to the extent possession or control by the Administrative Agent is required by the Collateral Agreement), the Liens created by the Collateral Agreement shall constitute fully perfected first priority Liens on, and security interests in, all right, title and interest of the 

 

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Obligors in such Collateral (other than such Collateral in which a Lien or a security interest cannot be perfected by filing, possession or control under the Uniform Commercial Code as in effect at the relevant time in the relevant jurisdiction), in each case free of all Liens other than Permitted Liens, and prior and superior to all other Liens other than Permitted Liens; provided that the representations in this paragraph (a) shall not apply to any Collateral consisting of Equity Interests in Foreign Subsidiaries.

 

(b)                                 Mortgages.  Each Mortgage is effective to create, in favor of the Administrative Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Collateral described therein, subject only to Permitted Liens, and when the Mortgages are filed in the offices specified on Schedule 7.22 (or, in the case of any Mortgage executed and delivered after the date hereof in accordance with the provisions of Section 8.05 and Section 8.07, when such Mortgage is filed in the appropriate offices), the Mortgages shall constitute fully perfected first priority Liens on, and security interests in, all right, title and interest of the Obligors in that portion of the Collateral described in such Mortgages constituting real property and fixtures affixed or attached to such real property, in each case prior and superior in right to any other person, other than Permitted Liens.

 

(c)                                  Valid Liens.  Each Security Instrument delivered pursuant to Section 8.05 or Section 8.07, upon execution and delivery thereof, is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Collateral described therein, and (i) when financing statements and other filings in appropriate form are filed or recorded in the appropriate offices as are required by such Security Instrument, and (ii) upon the taking of possession or control by the Administrative Agent of the Collateral described therein with respect to which a security interest may be perfected only by possession or control, the Liens created by such Security Instrument will constitute fully perfected first priority Liens on, and security interests in, all right, title and interest of the Obligors that are parties to such Security Instrument in such Collateral (other than such Collateral in which a Lien or security interest cannot be perfected by filing, possession or control under the Uniform Commercial Code as in effect at the relevant time in the relevant jurisdiction), in each case free of all Liens other than Permitted Liens; provided that the representations in this paragraph (c) shall not apply to any Collateral consisting of Equity Interests in Foreign Subsidiaries.

 

ARTICLE VIII
 Affirmative Covenants

 

Each of EXLP and the Borrower and each Guarantor by its execution of a Guaranty Agreement covenants and agrees that, until all of the Commitments have expired or been terminated and all Loans hereunder, all interest thereon and all other amounts payable by the Borrower hereunder have been paid in full (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made at the time of determination) and all Letters of Credit have expired or terminated (unless cash collateralized in accordance with Section 2.07(a)):

 

Section 8.01                             Reporting Requirements.  The EXLP shall deliver, or shall cause to be delivered, to the Administrative Agent:

 

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(a)                                 Financial Statements.  (i) Within 30 days after the same is required to be filed with the SEC or any successor agency (but in any event within 90 days of the end of each fiscal year of EXLP), a copy of each annual report and any amendment to any annual report filed by EXLP with the SEC or any successor agency pursuant to Section 13 or 15(d) of the Exchange Act (currently Form 10-K), as the same may be amended from time to time, (ii) within 30 days after the same is required to be filed by EXLP with the SEC or any successor agency (but in any event within 60 days after the end of each of the first three fiscal quarters of EXLP), a copy of each quarterly report and any amendment to any quarterly report filed by EXLP with the SEC or any successor agency pursuant to Section 13 or 15(d) of the Exchange Act (currently Form 10-Q), as the same may be amended from time to time, and (iii) promptly after the same become publicly available, but in any event within 15 days following the date the same are required to be filed with the SEC, all other reports, notices, proxy statements or other documents that are distributed by EXLP to its unitholders generally and all regular and periodic final reports (including, without limitation, reports on Form 8-K) filed by EXLP with the SEC, which are publicly available; provided, however, that EXLP shall be deemed to have furnished the information required by this Section 8.01(a) if EXLP shall have timely made the same available on “EDGAR” (or any successor thereto) and/or on its home page on the worldwide web (at the date of this Agreement located at http://www.exterran.com/); provided  further, however, that if the Administrative Agent is unable to access EDGAR (or any successor thereto) or EXLP’s home page on the worldwide web, EXLP agrees to provide the Administrative Agent with paper copies of the information required to be furnished pursuant to this Section 8.01(a) promptly following notice from the Administrative Agent.

 

(b)                                 Budget.  Within 90 days following the end of each fiscal year of EXLP, a copy of the operating budget and capital budget of EXLP and its Restricted Subsidiaries prepared on a consolidated basis for the succeeding fiscal year.

 

(c)                                  Notice of Default, Etc.  Promptly after a Responsible Officer of EXLP or the Borrower obtains knowledge that any Default or Material Adverse Effect has occurred, a notice of such Default or Material Adverse Effect, describing the same in reasonable detail and the action EXLP or the Borrower proposes to take with respect thereto.

 

(d)                                 Management Letters.  Promptly after the receipt thereof by EXLP, the Borrower or any Significant Domestic Subsidiary, a copy of any “management letter” addressed to the board of directors of EXLP, the Borrower or such Significant Domestic Subsidiary from EXLP’s certified public accountants.

 

(e)                                  Other Matters.  From time to time such other information regarding the business, affairs or financial condition of EXLP, the Borrower or any Significant Domestic Subsidiary (including, without limitation, any Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA) as the Administrative Agent may reasonably request.

 

(f)                                   Labor Disputes.  Promptly upon becoming aware of any labor dispute which would reasonably be expected to result in a Material Adverse Effect, a notice of such dispute describing such dispute in detail and the action the Borrower proposes to take with respect thereto.

 

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(g)                                  Compliance Certificate.  The Borrower, within ten (10) Business Days of any delivery or deemed delivery of any annual report or quarterly report on or after December 31, 2010 pursuant to paragraph (a) above, will furnish to the Administrative Agent (i) a certificate substantially in the form of Exhibit D-2 executed by a Responsible Officer of the Borrower (A) certifying as to the matters set forth therein and stating that no Default has occurred and is continuing as of the date thereof (or, if any Default has occurred and is continuing as of the date thereof, describing the same in reasonable detail) and (B) setting forth in reasonable detail the computations necessary to determine whether EXLP is in compliance with Section 9.10(a), (b) and (c), as applicable, as of the end of the most recently ended fiscal quarter or fiscal year, as applicable; and (ii) a report, in form and substance satisfactory to the Administrative Agent, setting forth as of the date of such certificate a true and complete list of all Hedging Agreements (including commodity price swap agreements, forward agreements or contracts of sale which provide for prepayment for deferred shipment or delivery of oil, gas or other commodities) to which any Obligor or any of its Restricted Subsidiaries is a party, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net mark to market value therefor, any new credit support agreements relating thereto not listed in Schedule 7.19, any margin required or supplied under any credit support document, and the counterparty to each such agreement.

 

(h)                                 Consolidating Financials.  If, for any Testing Period, the EBITDA of all Unrestricted Subsidiaries for such Testing Period would represent greater than 5% of the EBITDA of EXLP and its Consolidated Subsidiaries for such Testing Period, EXLP shall deliver, within 90 days after the end of each fiscal year of EXLP and within 60 days after the end of each of the first three fiscal quarters of EXLP, a consolidating balance sheet as of the last day of the most recently ended fiscal quarter and an income statement for the most recently ended fiscal quarter with respect to its Unrestricted Subsidiaries, if any.

 

Section 8.02                             Litigation.  Such Obligor shall promptly give to the Administrative Agent notice of any litigation or governmental investigation or proceeding pending against it or any of its Subsidiaries which would reasonably be expected to result in a Material Adverse Effect.

 

Section 8.03                             Maintenance, Etc.

 

(a)                                 Generally.  Except as otherwise permitted by Section 9.06, such Obligor shall, and shall cause each of its Significant Domestic Subsidiaries to: (i) preserve and maintain its legal entity existence; (ii) preserve and maintain all of its material rights, privileges, franchises, patents, trademarks, copyrights and licenses unless the failure to do so could not reasonably be expected to result in a Material Adverse Effect; (iii) comply with all Governmental Requirements if the failure to comply with such requirements will have a Material Adverse Effect; (iv) pay and discharge all Taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its Property prior to the date on which penalties attach thereto, except for (A) any such Tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP and (B) any such Tax, assessment, charge or levy, the nonpayment of which could not reasonably be expected to result in a Material Adverse Effect; and (v) upon reasonable notice and to the extent reasonably requested by the Administrative Agent, permit representatives of the Administrative Agent, during normal business hours, to examine, copy and make extracts from its books and records, to inspect its 

 

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Properties, and to discuss its business and affairs with its officers.  EXLP shall keep its books of record and account and the books of record and account of its Consolidated Subsidiaries in accordance with GAAP.

 

(b)                                 Proof of Insurance.  Each of the Borrower and EXLP shall, and shall cause each of its Significant Domestic Subsidiaries to, maintain, with financially sound and reputable insurance companies, insurance policies which (i) are sufficient for compliance with all applicable requirements of law and of all agreements to which it is a party, except where non-compliance therewith would not reasonably be expected to result in a Material Adverse Effect; (ii) are valid, outstanding and enforceable policies; and (iii) provide insurance coverage in at least such amounts and against at least such risks (but including in any event public liability) as are usually insured against in the same general area by companies engaged in the same or a similar business for the assets and operations of the Borrower, EXLP and each Significant Domestic Subsidiary.  Within 90 days of the end of each fiscal year, EXLP will furnish or cause to be furnished to the Administrative Agent a certificate of insurance coverage from the insurer in form and substance satisfactory to the Administrative Agent and, if requested, will furnish the Administrative Agent copies of the applicable policies.  Any insurance policy or policies insuring any of the Collateral shall be endorsed in favor of and made payable to the Administrative Agent (including by naming the Administrative Agent as “additional insured” and “loss payee”, as applicable) and shall provide that the insurer will endeavor to give at least 30 days prior notice of any cancellation to the Administrative Agent.  With respect to each portion of real property Collateral that is subject to a Mortgage on which a building or mobile home is located, EXLP will, and will cause each Restricted Subsidiary to, obtain flood insurance in such total amount as the Administrative Agent or the Majority Lenders may from time to time reasonably require, if at any time the area in which any such building or mobile home is located is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time.

 

(c)                                  Operation of Properties.  Such Obligor will, and will cause each of its Restricted Subsidiaries to, operate its Properties or cause such Properties to be operated in a careful and efficient manner (i) in compliance with the practices of the industry, (ii) in compliance with all applicable contracts and agreements and (iii) in compliance in all material respects with all Governmental Requirements, except in each case where the noncompliance therewith would not reasonably be expected to result in a Material Adverse Effect.

 

Section 8.04                             Environmental Matters.

 

(a)                                 Establishment of Procedures.  Such Obligor will, and will cause each of its Subsidiaries to, establish and implement such procedures as may be reasonably necessary to assure that any failure of the following does not have a Material Adverse Effect:  (i) all Property of it and its Subsidiaries and the operations conducted thereon and other activities of it and its Subsidiaries are in compliance with and do not violate the requirements of any Environmental Laws, (ii) no oil, hazardous substances or solid wastes are disposed of or otherwise released on or to any Property owned by any such party except in compliance with Environmental Laws and (iii) no hazardous substance will be released on or to any such Property in a quantity equal to or exceeding that quantity which requires reporting pursuant to Section 103 of CERCLA.

 

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(b)                                 Notice of Action.  Such Obligor will promptly notify the Administrative Agent in writing of any threatened action, investigation or inquiry by any Governmental Authority of which any of its Responsible Officers has knowledge in connection with any Environmental Laws if such action, investigation or inquiry would reasonably be expected to result in a Material Adverse Effect.

 

Section 8.05                             Further Assurances.  Upon the reasonable request of the Administrative Agent, such Obligor will, and will cause each of its Restricted Subsidiaries to, cure promptly any defects in the creation and issuance of the Notes and the execution and delivery of the Security Instruments and this Agreement.  Upon the reasonable request of the Administrative Agent, each of the Borrower and EXLP, at its expense will, and will cause each of its Restricted Subsidiaries to, promptly execute and deliver to the Administrative Agent all such other documents, agreements and instruments to comply with or accomplish the covenants and agreements of any of the Obligors in the Security Instruments and this Agreement, or to further evidence and more fully describe the collateral intended as security for the Notes, or to correct any omissions in the Security Instruments, or to state more fully the security obligations set out herein or in any of the Security Instruments, or to perfect, protect or preserve any Liens created pursuant to any of the Security Instruments, or to make any recordings, to file any notices or obtain any consents, all as may be reasonably necessary or appropriate in connection therewith.

 

Section 8.06                             Performance of Obligations under Loan Documents.  The Borrower will pay the Loans and the Notes according to the reading, tenor and effect thereof; and EXLP will and will cause each of its Subsidiaries to do and perform every act and discharge all of the obligations to be performed and discharged by them under the Security Instruments and this Agreement, at the time or times and in the manner specified.

 

Section 8.07                             Collateral and Guarantees.

 

(a)                                 Collateral.

 

(i)                                     EXLP and the Borrower shall, and shall cause each other Obligor to, grant a Lien pursuant to the Security Instruments on substantially all of its Property located in the United States now owned or at any time hereafter acquired by it or any other Obligor, including, without limitation, all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments, and Inventory (as each such term is defined in the UCC).

 

(ii)                                  Upon the formation or acquisition of any Significant Domestic Subsidiary or upon any Restricted Subsidiary becoming a Significant Domestic Subsidiary after the Effective Date, EXLP and the Borrower shall promptly:

 

(A)                               cause such Significant Domestic Subsidiary to grant a Lien pursuant to the Security Instruments on substantially all of its Property located in the United States now owned or at any time hereafter acquired by it, including, without limitation, all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments, and Inventory;

 

(B)                               pledge, or cause the appropriate Person to pledge, all of the Equity Interests of such Significant Domestic Subsidiary (and, to the extent certificated, deliver 

 

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original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate, duly executed in blank by the registered owner thereof);

 

(C)                               cause such Significant Domestic Subsidiary to grant a Mortgage on any real property owned by such Significant Domestic Subsidiary; and

 

(D)                               execute and deliver, or cause such Significant Domestic Subsidiary to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the Administrative Agent.

 

(iii)                               Upon the formation or acquisition of any Foreign Subsidiary or any Domestic Subsidiary that is not a Significant Domestic Subsidiary after the Effective Date, EXLP and the Borrower shall promptly:

 

(A)                               pledge, or cause the appropriate Person to pledge, (1) 66% of the capital stock of each first tier Foreign Subsidiary that constitutes a “controlled foreign corporation” (within the meaning of Section 957 of the Code) (and, to the extent certificated, deliver original stock certificates or other certificates evidencing 66% of the capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (2) 100% of the capital stock of each Domestic Subsidiary that is not a Significant Domestic Subsidiary (and, to the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof); and

 

(B)                               execute and deliver, or cause such Foreign Subsidiary or Domestic Subsidiary, as applicable, to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the Administrative Agent.

 

provided that the foregoing clauses (i), (ii) and (iii) shall not require the creation or perfection of pledges of, security interests in or Mortgages on, (A) any real property that has a value of less than $7,500,000, (B) any Property as provided on Schedule 8.07 , (C) the Equity Interests owned by any Obligor or a Restricted Subsidiary in a Joint Venture to the extent (but only to the extent) (i) the Organization Documents of such Joint Venture prohibit the granting of a Lien on such Equity Interests or (ii) such Equity Interests in such Joint Venture are otherwise pledged as collateral as permitted by Section 9.02(g), provided  however, if any of the foregoing conditions cease to be in effect for any reason, then the Equity Interests in such Joint Venture shall automatically be subject to the lien and security interest pursuant to Section 2.01 of the Collateral Agreement, or (D) any Property that in the judgment of the Administrative Agent, the cost of creating or perfecting such pledges, security interests or Mortgages on such Property would be excessive in view of the benefits to be obtained by the Lenders therefrom, provided  further that EXLP, the Borrower and any Guarantor will have ninety (90) days to perfect Liens on Property acquired in an acquisition.  EXLP will also deliver a Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of real property that becomes Collateral subject to a Mortgage pursuant to this Section 8.07(a) on which a building or a mobile home is located.  Notwithstanding anything contained in this Section 8.07(a) to the contrary, if there are no adverse tax consequences to EXLP, to its partners, to any of its Restricted 

 

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Subsidiaries, or to any of its Affiliates, the Collateral described above (and subject to the same limitations set forth above) will include Property located in jurisdictions outside the United States, Foreign Subsidiaries will be included as Guarantors, and all of the Equity Interest of Foreign Subsidiaries will be pledged.

 

(b)                                 Guarantees; Designation of Significant Domestic Subsidiaries.  Upon the formation or acquisition of any Significant Domestic Subsidiary or upon any Restricted Subsidiary becoming a Significant Domestic Subsidiary, such Significant Domestic Subsidiary shall (i) within ninety (90) days from its creation or acquisition, with respect to any newly created or acquired Significant Domestic Subsidiary or (ii) within thirty (30) days after the delivery of the financial statements required to be delivered for the most recently ended fiscal year pursuant to Section 8.01(a), with respect to any Subsidiary becoming a Significant Domestic Subsidiary, guarantee the Indebtedness pursuant to the execution and delivery of the Guaranty Agreement or a supplement to the Guaranty Agreement, as applicable.  If, in the aggregate, the EBITDA of the Wholly-Owned Domestic Subsidiaries that are not Significant Domestic Subsidiaries and Guarantors exceeds ten percent (10%) of the EBITDA of the EXLP Group as of the last day of the most recently ended fiscal quarter of EXLP, then EXLP shall, within ten (10) days of delivery of the financial statements required to be delivered for such fiscal quarter pursuant to Section 8.01(a), designate as many of such Wholly-Owned Domestic Subsidiaries and Significant Domestic Subsidiaries as Guarantors as is necessary to ensure that the EBITDA of the Wholly-Owned Domestic Subsidiaries that are not Significant Domestic Subsidiaries and Guarantors does not exceed ten percent (10%) of the EBITDA of the EXLP Group.  If EXLP shall fail to designate such Wholly-Owned Subsidiaries as Significant Domestic Subsidiaries and Guarantors, then Wholly-Owned Domestic Subsidiaries that are not Significant Domestic Subsidiaries and Guarantors or deemed Significant Domestic Subsidiaries and Guarantors shall automatically be deemed to be Significant Domestic Subsidiaries and Guarantors in descending order based on such Wholly-Owned Domestic Subsidiary’s EBITDA until the aggregate EBITDA of the Wholly-Owned Domestic Subsidiaries that are not Significant Domestic Subsidiaries and Guarantors no longer exceeds ten percent (10%) of the EBITDA of the EXLP Group.

 

(c)                                  Release of Collateral.  The Borrower and the Guarantors are hereby authorized by the Administrative Agent and the Lenders to release any Liens granted by any of the Obligors on any Collateral that is Transferred in compliance with Sections 9.06, 9.08 and 9.11; provided that the Lien in favor of the Administrative Agent continues in the proceeds of such Transfer of such Collateral, or to the extent such Collateral is Transferred to the Borrower or any Guarantor, such Lien continues in such Collateral.  All Collateral shall be released from the Liens of the Administrative Agent and the Secured Parties upon EXLP’s receipt of, and for so long as, EXLP shall have, an Investment Grade Rating with respect to its Index Debt.  The Administrative Agent shall execute and deliver to the Borrower all documents and instruments reasonably requested by the Borrower to further evidence any release, discharge and termination pursuant to this Section 8.07(c) of the liens, security interests and other rights in favor of the Administrative Agent in and to the assets of the Obligors under the Loan Documents.

 

Section 8.08                             Notice of an ERISA Event.  Each of the Borrower and EXLP will promptly furnish to the Administrative Agent written notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably 

 

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be expected to result in liability to it and its Subsidiaries in an aggregate amount exceeding $10,000,000.

 

Section 8.09                             Commodity Exchange Act Keepwell Provisions.  The Borrower hereby guarantees the payment and performance of all Indebtedness of each Obligor (other than Borrower) and absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time to each Obligor (other than the Borrower) in order for such Obligor to honor its obligations under its respective Guaranty Agreement including obligations with respect to Hedging Agreements (provided, however, that the Borrower shall only be liable under this Section 8.09 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 8.09, or otherwise under this Agreement or any Loan Document, as it relates to such other Obligors, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of the Borrower under this Section 8.09 shall remain in full force and effect until all Indebtedness is paid in full to the Lenders, the Administrative Agent and all other Secured Parties, and all of the Lenders’ Revolving Commitments and Term Commitments are terminated. The Borrower intends that this Section 8.09 constitute, and this Section 8.09 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Obligor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

ARTICLE IX
 Negative Covenants

 

Each of EXLP and the Borrower and each Guarantor by its execution of a Guaranty Agreement covenants and agrees that, until all of the Commitments have expired or been terminated and all Loans hereunder, all interest thereon and all other amounts payable by the Borrower hereunder have been paid in full (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made at the time of determination) and all Letters of Credit have expired or terminated (unless cash collateralized in accordance with Section 2.07(a)):

 

Section 9.01                             Debt.  Such Obligor will not, nor will it permit any of its Restricted Subsidiaries to, incur, create, assume or permit to exist any Debt, except:

 

(a)                                 the Notes and any other Indebtedness and any guaranty of or suretyship arrangement for the Notes or any other Indebtedness;

 

(b)                                 Debt (including unfunded commitments) existing on the Effective Date which is disclosed in Schedule 9.01, and any renewals, extensions, refinancings and modifications (but not increases) thereof with financial covenants no more restrictive than those existing on the Effective Date;

 

(c)                                  accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than 90 days past due, (i) are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor or (ii) would not exceed $5,000,000 in the aggregate outstanding at any time;

 

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(d)                                 Debt under Hedging Agreements which are for bona fide business purposes and are not speculative;

 

(e)                                  other Debt of EXLP, the Borrower and any Significant Domestic Subsidiaries; provided that (i) no Default or Event of Default exists and is continuing before and after giving pro forma effect to the incurrence of such Debt, (ii) the maturity of such Debt is at least six (6) months after the Revolving Credit Maturity Date and the Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Debt is greater than the number of years (calculated to the nearest one-twelfth) from the date of incurrence of such Debt to the Revolving Credit Maturity Date and the Term Loan Maturity Date and (iv) such Debt either (A) has terms substantially similar to those customary in high-yield debt offerings or (B) does not contain financial covenants that are materially more restrictive, taken as a whole, than those contained herein;

 

(f)                                   Debt evidenced by Capital Lease Obligations and Purchase Money Indebtedness; provided that in no event shall the aggregate principal amount of Capital Lease Obligations and Purchase Money Indebtedness permitted by this clause (f) exceed an amount equal to the greater of (i) $27,500,000 and (ii) five percent (5%) of the Maximum Facility Amount;

 

(g)                                  Debt with respect to surety bonds, appeal bonds or customs bonds or associated with deposits, bank guarantees, customs, bids, performance, refund and surety bonds or surety and similar obligations of EXLP or any of its Restricted Subsidiaries, including guarantees and obligations of EXLP or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations, required in the ordinary course of business or in connection with the enforcement of rights or claims of EXLP or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default;

 

(h)                                 Debt for borrowed money assumed by EXLP or one of its Restricted Subsidiaries, or of a Restricted Subsidiary of EXLP acquired, pursuant to an acquisition or merger permitted pursuant to the terms of this Agreement other than from Holdings and its Subsidiaries; provided that (i) no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate amount of such Debt does not exceed the greater of (A) $30,000,000 and (B) seven and one-half percent (7.5%) of Consolidated Net Tangible Assets;

 

(i)                                     Debt for borrowed money assumed by EXLP or one of its Restricted Subsidiaries, or of a Restricted Subsidiary of EXLP acquired, pursuant to an asset acquisition from Holdings or one of its Subsidiaries (other than EXLP and its Subsidiaries);

 

(j)                                    other Debt not to exceed $40,000,000 in the aggregate;

 

(k)                                 Debt of EXLP or any of its Restricted Subsidiaries owed to EXLP or any of its Restricted Subsidiaries; provided that such Debt shall be unsecured and, in the case of such Debt that is owed to a Restricted Subsidiary that is not an Obligor, subordinated to the Indebtedness on terms substantially similar to the subordination provisions set forth in the Guaranty Agreement; and

 

(l)                                     Non-Recourse Foreign Debt of any Foreign Subsidiary used for such Foreign Subsidiary’s and/or its Foreign Subsidiaries’ working capital and general business purposes.

 

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Section 9.02                             Liens.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or permit to exist any Lien on any of its Properties (now owned or hereafter acquired), except (herein referred to as “Permitted Liens”):

 

(a)                                 Liens arising under the Security Instruments securing the payment of any Indebtedness;

 

(b)                                 Liens disclosed in Schedule 9.02;

 

(c)                                  Excepted Liens;

 

(d)                                 Liens relating to Debt permitted under Sections 9.01(e), (g), (h) or (j), provided that the aggregate amount of Debt secured by such Liens shall not exceed in the aggregate ten percent (10%) of Consolidated Net Tangible Assets; provided  further that with respect to Liens securing Debt permitted under Section 9.01(h): (1) such Liens do not extend to or cover any Property other than the Property that secured such Debt prior to the time of the applicable acquisition or merger and (2) the aggregate amount of Debt secured by such Liens does not exceed the greater of (A) $30,000,000 and (B) seven and one-half percent (7.5%) of Consolidated Net Tangible Assets; provided  further that no such Liens shall encumber Equity Interests in Joint Ventures owned by an Obligor or any Restricted Subsidiary.

 

(e)                                  Liens securing Capital Lease Obligations and Purchase Money Indebtedness described in Section 9.01(f); provided that such Liens may only encumber the Property under lease or acquired, constructed or improved;

 

(f)                                   Liens on assets of Foreign Subsidiaries under Foreign Credit Facilities; and

 

(g)                                  Liens on Equity Interests in a Joint Venture owned by an Obligor or a Restricted Subsidiary to secure Joint Venture Obligations.

 

Section 9.03                             Investments.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, make any Investments in any Person, except that, the foregoing restriction shall not apply to:

 

(a)                                 Investments in connection with any acquisition of wholly owned assets, business units or companies; provided, however, that (A) such acquisition shall not be a hostile take over of a company and (B) both immediately before and immediately after giving pro forma effect to such acquisition and the Debt incurred to make such acquisition, no Default or Event of Default shall exist and be continuing;

 

(b)                                 Investments reflected in the audited financial statements as of and for the fiscal year ending December 31, 2009 or which are disclosed to the Lenders in Schedule 9.03;

 

(c)                                  accounts receivable and notes receivable arising 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;

 

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(d)                                 direct obligations of the United States, Canada or any agency thereof, or obligations guaranteed by the United States, Canada or any agency thereof, in each case maturing within one year from the date of creation thereof;

 

(e)                                  commercial paper maturing within one year from the date of creation thereof rated no lower than A2 or P2 as such rating is set forth by S&P or Moody’s, respectively;

 

(f)                                   deposits maturing within one year from the date of creation thereof with, including certificates of deposit, banker’s acceptances and time deposits issued by, any Lender or any office located in the United States of any other bank or trust company which is organized under the laws of the United States or any state thereof, has capital, surplus and undivided profits aggregating at least $100,000,000.00 (as of the date of such Lender’s or bank or trust company’s most recent financial reports) and has a short term deposit rating of no lower than A2 or P2, as such rating is set forth from time to time by S&P or Moody’s, respectively;

 

(g)                                  fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (d) above and entered into with a financial institution satisfying the criteria described in clause (f) above;

 

(h)                                 deposits in money market funds which invest 95% or more of its funds in Investments described in Sections 9.03(d), 9.03(e) or 9.03(f);

 

(i)                                     Investments by EXLP or by any of its Restricted Subsidiaries in any Restricted Subsidiary or in EXLP;

 

(j)                                    Investments otherwise permitted by Sections 9.01;

 

(k)                                 other Investments not to exceed in the aggregate an amount equal to the greater of (i) $10,000,000 and (ii) two and one-half percent (2.5%) of Consolidated Net Tangible Assets; provided that, with respect to each Investment made pursuant to this clause (k), no Event of Default shall have occurred and be continuing immediately before or immediately after such Investment is made;

 

(l)                                     Investments in Unrestricted Subsidiaries not to exceed in the aggregate an amount equal to the greater of (i) $60,000,000 and (ii) fifteen (15%) of Consolidated Net Tangible Assets; provided that, with respect to each Investment made pursuant to this clause (l), no Event of Default shall have occurred and be continuing immediately before or immediately after such Investment is made; and

 

(m)                             Investments made by an Obligor or any Restricted Subsidiary in Joint Ventures in an aggregate amount not to exceed $25,000,000 during the existence of this Agreement.

 

Section 9.04                             Dividends, Distributions and Redemptions.  EXLP will not declare or pay any dividend, purchase, redeem or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its unitholders or other holders of its Equity Interests or make any distribution of its assets to its unitholders or such other holders; except that (i) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), EXLP will be permitted to make distributions as set forth in the EXLP 

 

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Partnership Agreement, (ii) EXLP may purchase, redeem or otherwise acquire for value any of its Equity Interests held by any current or former officers, directors or employees of EXLP, any of the Restricted Subsidiaries or any of their respective Affiliates in connection with the exercise or vesting of any equity compensation (including, without limitation, stock options, restricted stock and phantom stock) in order to satisfy any tax withholding obligation with respect to such exercise or vesting, and (iii) EXLP may purchase, redeem or otherwise acquire for value any of its Equity Interests in an aggregate amount not to exceed $25,000,000.

 

Section 9.05                             Nature of Business.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, allow any material change to be made in the character of its business as compared to the business of Holdings and its Subsidiaries as of the Effective Date and businesses reasonably related or ancillary thereto including natural gas gathering, processing, treating and transportation.

 

Section 9.06                             Mergers, Etc.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, merge into or with or consolidate with any other Person, or sell, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the Property of EXLP and its Restricted Subsidiaries, taken as a whole, to any other Person except that (a) any Restricted Subsidiary (other than the Borrower) may be merged into or consolidated with, or Transfer all or substantially all of the Property of EXLP and its Restricted Subsidiaries, taken as a whole, to (i) the Borrower or EXLP, so long as the Borrower or EXLP is the surviving business entity, or (ii) another Restricted Subsidiary, (b) EXLP or the Borrower may merge into or consolidate with any Person; provided, in each case (i) immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (ii) EXLP or the Borrower, as applicable, is the surviving business entity and (c) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve so long as it determines in good faith that such liquidation or dissolution is in its best interest.

 

Section 9.07                             Proceeds of Notes; Letters of Credit.  The Borrower will not permit the proceeds of the Notes or Letters of Credit to be used for any purpose other than those permitted by Section 7.07.  Neither the Borrower nor any Person acting on behalf of the Borrower has taken or will take any action which might cause any of the Loan Documents to violate Regulation T, U or X or any other regulation of the Board of Governors of the Federal Reserve System or to violate Section 7 of the Exchange Act or any rule or regulation thereunder, in each case as now in effect or as the same may hereinafter be in effect.

 

Section 9.08                             Sale or Discount of Receivables.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, discount or sell (with or without recourse) any of its notes receivable or accounts receivable, except in the ordinary course of business.

 

Section 9.09                             Fiscal Year Change.  Neither the Borrower nor EXLP will permit any change in its fiscal year.

 

Section 9.10                             Certain Financial Covenants.

 

(a)                                 Interest Coverage Ratio.  EXLP will not permit its Interest Coverage Ratio as of the last day of any Testing Period ending on or after December 31, 2010 to be less than (i) for 

 

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any Testing Period ending prior to the Senior Notes Issuance Date, 3.00 to 1.00 and (b) for any Testing Period ending on or after the Senior Notes Issuance Date, 2.75 to 1.00.

 

(b)                                 Total Leverage Ratio.  EXLP will not permit its Total Leverage Ratio as of the last day of any Testing Period ending on or after March 31, 2013 to be greater than 5.25 to 1.00; provided that if a Specified Acquisition occurs during any fiscal quarter, EXLP may increase its Total Leverage Ratio to be no greater than 5.50 to 1.00 for such fiscal quarter and the first two (2) full fiscal quarters after the fiscal quarter in which such Specified Acquisition occurs.

 

(c)                                  Senior Secured Leverage Ratio.  EXLP will not permit its Senior Secured Leverage Ratio as of the last day of any Testing Period ending on or after the Senior Notes Issuance Date to be greater than 4.00 to 1.00.

 

Section 9.11                             Transfer of Properties.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, Transfer any Property to any Person other than to EXLP or to any of its Restricted Subsidiaries, except the Borrower, EXLP and their Restricted Subsidiaries:

 

(a)                                 may Transfer any Property which, in the reasonable judgment of such Person, is obsolete, worn out or otherwise no longer useful in the conduct of such Person’s business;

 

(b)                                 may sell or lease inventory or equipment in the ordinary course of business;

 

(c)                                  so long as no Event of Default has occurred and is continuing or would result therefrom, may Transfer Compression Assets to Holdings or any of Holdings’ Subsidiaries (other than EXLP or any Subsidiary thereof) pursuant to the Omnibus Agreement;

 

(d)                                 so long as no Event of Default has occurred and is continuing or would result therefrom, may Transfer Property not permitted to be Transferred under any other paragraph of this Section 9.11, so long as the value of such Property, when taken together with the aggregate value of all other Property Transferred pursuant to this paragraph (d) in any fiscal year, does not exceed 10% of Consolidated Net Tangible Assets as measured on the last day of the fiscal year most recently ended; and

 

(e)                                  may Transfer Property as otherwise permitted by Sections 9.03(k), (l) or (m);

 

provided that all Transfers made pursuant to paragraphs (c), (d) and (e) above (other than leases entered into pursuant to paragraph (c) above and Investments made in Unrestricted Subsidiaries pursuant to paragraph (e) above) shall be made for fair market value.

 

Section 9.12                             Environmental Matters.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, cause or permit any of its Property to be in violation of, or do anything or permit anything to be done which will subject any such Property to any remedial obligations under any Environmental Laws, assuming disclosure to the applicable Governmental Authority of all relevant facts, conditions and circumstances, if any, pertaining to such Property, in each case to the extent such violations or remedial obligations would reasonably be expected to have a Material Adverse Effect.

 

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Section 9.13                             Transactions with Affiliates.  No Obligor will, nor will it permit any of its Restricted Subsidiaries to, enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property or the rendering of any service, with any Affiliate unless such transaction is permitted by the terms of this Agreement and is upon fair and reasonable terms that such Obligor or such Restricted Subsidiary reasonably believes to be comparable to those available in an arm’s length transaction with a Person not an Affiliate; provided that (a) EXLP may enter into transactions with Affiliates if such transactions have been approved by EXLP’s conflicts committee pursuant to the procedures set forth in the EXLP Partnership Agreement and (b) this Section 9.13 shall not apply to (i) transactions contemplated by the Omnibus Agreement, (ii) transactions between or among the Borrower, EXLP and any of their Restricted Subsidiaries not involving any other Affiliate, (iii) transactions described on Schedule 9.13, and (iv) with respect to any Person serving as an officer, director, employee or consultant of the Borrower or any Guarantor (A) the payment of reasonable compensation, benefits or indemnification liabilities in connection with his or her services in such capacity, (B) the making of advances for travel or other business expenses in the ordinary course of business or (C) such Person’s participation in any benefit or compensation plan.

 

Section 9.14                             Subsidiaries; Unrestricted Subsidiaries.

 

(a)                                 The Obligors will not, and will not permit any Restricted Subsidiary to, create or acquire any additional Restricted Subsidiary or redesignate an Unrestricted Subsidiary as a Restricted Subsidiary unless such Obligor or such Restricted Subsidiary complies with Section 8.07, and in the case of a redesignation, Section 9.14(c).

 

(b)                                 EXLP shall not designate any Subsidiary as an Unrestricted Subsidiary unless:

 

(i)                                     neither such Subsidiary nor any of its Subsidiaries has any Debt except Non-Recourse Debt;

 

(ii)                                  neither such Subsidiary nor any of its Subsidiaries is a party to any agreement, arrangement, understanding or other transaction with EXLP or any Restricted Subsidiary, except those agreements and other transactions entered into in writing upon fair and reasonable terms that EXLP or such Restricted Subsidiary reasonably believes to be comparable to those available in an arm’s-length transaction with a Person not an Affiliate;

 

(iii)                               neither such Subsidiary nor any of its Subsidiaries is a Guarantor or has any outstanding Letters of Credit issued for its account;

 

(iv)                              at the time of such designation and immediately after giving effect thereto, no Default shall have occurred and be continuing;

 

(v)                                 EXLP would have been in compliance with Section 9.10 on the last day of its most recently ended fiscal quarter had such Subsidiary been an Unrestricted Subsidiary on such day;

 

(vi)                              neither such Subsidiary nor any of its Subsidiaries owns any Debt (excluding any accounts payable in the ordinary course of business) or Equity Interest of, or is the beneficiary of any Lien on any property of, EXLP or any Restricted Subsidiary;

 

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(vii)                           such designation is deemed to be an Investment in an Unrestricted Subsidiary in an amount equal to the fair market value as of the date of such designation of EXLP’s or any Restricted Subsidiary’s direct and indirect Equity Interests in such Subsidiary and such Investment would be permitted to be made at the time of such designation under Section 9.03; and

 

(viii)                        at or immediately prior to such designation, EXLP delivers a certificate to the Administrative Agent certifying (i) the names of such Subsidiary and all of its Subsidiaries and (ii) that all requirements of this Section 9.14(b) have been met for such designation.

 

(c)                                  EXLP shall not designate any Unrestricted Subsidiary as a Restricted Subsidiary unless:

 

(i)                                     the representations and warranties of EXLP, the Borrower and the Guarantors set forth in this Agreement and in the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) on and as of the date of such designation, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such designation, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date;

 

(ii)                                  at the time of such designation and immediately after giving effect thereto, no Default shall have occurred and be continuing; and

 

(iii)                               at or immediately prior to such designation, EXLP delivers a certificate to the Administrative Agent certifying (i) the names of such Subsidiary and all of its Subsidiaries and (ii) that all requirements of Section 9.14(a) and (c) have been met for such designation.

 

Section 9.15                             Restrictive Agreements.  Except as permitted by this Agreement, no Obligor nor any of its Restricted Subsidiaries will create, incur, assume or permit to exist any contract or agreement (other than this Agreement and the Security Instruments) which in any way prohibits or restricts the granting, conveying, creation or imposition of any Lien on any of its property in favor of the Administrative Agent and the Secured Parties as may be required in connection with this Agreement or restricts any of its Restricted Subsidiaries from paying dividends to the Borrower, or which requires the consent of other Persons in connection therewith, except for (a) any such contract or agreement existing as of the Effective Date and any extensions, renewals or replacements of any contracts or agreements permitted hereunder; provided that such prohibitive terms of such contract or agreement are no more restrictive than the terms reflected in such contract or agreement existing as of the Effective Date, (b) restrictions contained in any agreement or instrument relating to property existing at the time of the acquisition thereof in a transaction permitted by this Agreement, so long as such restrictions relate only to the property so acquired and were not added in contemplation of such acquisition, (c) restrictions contained in any agreement to which any Restricted Subsidiary is a party at the time such Restricted Subsidiary is merged or consolidated with or into, or acquired by, EXLP or a Restricted Subsidiary or becomes a Restricted Subsidiary, so long as such restrictions relate

 

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only to the property of such Restricted Subsidiary and are not created in contemplation thereof, (d) restrictions contained in any agreement effecting a renewal, extension, refinancing or replacement of debt issued under an agreement referred to in clauses (b) and (c) above, so long as the applicable restrictions contained in any such renewal, extension, refinancing or replacement agreement are no more restrictive than those set forth in the agreement being renewed, extended, refinanced or replaced, (e) customary provisions restricting subletting or assignment of any leases of EXLP or any Restricted Subsidiary or provisions in agreements entered into in the ordinary course of business that restrict the assignment of such agreement, (f) temporary restrictions with respect to any Restricted Subsidiary or property under an agreement that has been entered into for the disposition of all or substantially all of the outstanding Equity Interests of or assets of such Restricted Subsidiary or for the disposition of such property, provided that such disposition is otherwise permitted hereunder, (g) restrictions contained in any agreement governing Debt of any Foreign Subsidiary, which restrictions are not applicable to any Person, or the properties or assets of any Person other than such Foreign Subsidiary and its Subsidiaries, (h) encumbrances or restrictions contained in the Organization Documents of Joint Ventures permitted by Section 9.03 restricting the disposition or distribution of assets or Property of such Joint Venture, if such encumbrances or restrictions are not applicable to the Property or assets of any other Person, (i) restrictions imposed by any Governmental Authority or under any Governmental Requirement or (j) restrictions imposed by any agreement relating to secured Debt permitted by Sections 9.01 and 9.02 if such restrictions apply only to the property or assets securing such Debt.

 

ARTICLE X
 Events of Default; Remedies

 

Section 10.01                      Events of Default.  One or more of the following events which continue beyond any applicable cure period shall constitute an “Event of Default”:

 

(a)                                 the Borrower shall default in the payment or prepayment when due of any principal of or interest on any Loan, or any reimbursement obligation for a disbursement made under any Letter of Credit, or any fees or other amount payable by it hereunder or under any other Loan Document and such default, other than a default of a payment or prepayment of principal (which shall have no cure period), shall continue unremedied for a period of five (5) Business Days; or

 

(b)                                 EXLP or any Restricted Subsidiary shall default in the payment when due of any principal of or interest on any of its other Debt aggregating $20,000,000 or more and such default extends beyond any applicable grace period with respect thereto, or any event or condition occurs that results in such Debt becoming due prior to its scheduled maturity or that enables or permits the holder or holders of such Debt or any trustee or agent on its or their behalf to cause such Debt to become due prior to its scheduled maturity; or

 

(c)                                  any representation, warranty or certification made or deemed made herein or in any Security Instrument by EXLP or any Subsidiary, or any certificate furnished by or on behalf of EXLP or any Subsidiary to any Lender or the Administrative Agent pursuant to the provisions hereof or any Security Instrument, shall prove to have been false or misleading in any material respect as of the time made or furnished; or

 

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(d)                                 (i) any Obligor shall default in the performance of any of its obligations under this Agreement contained in ARTICLE IX (other than Section 9.14); or (ii) any Obligor shall default in the performance of any of its obligations under this Agreement (other than those specified in clauses (a) and (d)(i) of this Section 10.01) or any other Loan Document and such default shall continue unremedied for a period of thirty (30) days after the earlier to occur of (A) notice thereof to the Borrower by the Administrative Agent or any Lender (through the Administrative Agent), or (B) a Responsible Officer of the Borrower otherwise becoming aware of such default; or

 

(e)                                  EXLP, any Significant Domestic Subsidiary or any Significant Foreign Subsidiary shall admit in writing its inability to, or be generally unable to, pay its debts as such debts become due; or

 

(f)                                   EXLP, any Significant Domestic Subsidiary or any Significant Foreign Subsidiary shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its Property, (ii) make a general assignment for the benefit of its creditors, (iii) commence a voluntary case under the Bankruptcy Code, (iv) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, liquidation or composition or readjustment of debts, (v) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code or (vi) take any corporate action for the purpose of effecting any of the foregoing; or

 

(g)                                  a proceeding or case shall be commenced, without the application or consent of EXLP, any Significant Domestic Subsidiary or any Significant Foreign Subsidiary, in any court of competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of EXLP, any Significant Domestic Subsidiary or any Significant Foreign Subsidiary or all or any substantial part of its assets, or (iii) similar relief in respect of EXLP, any Significant Domestic Subsidiary or any Significant Foreign Subsidiary under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, and such proceeding or case shall continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period of 60 days; or (iv) an order for relief against EXLP, any Significant Domestic Subsidiary or any Significant Foreign Subsidiary shall be entered in an involuntary case under the Bankruptcy Code; or

 

(h)                                 a judgment or judgments for the payment of money in excess of insurance coverage aggregating $20,000,000 or more at any one time outstanding shall be rendered by a court against EXLP or any Restricted Subsidiary and the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and EXLP or such Restricted Subsidiary shall not, within said period of 60 days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal; or

 

(i)                                     the Loan Documents after delivery thereof shall for any reason, except to the extent permitted by the terms thereof, cease to be in full force and effect and valid, binding and

 

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enforceable in accordance with their terms, or, with respect to the Security Instruments, shall cease to create a valid and perfected Lien of the priority required thereby on any of the Collateral purported to be covered thereby, except to the extent permitted by the terms of this Agreement, or EXLP or any Restricted Subsidiary shall so state in writing; or

 

(j)                                    a Change in Control shall occur; or

 

(k)                                 an ERISA Event shall have occurred that, in the opinion of the Majority Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of EXLP and any of its Restricted Subsidiaries in an aggregate amount exceeding $20,000,000 for all periods.

 

Section 10.02                      Remedies.

 

(a)                                 In the case of an Event of Default other than one referred to in clauses (f) or (g) of Section 10.01, the Administrative Agent, upon request of the Majority Lenders, shall, by notice to the Borrower, cancel the Aggregate Commitments and/or declare the principal amount then outstanding of, and the accrued interest on, the Loans and all other amounts payable by the Borrower hereunder and under the Notes (including without limitation the payment of cash collateral to secure the LC Exposure as provided in Section 2.07(e)(ii)) to be forthwith due and payable, whereupon such amounts shall be immediately due and payable without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other formalities of any kind, all of which are hereby expressly waived by the Borrower.

 

(b)                                 In the case of the occurrence of an Event of Default referred to in clauses (f) or (g) of Section 10.01, the Aggregate Commitments shall be automatically canceled and the principal amount then outstanding of, and the accrued interest on, the Loans and all other amounts payable by the Borrower hereunder and under the Notes (including without limitation, the payment of cash collateral to secure the LC Exposure as provided in Section 2.07(e)(ii)) shall become automatically immediately due and payable without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other formalities of any kind, all of which are hereby expressly waived by the Borrower.

 

(c)                                  Hedging Agreements between EXLP or any of its Restricted Subsidiaries and any Secured Hedging Providers and Treasury Management Agreements between EXLP or any of its Restricted Subsidiaries and any Secured Treasury Management Counterparty are secured by the Security Instruments pari passu with all other Indebtedness.  As such, proceeds from Security Instruments shall be shared pro rata on all Indebtedness.  Any proceeds received by the Administrative Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral pursuant to the exercise by the Administrative Agent of its rights and remedies provided under the Loan Documents or at law or equity shall be applied by the Administrative Agent in the following order: (i) first, to reimbursement of expenses and indemnities provided for in this Agreement and the other Loan Documents; (ii) second, to accrued interest on the Loans; (iii) third to fees; (iv) fourth pro rata to (A) principal outstanding on the Loans, (B) outstanding Indebtedness referred to in clause (b) of the definition of Indebtedness owing to any Secured Hedging Provider, (C) outstanding Indebtedness referred to in clause (c) of the definition of Indebtedness owing to a Secured Treasury Management Counterparty, and (D) to serve as cash collateral to be held by the Administrative Agent to

 

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secure the LC Exposure; (v) fifth, pro rata to any other Indebtedness; and (vi) sixth, any excess shall be paid to the Borrower or as otherwise required by any Governmental Requirement.  Notwithstanding the foregoing, amounts received from any Obligor that is not an “eligible contract participant” at the relevant time under the Commodity Exchange Act or any regulations promulgated thereunder (and any proceeds received in respect of such Obligor’s Collateral) shall not be applied to Excluded Hedging Obligations with respect to any Obligor, provided, however that the Administrative Agent shall make such adjustments as it determines are appropriate with respect to payments received from the other Obligors (or proceeds received in respect of such other Obligors’ Collateral) to preserve, as nearly as possible, the allocation to Indebtedness otherwise set forth above in this Section 10.02.

 

(d)                                 Acceleration and termination of all Hedging Agreements involving the Administrative Agent or Lenders or the Lender Affiliates shall be governed by the terms of such Hedging Agreements.

 

ARTICLE XI
 The Agents

 

Section 11.01                      Appointment; Powers.  Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto.

 

Section 11.02                      Duties and Obligations of Administrative Agent.  The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing (the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; rather, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties), (b) the Administrative Agent shall have no duty to take any discretionary action or exercise any discretionary powers, except as provided in Section 11.03, and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to EXLP or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and 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 under any other Loan Document 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 in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in ARTICLE VI or elsewhere herein, other than to confirm

 

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receipt of items expressly required to be delivered to the Administrative Agent or as to those conditions precedent expressly required to be to the Administrative Agent’s satisfaction, (vi) the existence, value, perfection or priority of any collateral security or the financial or other condition of EXLP and its Subsidiaries or any other obligor or guarantor, or (vii) any failure by EXLP, the Borrower or any other Person (other than itself) to perform any of its obligations hereunder or under any other Loan Document or the performance or observance of any covenants, agreements or other terms or conditions set forth herein or therein.  For purposes of determining compliance with the conditions specified in ARTICLE VI, each Lender 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 written notice from such Lender prior to the proposed closing date specifying its objection thereto.

 

Section 11.03                      Action by Administrative Agent.  The Administrative Agent shall have no 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 in writing as directed by the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.02) and in all cases the Administrative Agent shall be fully justified in failing or refusing to act hereunder or under any other Loan Documents unless it shall (a) receive written instructions from the Majority Lenders or the Lenders, as applicable, (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.02) specifying the action to be taken and (b) be indemnified to its satisfaction by the Lenders against any and all liability and expenses which may be incurred by it by reason of taking or continuing to take any such action.  The instructions as aforesaid and any action taken or failure to act pursuant thereto by the Administrative Agent shall be binding on all of the Lenders.  If a Default has occurred and is continuing, then the Administrative Agent shall take such action with respect to such Default as shall be directed by the requisite Lenders in the written instructions (with indemnities) described in this Section 11.03, provided that, unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default as it shall deem advisable in the best interests of the Lenders.  In no event, however, shall the Administrative Agent be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement, the Loan Documents or applicable law.  If a Default has occurred and is continuing, neither the Co-Syndication Agents nor the Co-Documentation Agents shall have any obligation to perform any act in respect thereof.  The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Majority Lenders or the Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.02), and otherwise the Administrative Agent shall not be liable for any action taken or not taken by it hereunder or under any other Loan Document or under any other document or instrument referred to or provided for herein or therein or in connection herewith or therewith INCLUDING ITS OWN ORDINARY NEGLIGENCE, except for its own gross negligence or willful misconduct.

 

Section 11.04                      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,

 

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certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability for relying thereon and each of EXLP, the Borrower, the Lenders and the Issuing Banks hereby waives the right to dispute the Administrative Agent’s record of such statement, except in the case of gross negligence or willful misconduct by the Administrative Agent.  The Administrative Agent may consult with legal counsel (who may be counsel for EXLP or 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.  The Administrative Agent may deem and treat the payee of any Note as the holder thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof permitted hereunder shall have been filed with the Administrative Agent.

 

Section 11.05                      Subagents.  The Administrative Agent may perform any and all its duties and exercise its rights and powers 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 its duties and exercise its rights and powers through their respective Related Parties.  The exculpatory provisions of the preceding Sections of this ARTICLE XI 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.

 

Section 11.06                      Resignation or Removal of Administrative Agent.  Subject to the appointment and acceptance of a successor Administrative Agent as provided in this Section 11.06, (a) the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower, (b) the Administrative Agent may be removed at any time with or without cause by the Majority Lenders and (c) the Borrower may remove the Administrative Agent upon the Administrative Agent becoming subject to any of the events described in clause (e) of the definition of “Defaulting Lender.”  Upon any such resignation or removal, the Majority Lenders shall have the right, in consultation with the Borrower, to appoint a successor.  If no successor shall have been so appointed by the Majority Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation or removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent.  Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder.  The fees payable by EXLP and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between EXLP or the Borrower and such successor.  After the Agent’s resignation hereunder, the provisions of this ARTICLE XI and Section 12.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.

 

Section 11.07                      Agents as Lenders.  Each bank serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank and its Affiliates may accept deposits from,

 

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lend money to and generally engage in any kind of business with EXLP or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.

 

Section 11.08                      No Reliance.  Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, any other 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 Agreement and each other Loan Document to which it is a party.  Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, any other Agent or any other Lender 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, any related agreement or any document furnished hereunder or thereunder.  The Agents shall not be required to keep themselves informed as to the performance or observance by EXLP or any of its Subsidiaries of this Agreement, the Loan Documents or any other document referred to or provided for herein or to inspect the Properties or books of EXLP or its Subsidiaries.  Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent hereunder, neither any Agent nor any Joint Lead Arranger shall have any duty or responsibility to provide any Lender with any credit or other information concerning the affairs, financial condition or business of EXLP or the Borrower (or any of their Affiliates) which may come into the possession of such Agent or any of its Affiliates.  In this regard, each Lender acknowledges that Vinson & Elkins L.L.P. is acting in this transaction as special counsel to the Administrative Agent only, except to the extent otherwise expressly stated in any legal opinion or any Loan Document.  Each other party hereto will consult with its own legal counsel to the extent that it deems necessary in connection with the Loan Documents and the matters contemplated therein.

 

Section 11.09                      Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to EXLP or any of its Subsidiaries, the Administrative Agent (irrespective of whether the principal of any Loan 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 and all other Indebtedness 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 and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 12.03) 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 to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making

 

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of such payments directly to the Lenders, 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 Section 12.03.

 

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 any plan of reorganization, arrangement, adjustment or composition affecting the Indebtedness or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

 

Section 11.10                      Authority of Administrative Agent to Release Collateral and Liens.  Each Lender and each Issuing Bank hereby authorizes the Administrative Agent to release any collateral that is permitted to be sold or otherwise disposed of or released pursuant to the terms of the Loan Documents.  Each Lender and each Issuing Bank hereby authorizes the Administrative Agent to execute and deliver to the Borrower, at the Borrower’s sole cost and expense, any and all releases of Liens, termination statements, assignments or other documents reasonably requested by the Borrower in connection with (a) any sale or other disposition of Property to the extent such sale or other disposition is permitted by the terms of Section 9.11 or is otherwise not prohibited by the terms of the Loan Documents and (b) the release of the Lien granted under the Collateral Agreement on Equity Interests owned by any Obligor or a Restricted Subsidiary in a Joint Venture if and to the extent such Equity Interests are otherwise pledged to another Person as permitted by Section 9.02(g). Each Lender and each Issuing Bank hereby further authorizes the Administrative Agent to execute and deliver to the Borrower, at the Borrower’s sole cost and expense, any and all releases of Liens, termination statements, assignments or other documents reasonably requested by the Borrower upon the expiration or termination of the Commitments and the payment in full of all Loans hereunder, all interest thereon and all other amounts payable by the Borrower hereunder (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made at the time of determination) and the expiration or termination of all Letters of Credit (unless cash collateralized in accordance with Section 2.07(a)).

 

Section 11.11                      The Joint Lead Arrangers, the Co-Syndication Agents and the Co-Documentation Agents.  The Joint Lead Arrangers, the Co-Syndication Agents and the Co-Documentation Agents shall have no duties, responsibilities or liabilities under this Agreement and the other Loan Documents other than their duties, responsibilities and liabilities in their capacity as Lenders hereunder.

 

ARTICLE XII
 Miscellaneous

 

Section 12.01                      Notices.

 

(a)                                 Except in the case of notices and other communications expressly permitted to be given by telephone or by electronic communication (and subject to paragraph (b) below), all notices and other communications provided for herein and in the other Loan Documents shall be in writing and shall be delivered by fax, courier, U.S. Mail or hand delivery to the intended recipient at the “Address for Notices” specified below its name on the signature pages hereof or in the other Loan Documents, except that for notices and other communications to the

 

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Administrative Agent other than payment of money, the Borrower need only send such notices and communications to the Administrative Agent care of the Houston address of Wells Fargo; or, as to any party, at such other address as shall be designated by such party in a notice to each other party.  Except as otherwise provided in this Agreement or in the other Loan Documents, all such communications shall be deemed to have been duly given when transmitted, if transmitted before 1:00 p.m. local time on a Business Day (otherwise on the next succeeding Business Day) by overnight courier, telex or facsimile and evidence or confirmation of receipt is obtained, or personally delivered or, in the case of a mailed notice, three (3) Business Days after the date deposited in the mails, postage prepaid, in each case given or addressed as aforesaid.

 

(b)                                 Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent.  The Administrative Agent or any Obligor 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.

 

Section 12.02                      Waivers; Amendments.

 

(a)                                 No failure on the part of the Administrative Agent, any other Agent, any Issuing Bank or any Lender to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege, or any abandonment or discontinuance of steps to enforce such right, power or privilege, under any of the Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under any of the Loan Documents preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The rights and remedies of the Administrative Agent, any other Agent, any Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by EXLP or the Borrower therefrom shall in any event be effective unless the same shall be permitted by Section 12.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any other Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.

 

(b)                                 Neither this Agreement nor any provision hereof nor any provision of any Security Instrument may be amended, modified or waived except pursuant to an agreement or agreements in writing entered into by the Borrowers and the Majority Lenders or by the Borrower and the Administrative Agent with the consent of the Majority Lenders; provided that (i) no amendment, modification or waiver that (A) forgives or reduces the principal amount of any Indebtedness or Letter of Credit reimbursement obligation outstanding under this Agreement shall be effective without the consent of each Lender adversely affected thereby, (B) releases all or substantially all of the Collateral (excluding Transfers of Properties permitted hereunder) or the Guarantors shall be effective without the consent of each Lender (other than any Defaulting Lender) or (C) changes Section 4.01(b) or (c) or Section 10.02(c) in a manner that would alter the manner in which payments are shared or any other provision in this Agreement in a manner that would alter the pro rata sharing of payments among Lenders, changes Section 12.02, permits

 

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an Interest Period with a duration in excess of six months or modifies the definition of “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend, or modify any rights hereunder or under or under any other Loan Document shall be effective without consent of all Lenders; (ii) no amendment, modification or waiver which extends any scheduled payment date or the final maturity of the Term Loans, reduces the interest rate applicable to the Term Loans or the fees payable to the Term Lenders or extends the time for payment of such interest or fees shall be effective without the consent of each Term Lender adversely affected thereby (in lieu of the consent of the Majority Lenders); (iii) no amendment, modification or waiver which extends any scheduled payment date or the Revolving Credit Maturity Date, reduces the interest rate applicable to the Revolving Loans or the fees payable to the Revolving Lenders or extends the time for payment of such interest or fees shall be effective without the consent of each Revolving Lender adversely affected thereby (in lieu of the consent of the Majority Lenders); (iv) no amendment, modification or waiver which increases the Revolving Commitment or the Term Commitment of any Lender shall be effective without the consent of such Lender; (v) no amendment, modification or waiver which changes the terms of clause (b) of the definition of “Indebtedness”, the definition of “Secured Hedging Provider”, the definition of “Secured Parties”, Section 10.02(c), Section 12.14, or any of the provisions of this Section 12.02(b)(v) in a manner that adversely affects any Secured Hedging Provider shall be effective without the consent of each Lender that is, or is an affiliate of, any such adversely affected Secured Hedging Provider and (vi) no amendment, modification or waiver which modifies the rights, duties or obligations of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder or under any other Loan Document shall be effective without the consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be.

 

Section 12.03                      Expenses, Indemnity; Damage Waiver.

 

(a)                                 The Borrower agrees:

 

(i)                                     whether or not the Transactions hereby contemplated are consummated, to pay all reasonable and documented expenses of (x) the Administrative Agent in the administration (both before and after the execution hereof and including advice of counsel as to the rights and duties of the Administrative Agent and the Lenders with respect thereto) of, and in connection with the negotiation, syndication, investigation, preparation, execution and delivery of, recording or filing of, preservation of rights under, enforcement of, and refinancing, renegotiation or restructuring of, the Loan Documents and any amendment, waiver or consent, whether or not effective, relating thereto (including, without limitation, travel, photocopy, mailing, courier, telephone and other similar expenses of the Administrative Agent, ongoing Collateral monitoring and protection, Collateral releases and workout matters, the cost of environmental audits, surveys and appraisals, the reasonable and documented fees and disbursements of counsel and other outside consultants for the Administrative Agent and, in the case of enforcement, the reasonable fees and disbursements of counsel for the Administrative Agent and any of the Lenders (including the Swingline Lender)); and to promptly reimburse the Administrative Agent for all amounts expended, advanced or incurred by the Administrative Agent to satisfy any obligation of the Borrower under this Agreement or any Security Instrument, including without limitation, all costs and expenses of foreclosure and (y) any

 

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Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder.

 

(ii)                                  TO INDEMNIFY THE ADMINISTRATIVE AGENT, EACH ISSUING BANK AND EACH LENDER AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) AGAINST AND HOLD EACH OF THEM HARMLESS FROM ANY AND ALL LOSSES, CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS AND EXPENSES WHICH MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNIFIED PARTY (WHETHER OR NOT SUCH INDEMNIFIED PARTY IS DESIGNATED A PARTY THERETO AND WHETHER BROUGHT BY A THIRD PARTY OR AN OBLIGOR OR A RELATED PARTY THEREOF) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (A) ANY ACTUAL OR PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF ANY OF THE LOANS OR LETTERS OF CREDIT, (B) THE EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS, (C) THE OPERATIONS OF THE BUSINESS OF EXLP, THE BORROWER AND ITS SUBSIDIARIES, (D) THE FAILURE OF EXLP, THE BORROWER OR ANY SUBSIDIARY TO COMPLY WITH THE TERMS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR WITH ANY GOVERNMENTAL REQUIREMENT, (E) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OF EXLP OR THE BORROWER SET FORTH IN ANY OF THE LOAN DOCUMENTS, (F) THE ISSUANCE, EXECUTION AND DELIVERY OR TRANSFER OF ANY LETTER OF CREDIT, (G) ANY REFUSAL BY ANY ISSUING BANK 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, (H) THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S), (I) ANY ASSERTION THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS OF COLLATERAL RECEIVED PURSUANT TO THE SECURITY INSTRUMENTS AND OTHER LOAN DOCUMENTS OR (J) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY ACTION, SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM RELATING TO ANY OF THE FOREGOING, AND INCLUDING ANY SUCH LOSSES, CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS AND EXPENSES ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY; PROVIDED THAT THE FOREGOING INDEMNITY SHALL NOT, AS TO ANY INDEMNIFIED PARTY, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS AND EXPENSES (X) ARISE SOLELY BY REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER AND THE ADMINISTRATIVE AGENT OR A LENDER’S SHAREHOLDERS AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR (Y) BY REASON OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH ON THE PART OF SUCH INDEMNIFIED PARTY OR THE MATERIAL BREACH OF SUCH INDEMNIFIED PARTY’S OBLIGATIONS UNDER THE LOAN DOCUMENTS, IN EACH CASE, AS DETERMINED IN A FINAL NONAPPEALABLE DECISION OF A COURT OF COMPETENT JURISDICTION; AND

 

(iii)                               TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS AND EXPENSES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (A) UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO EXLP, THE BORROWER OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES, INCLUDING WITHOUT LIMITATION, THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON ANY OF THEIR PROPERTIES, (B) AS A RESULT OF THE BREACH OR NON-

 

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COMPLIANCE BY EXLP, THE BORROWER OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO EXLP, THE BORROWER OR ANY SUBSIDIARY, (C) DUE TO PAST OWNERSHIP BY EXLP, THE BORROWER OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (D) THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY EXLP, THE BORROWER OR ANY SUBSIDIARY, OR (E) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS; PROVIDED, HOWEVER, NO INDEMNITY SHALL BE AFFORDED UNDER THIS SECTION 12.03(A)(III) IN RESPECT OF ANY PROPERTY FOR ANY OCCURRENCE ARISING FROM THE ACTS OR OMISSIONS OF ANY INDEMNIFIED PARTY AFTER THE DATE ON WHICH EXLP, THE BORROWER OR ANY SUBSIDIARY IS DIVESTED OF OWNERSHIP OF SUCH PROPERTY (WHETHER BY FORECLOSURE OR DEED IN LIEU OF FORECLOSURE, AS MORTGAGEE-IN-POSSESSION OR OTHERWISE) OR, TO THE EXTENT SUCH LOSSES, CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS AND EXPENSES ARISE BY REASON OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH ON THE PART OF SUCH INDEMNIFIED PARTY OR THE MATERIAL BREACH OF SUCH INDEMNIFIED PARTY’S OBLIGATIONS UNDER THE LOAN DOCUMENTS, IN EACH CASE, AS DETERMINED IN A FINAL NONAPPEALABLE DECISION OF A COURT OF COMPETENT JURISDICTION.

 

(b)                                 To the extent that the Borrower fails to pay any amount required to be paid by it to any Agent, any Joint Lead Arranger, any Issuing Bank or the Swingline Lender under Section 12.03(a), but without affecting such payment obligations of the Borrower, each Lender severally agrees to pay to such Agent or such Joint Lead Arranger and each Revolving Lender severally agrees to pay such Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro rata portion or such Revolving Lender’s Applicable Percentage, as the case may be, (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent, such Joint Lead Arranger, such Issuing Bank or the Swingline Lender in its capacity as such.

 

(c)                                  No Indemnified Party may settle any claim to be indemnified without the consent of the indemnitor, such consent not to be unreasonably withheld; provided, that the indemnitor may not reasonably withhold consent to any settlement that an Indemnified Party proposes, if the indemnitor does not have the financial ability to pay all its obligations outstanding and asserted against the indemnitor at that time, including the maximum potential claims against the Indemnified Party to be indemnified pursuant to this Section 12.03.

 

(d)                                 In the case of any indemnification hereunder, the Administrative Agent or Lender, as appropriate shall give notice to the Borrower of any such claim or demand being made against the Indemnified Party and the Borrower shall have the non-exclusive right to join in the defense against any such claim or demand provided that if the Borrower provides a defense, the Indemnified Party shall bear its own cost of defense unless there is a conflict between the Borrower and such Indemnified Party.

 

(e)                                  SUBJECT TO THE LIMITATIONS DESCRIBED HEREIN, THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF

 

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THE INDEMNIFIED PARTIES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNIFIED PARTIES.  TO THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND BY A FINAL NONAPPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION TO HAVE COMMITTED AN ACT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OR TO HAVE MATERIALLY BREACHED SUCH INDEMNIFIED PARTY’S OBLIGATIONS UNDER THE LOAN DOCUMENTS, THE CONTRACTUAL OBLIGATION OF INDEMNIFICATION SET FORTH IN THIS SECTION 12.03 SHALL CONTINUE BUT SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF THE INDEMNIFIED PARTY OR THE MATERIAL BREACH OF SUCH INDEMNIFIED PARTY’S OBLIGATIONS UNDER THE LOAN DOCUMENTS.

 

(f)                                   The Borrower’s obligations under this Section 12.03 shall survive any termination of this Agreement and the payment of the Notes and shall continue thereafter in full force and effect.

 

(g)                                  The Borrower shall pay any amounts due under this Section 12.03 within thirty (30) days of the receipt by the Borrower of notice of the amount due.

 

Section 12.04                      Successors and Assigns.

 

(a)                                 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

(b)                                 Neither EXLP nor the Borrower may assign its rights or obligations hereunder or under the Notes or any Letters of Credit without the prior consent of all of the Lenders and the Administrative Agent.

 

(c)                                  Any Lender may assign to one or more assignees, all or a portion of its rights and obligations under this Agreement pursuant to an Assignment and Assumption substantially in the form of Exhibit E upon the written consent (which consent shall not be unreasonably withheld) of (A) with respect to the Revolving Credit Facility only, the Administrative Agent, provided that no such consent shall be required for an assignment to an assignee that is an Affiliate of such Revolving Lender or a Revolving Lender immediately prior to giving effect to such assignment, (B) with respect to the Term Loan Credit Facility only, the Administrative Agent, provided that no such consent shall be required for an assignment to an assignee that is an Affiliate of such Term Lender, a Related Fund or a Term Lender immediately prior to giving effect to such assignment, (C) the Issuing Banks (with respect to the Revolving Credit Facility only), (D) with respect to the Revolving Credit Facility only, the Borrower, provided that no such consent shall be required for an assignment to an assignee that is an Affiliate of such Revolving Lender or a Revolving Lender immediately prior to giving effect to such assignment, or if an Event of Default has occurred and is continuing, any other assignee and (E) with respect to the Term Loan Credit Facility only, the Borrower, provided that no such consent shall be required for an assignment to an assignee that is an Affiliate of such Term Lender, a Related Fund or a Term Lender immediately prior to giving effect to such assignment, or if an Event of Default has occurred and is continuing, any other assignee; provided, however, that (i) any such assignment shall be in the amount of at least $5,000,000 with respect to the Revolving Credit Facility and at least $1,000,000 with respect to the Term Loan Facility or such lesser amount to which the Borrower has consented, with Related Funds treated as one assignee for purposes of determining

 

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compliance with such minimum assignment amount; (ii) the assignee or assignor shall pay to the Administrative Agent a processing and recordation fee of $3,500 for each assignment that is not to an Affiliate of such assignor; provided that only $3,500 shall be payable in connection with simultaneous assignments to or by two or more Related Funds; (iii) any assignee shall not be a competitor of EXLP or any of its Subsidiaries in any of the lines of business permitted under Section 9.05;  (iv) no such assignment shall be to EXLP or Holdings or either of their respective Subsidiaries or Affiliates; and (v) notwithstanding anything to the contrary contained in this Agreement, if such assignment is made at a time when an Event of Default has occurred and is continuing, the Borrower shall have the right to withhold all Taxes required by law to be withheld from payments made hereunder, and shall pay such Taxes to the relevant taxing authority or other Governmental Authority in accordance with applicable law.  Any such assignment will become effective upon the execution and delivery to the Administrative Agent of the applicable Assignment and Assumption and the consents required above.  Promptly after receipt of an executed Assignment and Assumption, the Administrative Agent shall send to the Borrower a copy of such executed Assignment and Assumption.  Upon receipt of such executed Assignment and Assumption, if requested by the applicable assignor and/or assignee, the Borrower, will, at its own expense, execute and deliver new Notes to each assignor and/or assignee, as appropriate, in accordance with their respective interests as they appear after giving effect to such Assignment and Assumption.  Upon the effectiveness of any assignment pursuant to this Section 12.04(c), the assignee will become a “Lender,” if not already a “Lender,” for all purposes of this Agreement and the Security Instruments.  The assignor shall be relieved of its obligations hereunder to the extent of such assignment (and if the assigning Lender no longer holds any rights or obligations under this Agreement, such assigning Lender shall cease to be a “Lender” hereunder except that its rights under Sections 5.01, 5.02, 5.03 and 12.03 shall not be affected).  The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices 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 principal amount of the Loans and LC Exposure owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register.

 

(d)                                 Each Lender may transfer, grant or assign participations in all or any part of such Lender’s interests hereunder pursuant to this Section 12.04(d) to any Person that satisfies the requirements of Section 12.04(c)(iii), provided that:  (A) such Lender shall remain a “Lender” for all purposes of this Agreement and the transferee of such participation shall not constitute a “Lender” hereunder; (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) no participant under any such participation shall have rights to approve any amendment to or waiver of any of the Loan Documents; provided that such participation agreement may provide that such Lender will not, without the consent of such participant, agree to any amendment, modification or waiver described in clauses (i), (ii) or (iii) of the proviso to Section 12.02(b) that affects such participant, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.  In addition, each agreement creating any participation must include an agreement by the participant to be bound by the provisions of Section 12.11

 

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Subject to Section 12.04(d)(ii), each participant shall be entitled to receive additional amounts under Sections 5.01, 5.02 and 5.03 on the same basis as if it were a Lender and be indemnified under Section 12.03 as if it were a Lender.  No participant under any participation agreement shall be entitled to receive any greater payment under Section 5.01 or Section 5.03 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.  Any such participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.03 unless the Borrower is notified of the participation sold to such participant and such participant agrees, for the benefit of the Borrower, to comply with Section 5.03(e) as though it were a Lender.

 

(e)                                  The Lenders may furnish any information concerning the Borrower in the possession of the Lenders from time to time to assignees and participants (including prospective assignees and participants); provided that, such Persons agree to be bound by the provisions of Section 12.11.

 

(f)                                   Notwithstanding anything in this Section 12.04 to the contrary, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(g)                                  Notwithstanding any other provisions of this Section 12.04, no transfer or assignment of the interests or obligations of any Lender or any grant of participations therein shall be permitted if such transfer, assignment or grant would require the Borrower to file a registration statement with the SEC or to qualify the Loans under the “Blue Sky” laws of any state.

 

Section 12.05                      Survival; Revival; Reinstatement.

 

(a)                                 All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any other Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding (except to the extent described in Section 2.07(a)) and so long as the Aggregate Commitments have not expired or terminated.  The provisions of Sections 5.01, 5.02 and 5.03, ARTICLE XI and Section 12.03 shall survive and remain in full force and effect regardless of the consummation of the Transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Aggregate Commitments or the termination of this Agreement, any other Loan Document or any provision hereof or thereof.

 

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(b)                                 To the extent that any payments on the Indebtedness or proceeds of any Collateral are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then to such extent, the Indebtedness so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Administrative Agent’s and the Lenders’ Liens, security interests, rights, powers and remedies under this Agreement and each Loan Document shall continue in full force and effect.  In such event, each Loan Document shall be automatically reinstated and EXLP and the Borrower shall take such action as may be reasonably requested by the Administrative Agent and the Lenders to effect such reinstatement.

 

Section 12.06                      Counterparts; Integration; Effectiveness.

 

(a)                                 This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute one and the same instrument.

 

(b)                                 This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent embody the entire agreement and understanding among the parties relating to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof.  This Agreement and the other Loan Documents represent the final agreement among the parties hereto and thereto and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.  There are no unwritten oral agreements between the parties.

 

(c)                                  Except as provided in Section 6.01, 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 which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

 

Section 12.07                      Severability.  Any provision of this Agreement or any other Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof or thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

 

Section 12.08                      Right of Setoff.  The Borrower agrees that, in addition to (and without limitation of) any right of set-off, bankers’ lien or counterclaim a Lender may otherwise have, each Lender shall have the right and be entitled (after consultation with the Administrative Agent), at its option, to offset balances held by it or by any of its Affiliates for account of the Borrower at any of its offices, in dollars or in any other currency, against any principal of or interest on any of such Lender’s Loans, or any other amount payable to such Lender hereunder, which is not paid when due (including applicable grace periods) (regardless of whether such

 

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balances are then due to the Borrower), in which case it shall promptly notify the Borrower and the Administrative Agent thereof, provided that such Lender’s failure to give such notice shall not affect the validity thereof.  Notwithstanding anything to the contrary contained in this Agreement, the Lenders hereby agree that they shall not set off any funds in any lock boxes whatsoever in connection with this Agreement, except for such lock boxes which may be established in connection with this Agreement.

 

Section 12.09                      GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.

 

(a)                                 THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS EXCEPT TO THE EXTENT THAT UNITED STATES FEDERAL LAW PERMITS ANY LENDER TO CHARGE INTEREST AT THE RATE ALLOWED BY THE LAWS OF THE STATE WHERE SUCH LENDER IS LOCATED.  CH. 346 OF THE TEXAS FINANCE CODE (WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS AND REVOLVING TRI-PARTY ACCOUNTS) SHALL NOT APPLY TO THIS AGREEMENT OR THE NOTES.

 

(b)                                 ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS SHALL BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTING IN HARRIS COUNTY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.  THIS SUBMISSION TO JURISDICTION IS NON-EXCLUSIVE AND DOES NOT PRECLUDE ANY PARTY HERETO FROM OBTAINING JURISDICTION ANY OTHER PARTY HERETO IN ANY COURT OTHERWISE HAVING JURISDICTION.

 

(c)                                  EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS LOCATED ON THE SIGNATURE PAGE HERETO OR AS UPDATED FROM TIME TO TIME, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.

 

(d)                                 NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER PARTY HERETO IN ANY OTHER JURISDICTION.

 

(e)                                  EACH PARTY HERETO HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR

 

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OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (IV) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 12.09.

 

Section 12.10                      Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

 

Section 12.11                      Confidentiality.  For the purposes of this Section 12.11, “Confidential Information” means information about EXLP or the Borrower or any of its Subsidiaries furnished by EXLP or the Borrower or their Affiliates (collectively, the “Disclosing Parties”) to the Administrative Agent or any of the Lenders, including, but not limited to, any actual or pending agreement, business plans, budgets, projections, ecological data and accounting records, financial statements, or other financial data of any kind, any title documents, reports or other information relating to matters of title, any projects or plans, whether actual or prospective, and any other documents or items embodying any such Confidential Information; provided that such term does not include information that (a) was publicly known or otherwise known prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by the Administrative Agent or the Lenders or any Person acting on behalf thereof, (c) otherwise becomes known to the Administrative Agent or Lenders other than through disclosure by the Disclosing Parties or a party known to be subject to a confidentiality agreement or (d) constitutes financial statements delivered to the Administrative Agent and the Lenders under Section 8.01(a) that are otherwise publicly available.  The Administrative Agent and the Lenders will maintain the confidentiality of such Confidential Information delivered to such Person, provided that each such Person (a “Restricted Person”) may deliver or disclose Confidential Information to (i) such Restricted Person’s directors, officers, employees, accountants, attorneys, other professional advisors, trustees and Affiliates, who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 12.11, (ii) any other party to any Loan Document, (iii) any pledgee referred to in Section 12.04, any potential assignee or any assignee to which such Restricted Person sells or offers to sell its Note or any part thereof or any participation or potential participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 12.11), (iv) any Governmental Authority having jurisdiction or any self-regulatory body claiming to have authority over such Restricted Person, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate (A) to effect compliance with any Governmental Requirement applicable to such Restricted Person, (B) in response to any subpoena or other legal process; provided that such Restricted Person (I) promptly notifies such Disclosing Party prior to any such disclosure to the extent practicable and permitted by law, (II) reasonably cooperates with such Disclosing Party in any attempts such Disclosing Party makes to obtain a protective order or other appropriate assurance that confidential treatment will be afforded to the Confidential Information, and (III) if no such protective order is obtained and disclosure is required, furnish only that portion of the Confidential Information that, in the opinion of such Restricted Person’s counsel, such Restricted Person is legally compelled to disclose, or (C) if an Event of Default has occurred and is continuing, to the extent such Restricted Person may

 

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reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of its rights and remedies under the Notes and this Agreement.

 

Section 12.12                      Interest Rate Limitation.  It is the intention of the parties hereto that each Lender shall conform strictly to usury laws applicable to it.  Accordingly, if the Transactions contemplated hereby would be usurious as to any Lender under laws applicable to it (including the laws of the United States of America and the State of Texas or any other jurisdiction whose laws may be mandatorily applicable to such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in any of the Loan Documents or any agreement entered into in connection with or as security for the Notes, it is agreed as follows:  (i) the aggregate of all consideration which constitutes interest under law applicable to any Lender that is contracted for, taken, reserved, charged or received by such Lender under any of the Loan Documents or agreements or otherwise in connection with the Notes shall under no circumstances exceed the maximum amount allowed by such applicable law, and any excess shall be canceled automatically and if theretofore paid shall be credited by such Lender on the principal amount of the Indebtedness (or, to the extent that the principal amount of the Indebtedness shall have been or would thereby be paid in full, refunded by such Lender to the Borrower); and (ii) in the event that the maturity of the Notes is accelerated by reason of an election of the holder thereof resulting from any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by such Lender as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Lender on the principal amount of the Indebtedness (or, to the extent that the principal amount of the Indebtedness shall have been or would thereby be paid in full, refunded by such Lender to the Borrower).  All sums paid or agreed to be paid to any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Lender, be amortized, prorated, allocated and spread throughout the stated term of the Loans evidenced by the Notes until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law.  If at any time and from time to time (i) the amount of interest payable to any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Lender pursuant to this Section 12.12 and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Lender would be less than the amount of interest payable to such Lender computed at the Highest Lawful Rate applicable to such Lender, then the amount of interest payable to such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Lender until the total amount of interest payable to such Lender shall equal the total amount of interest which would have been payable to such Lender if the total amount of interest had been computed without giving effect to this Section 12.12.  To the extent that Chapter 303 of the Texas Finance Code is relevant for the purpose of determining the Highest Lawful Rate applicable to a Lender, such Lender elects to determine the applicable rate ceiling under such Chapter by the weekly ceiling from time to time in effect.  Chapter 346 of the Texas Finance Code does not apply to the Borrower’s obligations hereunder.

 

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Section 12.13       EXCULPATION PROVISIONS.  Each OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY.  EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”

 

Section 12.14       Collateral Matters; Hedging Agreements; Treasury Management Agreements.  Except as provided in Section 12.02(b)(v), no Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under any Hedging Agreement or Treasury Management Agreement. The benefit of the Security Instruments and of the provisions of this Agreement relating to any Collateral securing the Indebtedness shall also extend to and be available to Secured Hedging Providers and the Secured Treasury Management Counterparties on a pro rata basis (subject to the priorities set out in Section 10.02(c)) in respect of any obligations of EXLP or any Restricted Subsidiary which arises under any Hedging Agreement or Treasury Management Agreement.  Each Lender, on behalf of itself and its Affiliates who are Secured Hedging Providers, and each Secured Hedging Provider, by accepting the benefits of the Collateral, hereby agrees that the Obligors may grant security interests, covering all rights of the Obligors in Hedging Agreements with any Lender or Secured Hedging Provider, to the Administrative Agent under the Security Instruments to secure the Indebtedness, notwithstanding any restriction on such security interests under any Hedging Agreement.

 

Section 12.15       No Third Party Beneficiaries.  This Agreement, the other Loan Documents, and the agreement of the Lenders to make Loans and the Issuing Banks to issue, amend, renew or extend Letters of Credit hereunder are solely for the benefit of EXLP and the Borrower, and no other Person (including, without limitation, any Subsidiary of the Borrower, any obligor, contractor, subcontractor, supplier or materialman) shall have any rights, claims, remedies or privileges hereunder or under any other Loan Document against the Administrative Agent, any other Agent, any Issuing Bank or any Lender for any reason whatsoever.  There are no third party beneficiaries.

 

Section 12.16       USA Patriot Act Notice.  Each Lender hereby notifies EXLP and 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 “USA Patriot Act”), it is required to obtain, verify and record information that identifies EXLP and its Subsidiaries, which information includes the

 

99











 

name and address of EXLP and such Subsidiaries and other information that will allow such Lender to identify EXLP and such Subsidiaries in accordance with the USA Patriot Act.

 

Section 12.17       No General Partner’s Liability.  The Lenders agree that no claim arising against either EXLP, the Borrower or any Restricted Subsidiary under any Loan Document shall be asserted against the General Partner (in its individual capacity) and no judgment, order or execution entered in any suit, action or proceeding, whether legal or equitable, on this Agreement or any of the other Loan Documents shall be obtained or enforced against the General Partner (in its individual capacity) or its assets for the purpose of obtaining satisfaction and payment of the Indebtedness or any claims arising under this Agreement or any other Loan Document, any right to proceed against the General Partner individually or its respective assets being hereby expressly waived by the Lenders.  Nothing in this Section 12.17, however, shall be construed so as to prevent the Administrative Agent or any Lender from commencing any action, suit or proceeding with respect to or causing legal papers to be served upon the General Partner for the purpose of (i) obtaining jurisdiction over EXLP, the Borrower or any Restricted Subsidiary or (ii) obtaining judgment, order or execution against the General Partner arising out of any fraud or intentional misrepresentation by the General Partner in connection with the Loan Documents or of recovery of moneys received by the General Partner in violation of the terms of this Agreement.

 

Section 12.18       Existing Credit Agreement; Existing Facility Termination.  This Agreement amends and restates the Existing Credit Agreement in its entirety.  On the date of the initial funding of Loans hereunder, (i) each “Loan” (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement shall be repaid in full with the proceeds of such Loans, (ii) all other amounts outstanding under the Existing Credit Agreement (including any breakage costs that may be due under Section 5.02 of the Existing Credit Agreement) shall be paid in full with the proceeds of such Loans to the extent not otherwise paid by the Borrower on such date, (iii) the “Commitments” (as defined in the Existing Credit Agreement) shall be terminated and replaced with the Commitments hereunder, and (iv) the Existing Letters of Credit shall be deemed to be issued under this Agreement.  From and after the Effective Date, no Exiting Lender shall have any rights under the Existing Credit Agreement, any other Loan Document (as defined in the Existing Credit Agreement), this Agreement or any other Loan Document (other than rights expressly stated in Section 12.05 of the Existing Credit Agreement to survive the termination thereof and the repayment of amounts outstanding thereunder).  It is the intent of the parties hereto that this Agreement neither constitute a novation of the obligations and liabilities existing under the Existing Credit Agreement nor evidence termination of any such obligations and liabilities and that this Agreement amend and restate in its entirety the Existing Credit Agreement and hereafter evidence the obligations of the Borrower outstanding thereunder.  The undersigned waive any right to receive any notice of the termination of the “Commitments” (as defined in the Existing Credit Agreement) and any right to receive any notice of prepayment of amounts owed under the Existing Credit Agreement. Each “Lender” (as defined in the Existing Credit Agreement) hereby agrees to return to the Borrower, with reasonable promptness, any note delivered by the Borrower to such Lender in connection with the Existing Credit Agreement.

 

Section 12.19       No Fiduciary Duty.  Each Lender and its respective Affiliates (collectively, solely for purposes of this Section 12.19, the “Lenders”) may have economic

 

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interests that conflict with those of the Obligors.  Each Obligor agrees that nothing in any Loan Document, any Hedging Agreement with any Secured Hedging Provider or any Treasury Management Agreement will be deemed to create an advisory, fiduciary or agency relationship between the Lenders and the Obligors, their partners or their Affiliates.  Each Obligor acknowledges and agrees that (a) the transactions with the Lenders contemplated by the Loan Documents, the Hedging Agreements with Secured Hedging Providers and the Treasury Management Agreements are arm’s-length commercial transactions between the Lenders, on the one hand, and the applicable Obligors, on the other, (b) in connection therewith and with the process leading to such transactions each Lender is acting solely as a principal and not the agent or fiduciary of any Obligor, or of any Obligor’s management, partners, creditors or other Affiliates, (c) no Lender has assumed a fiduciary responsibility in favor of any Obligor with respect to the transactions with Lenders contemplated by the Loan Documents, any Hedging Agreement or any Treasury Management Agreements or the process leading thereto (irrespective of whether any Lender or any of its Affiliates has advised or is currently advising any Obligor on other matters) and (d) such Person has consulted its own legal and financial advisors to the extent it deemed appropriate.  Each Obligor further acknowledges and agrees that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.  Each Obligor agrees that it will not claim that any Lender owes a fiduciary duty to such Person in connection with the Loan Documents, any Hedging Agreement or any Treasury Management Agreement or the process leading thereto.

 

[SIGNATURES BEGIN NEXT PAGE]

 

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The parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

 

	
BORROWER:
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Michael   Aaronson
    
	
 
    	
 
    	
Vice   President
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
16666   Northchase Drive
    
	
 
    	
Houston,   Texas 77060
    
	
 
    	
 
    
	
 
    	
Facsimile   No.: (281) 836-8039
    
	
 
    	
Telephone   No.: (281) 836-7000
    
	
 
    	
e-mail:   kelly.battle@exterran.com
    
	
 
    	
Attention:   President
    
	
 
    	
 
    
	
 
    	
Copy   to:
    
	
 
    	
 
    
	
 
    	
General   Counsel
    
	
 
    	
Facsimile   No: (281) 836-8061
    
	
 
    	
e-mail:   donald.wayne@exterran.com
    
	
 
    	
 
    
	
 
    	
Copy   to:
    
	
 
    	
 
    
	
 
    	
Herschel   Hamner
    
	
 
    	
Baker   Botts L.L.P.
    
	
 
    	
910   Louisiana Street
    
	
 
    	
Houston,   Texas 77002
    
	
 
    	
Facsimile   No.: (713) 229-2049
    
	
 
    	
Telephone   No.: (713) 229-7749
    


 











 

	
GUARANTORS:
    	
EXTERRAN PARTNERS, L.P.
    
	
 
    	
 
    
	
 
    	
By:
    	
EXTERRAN   GENERAL 
   PARTNER, L.P., its general
   partner
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
EXTERRAN   GP LLC,
   its general partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Michael   Aaronson
    
	
 
    	
 
    	
Vice   President and Chief Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
16666   Northchase Drive
    
	
 
    	
Houston,   Texas 77060
    
	
 
    	
 
    
	
 
    	
Facsimile   No.: (281) 836-8039
    
	
 
    	
Telephone   No.: (281) 836-7000
    
	
 
    	
e-mail: kelly.battle@exterran.com
    
	
 
    	
Attention:   President
    
	
 
    	
 
    
	
 
    	
Copy   to:
    
	
 
    	
 
    
	
 
    	
General   Counsel
    
	
 
    	
Facsimile   No: (281) 836-8061
    
	
 
    	
e-mail:   donald.wayne@exterran.com
    
	
 
    	
 
    
	
 
    	
Copy   to:
    
	
 
    	
 
    
	
 
    	
Herschel   Hamner
    
	
 
    	
Baker   Botts L.L.P.
    
	
 
    	
910   Louisiana Street
    
	
 
    	
Houston,   Texas 77002
    
	
 
    	
Facsimile   No.: (713) 229-2049
    
	
 
    	
Telephone   No.: (713) 229-7749
    


 











 

	
ADMINISTRATIVE   AGENT,
    	
WELLS   FARGO BANK, NATIONAL
    
	
ISSUING   BANK, SWINGLINE
    	
ASSOCIATION, Individually   and as
    
	
LENDER   AND LENDER:
    	
Administrative   Agent
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Donald   W. Herrick, Jr.
    
	
 
    	
 
    	
Director
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
301   South College Street
    
	
 
    	
23rd   Floor NC 0680
    
	
 
    	
Charlotte,   North Carolina 28288
    
	
 
    	
Facsimile   No.: (704) 383-0288
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
Wells   Fargo Bank, National Association
    
	
 
    	
 
    
	
 
    	
1000   Louisiana, 9th Floor
    
	
 
    	
Houston,   Texas 77002
    
	
 
    	
Attention:   Donald W. Herrick, Jr.
    
	
 
    	
Facsimile   No.: 713-739-1087
    


 











 

	
CO-SYNDICATION   AGENT
    	
JPMORGAN   CHASE BANK, N.A.,
    
	
AND   LENDER:
    	
as   Co-Syndication Agent and Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
Non-Agented   Servicing Team
    
	
 
    	
10   S. Dearborn
    
	
 
    	
Chicago, Illinois   60603
    
	
 
    	
Facsimile   No.: (312) 256-2608
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
712   Main Street, Floor 12
    
	
 
    	
Houston,   Texas 77002-3201
    
	
 
    	
 
    
	
 
    	
Attention:   Thomas Okamoto
    
	
 
    	
Facsimile   No.: (713) 216-7794
    


 











 

	
CO-SYNDICATION   AGENT
    	
ROYAL   BANK OF CANADA,
    
	
AND   LENDER:
    	
as   Co-Syndication Agent and Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
Royal   Bank of Canada
    
	
 
    	
Three   World Financial
    
	
 
    	
200   Vesey Street
    
	
 
    	
New   York, New York 10281
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
Royal   Bank of Canada
    
	
 
    	
Three   World Financial
    
	
 
    	
200   Vesey Street
    
	
 
    	
New   York, New York 10281
    


 











 

	
CO-SYNDICATION   AGENT
    	
THE   ROYAL BANK OF SCOTLAND
    
	
AND   LENDER:
    	
PLC, as   Co-Syndication Agent and
    
	
 
    	
Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
600   Washington Boulevard
    
	
 
    	
Stamford,   CT 06901
    
	
 
    	
Facsimile:   (203) 873-5019
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
Matthew   Main
    
	
 
    	
600   Travis Street, Suite 6500
    
	
 
    	
Houston,   TX 77002
    
	
 
    	
Attention:   Matthew Main
    
	
 
    	
Facsimile   No.: (713) 221-2441
    
	
 
    	
 
    
	
 
    	
Gisella Baque
    
	
 
    	
RBS Americas HQ
    
	
 
    	
600 Washington Boulevard,
    
	
 
    	
Stamford,   CT, 06901
    
	
 
    	
Attention:   Gisella Baque
    
	
 
    	
Facsimile   No.: +1 203 873 4059
    


 











 

	
DOCUMENTATION   AGENT
    	
CREDIT   AGRICOLE CORPORATE
    
	
AND   LENDER:
    	
AND   INVESTMENT BANK,
    
	
 
    	
as   Documentation Agent and a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
Credit   Agricole CIB
    
	
 
    	
1301   Avenue of the Americas
    
	
 
    	
New   York, NY 10019
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
Credit   Agricole CIB
    
	
 
    	
1301   Avenue of the Americas
    
	
 
    	
New   York, NY 10019
    


 












 

	
LENDER:
    	
CREDIT   SUISSE AG, CAYMAN
   ISLANDS BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
Eleven   Madison Avenue
    
	
 
    	
New   York, New York 10010
    
	
 
    	
Facsimile   No.: (212) 322-2291
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
7033   Louis Stephens Drive
    
	
 
    	
P.O. Box   110047
    
	
 
    	
Research   Triangle Park 27709 NC
    
	
 
    	
 
    
	
 
    	
Attention:   Eric Ceglowski
    
	
 
    	
Facsimile   No.: (919) 994-1357
    


 











 

	
LENDER:
    	
SUMITOMO   MITSUI BANKING
   CORPORATION, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
277   Park Avenue
    
	
 
    	
Sumitomo   Mitsui Banking Corporation
    
	
 
    	
New   York, NY 10172
    
	
 
    	
 
    
	
 
    	
Facsimile   No.: 212-224-5227
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
Sumitomo   Mitsui Banking Corporation
    
	
 
    	
1200   Smith St Suite 1140
    
	
 
    	
Houston,   TX 77002
    
	
 
    	
 
    
	
 
    	
Attention:   Luis Vaca Gomez
    
	
 
    	
Facsimile   No.: 713-227-3555
    


 











 

	
LENDER:
    	
REGIONS   BANK,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Facsimile   No.: (205)261-7069
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
201   Milan Parkway
    
	
 
    	
Birmingham,   AL 35211
    
	
 
    	
 
    
	
 
    	
Attention:   Valencia Jackson
    
	
 
    	
Facsimile   No.: (205) 261-7069
    


 











 

	
LENDER:
    	
COMPASS   BANK,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
Attn:   Keri Seadler
    
	
 
    	
24   Greenway Plaza Ste 1403
    
	
 
    	
Houston,   TX 77046
    
	
 
    	
 
    
	
 
    	
Facsimile   No.: 205-524-0385
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
Attn:   Keri Seadler
    
	
 
    	
24   Greenway Plaza Ste 1403
    
	
 
    	
Houston,   TX 77046
    
	
 
    	
 
    
	
 
    	
Attention:   Keri Seadler
    
	
 
    	
Facsimile   No.: 205-524-0385
    


 











 

	
LENDER:
    	
THE   BANK OF NOVA SCOTIA,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
711   Louisiana Street, 14th Floor
    
	
 
    	
Houston,   Texas 77002
    
	
 
    	
Facsimile   No.: (212) 225-5709
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
711   Louisiana Street, 14th Floor
    
	
 
    	
Houston,   Texas 77002
    
	
 
    	
 
    
	
 
    	
Attention:   Doug Whiddon
    
	
 
    	
Facsimile   No.: (713) 752-2425
    


 











 

	
CO-SYNDICATION   AGENT
    	
CREDIT   AGRICOLE CORPORATE
    
	
AND   LENDER:
    	
AND   INVESTMENT BANK,
    
	
 
    	
as   Co-Syndication Agent and Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
1301   Avenue of the Americas
    
	
 
    	
New   York, New York 10019
    
	
 
    	
Facsimile   No.: (917) 849-5440
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
1300   Main Street, Suite 2100
    
	
 
    	
Houston,   Texas 77002
    
	
 
    	
 
    
	
 
    	
Attention:   David Gurghigian
    
	
 
    	
Facsimile   No.: (713) 890-8668
    


 











 

	
LENDER:
    	
BRANCH   BANKING AND TRUST,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
220   West 2nd Street, 16th Floor
    
	
 
    	
Winston-Salem,   North Carolina 27101
    
	
 
    	
Facsimile   No.: (336) 733-2740
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
2200   West Loop South
    
	
 
    	
Houston,   Texas 77027
    
	
 
    	
 
    
	
 
    	
Attention:   De Von J. Lang
    
	
 
    	
Facsimile   No.: (713) 993-1399
    


 











 

	
LENDER:
    	
UNION   BANK, N.A.,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
Union   Bank, N.A.
    
	
 
    	
445   S. Figueroa Street
    
	
 
    	
Los   Angeles, CA 90071
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
Union   Bank, N.A.
    
	
 
    	
ATTN:   Commercial Loan Operations
    
	
 
    	
Supervisor   — Maria Suncin/Patrick Abo
    
	
 
    	
Commercial   Loan Operations
    
	
 
    	
1980   Saturn Street
    
	
 
    	
Monterey   Park, CA 91754
    
	
 
    	
 
    
	
 
    	
Telephone:   (323) 720-2870
    
	
 
    	
Facsimile:   (323) 724-6198/(800) 466-9951
    
	
 
    	
E-Mail:   #clo_synd@unionbank.com
    


 











 

	
LENDER:
    	
TRUSTMARK   NATIONAL BANK,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
L.J.   Perenyi
    
	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
10497   Town & Country Way, Suite 860
    
	
 
    	
Houston,   Texas 77024
    
	
 
    	
Facsimile   No.: (713) 365-0890
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
10497   Town & Country Way, Suite 860
    
	
 
    	
Houston,   Texas 77024
    
	
 
    	
 
    
	
 
    	
Attention:   Sarah Prestridge
    
	
 
    	
Facsimile   No.: (713) 365-0890
    


 











 

	
LENDER:
    	
AMEGY   BANK, N.A.,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
P.O. Box   27459
    
	
 
    	
Houston,   Texas 77227
    
	
 
    	
Facsimile   No.: (713) 693-7467
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
4400   Post Oak Parkway
    
	
 
    	
Houston,   Texas 77027
    
	
 
    	
 
    
	
 
    	
Attention:   Kenyatta Gibbs
    
	
 
    	
Facsimile   No.: (713) 561-0260
    


 












 

	
LENDER:
    	
RAYMOND   JAMES BANK, FSB,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Lending   Office for ABR Rate Loans and
   Eurodollar Loans:
    
	
 
    	
 
    
	
 
    	
Raymond   James Bank, FSB
    
	
 
    	
727-567-4324
    
	
 
    	
garrett.mckinnon@raymondjames.com
    
	
 
    	
 
    
	
 
    	
Facsimile   No.: 866-205-1396
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
P.O. Box   11628
    
	
 
    	
St.   Petersburg, FL 33733-1628
    
	
 
    	
 
    
	
 
    	
Attention:   Loan Ops/CML
    
	
 
    	
Facsimile   No.: 866-597-4002
    
	
 
    	
RJBank-LoanOpsCorp@RaymondJames.com
    


 











 

ANNEX I
  AGGREGATE COMMITMENTS(3)

 




(3)  As of Third Amendment Effective Date.

 











 

EXHIBIT A-1
  FORM OF REVOLVING CREDIT NOTE

 

	
$                       
    	
                       ,   201[ ]
    


 

FOR VALUE RECEIVED, EXLP OPERATING LLC, a Delaware limited liability company  (the “Borrower”), hereby promises to pay to                                                              (the “Lender”) or registered assigns, at the office of WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Administrative Agent (the “Administrative Agent”), at 301 South College Street, Charlotte, North Carolina 28288-0608, the principal sum of                                                            US Dollars ($                        ) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Revolving Loans made by the Lender to the Borrower under the Credit Agreement, as hereinafter defined), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Revolving Loan, at such office, in like money and funds, for the period commencing on the date of such Revolving Loan until such Revolving Loan shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement.

 

The date, amount, Type, interest rate, Interest Period and maturity of each Revolving Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books.

 

This Revolving Credit Note is one of the Revolving Credit Notes referred to in the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010, among the Borrower, Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and Lenders which are or become parties thereto (including the Lender) (as the same may be amended or supplemented from time to time, the “Credit Agreement”), and evidences the Revolving Loans made by the Lender thereunder.  Capitalized terms used in this Revolving Credit Note and not defined herein have the respective meanings assigned to them in the Credit Agreement.

 

This Revolving Credit Note is issued pursuant to the Credit Agreement and is entitled to the benefits provided for in the Credit Agreement and the Security Instruments.  The Credit Agreement provides for the acceleration of the maturity of this Note upon the occurrence of certain events and for prepayments of Revolving Loans upon the terms and conditions specified therein and other provisions relevant to this Note.

 

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

 

	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit A-1 - 1











 

EXHIBIT A-2
  FORM OF TERM NOTE

 

	
$                         
    	
                       ,   201[ ]
    


 

FOR VALUE RECEIVED, EXLP OPERATING LLC, a Delaware limited liability company  (the “Borrower”), hereby promises to pay to                                                              (the “Lender”) or registered assigns, at the office of WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Administrative Agent (the “Administrative Agent”), at 301 South College Street, Charlotte, North Carolina 28288-0608, the principal sum of                                                            US Dollars ($                        ) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Term Loans made by the Lender to the Borrower under the Credit Agreement, as hereinafter defined), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Term Loan, at such office, in like money and funds, for the period commencing on the date of such Term Loan until such Term Loan shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement.

 

The date, amount, Type, interest rate, Interest Period and maturity of each Term Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books.

 

This Term Note is one of the Term Notes referred to in the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010, among the Borrower, Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and Lenders which are or become parties thereto (including the Lender) (as the same may be amended or supplemented from time to time, the “Credit Agreement”), and evidences Term Loans made by the Lender thereunder.  Capitalized terms used in this Term Note and not defined herein have the respective meanings assigned to them in the Credit Agreement.

 

This Term Note is issued pursuant to the Credit Agreement and is entitled to the benefits provided for in the Credit Agreement and the Security Instruments.  The Credit Agreement provides for the acceleration of the maturity of this Term Note upon the occurrence of certain events and for prepayments of Term Loans upon the terms and conditions specified therein and other provisions relevant to this Term Note.

 

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

 

	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit A-2 -1











 

EXHIBIT B
  FORM OF BORROWING REQUEST

 

                    , 201  

 

EXLP OPERATING LLC, a Delaware limited liability company (the “Borrower”), pursuant to the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010, among the Borrower, Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and Lenders which are or become parties thereto (as the same may be amended or supplemented from time to time, the “Credit Agreement”), hereby makes the requests indicated below (unless otherwise defined herein, each capitalized term used herein is defined in the Credit Agreement):

 

1.                                      [Revolving/Term/Swingline] Loans:

 

(a)                                 The aggregate amount of new [Revolving/Term/Swingline] Loans to be borrowed is $                                            ;

 

(b)                                 The requested funding date for such Borrowing is                                   ,           ;

 

(c)                                  $                                           of such [Revolving/Term] Borrowings are to be ABR Loans;(4)

 

(d)                                 $                                           of such [Revolving/Term] Borrowings are to be Eurodollar Loans; and

 

(i)                                     The length of the initial Interest Period for Eurodollar Loans is:                                                   .(5)

 

(e)                                  The location and number of the account to which funds are to be disbursed is:                                                                                                       .(6)

 

2.                                      [The Total Revolving Exposure on the date hereof (without regard to the requested Revolving Borrowing) is $                                           and the pro forma Total Revolving Exposure (giving effect to the requested Revolving Borrowing) is $                                                  .](7)

 




(4)  Not applicable if a Swingline Loan is requested.

(5)  Not applicable if a Swingline Loan is requested.

(6)  In the case of a Swingline Loan, account shall be the general deposit account of the Borrower with the Swingline Lender.

(7)  Include only if a Revolving Borrowing is requested.

 

Exhibit B - 1











 

3.                                      [The total Swingline Exposure on the date hereof (without regard to the requested Swingline Loan) is $                                   and the pro forma total Swingline Exposure (giving effect to the requested Swingline Loan) is $                                         .](8)

 




(8)  Include only if a Swingline Loan is requested.

 

Exhibit B - 2











 

The undersigned certifies that he/she is the                                            of the Borrower and that, as such, he/she is authorized to execute this Borrowing Request on behalf of the Borrower.  The undersigned further certifies, represents and warrants on behalf of the Borrower that the Borrower is entitled to receive the proceeds of the requested Borrowing under the terms and conditions of the Credit Agreement.

 

	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit B - 3











 

EXHIBIT C
  FORM OF INTEREST ELECTION REQUEST

 

[                ], 201[   ]

 

EXLP OPERATING LLC, a Delaware limited liability company (the “Borrower”), pursuant to Section 2.04 of the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010, among the Borrower, Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and Lenders which are or become parties thereto (as the same may be amended or supplemented from time to time, the “Credit Agreement”), hereby gives you notice pursuant to Section 2.04 of the Credit Agreement that it elects to [continue the Borrowing listed below, or a portion thereof as described below] [convert the Borrowing listed below, or a portion thereof as described below, to a different Type], and in that connection sets forth below the terms on which such [conversion] [continuation] is to be made.

 

	
 
    	
(a)
    	
The   amount of the Borrowing to which this Interest Election Request applies(9):
    	
 
    	
                                     
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(b)
    	
The   effective date of the election (which is a Business Day):
    	
 
    	
                                     
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(c)
    	
Type   of Borrowing following [conversion] [continuation]:
    	
 
    	
[ABR]   [Eurodollar]
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(d)
    	
Interest   Period and the last day thereof(10):
    	
 
    	
                                     
    


 




(9)  If different options are being elected with respect to different portions of such Borrowing, specify the portions thereof to be allocated to each resulting Borrowing and specify the information requested in clauses (b), (c) and (d) for each resulting Borrowing.

(10)  For Eurodollar Borrowing only.  Shall be subject to the definition of “Interest Period” in the Credit Agreement.

 

Exhibit C - 1











 

The undersigned certifies that he/she is the                                            of  the Borrower and that, as such, he/she is authorized to execute this certificate on behalf of the Borrower.  The undersigned further certifies, represents and warrants on behalf of the Borrower that the Borrower is entitled to make the requested continuation or conversion under the terms and conditions of the Credit Agreement.

 

	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit C - 2











 

EXHIBIT D-1
  FORM OF EFFECTIVE DATE COMPLIANCE CERTIFICATE

 

The undersigned hereby certifies that he/she is the                                  of EXLP Operating LLC, a Delaware limited liability company (the “Borrower”).  With reference to the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010, among the Borrower, Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and Lenders which are or become parties thereto (as the same may be amended or supplemented from time to time, the “Credit Agreement”), the undersigned represents and warrants as follows (each capitalized term used herein having the same meaning given to it in the Credit Agreement unless otherwise specified):

 

(a)                                 The representations and warranties of the Borrower and the Guarantors contained in ARTICLE VII of the Credit Agreement and in the Security Instruments are true and correct as of the date hereof, except to the extent any such representations and warranties are expressly limited to an earlier date in which case, on and as of the date hereof, such representations and warranties continue to be true and correct as of such specified earlier date.

 

(b)                                 The Borrower and each Guarantor have performed and complied with all agreements and conditions contained in the Credit Agreement and in the Security Instruments required to be performed or complied with by it prior to or at the time of delivery hereof.

 

(c)                                  Since December 31, 2009, no change, event, development or circumstance has occurred or exists that has had a Material Adverse Effect.

 

(d)                                 As of the date hereof, no Default has occurred and is continuing under the Credit Agreement.

 

EXECUTED AND DELIVERED this          day of November, 2010.

 

	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit D-1 - 1












 

EXHIBIT D-2
  FORM OF ONGOING COMPLIANCE CERTIFICATE

 

The undersigned hereby certifies that he/she is the                                  of EXLP Operating LLC, a Delaware limited liability company (the “Borrower”).  With reference to the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010, among the Borrower, Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and Lenders which are or become parties thereto (as the same may be amended or supplemented from time to time, the “Credit Agreement”), the undersigned represents and warrants as follows (each capitalized term used herein having the same meaning given to it in the Credit Agreement unless otherwise specified):

 

(a)                                 As of the date hereof, no Default has occurred and is continuing under the Credit Agreement.

 

(b)                                 Attached hereto are the detailed computations necessary to determine whether the Borrower is in compliance with Section 9.10(a), (b) and (c) as of the end of the [fiscal quarter][fiscal year] ending [          ].

 

EXECUTED AND DELIVERED this          day of                             .

 

	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit D-2 - 1











 

EXHIBIT E
  FORM OF ASSIGNMENT AND ASSUMPTION

 

This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, 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 Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, 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 below (i) all of the Assignor’s rights and obligations in its capacity as a Lender 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 under the respective facilities identified below (including any letters of credit and guarantees 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) 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 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 pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

 

	
1.
    	
Assignor:
    	
 
    
	
 
    	
 
    	
 
    
	
2.
    	
Assignee:
    	
 
    
	
 
    	
 
    	
[and   is an Affiliate/Related Fund of [identify Lender](11)]
    
	
 
    	
 
    	
 
    
	
3.
    	
Borrower:
    	
EXLP   Operating LLC, a Delaware limited liability company
    
	
 
    	
 
    	
 
    
	
4.
    	
Administrative Agent: 
    	
Wells   Fargo Bank, National Association, as the administrative agent under the   Credit Agreement
    
	
 
    	
 
    	
 
    
	
5.
    	
Credit Agreement: 
    	
The   Amended and Restated Senior Secured Credit Agreement dated as of   November 3, 2010 among the Borrower, Exterran Partners, L.P., a Delaware   limited partnership, the Administrative 
    


 




(11)  Select as applicable.

 

Exhibit E - 1











 

	
 
    	
 
    	
Agent   and the other Agents and Lenders which are or become parties thereto (as the   same may be amended or supplemented from time to time)
    


 

6.                                      Assigned Interest:

 

	
Commitment/Loans
   Assigned(12)
    	
 
    	
Aggregate Amount of
   Commitment/Loans
   for all Lenders
    	
 
    	
Amount of
   Commitment/Loans
   Assigned
    	
 
    	
Percentage Assigned
   of
   Commitment/Loans(13)
    	
 
    
	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    
	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    
	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    


 

Effective Date:                                    , 201     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

 

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:
    
				


 




(12)  Fill in the appropriate terminology for the types of Commitments and/or Loans under the Credit Agreement that are being assigned under this Assignment (e.g. “Revolving Commitment,” “Term Loans”, etc.)

(13)  Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

 

Exhibit E - 2











 

	
[Consented to   and](14) Accepted:
    	
 
    
	
 
    	
 
    
	
WELLS   FARGO, NATIONAL ASSOCIATION, as
    	
 
    
	
Administrative   Agent
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
[Consented to:](15)
    	
 
    
	
 
    	
 
    
	
[NAME OF   RELEVANT PARTY]
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    
				


 




(14)  To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.

(15)  To be added only if the consent of the Borrower and/or other parties (e.g. Issuing Bank) is required by the terms of the Credit Agreement.

 

Exhibit E - 3











 

ANNEX 1

 

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

 

1.  Representations and Warranties.

 

1.1  Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the 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 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 satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (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 Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it 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 Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.

 

ANNEX 1 to

Exhibit E

 











 

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 or other electronic transmission 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 Texas.

 











 

EXHIBIT F
  SECURITY INSTRUMENTS

 

1.             Amended and Restated Collateral Agreement dated as of November 3, 2010 among the Borrower, Exterran Partners, L.P., EXLP Leasing LLC and the Administrative Agent, as amended, modified or restated from time to time (the “Collateral Agreement”), covering:

 

a.             Borrower’s pledge of 100% of the membership interests of the following Significant Domestic Subsidiary:

 

(i)            EXLP Leasing LLC

 

b.             EXLP’s pledge of 100% of the membership interests of the following Significant Domestic Subsidiary:

 

(i)            EXLP Operating LLC

 

c.             EXLP’s and each other Obligor’s accounts, chattel paper, documents, equipment, general intangibles, instruments and inventory, all books and records pertaining to the foregoing and proceeds thereof.

 

2.             UCC Financing Statements for the Borrower, Exterran Partners, L.P. and EXLP Leasing LLC relating to Item 1.

 

3.             Amended and Restated Guaranty Agreement dated as of November 3, 2010 among Exterran Partners, L.P., EXLP Leasing LLC and the Administrative Agent, as amended, modified or restated from time to time

 

Exhibit F -1











 

EXHIBIT G-1
  FORM OF COMMITMENT INCREASE CERTIFICATE

 

[          ], 201[    ]

 

To:                             Wells Fargo Bank, National Association,

as Administrative Agent

 

EXLP Operating LLC, a Delaware limited liability company (the “Borrower”), Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and certain Lenders have heretofore entered into the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010 (as the same may be amended or supplemented from time to time, the “Credit Agreement”).  Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Credit Agreement.

 

This Commitment Increase Certificate is being delivered pursuant to Section 2.06(c)(ii)(E) of the Credit Agreement.  Please be advised that:

 

(a)           the amount of the requested increase in the Aggregate Revolving Commitments is $[     ];

 

(b)           each of the undersigned Lenders has agreed (i) to increase its Revolving Commitment under the Credit Agreement effective [          ], 201[    ] so that, after giving effect hereto, its Revolving Commitment will be equal to the amount set forth opposite its name in Schedule I attached hereto and (ii) that it shall continue to be a party in all respects to the Credit Agreement and the other Loan Documents;

 

(c)           attached is a new Annex I that replaces the outstanding Annex I to the Credit Agreement, reflecting the new Aggregate Commitments after giving effect to the increase in the Revolving Commitments contemplated hereby.

 

Delivery of an executed counterpart of this Commitment Increase Certificate by facsimile or other electronic transmission shall be effective as delivery of an original executed counterpart of this Commitment Increase Certificate.

 

 

	
 
    	
Very   truly yours,
    
	
 
    	
 
    
	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit G-1 - 1











 

	
Accepted   and Agreed:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
Wells   Fargo Bank, National Association,
    	
 
    
	
 
    	
as   Administrative Agent
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
Accepted   and Agreed:
    	
 
    
	
 
    	
 
    
	
[LENDER]
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    


 

Exhibit G-1 - 2











 

EXHIBIT G-2
  FORM OF ADDITIONAL LENDER CERTIFICATE

 

[          ], 201[    ]

 

To:                             Wells Fargo Bank, National Association,

as Administrative Agent

 

EXLP Operating LLC, a Delaware limited liability company (the “Borrower”), Exterran Partners, L.P., a Delaware limited partnership, the Administrative Agent and the other Agents and certain Lenders have heretofore entered into the Amended and Restated Senior Secured Credit Agreement dated as of November 3, 2010 (as the same may be amended or supplemented from time to time, the “Credit Agreement”).  Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Credit Agreement.

 

This Additional Lender Certificate is being delivered pursuant to Section 2.06(c)(ii)(F) of the Credit Agreement.

 

Please be advised that the undersigned has agreed (a) to become a Lender under the Credit Agreement effective [          ], 201[    ] with a Revolving Commitment of $[          ] and (b) that it shall be a party in all respect to the Credit Agreement and the other Loan Documents.

 

This Additional Lender Certificate is being delivered to the Administrative Agent together with (i) if the Additional Lender is a Foreign Lender, any documentation required to be delivered by such Additional Lender pursuant to Section 5.03(e) of the Credit Agreement, duly completed and executed by the Additional Lender, and (ii) an Administrative Questionnaire in the form supplied by the Administrative Agent, duly completed by the Additional Lender.

 

 

	
 
    	
Very   truly yours,
    
	
 
    	
 
    
	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

 

Exhibit G-2 - 1












 

Accepted and Agreed:

 

Wells Fargo Bank, National Association,

as Administrative Agent

 

 

	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
Accepted   and Agreed:
    	
 
    
	
 
    	
 
    
	
[ADDITIONAL   LENDER]
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 

Exhibit G-2 - 2











 

EXHIBIT G-3
  FORM OF TERM LOAN ASSUMPTION AGREEMENT

 

[                            ], 201[  ]

 

EXLP Operating LLC

16666 Northchase Drive

Houston, Texas 77060

Attention:  President

Facsimile:  (281) 836-8039

 

RE:         Term Loan Assumption Agreement

 

Ladies and Gentlemen:

 

Reference is hereby made to the Amended and Restated Senior Secured Credit Agreement (as amended, supplemented, modified or restated from time to time, the “Credit Agreement”) dated as of November 3, 2010 among EXLP Operating LLC, a Delaware limited liability company (the “Borrower”), Exterran Partners, L.P., a Delaware limited partnership, Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), the lenders from time to time party thereto (the “Lenders”) and the other Agents party thereto.  Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings set forth in the Credit Agreement.

 

Each of the undersigned (each, a “Term Lender”) hereby severally agrees to provide the Term Commitments set forth opposite its name on Annex I attached hereto (for each such Term Lender, its “Term Commitment”).  Each Term Commitment provided pursuant to this letter agreement (this “Agreement”) shall be subject to all of the terms and conditions set forth in the Credit Agreement, including, without limitation, Article II thereof.

 

Each Term Lender, the Borrower and the Administrative Agent acknowledge and agree that the Term Commitments provided pursuant to this Agreement shall constitute Term Commitments, and, upon the funding of the loans pursuant to such Term Commitments, such loans shall constitute Term Loans for all purposes of the Credit Agreement and the other applicable Loan Documents.

 

Furthermore, each of the parties to this Agreement hereby agrees to the terms and conditions set forth on Annex I hereto in respect of each Term Commitment provided pursuant to this Agreement.

 

Each Term Lender party to this Agreement, to the extent not already a party to the Credit Agreement as a Lender thereunder, (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to become a Lender

 

Exhibit G-3 - 1











 

under the Credit Agreement, (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement and the other Loan Documents, (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement and the other Loan Documents are required to be performed by it as a Lender.

 

Upon the date of (i) the execution and delivery to the Administrative Agent of a counterpart of this Agreement by each Term Lender, the Administrative Agent, the Borrower and each Guarantor and (ii) the satisfaction (or waiver in accordance with Section 12.02 of the Credit Agreement) of the conditions precedent set forth in Section 2.06 and Section 6.02 of the Credit Agreement (such date, the “Commitment Effective Date”), each Term Lender party hereto (A) shall be obligated to make the Term Loans to be made by it pursuant to its Term Commitment as provided in this Agreement on the terms, and subject to the conditions, set forth in the Credit Agreement and in this Agreement and (B) to the extent provided in this Agreement, shall have the rights and obligations of a Lender thereunder and under the other applicable Loan Documents.

 

The Borrower acknowledges and agrees that (i) it shall be liable for all obligations, for which the Borrower is liable under the Credit Agreement, with respect to the Term Commitments provided hereby including, without limitation, all Term Loans made pursuant thereto and (ii) all such obligations (including all obligations in respect of such Term Loans) shall be entitled to the benefits of the Security Instruments.

 

Each Guarantor acknowledges and agrees that all obligations for which such Guarantor is liable under the Credit Agreement or the Guaranty Agreement with respect to the Term Commitments provided hereby and all Term Loans made pursuant thereto shall (i) be fully guaranteed pursuant to the Guaranty Agreement as, and to the extent, provided therein and in the Credit Agreement and (ii) be entitled to the benefits of the Loan Documents as, and to the extent, provided therein and in the Credit Agreement.

 

You may accept this Agreement by signing the enclosed copies in the space provided below, and returning one copy of same to us before the close of business on                     , 201[  ].  If you do not so accept this Agreement by such time, our Term Commitments set forth in this Agreement shall be deemed canceled.

 

After the execution and delivery to the Administrative Agent of a fully executed copy of this Agreement (including by way of counterparts and by facsimile or other electronic transmission) by the parties hereto, this Agreement may only be changed, modified or varied by written instrument in accordance with the requirements for the modification of Loan Documents pursuant to Section 12.02 of the Credit Agreement.

 

Exhibit G-3 - 2











 

In the event of any conflict between the provisions of this Agreement and those of the Credit Agreement, the provisions of the Credit Agreement shall control.

 

THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW.

 

[Signatures Pages Follow]

 

Exhibit G-3 - 3











 

	
 
    	
Very   truly yours,
    
	
 
    	
 
    
	
 
    	
[NAME   OF EACH TERM LENDER]
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit G-3 - 4











 

AGREED AND ACCEPTED THIS

DAY OF                             , 201[ ]:

 

 

	
EXLP   OPERATING LLC
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 

Exhibit G-3 - 5











 

AGREED AND ACCEPTED THIS

DAY OF                             , 201[  ]:

 

 

	
WELLS   FARGO BANK, NATIONAL ASSOCIATION,
    	
 
    
	
as   Administrative Agent
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 

Exhibit G-3 - 6











 

Each Guarantor acknowledges and agrees to each of the foregoing provisions of this Term Loan Assumption Agreement and to the incurrence of the Term Loans to be made pursuant thereto.

 

EXTERRAN PARTNERS, L.P.

 

 

	
 
    	
By:
    	
EXTERRAN   GENERAL PARTNER, L.P.,
    
	
 
    	
 
    	
its   General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
EXTERRAN   GP LLC,
    
	
 
    	
 
    	
its   General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
EXLP   LEASING LLC
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
					


 

Exhibit G-3 - 7











 

ANNEX I

 

TERMS AND CONDITIONS FOR

TERM LOAN ASSUMPTION AGREEMENT

 

Dated as of [                        ], 201[  ]

 

1.             Name of Borrower:             EXLP Operating LLC

 

2.             Term Commitment Amounts (as of the Commitment Effective Date):

 

	
Names/Addresses of
   Term Lenders
    	
 
    	
Amount of Term Commitment
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
[                          ]
    	
 
    	
$
    	
[                      
    	
]
    
					


 

3.             Term Loan Funding Date:                                          (16)

 

4.             Term Loan Maturity Date:                                          (17)

 

5.             Applicable Margin:  The Applicable Margin applicable to the Term Loans to be made pursuant to the Term Commitments described herein shall be a percentage per annum determined by reference to the Total Leverage Ratio as in effect from time to time, as set forth below:

 

Applicable Margin

 

	
Total Leverage Ratio
    	
 
    	
Libor Loans (bps)
    	
 
    	
ABR Loans (bps)
    	
 
    
	
Greater than 4.75 to 1.0
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Less than or equal to 4.75 to 1.0 but greater than   4.25 to 1.0
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Less than or equal to 4.25 to 1.0 but greater than   3.75 to 1.0
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Less than or equal to 3.75 to 1.0 but greater than   3.25 to 1.0
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Less than or equal to 3.25 to 1.0
    	
 
    	
 
    	
 
    	
 
    	
 
    


 




(16)  On any Business Day (a) in the case of a Eurodollar Borrowing, upon three (3) Business Days notice prior to the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, upon notice not later than 12:00 p.m., Eastern time, on the date of the proposed Borrowing.  Such notice of Borrowing shall be in the form of a Borrowing Request in accordance with Section 2.03 of the Credit Agreement.

(17)  With respect to any Term Loan made pursuant to this Term Loan Assumption Agreement, the Term Loan Maturity Date may be any date, provided that such date is no sooner than the Revolving Credit Maturity Date.

 

ANNEX I to

Exhibit G-3

 











 

Each change in the Applicable Margin resulting from a change in the Total Leverage Ratio (which shall be calculated quarterly) shall take effect as of the fifth Business Day following the receipt of the compliance certificate delivered pursuant to Section 8.01(g) of the Credit Agreement.

 












 

EXHIBIT H
  FORM OF LETTER OF CREDIT REQUEST

 

, 201      (18)

 

 

as Issuing Bank

 

 

Attention:

 

Wells Fargo Bank, National Association,

as Administrative Agent

1000 Louisiana Street, 9th Floor

Houston, Texas 77002

Attention:  Donald H. Herrick, Jr.

 

Ladies and Gentlemen:

 

The undersigned, EXLP Operating LLC, a Delaware limited liability company (the “Borrower”), refers to the Credit Agreement, dated as of November 3, 2010 (as amended, modified, restated or supplemented from time to time, the “Credit Agreement”), among the Borrower, EXLP Partners, L.P., a Delaware limited partnership, the lenders from time to time party thereto (each, a “Lender” and collectively, the “Lenders”), Wells Fargo Bank, National Association, as the Administrative Agent for such Lenders, and the other Agents party thereto.  Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.

 

[Attached hereto as Annex A is a completed letter of application on the Issuing Bank’s standard form in connection with this request.](19)

 

[I.(20)                   The Borrower hereby requests that                     , as Issuing Bank issue a Letter of Credit, the “Requested Letter of Credit”).  The Borrower further requests that the Requested Letter of Credit:

 

(A) be issued on [Business Day];

 




(18)  Must be delivered to the Issuing Bank and the Administrative Agent not later than 12:00 p.m., Eastern time, (i) three Business Days preceding the requested date of issuance and (ii) one Business Day preceding the requested date of any amendment, renewal or extension.

(19)  If so requested by the Issuing Bank.  In the event of any inconsistency between the terms and conditions of the Credit Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of the Credit Agreement shall control.

(20)  Include part I of this request only if the Borrower is requesting an initial issuance of a Letter of Credit.

 

Exhibit H - 1











 

(B) have an initial stated amount of $                            ;

 

(C) expire on the following date:                             ;(21)

 

(D) name the following beneficiary (the “Beneficiary”): [name] [address];

 

(E) be issued for the account of [the Borrower][specify Restricted Subsidiary]; and

 

(F) be issued for the following purpose: [                        ] [and attached hereto as Annex D is a copy of the agreement pursuant to which the Requested Letter of Credit is to be provided.](22)

 

Attached hereto as Annex B are copies of the documents and attached hereto as Annex C is the full text of any certificate, each to be presented by the Beneficiary in connection with any drawing under the Requested Letter of Credit.]

 

[II.(23)                The Borrower hereby requests that the Issuing Bank [amend][renew][extend] the following Letter of Credit                            and sets forth the following:

 

(A)        the proposed Business Day of the [amendment][renewal][extension] is                         ; and

 

(B)        the nature of the of the [amendment][renewal][extension] is                         .]

 

	
 
    	
Very   truly yours,
    
	
 
    	
 
    
	
 
    	
EXLP   OPERATING LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 




(21)  Each Letter of Credit shall expire (1) not later than (A) 30 days before the Revolving Credit Maturity Date, with respect to commercial letters of credit, and (B) 10 days before the Revolving Credit Maturity Date, with respect to standby letters of credit or (2) up to three years beyond the Revolving Maturity Date, provided that the conditions in Section 2.07(a) of the Credit Agreement are satisfied.

(22)  If the Requested Letter of Credit is to be provided as security for the obligations of the Borrower or a Subsidiary Guarantor, attach a copy of the agreement pursuant to which the Requested Letter of Credit is to be provided.

(23)  Include section II only if the Borrower is requesting an amendment, renewal or extension of an outstanding Letter of Credit.

 

Exhibit H - 2











 

[Annex A]

 

[Letter of Credit Application](24)

 

 




(24)  Include Annex A if requested by the Issuing Bank.

 

Annex A to
 Exhibit H

 











 

[Annex B]

 

[Draw Documents](25)

 




(25)  Include Annex B only if this Letter of Credit Request is in connection with the initial issuance of a Letter of Credit.

 

Annex B to
 Exhibit H

 











 

[Annex C]

 

[Draw Certificate](26)

 




(26)  Include Annex C only if this Letter of Credit Request is in connection with the initial issuance of a Letter of Credit.

 

Annex C to
 Exhibit H

 











 

Schedule 1.02 — Existing Letters of Credit

 

None.

 

SCHEDULE 1.02 - 1











 

Schedule 6.01(c) — Excepted Property

 

None.

 

SCHEDULE 6.01(c) - 1











 

Schedule 7.03 — Litigation

 

None.

 

SCHEDULE 7.03 - 1











 

Schedule 7.09 -  Taxes

 

None.

 

SCHEDULE 7.09 - 1











 

Schedule 7.10 - Titles, Etc.

 

None.

 

SCHEDULE 7.10 - 1












 

Schedule 7.13 — Subsidiaries

 

	
 
    	
 
    	
Company
    	
 
    	
Jurisdiction of 
   Incorporation/ Organization
    
	
1
    	
 
    	
EXLP   Operating LLC
    	
 
    	
Delaware
    
	
2
    	
 
    	
EXLP   Leasing LLC
    	
 
    	
Delaware
    
	
3
    	
 
    	
EXLP   ABS 2009 LLC
    	
 
    	
Delaware
    
	
4
    	
 
    	
EXLP   ABS Leasing 2009 LLC
    	
 
    	
Delaware
    


 

SCHEDULE 7.13 - 1











 

Schedule 7.19 - Hedging Agreements

 

None.

 

SCHEDULE 7.19 - 1











 

Schedule 7.20 - Restriction on Liens

 

None.

 

SCHEDULE 7.20 - 1











 

Schedule 7.22 - Jurisdictions for Security Instrument Filings

 

	
 
    	
 
    	
Company
    	
 
    	
Jurisdiction of 
   Incorporation/ 
   Organization
    	
 
    	
Principal Place of 
   Business
    
	
1
    	
 
    	
EXLP   Operating LLC
    	
 
    	
Delaware
    	
 
    	
16666   Northchase Dr., 

Houston,   TX, 77060
    
	
2
    	
 
    	
EXLP   Leasing LLC
    	
 
    	
Delaware
    	
 
    	
16666   Northchase Dr., 

Houston,   TX, 77060
    
	
3
    	
 
    	
EXLP   ABS 2009 LLC
    	
 
    	
Delaware
    	
 
    	
16666   Northchase Dr., 

Houston,   TX, 77060
    
	
4
    	
 
    	
EXLP   ABS Leasing 2009 LLC
    	
 
    	
Delaware
    	
 
    	
16666   Northchase Dr., 

Houston,   TX, 77060
    


 

SCHEDULE 7.22 - 1











 

Schedule 8.07 — Excluded Collateral

 

Each reference to Collateral or to any relevant type or item of Property constituting Collateral shall be deemed to exclude (i) tangible Property that is not located in the continental United States (including its possessions), (ii) motor vehicles, forklifts and trailers, (iii) voting equity interests in any Foreign Subsidiary required to prevent the Collateral from including more than 66% of all voting equity interests in such Foreign Subsidiary, (iv) any general intangibles or other rights arising under any contract, instrument, license or other document if (but only to the extent that) the grant of a security interest therein would constitute a material violation of a valid and enforceable restriction in favor of a third party, unless and until all required consents shall have been obtained; and (v) any Property subject to a Lien permitted by Section 9.02(b), (c), (d), (e) or (g) of this Agreement, so long as such Lien is in effect.

 

SCHEDULE 8.07 - 1











 

Schedule 9.01 - Debt

 

1.             The Indebtedness.

 

SCHEDULE 9.01 - 1











 

Schedule 9.02 - Liens

 

1.             Liens securing the Indebtedness.

 

SCHEDULE 9.02 - 1











 

Schedule 9.03 - Investments, Loans and Advances

 

None.

 

SCHEDULE 9.03 - 1











 

Schedule 9.13 - Transactions with Affiliates

 

1.                                      Contribution, Conveyance and Assumption Agreement dated October 20, 2006, pursuant to which Holdings and its Subsidiaries will convey a portion of their domestic contract compression business to the EXLP Group.

 

SCHEDULE 9.13 - 1