Exhibit 10.1





Exhibit 10.1




 




Published CUSIP Number:                     




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of February 10, 2010




among




CROSSTEX ENERGY, L.P.,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent

and

L/C Issuer,




WELLS FARGO BANK, N.A.,

ROYAL BANK OF CANADA,

and

BNP PARIBAS,




as Co-Syndication Agents,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger and Sole Book Manager




 




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	26	 
	1.03 Accounting Terms
	 	 	27	 
	1.04 Rounding
	 	 	27	 
	1.05 Times of Day
	 	 	27	 
	1.06 Letter of Credit Amounts
	 	 	27	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	28	 
	2.01 Committed Loans
	 	 	28	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	28	 
	2.03 Letters of Credit
	 	 	30	 
	2.04 Optional Prepayments
	 	 	40	 
	2.05 Mandatory Prepayments
	 	 	40	 
	2.06 Termination or Reduction of Commitments
	 	 	42	 
	2.07 Repayment of Loans
	 	 	42	 
	2.08 Interest
	 	 	42	 
	2.09 Fees
	 	 	43	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable
Rate
	 	 	44	 
	2.11 Evidence of Indebtedness
	 	 	44	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	45	 
	2.13 Sharing of Payments by Lenders
	 	 	47	 
	2.14 Increase in Commitments
	 	 	48	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	49	 
	3.01 Taxes
	 	 	49	 
	3.02 Illegality
	 	 	53	 
	3.03 Inability to Determine Rates
	 	 	53	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	54	 
	3.05 Compensation for Losses
	 	 	55	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	56	 
	3.07 Survival
	 	 	56	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO Credit Extensions
	 	 	57	 
	4.01 Conditions of Initial Credit Extension
	 	 	57	 
	4.02 Conditions to all Credit Extensions
	 	 	60	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	61	 
	5.01 Existence, Qualification and Power
	 	 	61	 
	5.02 Authorization; No Contravention
	 	 	61	 
	5.03 Governmental Authorization; Other Consents
	 	 	61	 






 


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	5.04 Binding Effect
	 	 	62	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	62	 
	5.06 Litigation
	 	 	63	 
	5.07 No Default
	 	 	63	 
	5.08 Ownership of Property; Liens
	 	 	63	 
	5.09 Environmental Compliance
	 	 	63	 
	5.10 Insurance
	 	 	63	 
	5.11 Taxes
	 	 	63	 
	5.12 ERISA Compliance
	 	 	64	 
	5.13 Subsidiaries; Equity Interests
	 	 	64	 
	5.14 Margin Regulations; Investment Company Act
	 	 	64	 
	5.15 Disclosure
	 	 	65	 
	5.16 Compliance with Laws
	 	 	65	 
	5.17 Taxpayer Identification Number
	 	 	65	 
	5.18 Intellectual Property; Licenses, Etc.
	 	 	65	 
	5.19 Solvency
	 	 	65	 
	5.20 Ownership
	 	 	66	 
	5.21 Real Property Interests; Description of Real Property Interests
	 	 	66	 
	5.22 Use of Proceeds
	 	 	66	 
	5.23 Commodity Contracts
	 	 	66	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	66	 
	6.01 Financial Statements
	 	 	66	 
	6.02 Certificates; Other Information
	 	 	67	 
	6.03 Notices
	 	 	69	 
	6.04 Payment of Taxes, Etc.
	 	 	70	 
	6.05 Preservation of Existence, Etc.
	 	 	70	 
	6.06 Maintenance of Properties
	 	 	70	 
	6.07 Maintenance of Insurance
	 	 	71	 
	6.08 Compliance with Laws
	 	 	71	 
	6.09 Books and Records
	 	 	71	 
	6.10 Inspection Rights
	 	 	71	 
	6.11 Use of Proceeds
	 	 	71	 
	6.12 Additional Material Subsidiaries; Additional Security
	 	 	72	 
	6.13 Compliance with Environmental Laws
	 	 	72	 
	6.14 Environmental Remediation and Indemnification
	 	 	73	 
	6.15 Newly Acquired Real Property
	 	 	73	 
	6.16 Deposit Accounts, Disbursement Accounts and Other Cash Management
Accounts
	 	 	74	 
	6.17 Clean Down Period
	 	 	74	 
	6.18 Post-Closing Requirements
	 	 	74	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	75	 
	7.01 Liens
	 	 	75	 
	7.02 Investments
	 	 	78	 
	7.03 Indebtedness
	 	 	79	 
	7.04 Fundamental Changes; Acquisitions
	 	 	80	 






 


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	7.05 Dispositions
	 	 	82	 
	7.06 Restricted Payments
	 	 	83	 
	7.07 Change in Nature of Business
	 	 	84	 
	7.08 Transactions with Affiliates
	 	 	84	 
	7.09 Burdensome Agreements
	 	 	84	 
	7.10 Use of Proceeds
	 	 	85	 
	7.11 Financial Covenants
	 	 	86	 
	7.12 Capital Expenditures
	 	 	86	 
	7.13 ERISA Plans
	 	 	86	 
	7.14 Accounting Changes; Fiscal Year
	 	 	87	 
	7.15 Amendment of Organization Documents; Partnership Agreements
	 	 	87	 
	7.16 Prepayments and Modifications of Certain Indebtedness
	 	 	87	 
	7.17 Hydrocarbon Hedge Agreements and Swap Contracts
	 	 	87	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	88	 
	8.01 Events of Default
	 	 	88	 
	8.02 Remedies Upon Event of Default
	 	 	90	 
	8.03 Application of Funds
	 	 	91	 
	 
	 	 	 	 
	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	92	 
	9.01 Appointment and Authority
	 	 	92	 
	9.02 Rights as a Lender
	 	 	93	 
	9.03 Exculpatory Provisions
	 	 	93	 
	9.04 Reliance by Administrative Agent
	 	 	94	 
	9.05 Delegation of Duties
	 	 	94	 
	9.06 Resignation of Administrative Agent
	 	 	94	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	95	 
	9.08 No Other Duties, Etc.
	 	 	95	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	95	 
	9.10 Collateral and Guaranty Matters
	 	 	96	 
	9.11 Secured Cash Management Agreements and Secured Hedge Agreements
	 	 	97	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	97	 
	10.01 Amendments, Etc.
	 	 	97	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	99	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	101	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	102	 
	10.05 Payments Set Aside
	 	 	104	 
	10.06 Successors and Assigns
	 	 	104	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	108	 
	10.08 Right of Setoff
	 	 	109	 
	10.09 Interest Rate Limitation
	 	 	109	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	109	 
	10.11 Survival of Representations and Warranties
	 	 	110	 
	10.12 Severability
	 	 	110	 
	10.13 Replacement of Lenders
	 	 	110	 






 


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	10.14 Governing Law; Jurisdiction; Etc.
	 	 	111	 
	10.15 Waiver of Jury Trial
	 	 	112	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	112	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	113	 
	10.18 USA PATRIOT Act
	 	 	113	 
	10.19 Time of the Essence
	 	 	113	 
	10.20 Amendment and Restatement; Existing Indebtedness
	 	 	113	 
	10.21 ENTIRE AGREEMENT
	 	 	113	 
	 
	 
	SIGNATURES
	 	 	S-1	 






 


-iv-









 





	 
	SCHEDULES

	 

	2.01 Commitments and Applicable Percentages

	5.06 Litigation

	5.13 Subsidiaries; Other Equity Investments

	7.01 Existing Liens

	7.02 Existing Investments

	7.03 Existing Indebtedness

	10.02 Administrative Agent’s Office; Certain Addresses for Notices

	 

	EXHIBITS

	 

	Form of

	 

	A Committed Loan Notice

	B Note

	C Compliance Certificate

	D Assignment and Assumption

	E Guaranty

	F Security Agreement







 


-v-









 





AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as of
February 10, 2010, among CROSSTEX ENERGY, L.P., a Delaware limited partnership (the
“Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as Administrative
Agent and L/C Issuer, and WELLS FARGO BANK, N.A., ROYAL BANK OF CANADA, and BNP PARIBAS as
Co-Syndication Agents.



R E C I T A L S:




The Borrower, the Administrative Agent, and the other lenders party thereto, executed that
certain Fourth Amended and Restated Credit Agreement dated as of November 1, 2005 (as amended, the
“Existing Credit Agreement”).



The Borrower, the Administrative Agent and the Lenders desire to amend and restate the
Existing Credit Agreement. To evidence the credit facility requested hereunder, the Borrower, the
Administrative Agent and the Lenders have agreed that this Agreement is an amendment and
restatement of the Existing Credit Agreement, not a new or substitute credit agreement or novation
of the Existing Credit Agreement, and each reference to “Loan” or “Letter of Credit” shall include
each Advance and Letter of Credit (as such terms are defined in the Existing Credit Agreement)
issued under the Existing Credit Agreement as well as each Loan made and each Letter of Credit
issued hereafter under this Agreement.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




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



“2010 Equity Issuance” means the issuance of convertible preferred Equity Interests in
the Borrower on January 19, 2010.



“Acceptable Security Interest” in any Property means a Lien which (a) exists in favor
of the Administrative Agent for the benefit of the Secured Parties, (b) is superior to all other
Liens, except liens permitted by Section 7.01, (c) secures the Secured Obligations, and (d)
is perfected and enforceable.



“Acquisition” means the direct or indirect purchase or acquisition, whether in one or
more related transactions, by the Borrower or any of its Subsidiaries of any Person or group of
Persons (or any equity interest in any Person or group of Persons) or any related group of assets,
liabilities, or securities of any Person or group of Persons, other than acquisitions of Property
in the ordinary course of business.



 

 

 

 


AMENDED
AND RESTATED CREDIT AGREEMENT —  Page 1













 







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



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



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



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




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




“Agreement” means this Credit Agreement.



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



“Applicable Rate” means, from time to time, as of any date of determination, the
following percentages determined as a function of the Consolidated Leverage Ratio for the Borrower
and its Subsidiaries:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Consolidated	 	 	 	 	 	 	 	 	 	 	 	 	 	Letter of	 
	Pricing	 	 	Leverage	 	Eurodollar	 	 	Base Rate	 	 	Commitment	 	 	Credit	 
	Level	 	 	Ratio	 	Rate Loans	 	 	Loans	 	 	Fees	 	 	Fees	 
	 	1	 	 	> 5.00
	 	 	4.25	%	 	 	3.25	%	 	 	0.50	%	 	 	4.25	%
	 	2	 	 	> 4.50 and
< 5.00
	 	 	4.00	%	 	 	3.00	%	 	 	0.50	%	 	 	4.00	%
	 	3	 	 	> 4.00 and
< 4.50
	 	 	3.75	%	 	 	2.75	%	 	 	0.50	%	 	 	3.75	%
	 	4	 	 	> 3.50 and
< 4.00
	 	 	3.50	%	 	 	2.50	%	 	 	0.50	%	 	 	3.50	%
	 	5	 	 	< 3.50
	 	 	3.25	%	 	 	2.25	%	 	 	0.50	%	 	 	3.25	%






 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —  Page 2













 







The foregoing ratio shall be determined from the Compliance Certificate of the Borrower and its
Subsidiaries most recently delivered pursuant to Section 6.02(a). Any increase or decrease
in the Applicable Rate shall be effective upon the first Business Day immediately following the
date of
delivery of the Compliance Certificate required by such Section; provided, however,
that if a Compliance Certificate is not delivered when due in accordance with such Section, then,
upon the request of the Required Lenders Pricing Level 1 shall apply, in each case as of the first
Business Day after the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the date on which such Compliance Certificate is
delivered. Beginning on the Closing Date until delivery of the Compliance Certificate for the
period ending December 31, 2009, the Applicable Rate shall be at the Pricing Level associated with
the Consolidated Leverage Ratio as calculated in the pro forma Compliance Certificate delivered
pursuant to Section 4.01(a)(xiii).



“Approved Consultant’s Report” means a report by Barnes & Click, Inc., Purvin & Gertz,
Oil & Gas Advisors, Inc. or another consultant selected by the Borrower and reasonably acceptable
to the Administrative Agent confirming that the assumptions used by the Borrower in the adjustments
to Consolidated EBITDA in connection with any Acquisition are reasonable.



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



“Arranger” means Banc of America Securities LLC, in its capacity as sole lead arranger
and sole book manager.



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



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



“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



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



“Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 3











 





“Available Cash” for any fiscal quarter has the meaning set forth in the Borrower
Partnership Agreement without giving effect to any amendments or restatements not otherwise
permitted herein.




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



“Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the Eurodollar Rate with respect to Interest Periods of
one month determined as of approximately 11:00 a.m. (London time) on such day plus 1%, and (c) the
rate of interest in effect for such day as publicly announced from time to time by Bank of America
as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change (i) in such rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change
and (ii) in the Eurodollar Rate described in clause (b) above shall take effect on the date of such
change.




“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.




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




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




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



“Borrower Partnership Agreement” means the Sixth Amended and Restated Agreement of
Limited Partnership of Crosstex Energy, L.P., dated as of March 23, 2007, as amended by Amendment
No. 1 to Sixth Amended and Restated Agreement of Limited Partnership of Crosstex Energy, L.P. dated
December 20, 2007, as further amended by Amendment No. 2 to Sixth Amended and Restated Agreement of
Limited Partnership of Crosstex Energy, L.P. dated effective as of January 1, 2007, and as further
amended by Amendment No. 3 to Sixth Amended and Restated Agreement of Limited Partnership of
Crosstex Energy, L.P. dated effective as of January 19, 2010, as the same may be further amended,
modified or supplemented from time-to-time as permitted by this Agreement.




“Borrowing” means a Committed Borrowing.



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



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




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 4










 







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



“Cash Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement with the Borrower or any of its Subsidiaries, is a Lender, or an Affiliate of
a Lender, in its capacity as a party to a Cash Management Agreement, and any Lender or Affiliate of
a Lender that was a Lender or an Affiliate of a Lender on the Closing Date that is also a party to
a Cash Management Agreement with the Borrower or any of its Subsidiaries, provided,
however, that if such Person ceases to be a Lender or an Affiliate of a Lender, such Person
shall only be a Cash Management Bank with respect to those certain Cash Management Agreements
executed during such time such Person was a Lender or an Affiliate of a Lender, such agreements not
to extend past their written terms.



“Cash Management Obligations” means all obligations, indebtedness, and liabilities of
the Borrower and its Subsidiaries, arising under any Secured Cash Management Agreement, whether
direct or indirect (including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest, fees and other amounts that
accrue after the commencement by or against the Borrower or any of its Subsidiaries, of any
proceeding under any Debtor Relief Law naming the Borrower or any such Subsidiary as the debtor in
such proceeding, regardless of whether such interest, fees or other amounts are allowed claims in
such proceeding.



“CESL Partnership Agreement” means the Second Amended and Restated Agreement of
Limited Partnership of Crosstex Energy Services, L.P., dated as of April 1, 2004, among Crosstex
Operating GP, LLC, Crosstex Energy, L.P. and the other parties thereto, as the same may be amended,
modified or supplemented from time-to-time as permitted by this Agreement.



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




“Change of Control” means an event or series of events by which:




(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan), other than the Qualifying Owners, becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934), directly or indirectly, of 50% or more of the equity securities of the Ultimate
General Partner entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted basis; or




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 5










 








(b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Ultimate General Partner
cease to be composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or nomination to that
board or equivalent governing body was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors).



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



“Co-Syndication Agents” means, collectively, Wells Fargo Bank, N.A., Royal Bank of
Canada, and BNP Paribas.




“Code” means the Internal Revenue Code of 1986.



“Collateral” means all Collateral as defined in the Security Agreement, in each of the
Mortgages and each other document or agreement executed by the Borrower, any Guarantor or any other
Person granting a Lien in the Property described therein as security for the Secured Obligations.



“Collateral Documents” means, collectively, (a) the Security Agreement, (b) the
Mortgages, (c) each other agreement, instrument or document executed at any time in connection with
the Security Agreement or the Mortgages, and (d) each other agreement, instrument, control
agreement, security document, assignment, supplement or document executed at any time in connection
with securing the Secured Obligations.



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



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




“Committed Loan” has the meaning specified in Section 2.01.



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




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 6











 







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



“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period, (iii) depreciation and
amortization expense, (iv) non-cash items of the Borrower and its Subsidiaries reducing such
Consolidated Net Income, (v) other non-recurring items of the Borrower and its Subsidiaries
reducing such Consolidated Net Income, and (vi) without duplication, the Transaction Costs in an
amount not to exceed $35,000,000 properly allocated to such period, if applicable, and
minus (b) the following to the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits of the Borrower and its Subsidiaries for
such period and (ii) all non-cash items increasing Consolidated Net Income for such period.



For purposes of calculating the Consolidated Leverage Ratio, Consolidated Senior Leverage
Ratio and Consolidated Interest Coverage Ratio, Consolidated EBITDA shall be calculated, on a pro
forma basis, after giving effect to, without duplication, any permitted Acquisition occurring
during the period commencing on the first day of such period to and including the date of such
Acquisition (the “Reference Period”), as if such Acquisition occurred on the first day of
the Reference Period. In making the calculation contemplated by the preceding sentence, EBITDA
generated or to be generated by such acquired Person or by such acquired Property shall be
determined in good faith by the Borrower based on reasonable assumptions and may take into account
pro forma expenses that would have been incurred by the Borrower and its Subsidiaries in the
operation of such acquired Person or acquired Property, during such period computed on the basis of
personnel expenses for employees retained or to be retained by the Borrower and its Subsidiaries in
the operation of such acquired Person or acquired Property and non-personnel costs and expenses
incurred by the Borrower and its Subsidiaries in the operation of the Borrower’s and its
Subsidiaries’ business at similarly situated facilities of the Borrower or any of its Subsidiaries;
provided, however, that such pro forma calculations shall be reasonably acceptable
to the Administrative Agent if the Borrower does not provide the Administrative Agent with an
Approved Consultant’s Report supporting such pro forma calculations.



For purposes of calculating the Consolidated Leverage Ratio, Consolidated Senior Leverage
Ratio and the Consolidated Interest Coverage Ratio, Consolidated EBITDA shall be calculated by
deducting, to the extent previously included in the calculation for any relevant period,
Consolidated EBITDA attributable to a particular asset subject to a Disposition prepayment required
by Section 2.05(a) after giving effect to such Disposition occurring during the period
commencing on the first day of such period to and including the date of such Disposition (the
“Disposition Reference Period”), as if such Disposition occurred on the first day of the
Disposition Reference Period.




 

 

 

 


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Notwithstanding any provision of this Agreement which may otherwise be to the contrary, if any
lease pursuant to the Eunice Lease Documents is treated under GAAP as a capital lease, then, for
all computations of Consolidated EBITDA hereunder, such lease shall be treated as an operating
lease and Consolidated Net Income, Consolidated Interest Charges, provision for Federal, state,
local and foreign taxes, depreciation, amortization and other non-cash items, for all purposes of
determining Consolidated EBITDA under this Agreement for any period, shall be adjusted as though
such lease was accounted for as an operating lease.



“Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including outstanding
Committed Loans) and all obligations evidenced by bonds, debentures, notes, loan agreements or
other similar instruments, (b) all purchase money Indebtedness, (c) all matured obligations then
owed under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments (i.e., excluding letters of credit, bankers’
acceptances, bank guaranties, surety bonds and similar instruments that have not been drawn upon),
(d) all obligations in respect of the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees
with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of
Persons other than the Borrower or any Subsidiary, and (g) all Indebtedness of the types referred
to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is
a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary.



“Consolidated Secured Funded Indebtedness” means, as of any date of determination,
Consolidated Funded Indebtedness that is secured by Liens on any Property of the Borrower or its
Subsidiaries including any secured Indebtedness from any permitted Acquisition.



“Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all cash interest, premium payments,
commitment fees described in Section 2.09(a) and Letter of Credit Fees of the Borrower and
its Subsidiaries in connection with borrowed money (including capitalized interest) or in
connection with the deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, and (b) the portion of rent expense of the Borrower and its
Subsidiaries with respect to such period under capital leases that is treated as interest in
accordance with GAAP; provided that Transaction Costs shall be excluded from Consolidated Interest
Charges to the extent that such Transaction Costs would have otherwise been included in the
calculation of Consolidated Interest Charges.



“Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period; provided, that for purposes of any
determination of the Consolidated Interest Coverage Ratio with respect to the fiscal quarter ending
on (i) March 31, 2010, the Consolidated Interest Coverage Ratio shall be the ratio of (A)
Consolidated EBITDA for such fiscal quarter to (B) Consolidated Interest Charges for such
fiscal quarter, (ii) June 30, 2010, the Consolidated Interest Coverage shall be the ratio of
(A) Consolidated EBITDA for the period of the two prior fiscal quarters ending on such date to (B)
Consolidated Interest Charges for the period of the two prior fiscal quarters ending on such date,
and (iii) September 30, 2010, the Consolidated Interest Coverage Ratio shall be the ratio of (A)
Consolidated EBITDA for the period of the three prior fiscal quarters ending on such date to (B)
Consolidated Interest Charges for the period of the three prior fiscal quarters ending on such
date.




 

 

 

 


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“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.



“Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary gains and extraordinary losses) for that period.



“Consolidated Senior Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Secured Funded Indebtedness as of such date to (b) Consolidated EBITDA for the
four fiscal quarters most recently ended.



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



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



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



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



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



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



 

 

 

 


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“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans, participations in L/C Obligations required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder unless such failure has been cured,
(b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute or unless such failure has been cured, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding, in each case reasonably
determined by the Administrative Agent.



“Disposition or Dispose” means any sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction) of any property or any series of related
dispositions of property by any Person (in each case other than any issuance of Equity Interests),
including any sale, assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith in which the property disposed
either (a) generates EBITDA greater than or equal to 2.5% of EBITDA for the four fiscal quarter
period ending as of the most recent fiscal quarter for which the Borrower has delivered financial
statements pursuant to Section 6.01(a) or (b) or (b) has an aggregate book value
greater than 1% of the book value of the consolidated assets of the Borrower and its Subsidiaries
as of the end of the most recent fiscal quarter for which the Borrower has delivered financial
statements pursuant to Section 6.01(a) or (b); provided, that the term
“Disposition” for purposes of Section 2.05(a) shall not include any transaction permitted
by Section 7.05(a) through (k), inclusive.



“Distribution Loan” means a Loan which is made in whole or in part for the purpose of
paying a Quarterly Distribution.




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



“East Texas Sale” means the sale of certain Property as evidenced by that certain
Asset Purchase and Sale Agreement by and between Crosstex North Texas Gathering, L.P., as seller,
and Waskom Gas Processing Company, as buyer, dated December 11, 2009 and that certain Assignment
and Assumption Agreement by and among Crosstex North Texas Gathering, L.P., Crosstex Gulf Coast
Marketing Ltd., Crosstex NGL Marketing, L.P., and Crosstex Energy Services, L.P., as assignors, and
Waskom Gas Processing Company, Waskom Midstream LLC, and Olin Gathering LLC, as assignees, dated
January 15, 2010 and effective as of 9:00 a.m. Dallas, Texas time January 1, 2010.



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



“El Paso Purchase and Sale Agreement” means the Purchase and Sale Agreement dated as
of August 8, 2005, between the Borrower and El Paso Corporation, a Delaware corporation.



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




 

 

 

 


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



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



“Equity Issuance” means any issuance of Equity Interests (including any preferred
equity securities) by the Borrower or any of its Subsidiaries other than Equity Interests issued
(a) to the Borrower or any of its Subsidiaries; (b) pursuant to employee or director and officer
benefit or dividend or distribution reinvestment plans or unit option, unit incentive or purchaser
plans in the ordinary course of business; (c) as consideration in connection with any investment by
the Borrower or any of its Subsidiaries in any other Person pursuant to which such Person shall
become a Subsidiary or shall be merged into or consolidated with the Borrower or any of its
Subsidiaries; and (d) as consideration in connection with an Acquisition or Investment by the
Borrower or any of its Subsidiaries.



“Equity Issuance Proceeds” means, with respect to any Equity Issuance, all cash and
cash equivalents received by the Borrower or any of its Subsidiaries from such Equity Issuance
after payment of, or provision for, all brokerage commissions and other reasonable out-of-pocket
fees and expenses actually incurred.




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



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




 

 

 

 


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“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any ERISA Affiliate.



“Eunice Lease Documents” has the meaning assigned to such term in the El Paso Purchase
and Sale Agreement including any amendments, restatements and supplements thereto.



“Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank Eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.



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




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



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of a
Loan Party hereunder or under any other Loan Documents, (a) taxes imposed on or measured by all or
part of its net income (however denominated), gross margin, profits or gains and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any
branch profits taxes imposed by the United States (or any political subdivision thereof) or any
similar tax imposed by any other jurisdiction (or any political subdivision thereof) under the laws
of which such recipient is organized or in which such recipient’s applicable principal office is
located or, in the case of a Lender, in which its applicable Lending Office is located, (c) any
backup withholding tax that is required by the Code to be withheld from amounts payable to it,
and (d) in the case of a Foreign Lender, any withholding tax that (i) is required to be
imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable
to such Foreign Lender’s failure or inability (other than as a result of a Change in Law occurring
after such Foreign Lender becomes a party hereto) to comply with Section 3.01(e), except
(in either case) 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, as applicable), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
3.01(a)(ii).




 

 

 

 


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“Existing Credit Agreement” has the meaning specified in the first Recital hereto.



“Extraordinary Receipt” means any cash and cash equivalents received by or paid to or
for the account of any Person not in the ordinary course of business, including tax refunds,
pension plan reversions, proceeds of insurance (other than business interruption insurance to the
extent the proceeds constitute compensation for lost earnings), condemnation awards (and payments
in lieu thereof), indemnity payments and any purchase price adjustments.



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



“Fee Letter” means the letter agreement, dated as of December 31, 2009, among the
Borrower, the Administrative Agent and the Arranger.



“Finance Entity” means any Subsidiary of the Borrower that is not also a Subsidiary of
Crosstex Energy Services, L.P. and that is formed for the purpose of issuing Indebtedness
specifically permitted by Section 7.03(i).



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




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



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



 

 

 

 


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



“Governmental Action” means any authorization, approval, consent, waiver, exception,
license, filing, registration, permit, notarization or other requirement of any Governmental
Person.



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



“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien), but limited to the fair
market value of the assets securing such Indebtedness or other obligation. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



“Guarantors” means, collectively, (a) the Material Subsidiaries of the Borrower
identified as such on Schedule 5.13, (b) each other Material Subsidiary of the Borrower
that shall be required to execute and deliver a Guaranty or supplement thereto pursuant to
Section 6.12 and (c) each other Subsidiary of the Borrower that chooses to execute and
deliver a Guaranty or supplement thereto.



 

 

 

 


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“Guaranty” means, collectively, any Guaranty made by the Guarantors in favor of the
Administrative Agent and the Secured Parties, substantially in the form of Exhibit E, which
shall include any supplements thereto.



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



“Hedge Agreement Obligations” means all obligations, indebtedness and liabilities of
the Borrower and its Subsidiaries arising under any Secured Hedge Agreement, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest, fees and other amounts that accrue after
the commencement by or against the Borrower or any of its Subsidiaries, of any proceeding under any
Debtor Relief Law naming the Borrower or any such Subsidiary as the debtor in such proceeding,
regardless of whether such interest, fees or other amounts are allowed claims in such proceeding.



“Hedge Bank” means any Person that, at the time it enters into a Swap Contract with
the Borrower or any of its Subsidiaries, is a Lender or any Affiliate of a Lender, in its capacity
as a party to such Swap Contract, and any Lender or Affiliate of a Lender that was a Lender or an
Affiliate of a Lender on the Closing Date that is also a party to a Secured Hedge Agreement with
the Borrower or any of its Subsidiaries provided, however, that if such Person
ceases to be a Lender or an Affiliate of a Lender, such Person shall only be a Hedge Bank with
respect to those certain Swap Contracts executed during such time such Person was a Lender or an
Affiliate of a Lender, such contracts not to extend past their written terms.



“Hydrocarbon Cash Collateral” means the amount of cash and Permitted Investments
pledged and deposited with or delivered to a Person by the Borrower or any Subsidiary as collateral
for obligations of the Borrower or any Subsidiary under any Hydrocarbon Hedge Agreements.



“Hydrocarbon Hedge Agreement” means a swap, collar, floor, cap, option or other
derivative contract which is intended to reduce or eliminate the risk of fluctuations in the price
of Hydrocarbons.



“Hydrocarbons” means oil, gas, coal seam gas, casinghead gas, drip gasoline, natural
gasoline, condensate, distillate, and all other liquid and gaseous hydrocarbons produced or to be
produced in conjunction therewith from a well bore and all products, by-products, and other
substances derived therefrom or the processing thereof, and all other minerals and substances
produced in conjunction with such substances, including, but not limited to, sulfur, geothermal
steam, water, carbon dioxide, helium, and any and all minerals, ores, or substances of value and
the products and proceeds therefrom.




 

 

 

 


AMENDED
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“Impacted Lender” means (a) any Lender that is a Defaulting Lender and (b) any Lender
as to which (i) the Borrower, the Administrative Agent or the L/C Issuer has a good faith belief
that such Lender has defaulted in its obligations under one or more other syndicated credit
facilities or (ii) any entity that controls such Lender has been deemed insolvent or become subject
to a bankruptcy or other similar proceeding, in each case reasonably determined by the
Administrative Agent.



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




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




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




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




(d) all obligations (excluding earnout obligations that do not constitute indebtedness
in accordance with GAAP) of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




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




(f) capital leases and Synthetic Lease Obligations;




(g) all mandatory obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in cash in respect of any Equity Interest in such Person or any
other Person prior to one year after the Maturity Date, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends; and




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



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



“Indemnified Taxes” means Taxes other than Excluded Taxes.




 

 

 

 


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



“Indenture” means the Indenture dated as of February 10, 2010, among the Borrower, the
Subsidiaries of the Borrower party thereto as guarantors and Wells Fargo Bank, National
Association, as trustee, as the same may be amended, modified or supplemented from time-to-time as
permitted by this Agreement.




“Information” has the meaning specified in Section 10.07.



“Intra-coastal Acquisition” means the Acquisition of that certain Property as
evidenced by that certain Asset Sale and Purchase Agreement between Chevron Midstream Pipelines
LLC, as seller, and Crosstex Energy Services, L.P., as buyer dated effective December 28, 2009.



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



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




(a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




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




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



“Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the original cost of such Investment, minus the amount of any
portion of such Investment repaid to the investor as a dividend, repayment of
loan or advance, release or discharge of a guarantee or other obligation or other transfer of
property or return of capital, as the case may be, but without any other 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. In determining the amount of any Investment involving a
transfer of property other than cash, such property shall be valued at its fair market value at the
time of such transfer.



 

 

 

 


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“IRS” means the United States Internal Revenue Service.



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



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



“Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



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



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



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



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



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



 

 

 

 


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



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



“Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit
may be a commercial letter of credit or a standby letter of credit.



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



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




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



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



“Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Committed Loan.



“Loan Documents” means this Agreement, each Note, each Issuer Document, the Collateral
Documents, the Fee Letter, and the Guaranty.




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



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



“Material Subsidiary” shall mean a Subsidiary of the Borrower having: either (a) 2.5%
or more of consolidated EBITDA for the four fiscal quarter period ending as of the most recent
fiscal quarter for which the Borrower has delivered financial statements pursuant to Section
6.01(a) or (b); or (b) 1% of the book value of the consolidated assets of the Borrower
and its Subsidiaries as of the end of the most recent fiscal quarter for which the Borrower has
delivered financial statements pursuant to Section 6.01(a) or (b);
provided, however, to the extent that executing a Guaranty would result in adverse
tax consequences with respect to any non-
operating Subsidiary (as reasonably determined by the Borrower), such non-operating Subsidiary
shall not be considered a “Material Subsidiary” unless such non-operating Subsidiary has either (i)
5% or more of consolidated EBITDA for the four fiscal quarter period ending as of the most recent
fiscal quarter for which the Borrower has delivered financial statements pursuant to Section
6.01(a) or (b) or (ii) 5% or more of the book value of the consolidated assets of the
Borrower and its Subsidiaries as of the end of the most recent fiscal quarter for which the
Borrower has delivered financial statements pursuant to Section 6.01(a) or (b).



 

 

 

 


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“Maturity Date” means February 10, 2014, provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.




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



“Mortgages” means, collectively, each of the Deed of Trust, Security Agreement,
Financing Statement and Assignments or similar document executed by the Borrower or any Subsidiary
in favor of the Administrative Agent for the benefit of the Secured Parties in form and substance
reasonably satisfactory to the Administrative Agent, as the same may be amended, modified or
supplemented from time-to-time.



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



“Net Cash Proceeds” means in connection with any Disposition or Extraordinary Receipt,
the proceeds thereof in the form of cash and cash equivalents (including any such proceeds received
by way of deferred payment of principal pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise, but only as and when received) of such Disposition or
Extraordinary Receipt, net of attorneys’ fees, accountants’ fees, investment banking fees and
insurance consultant fees, amounts required to be applied to the repayment of Indebtedness secured
by a Lien permitted hereunder on any asset which is the subject of such Disposition or
Extraordinary Receipt (other than any Lien pursuant to a Collateral Document) and other customary
fees, expenses and other amounts reasonably incurred in connection therewith and net of taxes paid
or reasonably estimated to be payable as a result thereof within two years of the date of the
relevant Disposition or Extraordinary Receipt as a result of any gain recognized in connection
therewith (after taking into account any applicable tax credits or deductions and any tax sharing
arrangements).



“Newly Acquired Real Property Report” has the meaning specified in Section
6.02(f).



“Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit B.



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



 

 

 

 


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“Omnibus Agreement” means the Omnibus Agreement, dated December 17, 2002, among the
Borrower, the General Partner, the Ultimate General Partner, Crosstex Energy, Inc. and Crosstex
Energy Services, L.P.



“Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



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



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




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




“PBGC” means the Pension Benefit Guaranty Corporation.



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




 

 

 

 


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“Permitted Investments” means any of the following types of investments:




(a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of acquisition thereof;
provided that the full faith and credit of the United States of America is pledged
in support thereof;




(b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the
United States of America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the United States
of America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and surplus of at
least $1,000,000,000, in each case with maturities of not more than 180 days from the date
of acquisition thereof;




(c) commercial paper in an aggregate amount of no more than $10,000,000 per issuer
outstanding at any time issued by any Person organized under the laws of any state of the
United States of America and rated at least “Prime-1” (or the then equivalent grade) by
Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof; and




(d) investments, classified in accordance with GAAP as current assets of the Borrower
or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions that have
the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are
limited solely to investments of the character, quality and maturity described in clauses
(a), (b) and (c) of this definition.



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



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




“Platform” has the meaning specified in Section 6.02.



“Property” of any Person means any property or assets (whether real, personal, or
mixed, tangible or intangible) of such Person.




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



“Qualifying Owners” means collectively, (a) the Borrower and its Subsidiaries, (b)
Barry E. Davis or any of his Affiliates, (c) Crosstex Energy, Inc. and its Subsidiaries and (d) any
transferee of any of the foregoing to the extent such transferee is approved by a majority of the
ownership interests of the then-existing Qualifying Owners (other than the transferor) or any
Affiliate of the foregoing.



“Quarterly Distributions” means cash distributions by the Borrower during any fiscal
quarter in amounts that do not exceed the Available Cash.




 

 

 

 


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



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



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



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



“Required Lenders” means, as of any date of determination, at least two Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and
the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, at least two Lenders holding in the aggregate more than 50% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



“Responsible Officer” means the chief executive officer, president, chief financial
officer, any executive vice president, any senior vice president, vice president of finance,
treasurer, assistant treasurer or controller of a Loan Party (or its general partner or other
governing body, as applicable) and, solely for purposes of notices given pursuant to Article II,
any other officer or employee of the applicable Loan Party (or its general partner or other
governing body, as applicable) so designated by any of the foregoing officers in a notice to the
Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of
a Loan Party (or its general partner or other governing body, as applicable) shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.



“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).



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



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




 

 

 

 


AMENDED
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AGREEMENT —   Page 23











 







“Secured Cash Management Agreement” means any Cash Management Agreement that is
between the Borrower or any of its Subsidiaries, on the one hand, and any Cash Management Bank, on
the other hand.



“Secured Hedge Agreement” means any Swap Contract that is between the Borrower or any
of its Subsidiaries, on the one hand, and any Hedge Bank, on the other hand.



“Secured Obligations” means, collectively, the Obligations, the Cash Management
Obligations, and the Hedge Agreement Obligations.



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



“Security Agreements” means, collectively, any Security Agreement made by any Loan
Party in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in
the form of Exhibit F which shall include any supplements thereto.



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



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



 

 

 

 


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



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



“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



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




“Threshold Amount” means $20,000,000.



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



“Transaction Costs” means all (a) upfront, original issue discount, legal,
professional and advisory fees paid by the Borrower (whether or not incurred by the Borrower) in
connection with the negotiation and execution, delivery and performance of the Borrower’s
obligations under (i) this Agreement, (ii) the Indenture (and the Borrower’s issuance of
Indebtedness governed thereby) and (iii) the 2010 Equity Issuance, (b) payments made by the
Borrower to any counterparty to any Swap Contract in connection with the termination of such Swap
Contract as a result of the transactions contemplated by this Agreement and the Indenture, and (c)
make-whole amounts, prepayment premiums and interest paid in kind with respect to Indebtedness
prepaid on or before the Closing Date with the proceeds of the Indebtedness incurred pursuant to
this Agreement and the Indenture.




 

 

 

 


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



“Ultimate General Partner” means Crosstex Energy GP, LLC, a Delaware limited liability
company, and its successors and permitted assigns as general partner of the General Partner or as
the business entity with the ultimate authority to manage the business and operations of the
Borrower.



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




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




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



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




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




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




 

 

 

 


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




1.03 Accounting Terms.




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




(b) Changes in GAAP; Adoption of IFRS. If at any time any change in GAAP or
the required adoption by the Borrower of international financial reporting standards would
affect the computation of any financial ratio or requirement set forth in any Loan Document,
and either the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP or the
adoption of such international financial reporting standards (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such change
therein or the adoption of such international financial reporting standards and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP or the adoption of such international financial
reporting standards.



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



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



1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit
that, by its terms or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.




 

 

 

 


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ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Committed Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower
from time to time, on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations shall not exceed such Lender’s Commitment. Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.01, prepay under Section 2.04, and reborrow under this
Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.




2.02 Borrowings, Conversions and Continuations of Committed Loans.




(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such
notice must be received by the Administrative Agent not later than 12:00 p.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to, or
continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed
Loans; provided, however, that if the Borrower wishes to request Eurodollar
Rate Loans having an Interest Period other than one, two, three or six months in duration as
provided in the definition of “Interest Period,” the applicable notice must be received by
the Administrative Agent not later than 12:00 p.m. four Business Days prior to the requested
date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall
give prompt notice to the Lenders of such request and determine whether the requested
Interest Period is acceptable to all of them. Not later than 12:00 p.m., three Business
Days before the requested date of such Borrowing, conversion or continuation, the
Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or
not the requested Interest Period has been consented to by all the Lenders. Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly
by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to, or continuation of, Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in
Section 2.03(c), each Borrowing of, or conversion to, Base Rate Committed Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans
from one Type to the other, or a continuation of Eurodollar Rate Loans,




 

 

 

 


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(ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business
Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued,
(iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to
be converted, and (v) if applicable, the duration of the Interest Period with respect
thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan
Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of,
Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.




(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection. In the case of a
Committed Borrowing, each Lender shall make the amount of its Committed Loan available to
the Administrative Agent in immediately available funds at the Administrative Agent’s Office
not later than 2:00 p.m. on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower in like
funds as received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer
of such funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower; provided, however,
that if, on the date the Committed Loan Notice with respect to such Borrowing is given by
the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing,
first, shall be applied to the payment in full of any such L/C Borrowings, and
second, shall be made available to the Borrower as provided above.




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




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




 

 

 

 


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




2.03 Letters of Credit.




(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer
agrees, in reliance upon the agreements of the Lenders set forth in this Section
2.03, (1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit
for the account of the Borrower or its Subsidiaries, and to amend or extend Letters
of Credit previously issued by it, in accordance with subsection (b) below, and (2)
to honor drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Borrower or its
Subsidiaries and any drawings thereunder; provided that after giving effect
to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, and (y) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not
exceed such Lender’s Commitment. Each request by the Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by the
Borrower that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters
of Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed.




(ii) The L/C Issuer shall not issue, increase or extend any Letter of Credit
if:




(A) unless such issuance, increase, or extension would not cause the
Letter of Credit Obligations to exceed the Aggregate Commitments less the
aggregate outstanding principal amount of all Loans.




(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twenty-four months after
the date of issuance or last extension, unless the Required Lenders have
approved such expiry date; or




 

 

 

 


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




(iii) The L/C Issuer shall not be under any obligation to issue any Letter of
Credit if:




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




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




(C) except as otherwise agreed by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less than
$25,000;




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




(E) subject to Section 2.03(b)(iv), such Letter of Credit
contains any provisions for automatic reinstatement of the stated amount
after any drawing thereunder; or




(F) a default of any Lender’s obligations to fund under Section
2.03(c) exists or any Lender is at such time an Impacted Lender
hereunder, unless the L/C Issuer has entered into satisfactory arrangements
with the Borrower or such Lender to eliminate the L/C Issuer’s risk with
respect to such Lender.




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




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




 

 

 

 


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




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




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the Borrower. Such Letter of
Credit Application must be received by the L/C Issuer and the Administrative Agent
not later than 12:00 p.m. at least one Business Day (or such later date and time as
the Administrative Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of amendment, as
the case may be; provided, however, amendments to Letters of Credit
backstopping margin requirements shall be issued on the same Business Day as
requested so long as the Letter of Credit Application is received by 12:00 p.m. In
the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C Issuer:
(A) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of the requested Letter of Credit; and (H) such other matters as
the L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may reasonably require. Additionally, the Borrower shall furnish to the L/C
Issuer and the Administrative Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may reasonably require.




 

 

 

 


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




(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue
a Letter of Credit that has automatic extension provisions (each, an
“Auto-Extension Letter of Credit”); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to
make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the extension of such
Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter of Credit
in its revised form (as extended) under the terms hereof (by reason of the
provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Lender or the Borrower that one
or more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such
extension.




 

 

 

 


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




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




(c) Drawings and Reimbursements; Funding of Participations.




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



 

 

 

 


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(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent’s Office in an amount equal to its Applicable Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.




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




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




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




 

 

 

 


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




(d) Repayment of Participations.




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




(ii) If any payment received by the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under
any of the circumstances described in Section 10.05 (including pursuant to
any settlement entered into by the L/C Issuer in its discretion), each Lender shall
pay to the Administrative Agent for the account of the L/C Issuer its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.




 

 

 

 


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




(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;




(ii) the existence of any claim, counterclaim, setoff, defense or other right
that the Borrower or any Subsidiary may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the L/C Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;




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




(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms
of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;
or




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



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




(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of
the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with the approval
of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any
Letter of




 

 

 

 


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Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be
liable or responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided, however, that anything in such clauses to
the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to
it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms
and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or information to
the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason.




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




(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall
apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the International Chamber of
Commerce at the time of issuance shall apply to each commercial Letter of Credit.




 

 

 

 


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(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent
for the account of each Lender (except for any Defaulting Lender) in accordance with its
Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily amount available to be
drawn under such Letter of Credit (but excluding that portion of any Letter of Credit that
has been Cash Collateralized by the Borrower). For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i)
due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed
on a quarterly basis in arrears. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.




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




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




(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter
of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer
hereunder for any and all drawings under such Letter of Credit. The Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures
to the benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Subsidiaries.




 

 

 

 


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2.04 Optional Prepayments. The Borrower may, upon notice to the Administrative Agent,
at any time or from time to time voluntarily prepay Committed Loans in whole or in part without
premium or penalty; provided that (a) such notice must be received by the Administrative
Agent not later than 12:00 p.m. (i) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans and (ii) on the date of prepayment of Base Rate Committed Loans; (b) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (c) any prepayment of Base Rate Committed Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each
case, if less, the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid
and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate
Loan shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall be
applied to the Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.




2.05 Mandatory Prepayments.




(a) Dispositions. Upon the occurrence of any Disposition by Borrower or any of
its Subsidiaries which results in the realization by such Person of Net Cash Proceeds, the
Borrower shall prepay the Loans by an amount equal to 100% of such Net Cash Proceeds
immediately upon receipt thereof by such Person, provided, however, that (i)
so long as no Default or Event of Default has occurred and is continuing, the first
$5,000,000 of such Net Cash Proceeds received in any fiscal year (the “Exempt
Proceeds”) shall not be subject to the mandatory prepayment requirements set forth in
this Section 2.05(a), and (ii) with respect to any Net Cash Proceeds realized under
a Disposition described in this Section 2.05(a) in excess of the Exempt Proceeds, at
the election of the Borrower (as notified by the Borrower to the Administrative Agent on or
prior to the date of such Disposition), and so long as no Default shall have occurred and be
continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash
Proceeds in operating assets so long as within six months after the receipt of such Net Cash
Proceeds, such reinvestment shall have been consummated (as certified by the Borrower in
writing to the Administrative Agent), provided, further, however,
that (x) any Net Cash Proceeds not so reinvested within such six month period shall be
immediately applied to the prepayment of the Loans as set forth in this Section
2.05(a) and (y) if a Default has occurred and is continuing at any time that a Borrower
or a Subsidiary receives or is holding any Net Cash Proceeds which have not yet been
reinvested, such Net Cash Proceeds shall be immediately applied to the prepayment of the
Loans as set forth in this Section 2.05(a). The provisions of this section do not
constitute consent to any Dispositions by the Borrower or any of its Subsidiaries not
otherwise permitted hereunder.




 

 

 

 


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(b) Extraordinary Receipts. Upon the occurrence of any event that results in
the realization by the Borrower or any Subsidiary of any Extraordinary Receipt not otherwise
included in Section 2.05(a), the Borrower shall prepay the Loans by an amount equal
to 100% of the Net Cash Proceeds from such Extraordinary Receipt immediately upon receipt
thereof by such Person, provided, however, that (i) so long as no Default or
Event of Default has occurred and is continuing, the first $5,000,000 of such Extraordinary
Receipts received in any fiscal year (the “Exempt Receipts”) shall not be subject to
the mandatory prepayment requirements set forth in this Section 2.05(b) and (ii)
with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof)
or indemnity payments in excess of the Exempt Receipts, at the election of the Borrower (as
notified by the Borrower to the Administrative Agent on or prior to the date of receipt of
such insurance proceeds, condemnation awards or indemnity payments), and so long as no
Default shall have occurred and be continuing, the Borrower or such Subsidiary may replace
or repair the Property in respect of which such Net Cash Proceeds were received so long as
within six months after the receipt of such Net Cash Proceeds, such repair or replacement
shall have been consummated, provided, further, however, that (x)
any Net Cash Proceeds not so applied within such six month period shall be immediately
applied to the prepayment of the Loans as set forth in this Section 2.05(b) and (y)
if a Default has occurred and is continuing at any time that the Borrower or such
Subsidiary receives or is holding any Net Cash Proceeds which have not yet been applied to
replace or repair the Property in respect of which such cash proceeds were received, such
Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as set forth
in this Section 2.05(b).




(c) Indebtedness Issuance. If any Indebtedness for borrowed money shall be
issued or incurred by the Borrower or any of its Subsidiaries (excluding any Debt issued or
incurred as permitted by Section 7.03), then on the date of such issuance or
incurrence, the Loans shall be prepaid by an amount equal to 100% of the amount of the Net
Cash Proceeds of such issuance or incurrence. The provisions of this Section do not
constitute consent to the issuance or incurrence of any Indebtedness by the Borrower or any
of its Subsidiaries not otherwise permitted hereunder.




(d) Equity Issuance. Upon receipt by the Borrower or any Subsidiary of Equity
Issuance Proceeds from any Equity Issuance by the Borrower or any Subsidiary, the Borrower
shall prepay the Loans by an amount equal to (i) if the Consolidated Leverage Ratio is
greater than 5.00 to 1.00, 100% of such Equity Issuance Proceeds and (ii) if the
Consolidated Leverage Ratio is greater than 4.00 to 1.00 but less than or equal to 5.00 to
1.00, 50% of such Equity Issuance Proceeds.




(e) Accrued Interest. Each prepayment under this Section 2.05 shall be
accompanied by accrued interest on the amount prepaid to the date of such prepayment and
amounts, if any, required to be paid pursuant to Section 3.05 as a result of such
prepayment.



 

 

 

 


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(f) Commitment Reductions. Notwithstanding anything to the contrary herein,
the Aggregate Commitments shall not be permanently reduced by any mandatory prepayments
required by Section 2.05(a), (b), (c) or (d).




(g) Total Outstandings Exceed Aggregate Commitments. If for any reason the
Total Outstandings at any time exceed the Aggregate Commitments then in effect, including
the reduction of Aggregate Commitments pursuant to Section 2.06, the Borrower shall
immediately prepay the Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section 2.05(g) unless after
the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments
then in effect.



2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 12:00 p.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not terminate or
reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each
Lender according to its Applicable Percentage. All fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of such termination.



2.07 Repayment of Loans. The Borrower shall repay to the Lenders on the Maturity Date
the aggregate principal amount of Committed Loans outstanding on such date.




2.08 Interest.




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




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




 

 

 

 


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(ii) If any amount (other than principal of any Loan) payable by the Borrower
under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, then upon the request of the Required Lenders, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.




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




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




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



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




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




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




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




 

 

 

 


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2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) All computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.




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




2.11 Evidence of Indebtedness.




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




 

 

 

 


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




2.12 Payments Generally; Administrative Agent’s Clawback.




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




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing
of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such
Lender will not make available to the Administrative Agent such Lender’s share of such
Committed Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in the case of a
Committed Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Committed Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the foregoing, and
(B) in the case of a payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. 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 Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan
included in such Committed Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.




 

 

 

 


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




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




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




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




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



 

 

 

 


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2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of the Committed Loans made by it, or the participations in L/C Obligations held by it
resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Committed Loans and subparticipations in L/C Obligations of the other
Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Committed Loans and other amounts owing them,
provided that:




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




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



Notwithstanding the foregoing or anything to the contrary contained herein, (A) if any
Defaulting Lender shall have failed to fund all or any portion of any Committed Loan or any
participation with respect to a Letter of Credit (each such Committed Loan or participation
interest, an “Affected Loan”), each payment by the Borrower hereunder shall be applied
first to such Affected Loan and the principal amount and interest with respect to such payment
shall be distributed (I) to each Lender that is not a Defaulting Lender (each, a
“Non-Defaulting Lender”) pro rata based on the outstanding principal amount of Affected
Loans owing to all Non-Defaulting Lenders, until the principal amount of all Affected Loans has
been repaid in full and (II) to the extent of any remaining amount of such payment, to each Lender
pro rata in accordance with such Lender’s Applicable Percentage, and (B) each payment made by the
Borrower on account of the interest on any Affected Loans shall be distributed to each
Non-Defaulting Lender pro rata based on the outstanding principal amount of Affected Loans owing to
all Non-Defaulting Lenders. The Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a participation pursuant to
the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of the Borrower in
the amount of such participation.




 

 

 

 


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2.14 Increase in Commitments.




(a) Request for Increase. Provided there exists no Default, upon notice to and
the approval of the Administrative Agent (which shall promptly notify the Lenders), which
approval will not be unreasonably withheld or delayed, the Borrower may from time to time,
request an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $100,000,000; provided that (i) any such request for an increase shall be
in a minimum amount of $10,000,000, and (ii) the Borrower may make a maximum of three such
requests (excluding any such requests that are denied by the Administrative Agent or are not
consummated). At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).




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




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




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




(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed
by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of
the Borrower, certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan Documents
are true and correct in all material respects on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct in all material respects as of such
earlier date, and except that for purposes of this Section 2.14, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of
Section 6.01, and (B) no Default exists. The Borrower shall prepay any
Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep the outstanding
Committed Loans ratable with any revised Applicable Percentages arising from any nonratable
increase in the Commitments under this Section.





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




 

 

 

 


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ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY





3.01 Taxes.




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




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




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



 

 

 

 


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(c) Tax Indemnifications. (i) Without limiting the provisions of subsection
(a) or (b) above, the Borrower shall indemnify the Administrative Agent, each Lender and the
L/C Issuer, and shall make payment in respect thereof within 10 days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, with
respect to the obligations hereunder 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.
The Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, for any amount which a
Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative
Agent as required by clause (ii) of this subsection. A certificate setting forth in
reasonable detail (without disclosing any confidential information) the calculation of the
amount of such payment or liability delivered to the Borrower by a Lender or the L/C Issuer
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.
Notwithstanding anything to the contrary in this Agreement or any other Loan Document, the
Loan Parties are not indemnifying any Person for Excluded Taxes.




(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender
and the L/C Issuer shall, and does hereby, indemnify the Loan Parties and the
Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and
disbursements of any counsel for the Borrower or the Administrative Agent) incurred
by or asserted against any Loan Party or the Administrative Agent by any
Governmental Authority as a result of the failure by such Lender or the L/C Issuer,
as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by such Lender or the L/C
Issuer, as the case may be, to the applicable Loan Party or the Administrative Agent
pursuant to subsection (e). Each Lender and the L/C Issuer hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to
such Lender or the L/C Issuer, as the case may be, under this Agreement or any other
Loan Document against any amount due to the Administrative Agent under this clause
(ii). The agreements in this clause (ii) shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the
replacement of, a Lender or the L/C Issuer, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all other Obligations.




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




 

 

 

 


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




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




(A) any Lender that is a “United States person” within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Borrower and the
Administrative Agent, on or prior to the date on which such Lender becomes a
Lender under this Agreement, two (2) executed originals of Internal Revenue
Service Form W-9 or such other documentation or information prescribed by
applicable Laws or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative
Agent, as the case may be, to determine whether or not such Lender is
subject to backup withholding or information reporting requirements; and




(B) each Foreign Lender shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter
promptly upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:




(I) two (2) executed originals of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,




(II) two (2) executed originals of Internal Revenue Service Form
W-8ECI,




 

 

 

 


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(III) two (2) executed originals of Internal Revenue Service
Form W-8IMY and all required supporting documentation,




(IV) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the
Code, (x) a certificate to the effect that such Foreign Lender is not
(A) a “bank” within the meaning of section 881(c)(3)(A) of the Code,
(B) a “10 percent shareholder” of the Borrower within the meaning of
section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y)
two (2) executed originals of Internal Revenue Service Form W-8BEN,
or




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




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




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




 

 

 

 


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3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest
rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Committed Loans to Eurodollar Rate Loans shall be suspended until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from
such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate
Loans. Notwithstanding the foregoing and despite the illegality for such a Lender to make,
maintain or fund Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is
determined with reference to the Eurodollar Rate, that Lender shall remain committed to make Base
Rate Loans and, subject to applicable Law, shall be entitled to recover interest at the Base Rate
plus the Applicable Rate. Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted.



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




 

 

 

 


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3.04 Increased Costs; Reserves on Eurodollar Rate Loans.




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




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




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




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




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




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




 

 

 

 


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




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




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



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




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




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




 

 

 

 


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



including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.



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




3.06 Mitigation Obligations; Replacement of Lenders.




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




(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender is an Impacted Lender, the Borrower may replace such Lender in
accordance with Section 10.13.



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




 

 

 

 


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ARTICLE IV




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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




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




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




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




(iii) a Guaranty executed by each Material Subsidiary;




(iv) a Security Agreement, executed by Borrower and each Material Subsidiary,
together with:




(A) to the extent required under the Security Agreement certificates
representing the pledged Equity Interests referred to therein which
certificates should not contain any restrictions on transfer not acceptable
to the Administrative Agent, and accompanied by undated stock powers
executed in blank and instruments evidencing the pledged Indebtedness (if
any) in an amount in excess of $500,000 in the aggregate endorsed in blank,
and




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




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




 

 

 

 


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




(vii) evidence that the Borrower’s and each Guarantor’s Organization Documents
contain no restrictions prohibiting the Borrower or such Guarantor from executing
any Loan Documents to which such Person is a party;




(viii) evidence that all restrictions on transfer of any Equity Interest of
each Subsidiary contained in such Subsidiary’s Organization Documents, voting
rights, warrant, option, or similar agreement related to such entity are waived or
modified in form and substance satisfactory to the Required Lenders;




(ix) a favorable opinion of Baker Botts L.L.P., counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters concerning
the Loan Parties and the Loan Documents as the Required Lenders may reasonably
request;




(x) a favorable opinion of Taylor, Porter, Brooks & Phillips, L.L.P., special
Louisiana counsel to Borrower, Crosstex LIG, LLC, Crosstex LIG Liquids, LLC and
Crosstex Tuscaloosa, LLC;




(xi) a certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals required in connection with
the execution, delivery and performance by such Loan Party and the validity against
such Loan Party of the Loan Documents to which it is a party, and such consents,
licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;




(xii) a certificate signed by a Responsible Officer of the Borrower certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have
been satisfied, and (B) that there has been no event or circumstance since the date
of the Audited Financial Statements not otherwise disclosed by the Borrower in a
public filing that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;




(xiii) a duly completed pro forma Compliance Certificate as of December 31,
2009, in form and substance acceptable to the Administrative Agent giving pro forma
effect to the notes to be issued pursuant to the Indenture, the 2010 Equity
Issuance, the East Texas Sale, and the Intra-coastal Acquisition signed by a
Responsible Officer of the Borrower;




 

 

 

 


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(xiv) results of lien, tax, judgment and UCC searches in the secretary of state
of each jurisdiction of organization of each Loan Party and applicable counties as
reasonably determined by the Administrative Agent from a source acceptable to the
Administrative Agent and reflecting no Liens against any of the Collateral as to
which perfection of a Lien is accomplished by the filing of a financing statement
other than in favor of the Administrative Agent and Liens permitted by Section
7.01;




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




(xvi) evidence of the consummation, extension and issuance of the (A) notes to
be issued pursuant to the Indenture (which notes may be issued contemporaneously
with the closing of this Agreement) and (B) the 2010 Equity Issuance, in form and
substance satisfactory to the Administrative Agent, the Arranger and the Lenders and
the combined gross proceeds shall not be less than $650,000,000;




(xvii) pro forma balance sheets of the Borrower and its Subsidiaries in form
and substance reasonably satisfactory to the Administrative Agent and the Lenders;
and




(xviii) such other assurances, certificates, documents, consents or opinions as
the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may
require.




(b) The Lenders shall have completed a due diligence investigation of the Loan Parties’
respective assets which constitute Collateral and financial condition in scope, and with
results, reasonably satisfactory to the Lenders, and shall have been given such access to
the management, records, books of account, properties and contracts of the Loan Parties and
shall have received such financial and business information regarding each of the Loan
Parties and businesses as shall have been reasonably requested, including, without
limitation, information as to possible contingent liabilities, tax matters, collective
bargaining agreement and other arrangements with employees, the Audited Financial
Statements, interim financial statements of the Borrower and its Subsidiaries dated the end
of the most recent fiscal quarter for which financial statements are available and the
Borrower’s financial projections covering the term of this Agreement.




(c) All of the Borrower’s senior notes issued under the Note Agreement (as defined in
the Existing Credit Agreement) shall have been repaid in full prior to, or contemporaneously
with, the closing of this Agreement.




(d) After taking into account the initial Credit Extension, the Borrower shall have not
less than $75,000,000 of combined availability under the Aggregate Commitments and cash on
hand.




 

 

 

 


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(e) All of the information provided (other than projections) to the Administrative
Agent and the Lenders shall be complete and correct in all material respects, no changes or
developments shall have occurred, and no new or additional information, shall have been
received or discovered by the Administrative Agent or the Lenders regarding the Borrower or
its Subsidiaries or the transactions contemplated hereby, after the date such due diligence
investigation has been completed that (i) either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or (ii) purports to materially
adversely affect this Agreement or any other aspect of the transactions contemplated
thereby, and nothing shall have come to the attention of the Lenders to lead them to
reasonably believe that (A) the information memorandum was or has become misleading,
incorrect or incomplete in any material respect or (B) transactions contemplated hereby will
have a Material Adverse Effect.




(f) (i) Any fees required to be paid to the Administrative Agent and the Arranger on or
before the Closing Date shall have been paid and (ii) all fees and expenses (other than fees
and expenses of any counsel for any Lender) required to be paid to the Lenders on or before
the Closing Date shall have been paid, in each case, pursuant to the Fee Letter and the
commitment letter described therein.




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



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



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




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




 

 

 

 


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




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



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



ARTICLE V




REPRESENTATIONS AND WARRANTIES





The Borrower represents and warrants to the Administrative Agent and the Lenders that:



5.01 Existence, Qualification and Power. Each Loan Party (a) is duly organized or
formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of
its incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and
carry on its business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.



5.02 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under (other than Liens created under the Loan
Documents), or require any payment to be made (other than payments required under any Loan
Document) under (i) any Contractual Obligation to which such Person is a party or affecting such
Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law; except in
each case referred to in clause (b), to the extent that such conflict, breach, contravention
or violation could not reasonably be expected to have a Material Adverse Effect.




 

 

 

 


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5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for
such approvals, consents, exemptions, authorizations, other actions, notices and filings as have
been obtained, taken, given or made and are in full force and effect and with which the Borrower
and its Subsidiaries are in compliance in all material respects or which the failure to have would
not result in a Material Adverse Effect.



5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting
creditors’ rights generally or by general principles of equity (regardless of whether such
enforceability is considered in any proceeding in law or in equity).




5.05 Financial Statements; No Material Adverse Effect.




(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (ii) fairly present in all material respects the financial condition of
the Borrower and its Subsidiaries as of the date thereof and their results of operations for
the period covered thereby in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein.




(b) The unaudited consolidated balance sheets of the Borrower and its Subsidiaries
dated September 30, 2009, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.




(c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, not otherwise disclosed by the Borrower in a public filing prior to the
Closing Date, that has had or could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect.




(d) The consolidated pro forma balance sheet[s] of the Borrower and its Subsidiaries as
at December 31, 2009, certified by a Responsible Officer of the Borrower,
copies of which have been furnished to each Lender, fairly present in all material
respects the consolidated pro forma financial condition of the Borrower and its Subsidiaries
as at such date and the consolidated pro forma results of operations of the Borrower and its
Subsidiaries for the period ended on such date.




 

 

 

 


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5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Borrower after due and diligent investigation, threatened, at law, in
equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of
its Subsidiaries or against any of their properties or revenues that (a) purport to pertain to this
Agreement or any other Loan Document, or the making of Credit Extensions hereunder, or (b) except
as specifically disclosed in Schedule 5.06, either individually or in the aggregate, if
determined adversely, could reasonably be expected to have a Material Adverse Effect, and there has
been no adverse change in the status, or financial effect on any Loan Party or any Subsidiary
thereof of the matters described on Schedule 5.06, that could reasonably be expected to
have a Material Adverse Effect.



5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default
under or with respect to any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred that
is continuing or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.



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



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



5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts
(after giving effect to any self-insurance compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates and, to the extent available to the Borrower on commercially reasonable terms,
providing for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse
or cancellation of such insurance.



5.11 Taxes. The Borrower and its Subsidiaries have filed or caused to be filed, or an
extension has been obtained for the filing of, all Federal, state and other material tax
returns and reports required to be filed, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties or assets that are due and payable, except (a) those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, there
is no proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax
sharing agreement that is not with any other Loan Party.




 

 

 

 


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5.12 ERISA Compliance.




(a) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws, except as would not reasonably be
expected to have a Material Adverse Effect. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto
and, to the best knowledge of the Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification, except as would not reasonably be expected to have a
Material Adverse Effect. The Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no application for a
funding waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.




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




(c) Except as would not reasonably be expected to have a Material Adverse Effect, (i)
no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any
Unfunded Pension Liability; and (iii) neither the Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.



5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all
of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid
and non-assessable and are owned by the Borrower or a Subsidiary in the amounts specified on Part
(a) of Schedule 5.13 free and clear of all Liens other than Liens permitted by Section
7.01. As of the Closing Date, the Borrower does not have any Material Subsidiaries other than
as indicated by noting them as “Material” on Part (a) of Schedule 5.13. As of the Closing
Date, the Borrower has no equity investments in any other corporation or entity other than those
specifically disclosed in Part (b) of Schedule 5.13.




5.14 Margin Regulations; Investment Company Act.




(a) The Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock.




 

 

 

 


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(b) None of the Borrower or any Subsidiary is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.



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



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



5.17 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.



5.18 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or
possess the right to use, or can acquire on reasonable terms, all of the trademarks, service marks,
trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the knowledge of the Borrower, no slogan
or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any
rights held by any other Person that would reasonably be expected to have a Material Adverse
Effect. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge
of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.



5.19 Solvency. The Borrower is, together with its Subsidiaries on a consolidated
basis, Solvent.




 

 

 

 


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5.20 Ownership. The General Partner is the sole general partner of the Borrower with,
as of the date hereof, a 2% general partner interest in the Borrower. No part of the partnership
interests in the Borrower is subject to any Lien granted by the General Partner or Crosstex
Holdings, L.P., other than preferential rights of the partners under the Borrower Partnership
Agreement.



5.21 Real Property Interests; Description of Real Property Interests. As of the
Closing Date, the Borrower has disclosed to the Administrative Agent a complete and correct list of
substantially all interests of each Loan Party in real property, including recording information
and a full legal description (sufficient for recording in the real estate records in the
jurisdiction in which such real property is located) to the extent available of substantially all
real property owned or leased by such Loan Party as of December 31, 2009 (other than any such real
property that has been Disposed of since such date, but including all real property owned by the
Loan Parties that was acquired in the Intra-Coastal Acquisition), including, but not limited to,
substantially all land, servitudes, easements, rights of way and prescriptions and substantially
all of the transportation, gathering, storage, treating, processing, terminalling and transmission
assets owned by such Loan Party.



5.22 Use of Proceeds. The Borrower has, or has caused, all proceeds from the Loans to
be used in compliance with Section 6.11 of this Agreement.



5.23 Commodity Contracts. The Borrower has not entered into, assumed, or acquired any
interest in, nor has it permitted any Subsidiary to enter into, assume or acquire any interest in,
a contract or obligation not in compliance with Section 7.17 of this Agreement.



ARTICLE VI




AFFIRMATIVE COVENANTS




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




6.01 Financial Statements. Deliver to the Administrative Agent:




(a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower (commencing with the fiscal year ended December 31, 2009), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations, changes in
shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, such consolidated statements to be audited and accompanied
by a report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which
report and opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification or any
qualification as to the scope of such audit; and




 

 

 

 


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(b) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal
quarter ending March 31, 2010), a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of
income or operations for such fiscal quarter and for the portion of the Borrower’s fiscal
year then ended, and the related consolidated statements of changes in shareholders’ equity,
and cash flows for the portion of the Borrower’s fiscal year then ended, in each case
setting forth in comparative form, as applicable, the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail, such consolidated statements to be certified by a
Responsible Officer of the Borrower as fairly presenting in all material respects the
financial condition, results of operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.



As to any information contained in materials furnished pursuant to Section 6.02(c),
the Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish
the information and materials described in clauses (a) and (b) above at the times specified
therein.




6.02 Certificates; Other Information. Deliver to the Administrative Agent:




(a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal year ended December 31, 2009), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;




(b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them;




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




(d) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or any Subsidiary thereof
pursuant to the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any
other clause of this Section 6.02;




 

 

 

 


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(e) promptly, and in any event within five Business Days after receipt thereof by any
Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency regarding financial
or other operational results of any Loan Party or any Subsidiary thereof;




(f) promptly, and in any event within 60 days after each June 30 and December 31 of
each year, commencing with the period ending June 30, 2010, a summary of substantially all
new real property interests (including owned and leased properties, easements and other
property interests) acquired and/or recorded by the Borrower or any Subsidiary (“Newly
Acquired Real Property Report”) during the preceding six month period ending on such
June 30 or December 31, as applicable;




(g) as soon as available, but in any event within 45 days after the end of the first
three fiscal quarters of each fiscal year of the Borrower and within 90 days after the end
of the last fiscal quarter of each fiscal year of the Borrower, commencing with the fiscal
quarter ending March 31, 2010, a report detailing capital expenditures (i) actually made
during such fiscal year of the Borrower compared to the budgeted amount therefor and (ii)
projected for the remainder of such fiscal year;




(h) as soon as available, but in any event within 60 days after the end of each fiscal
year of the Borrower, an annual business plan and budget of the Borrower and its
Subsidiaries on a consolidated basis, prepared on a basis consistent with past practices,
including forecasts prepared by management of the Borrower, in form reasonably satisfactory
to the Administrative Agent;




(i) as soon as available, but in any event within 120 days after the end of each fiscal
year of the Borrower commencing with the fiscal year ending December 31, 2010, updated
schedules to the Security Agreement as required therein (which schedules shall restate (and
not supplement) such prior schedules in their entirety), prepared on a basis consistent with
past practices, in form reasonably satisfactory to the Administrative Agent; and




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



 

 

 

 


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



The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
that so long as the Borrower is the issuer of any outstanding debt or equity securities that are
registered or issued pursuant to a private offering or is actively contemplating issuing any such
securities (w) all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer
and the Lenders to treat such Borrower Materials as not containing any material non-public
information with respect to the Borrower or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 10.07); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform that is not designated “Public Side Information.”
Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC.”




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




(a) of the occurrence of any Default;



 

 

 

 


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




(c) of the occurrence of any ERISA Event with respect to a Pension Plan or
Multiemployer Plan that has resulted or could reasonably be expected to result in liability
of the Borrower or any ERISA Affiliate under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000;




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




(e) of any event or occurrence that requires a mandatory prepayment under Section
2.05, unless the Borrower has made such mandatory prepayment.



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



6.04 Payment of Taxes, Etc. Pay and discharge before the same shall become
delinquent, all lawful governmental claims, taxes, assessments, charges and levies, except where
(a) contested in good faith, by proper proceedings and adequate reserves therefor have been
established on the books of the Borrower or the appropriate Subsidiary in conformity with GAAP or
(b) the failure to so pay and discharge would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.



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



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




 

 

 

 


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6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies not Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates, of such types and in such amounts (after giving effect to any
self-insurance compatible with the following standards) as are customarily carried under similar
circumstances by such other Persons and, to the extent available to the Borrower on commercially
reasonable terms, providing for not less than 30 days’ prior notice to the Administrative Agent of
termination, lapse or cancellation of such insurance.



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



6.09 Books and Records. (a) Maintain proper books of record and account, in which
full, true and correct in all material respects entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the assets and business
of the Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and
account in material conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.



6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors and officers, and, provided that the
Borrower has been given reasonable opportunity to be present, with its independent public
accountants, all at the reasonable expense of the Borrower and at such reasonable times during
normal business hours and upon reasonable advance notice to the Borrower; provided,
however, that unless an Event of Default has occurred and is continuing, the Administrative
Agent and each Lender’s visitation rights shall be limited to no more than two occasions in any
calendar year by the Administrative or such Lender; provided further,
however, that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and without advance notice.



6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for (a) general
corporate purposes not in contravention of any Law or of any Loan Document including working
capital and any other transactions permitted in this Agreement, (b) to refinance existing
Indebtedness and to pay related expenses at closing, and (c) as Hydrocarbon Cash Collateral
provided to a Person who is not a Hedge Bank; provided, however, Credit
Extensions for Hydrocarbon Cash Collateral shall not exceed $50,000,000 at any time outstanding.




 

 

 

 


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6.12 Additional Material Subsidiaries; Additional Security. (a) Upon the formation or
Acquisition of any new direct or indirect Material Subsidiary (including any Subsidiary that
becomes a Material Subsidiary) by any Loan Party, then the Borrower shall, at the Borrower’s
expense:




(i) within 30 Business Days (or such longer period as permitted by the
Administrative Agent in its sole discretion) after such formation or Acquisition or
such Subsidiary becoming a Material Subsidiary, cause such Subsidiary to duly
execute and deliver to the Administrative Agent a supplement to the Guaranty
substantially in the form attached thereto; and




(ii) within 30 Business Days (or such longer period as permitted by the
Administrative Agent in its sole discretion) after such formation or Acquisition or
such Subsidiary becoming a Material Subsidiary, cause such Subsidiary to duly
execute and deliver to the Administrative Agent Collateral Documents, as specified
by and in form and substance reasonably satisfactory to the Administrative Agent
securing payment of all the Secured Obligations of such Subsidiary under the Loan
Documents.




(b) At any time upon the request of the Administrative Agent, promptly execute and
deliver any and all further instruments and documents and take all such other action as the
Administrative Agent may reasonably deem necessary or desirable in order to perfect,
protect, and preserve the Liens of, such Collateral Documents. In connection with the
delivery of any Mortgages to the Administrative Agent as required under this Agreement, as
promptly as practicable after the reasonable request of the Administrative Agent, deliver to
the Administrative Agent real property title reports, surveys and engineering, and
environmental assessment reports, each in scope, form and substance reasonably satisfactory
to Administrative Agent.



6.13 Compliance with Environmental Laws. The Borrower will (a) comply, and cause each
Subsidiary to comply with all applicable Environmental Laws except in such instances in which (i)
such requirement of law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (ii) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect, (b) obtain and renew, and cause each
Subsidiary to obtain and renew, when needed, all material environmental permits necessary for its
current operations and currently owned and operated properties that, if not obtained and renewed,
would reasonably be expected to have a Material Adverse Effect, (c) conduct, and cause each
Subsidiary to conduct, any investigation, study, sampling and testing at properties currently owned
and operated by the Borrower or any Subsidiary as required and in accordance with the requirements
of all applicable Environmental Laws and (d) undertake, and cause each Subsidiary to undertake, any
cleanup, removal, remedial and other action necessary to remove and clean up all Hazardous
Materials from any of its currently owned or operated properties, in accordance with the material
requirements of all applicable Environmental Laws, the noncompliance with which would reasonably be
expected to have a Material Adverse Effect.




 

 

 

 


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6.14 Environmental Remediation and Indemnification. If at any time any Hazardous
Material is discovered on, under or about any Property subject to a Mortgage or any other property
owned or operated by the Borrower or any Subsidiary (“Other Property”) and failure to
remediate the same would cause the Borrower or any Subsidiary to be in violation of any
Environmental Law that would reasonably be expected to have a Material Adverse Effect, the Borrower
will inform the Administrative Agent of the same and of the Borrower’s proposed remediation
program, and the Borrower or such Subsidiary will, at no cost and expense to the Administrative
Agent or the Lenders, and only to the extent of any legal requirement under applicable
Environmental Laws for the Borrower or such Subsidiary to do so, remediate or remove such Hazardous
Materials from such Property subject to a Mortgage or Other Property or the groundwater underlying
such Property subject to a Mortgage or Other Property in accordance with (a) such remediation
program as a prudent operator would undertake, (b) the approval of the appropriate Governmental
Authority, if any such approval is required under the applicable Environmental Laws, and (c) all
applicable Environmental Laws the noncompliance with which would reasonably be expected to have a
Material Adverse Effect. The Borrower and any Subsidiary shall have the right to contest any
notice or directive by any appropriate Governmental Authority to remediate or remove Hazardous
Materials from any Property subject to a Mortgage or Other Property so long as the Borrower or such
Subsidiary diligently prosecutes such contest to completion and complies with any final order or
determination. The Borrower shall be solely responsible for, and will indemnify and hold harmless
the Administrative Agent, the Bookrunner, the Lead Arranger, and the Lenders and their respective
directors, officers, employees, agents, successors and assigns from and against, any and all
losses, damages, demands, claims, causes of action, judgments, actions, assessments, penalties,
costs, expenses and liabilities to the extent that they directly or indirectly arise out of or are
attributable to the release of any Hazardous Materials at any Property subject to a Mortgage or
Other Property, including the following: (i) all foreseeable and unforeseeable consequential
damages; (ii) the costs of any repair, cleanup or detoxification of any Property subject to a
Mortgage or Other Property required by any applicable Environmental Laws, and the preparation and
implementation of any closure, remedial or other plans required by any applicable Environmental
Laws; and (iii) all reasonable costs and expenses incurred by the Administrative Agent or any
Lender in connection with clauses (i) and (ii) above, including reasonable attorneys’ fees;
provided, however, that the Borrower shall not be liable for any of the foregoing
if a final, nonappealable judgment by a court of competent jurisdiction finds that such losses,
damages, demands, claims, causes of action, judgments, actions, assessments, penalties, costs,
expenses or liabilities resulted from the gross negligence or willful misconduct of an indemnified
party. The indemnities provided in this section shall survive the repayment or any other
satisfaction of the Obligations of the Borrower under the Loan Documents.



6.15 Newly Acquired Real Property. Within 90 days (or such longer period as permitted
by the Administrative Agent in its sole discretion) after each Newly Acquired Real Property Report
is due but in any event within 180 days after each Newly Acquired Real Property Report is due, the
Administrative Agent shall have received deeds of trust, trust deeds, deeds to secure debt,
mortgages, leasehold mortgages and leasehold deeds of trust, in form reasonably satisfactory to the
Administrative Agent and its counsel, covering substantially all real property interests owned by
the Borrower and each Guarantor as reflected on the Newly Acquired Real Property Report (other than
any such real property that the Administrative Agent shall determine a perfected Lien is
unnecessary due to the cost in relation to the benefit.




 

 

 

 


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6.16 Deposit Accounts, Disbursement Accounts and Other Cash Management Accounts. The
Borrower shall and cause its Subsidiaries to maintain its deposit accounts, disbursement accounts
and other cash management accounts (other than (i) any such account serving as cash collateral to
the extent permitted by Section 7.01, (ii) accounts that, in the aggregate, have no more
than $500,000 on deposit therein for more than five (5) consecutive Business Days, and (iii)
accounts maintained with JPMorgan Chase, N.A., Union Bank of California and their Affiliates that
are closed within one year after the Closing Date, all such non-excluded accounts, collectively,
the “Cash Management Accounts”) with a Lender or an Affiliate of a Lender,
provided, however, to the extent that a Cash Management Account is with a Lender or
an Affiliate of a Lender that ceases to be a party to the Loan Documents, the Borrower shall cause
such account to be transferred to another Lender or Affiliate of a Lender or closed within 30 days
(or such longer period as permitted by the Administrative Agent in its sole discretion) after such
Lender ceases to be a party to the Loan Documents.



6.17 Clean Down Period. During each calendar year during the term of this Agreement,
there shall be a period of fifteen (15) consecutive days during which (a) there are no Distribution
Loans outstanding and (b) no Distributions Loans will be made.




6.18 Post-Closing Requirements.




(a) Within 60 days after the Closing Date (or such later date as is acceptable to the
Administrative Agent in its sole discretion), the Borrower shall deliver to the
Administrative Agent, in form and substance reasonably satisfactory to the Administrative
Agent, securities account control agreements as required by the Security Agreement with
respect to the material pledged securities accounts described therein and duly executed by
the appropriate parties.




(b) Within 270 days after the Closing Date (or such later date as is acceptable to the
Administrative Agent in its sole discretion), the Borrower shall deliver to the
Administrative Agent, in form and substance reasonably satisfactory to the Administrative
Agent, deposit account control agreements as required by the Security Agreement with respect
to the material pledged deposit accounts described therein and duly executed by the
appropriate parties.




(c) Within 60 days after the Closing Date (or such later date as is acceptable to the
Administrative Agent in its sole discretion), the Borrower shall deliver to the
Administrative Agent, in form and substance reasonably satisfactory to the Administrative
Agent, (i) Mortgages with respect to substantially all real property owned by the Loan
Parties as of December 31, 2009 (other than any such real property that has been Disposed of
since such date, but including all real property owned by the Loan Parties that was acquired
in the Intra-Coastal Acquisition) and (ii) a favorable opinion of Baker Botts L.L.P.,
counsel to the Loan Parties and where appropriate, local counsel, addressed to the
Administrative Agent and each Lender as to the matters concerning the Mortgages required
herein.



 

 

 

 


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(d) No later than 60 days (or such longer period permitted by the Administrative Agent
in its sole discretion) after the earliest of (i) payment in full of the
obligations owed to the bondholders pursuant to the Eunice lease documents regarding
the property referred to as the Eunice Plant (collectively, “Eunice Lease
Documents”), (ii) the termination or waiver of the prohibition in the Eunice Lease
Documents against the creation of any Lien in the trust estate and (iii) May 20, 2011, the
Borrower shall deliver:




(i) deed of trust, trust deeds, deed to secure debt, mortgages, leasehold
mortgages, leasehold deed of trust, and security agreements, in form reasonably
satisfactory to the Administrative Agent and its counsel, and covering the trust
estate, the facility and site; and




(ii) environmental reports, insurance certificates, title reports, releases and
other agreements related to the trust estate and the facility as reasonably
requested by the Administrative Agent to, among other things, evidence an Acceptable
Security Interest in such collateral.




(e) To the extent that the Eunice Lease Documents prohibit Crosstex Eunice, LLC from
granting a Lien on its interest in the trust estate, the Borrower shall use commercially
reasonable effort to obtain the consent of the bondholders to permit Crosstex Eunice, LLC to
grant a Lien on its interest in the trust estate.



ARTICLE VII




NEGATIVE COVENANTS




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



7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other than the following:




(a) Liens pursuant to any Loan Document;




(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased except as
contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with
respect thereto is not changed, and (iv) any renewal or extension of the obligations secured
or benefited thereby is permitted by Section 7.03(b);




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




(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business which are not overdue for a period of more
than 60 days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;




 

 

 

 


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(e) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary course of
business, (iii) in favor of banking institutions encumbering deposits (including the right
of set-off) and that are within the general parameters customary in the banking industry, or
(iv) in connection with Cash Management Agreements and other obligations in respect of
netting services, overdraft protections and similar arrangements, in each case in the
ordinary course of business and that are limited to Liens customary in such arrangements;




(f) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA or the Code and (ii) pledges and deposits in the ordinary course of
business securing liability for reimbursement or indemnification obligations of (including
obligations in respect of letters of credit or bank guarantees for the benefit of) insurance
carriers providing property, casualty or liability insurance to the applicable Person;




(g) Liens securing insurance premium financing under customary terms and conditions,
provided that no such Lien may extend to or cover any property other than the insurance
being acquired with such financing, the proceeds thereof and any unearned or refunded
insurance premiums related thereto;




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




(i) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property that do not materially and adversely affect the value to the Borrower or
applicable Subsidiary of the Property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;




(j) Liens securing judgments or orders for the payment of money not constituting an
Event of Default under Section 8.01(i) or securing appeal or other surety bonds
related to such judgments;




(k) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, improvements and accessions thereto and proceeds
thereof and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition;




 

 

 

 


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(l) options, put and call arrangements, rights of first refusal, setoff rights and
customary limitations and restrictions constituting negative pledges contained in, and
limited to, specific leases, licenses, conveyances, partnership agreements and co
owners’ agreements, and similar conveyances and agreements to the extent that any such Lien
referred to in this clause does not materially impair the use of the Property covered by
such Lien for the purposes for which such Property is held or materially impair the value of
such Property to the Borrower or applicable Subsidiary subject thereto;




(m) Liens incurred in the ordinary course of business of the Borrower or any Subsidiary
with respect to obligations (other than Indebtedness for borrowed money) that do not exceed
$10,000,000 at any one time outstanding;




(n) licenses or leases or subleases as licensor, lessor or sublessor of any of its
Property, including intellectual property, in the ordinary course of business;




(o) Liens reserved in or exercisable under any operating lease or operating sublease to
which the Borrower or any Subsidiary is a lessee that secure the payment of rent or
compliance with the terms of such lease or sublease; provided that the rent under
such lease or sublease is not then overdue and the Borrower or Subsidiary is in material
compliance with the terms and conditions thereof;




(p) Liens represented by the escrow of cash or Investments permitted hereunder securing
the obligations of the Borrower or any Subsidiary under any agreement to acquire, or
pursuant to which it acquired, any Property, which Liens secure the obligations of the
Borrower or such Subsidiary to the seller of such Property, provided that such acquisition
is permitted pursuant to the terms of this Agreement;




(q) any Lien permitted by any Mortgage;




(r) Liens on assets pursuant to merger agreements, stock or asset purchase agreements
and similar agreements in respect of the disposition of such assets, provided that such
merger agreement, stock or asset purchase agreement or similar agreement in respect of the
disposition of such asset is permitted pursuant to the terms of this Agreement;




(s) the negative pledge contained in the Promissory Note of Crosstex Louisiana Energy,
L.P. dated April 2, 2004, payable to the order of Borrower;




(t) Liens on Property of a Person existing at the time such Person or such Property is
acquired or such Person is merged with or into or consolidated with the Borrower or any
Subsidiary (and not created in anticipation or contemplation thereof) and any renewals or
extensions thereof; provided that such Liens do not extend to property not subject to such
Liens at the time of acquisition (other than improvements thereon, accessions thereto and
proceeds thereof);




(u) Liens on any Hydrocarbon Cash Collateral permitted under Section 6.11(c).



 

 

 

 


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7.02 Investments. Make any Investments, except:




(a) Investments existing on the date of this Agreement and described on Schedule
7.02;




(b) Investments in the Borrower and its Subsidiaries existing on the Closing Date;




(c) Investments held by the Borrower and its Subsidiaries in the form of Permitted
Investments;




(d) (i) loans and advances to officers, directors and employees of the Borrower or any
Subsidiary, provided that the aggregate principal amount of such loans and advances, other
than loans for the purpose of financing the purchase of common units, subordinated units or
other equity securities in the Borrower, shall not exceed $1,000,000 in aggregate principal
amount at any time outstanding and (ii) the repurchase, redemption or other acquisition or
retirement of Equity Interests deemed to occur upon the exercise or exchange of unit
options, unit incentives or similar rights to the extent that such Equity Interests
represent a portion of the exercise or exchange price of these unit options, unit incentives
or similar rights, and the repurchase, redemption or other acquisition or retirement of
Equity Interests made in satisfaction of obligations for withholding taxes resulting from
the exercise or exchange of unit options, unit incentives or similar rights; and




(e) Investments of the Borrower in any Guarantor and Investments of any Guarantor in
the Borrower or in another Guarantor and (ii) Investments of any Subsidiary that is not a
Guarantor in the Borrower or any Subsidiary;




(f) other Investments in an amount not to exceed $20,000,000 at any time outstanding;




(g) Investments representing non-cash consideration in connection with Dispositions
permitted by Section 7.05;




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




(i) Investments permitted in Section 7.04;




(j) Guarantees permitted by Section 7.03; and




(k) Investments in Swap Contracts and Hydrocarbon Hedge Agreements, provided that such
Swap Contracts and Hydrocarbon Hedge Agreements are permitted by Section 7.17.




 

 

 

 


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




(a) Indebtedness under the Loan Documents;




(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and
any refinancings, refundings, renewals or extensions thereof; provided that (i) the
amount of such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms
relating to principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect to the Loan
Parties or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate
applicable to any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;




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




(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under Swap Contracts and Hydrocarbon Hedge Agreements, provided that such
Swap Contracts and Hydrocarbon Hedge Agreements are permitted by Section 7.17;




(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase
money obligations for fixed or capital assets within the limitations set forth in
Section 7.01(k); provided, however, that the aggregate amount
equivalent to principal of all such Indebtedness at any one time outstanding shall not
exceed $70,000,000;




(f) if any lease pursuant to the Eunice Lease Documents is treated under GAAP as a
capital lease, then, any such Indebtedness which may be attributable to the Eunice Lease
Documents;




(g) unsecured Indebtedness in addition to Indebtedness otherwise permitted herein, not
exceeding $30,000,000 in aggregate principal amount at any time outstanding;




(h) Indebtedness under the notes issued pursuant to the Indenture in an aggregate
principal amount not to exceed $750,000,000 as such amount shall be reduced by the scheduled
amortization repayments of principal;




 

 

 

 


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(i) unsecured Indebtedness of the Borrower and/or a Finance Entity and/or any unsecured
guaranty by the Borrower or any Guarantor of such Indebtedness of the Borrower or any
Affiliate of the Borrower; provided that (i) the Borrower is in compliance with Section
7.11(b) and (c) immediately after giving effect to the incurrence of any such
Indebtedness or guaranty determined based upon the outstanding amount of
Consolidated Funded Indebtedness immediately after giving effect to such incurrence,
Consolidated EBITDA for the four fiscal quarters most recently ended on or before the date
of such incurrence and the maximum Consolidated Leverage Ratio or the maximum Consolidated
Senior Leverage Ratio, as applicable, allowed as of the end of the fiscal quarter most
recently ended on or prior to the date of such incurrence (and in the case of any guaranty
of Indebtedness of the Borrower or any other Affiliate of the Borrower, the aggregate amount
of such Indebtedness so guaranteed shall be “Consolidated Funded Indebtedness” of the
Borrower for purposes of calculating the Consolidated Leverage Ratio and Consolidated Senior
Leverage Ratio), (ii) such Indebtedness does not impose any financial or other “maintenance”
covenants on the Borrower or any of the Subsidiaries that are more onerous than the
covenants set forth in this Agreement, (iii) such Indebtedness shall not require any
scheduled payment on account of principal (whether by redemption, purchase, retirement,
defeasance, set-off or otherwise) prior to the Maturity Date and (iv) such Indebtedness
shall contain terms and conditions that are customary for such transactions;




(j) Indebtedness acquired in any Acquisition permitted by this Agreement; provided that
(i) such Indebtedness was not incurred in contemplation of such Acquisition, (ii) such
Indebtedness is unsecured except to the extent such Indebtedness is secured by Liens
permitted by Section 7.01(t), and (iii) no Person, other than the obligor or
obligors thereon at the time of such Acquisition, shall become liable for such Indebtedness;




(k) Indebtedness in connection with the endorsement of negotiable instruments, Cash
Management Agreements and other similar obligations in respect of netting services,
overdraft protection and similar arrangements, in each case in the ordinary course of
business;




(l) Indebtedness between the Borrower and any Subsidiary or between Subsidiaries,
provided that (i) such Indebtedness is noted on the books and records of the Borrower and
its Subsidiaries and (ii) in the case of any Indebtedness owed by the Borrower to any
Subsidiary that is not a Guarantor, such Indebtedness is subordinated to the Obligations on
terms and conditions, and pursuant to documentation, in form and substance satisfactory to
the Administrative Agent in its sole reasonable discretion; and




(m) Indebtedness in respect of insurance premium financing for insurance being acquired
by the Borrower or any Subsidiary under customary terms and conditions.



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




(a) any Subsidiary may merge or consolidate with or into (i) the Borrower,
provided that the Borrower shall be the continuing or surviving Person, or (ii) any
one or more other Subsidiaries, provided that when any Guarantor is merging or
consolidating
with or into another Subsidiary, the Guarantor shall be the continuing or surviving
Person;




 

 

 

 


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(b) (i) any Subsidiary may dissolve or Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary;
provided that if the transferor in such a transaction is a Guarantor, then the
transferee must either be the Borrower or a Guarantor; and (ii) any Subsidiary may Dispose
all or substantially all of its assets to, or merge into or consolidate with, any other
Person in a transaction permitted by Section 7.05;




(c) the Borrower may merge or consolidate with or into Crosstex Energy, Inc. or a
Subsidiary of Crosstex Energy, Inc., so long as (i) the surviving entity (the “New
Parent”) is an entity organized under the laws of the United States and assumes the
Obligations, (ii) immediately after giving effect thereto, all references herein to the
Borrower shall mean and be a reference to the New Parent and the ratios in Section
7.11 shall be no less favorable than the ratios of the Borrower and its Subsidiaries
prior to such merger, (iii) the Secured Obligations remain secured by substantially the same
Collateral and Guaranteed by substantially the same Persons as immediately before such
merger (other than any new Guarantors or new Collateral that are added as part of such
merger or consolidation) and (iv) prior to or contemporaneously with such merger or
consolidation, each Lender shall have received such reasonable documentation and other
information with respect to the surviving entity required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations,
including without limitation the Act (as defined in Section 10.18), to the extent
reasonably requested by such Lender; provided, however, upon any
consolidation or merger in a transaction that is subject to, and that complies with the
provisions of this Section 7.04(c), the successor New Parent formed by such
consolidation or into or with which the Borrower is merged shall succeed to, and be
substituted for (so that from and after the date of such consolidation or merger, the
provisions of this Agreement and the other Loan Documents referring to the “Borrower” shall
refer instead to the successor New Parent and not to Borrower), and may exercise every right
and power of the Borrower under this Agreement and the other Loan Documents with the same
effect as if such successor New Parent had been named as the Borrower herein and therein;
provided, however, that the predecessor Borrower shall not be relieved from the obligation
to pay the Obligations except when the successor New Parent assumes all of the Borrower’s
obligations under this Agreement. If the successor New Parent assumes all of the Borrower’s
obligations under this Agreement and the other Loan Documents, the Borrower shall be
discharged from those obligations.




(d) the Borrower or any Subsidiary may make any Acquisition; provided,
however, that any such Acquisition shall be permitted only if, (i) the Borrower
complies with Section 6.12; (ii) the Borrower or a Subsidiary is the acquiring or
surviving entity; (iii) after giving effect to such Acquisition on a pro forma basis
(including any Indebtedness of the acquired Person or related to the acquired assets), the
Borrower would have been in compliance with all of the covenants contained in this
Agreement, including, without limitation, Section 7.11 as of the end of the most
recent fiscal quarter, (iv) the acquisition target is in the same or similar line of
business as Borrower and its
Subsidiaries and the Borrower and its Subsidiaries shall be in full compliance with
Section 7.07 after giving effect to such Acquisition, and (v) the aggregate amount
of the Borrower’s and its Subsidiaries’ cash, Permitted Investments and the remaining unused
portion of the Aggregate Commitments is sufficient to fund such Acquisition and, after
funding such Acquisition, the unused portion of the Aggregate Commitments shall not be less
than $50,000,000; and




 

 

 

 


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(e) the Borrower and its Subsidiaries may acquire Property in the ordinary course of
business.




7.05 Dispositions. Make any Disposition, except:




(a) Dispositions of obsolete or worn out Property, and Dispositions in the ordinary
course of business of Property that is no longer used or useful in the conduct of the
business of the Borrower or any Subsidiary;




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




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




(d) Dispositions of property by the Borrower or any Subsidiary to the Borrower or to a
Subsidiary; provided that if the transferor of such property is the Borrower or a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor;




(e) Liens permitted by Section 7.01, Investments permitted by Section
7.02 Dispositions permitted by Section 7.04 and Restricted Payments permitted by
Section 7.06;




(f) leases, subleases, licenses, sublicenses, easements, rights of way or similar
rights or encumbrances in each case in the ordinary course of business and that do not
materially interfere with the business of the Borrower or its Subsidiaries;




(g) liquidations or other dispositions of cash and Permitted Investments;




(h) Dispositions of Property (i) resulting from the condemnation thereof or (ii) that
has suffered a casualty (constituting a total loss or constructive total loss of such
Property) upon or after receipt of the Extraordinary Receipts of such casualty;




(i) sales or discounts of overdue accounts receivable in the ordinary course of
business, in connection with the compromise or collection thereof;




(j) sales or transfers of new equipment by the Borrower or any Subsidiary in the
ordinary course of business consistent with historical practice to any Person whereby
the Borrower or any Subsidiary shall then or thereafter rent or lease as lessee such
new equipment or any part thereof to use for substantially the same purpose or purposes as
such new equipment sold or transferred;




 

 

 

 


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(k) relatively contemporaneous like-kind exchanges in the ordinary course of business
and consistent with historical practice not to exceed $10,000,000 in the aggregate in any
fiscal year;




(l) Dispositions of the natural gas processing facility called Bear Creek; provided
that (i) at the time of such Disposition, no Default shall exist or would result from such
Disposition, (ii) the Disposition is for at least 75% cash or cash equivalents, (iii) such
Disposition is for fair market value and (iv) the Borrower shall make the prepayment or
reinvestment of Net Cash Proceeds of such Disposition to the extent required by Section
2.05(a); and




(m) Dispositions not otherwise permitted by this Section 7.05; provided that
(i) at the time of such Disposition, no Default shall exist or would result from such
Disposition, (ii) the aggregate book value of all Property Disposed of in reliance on this
clause (m) in any calendar year shall not exceed five percent (5%) of the book value of the
consolidated assets of the Borrower and its Subsidiaries as of the end of the most recent
fiscal quarter for which the Borrower has delivered financial statements pursuant to
Section 6.01(a) or (b), (iii) the Disposition is for at least 75% cash or
cash equivalents, (iv) such Disposition is for fair market value and (v) the Borrower shall
make the prepayment or reinvestment of Net Cash Proceeds of such Disposition to the extent
required by Section 2.05(a).



7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, or pay any management or
similar fee to any Affiliate of the Borrower (other than any such payments to the Borrower or a
Subsidiary of the Borrower), except that:




(a) each Subsidiary may make Restricted Payments to the Borrower, the Guarantors and
any other Person that owns an Equity Interest in such Subsidiary, provided that if any such
Restricted Payment is made to a Person that is not a Guarantor, such Restricted Payment
shall be made ratably according to their respective holdings of the type of Equity Interest
in respect of which such Restricted Payment is being made;




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




(c) (i) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire
Equity Interests issued by it with the proceeds received from the substantially concurrent
issue of new Equity Interests and (ii) the Borrower may repurchase, redeem or otherwise
acquire or retire Equity Interests in a transaction deemed to occur upon the exercise or
exchange of unit options, unit incentives or similar rights to the extent that such Equity
Interests represent a portion of the exercise or exchange price of these unit options, unit
incentives or similar rights, and the Borrower may repurchase, redeem or
otherwise acquire or retire Equity Interests in satisfaction of obligations for
withholding taxes resulting from the exercise or exchange of unit options, unit incentives
or similar rights;




 

 

 

 


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(d) provided that no Default has occurred and is continuing or would result from such
payment, the Borrower may declare and pay Quarterly Distributions;




(e) the Borrower may pay Quarterly Distributions within 60 days after the date of
declaration thereof if, at the date of declaration, such payment would comply with clause
(d) of this Section 7.06; and




(f) provided that no Default has occurred and is continuing or would result from such
payment, the Borrower and any Subsidiary may pay any management fee or similar fee of any
sort to any Affiliate of the Borrower or its Subsidiaries pursuant to the Borrower
Partnership Agreement, the CESL Partnership Agreement or the Omnibus Agreement.



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



7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Borrower, whether or not in the ordinary course of business, except (a)
transactions among the Borrower and its Subsidiaries and not involving any other Affiliate, (b)
Restricted Payments permitted by Section 7.06, (c) transactions in the ordinary course of
business that are on fair and reasonable terms substantially as favorable to the Borrower or such
Subsidiary as would be obtained by the Borrower or such Subsidiary at the time in a comparable
arm’s length transaction with a Person not an Affiliate, and (d) other transactions approved by the
Ultimate General Partner’s conflicts committee.



7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make
Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the
Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or
(iii) of the Borrower or any Subsidiary to create the Liens created by the Collateral Documents; or
(b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure the Obligations, except:




(a) clause (a)(iii) shall not prohibit any negative pledge incurred or provided in
favor of any holder of Indebtedness permitted under Section 7.03 solely to the
extent any such negative pledge relates to the property financed by or the subject of such
Indebtedness;




(b) as required by applicable Law;




 

 

 

 


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(c) any agreement or instrument governing Indebtedness or Equity Interests of a Person
acquired by the Borrower or any of its Subsidiaries as in effect at the time of such
acquisition, which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired, provided that such Acquisition is permitted by this Agreement and,
in the case of Indebtedness, such Indebtedness is permitted by this Agreement, and any
refinancings, refundings, renewals or extensions of such Indebtedness, provided that the
restrictions contained in the instruments or agreements governing such Indebtedness are no
more restrictive, taken as a whole, than those contained in the agreements or instruments
governing the Indebtedness being refinanced;




(d) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange
agreements or similar operational agreements or in licenses, easements or leases, in each
case entered into in the ordinary course of business and consistent with past practices;




(e) any agreement for the Disposition of a Subsidiary that restricts Restricted
Payments by that Subsidiary pending its Disposition;




(f) Liens securing Indebtedness otherwise permitted by this Agreement that limit the
right of the debtor to Dispose of the assets subject to such Liens;




(g) provisions with respect to the Disposition or distribution of assets or property in
joint venture agreements, asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business;




(h) any agreement or instrument relating to any Property acquired after the Closing
Date, so long as such encumbrance or restriction relates only to the Property so acquired
and is not and was not created in anticipation of such acquisitions;




(i) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;




(j) any other agreement governing Indebtedness that is permitted by this Agreement;
provided, that such encumbrances or restrictions are not materially more restrictive, taken
as a whole, than those contained in this Agreement, as it exists on the Closing Date.



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




 

 

 

 


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7.11 Financial Covenants.




(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than the ratio
set forth below opposite such fiscal quarter:



	 	 	 
	 	 	Minimum
	 	 	Consolidated
	 	 	Interest Coverage
	Fiscal Quarters Ending	 	Ratio
	March 31, 2010
	 	1.50 to 1.00
	June 30, 2010 through December 31, 2010
	 	1.75 to 1.00
	March 31, 2011
	 	2.00 to 1.00
	June 30, 2011
	 	2.25 to 1.00
	September 30, 2011 and each fiscal quarter thereafter
	 	2.50 to 1.00







(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of
the end of any fiscal quarter of the Borrower set forth below to be greater than the ratio
set forth below opposite such period:



	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Fiscal Quarters Ending	 	Leverage Ratio
	March 31, 2010 and June 30, 2010
	 	5.75 to 1.00
	September 30, 2010
	 	5.50 to 1.00
	December 31, 2010
	 	5.25 to 1.00
	March 31, 2011
	 	5.00 to 1.00
	June 30, 2011
	 	4.75 to 1.00
	September 30, 2011 and each fiscal quarter thereafter
	 	4.50 to 1.00







(c) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio as of the end of any fiscal quarter of the Borrower, commencing with the
fiscal quarter ending March 31, 2010, to be greater than 2.50 to 1.00.



7.12 Capital Expenditures. Make or become legally obligated to make any expenditure
in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal
replacements and maintenance which are properly charged to current operations), except for capital
expenditures made in connection with a business of the Borrower and its Subsidiaries permitted by
Section 7.07.



7.13 ERISA Plans. Establish, maintain or contribute to, or permit any ERISA Affiliate
to establish, maintain or contribute to, any Pension Plan with Unfunded Pension Liabilities in
excess of the Threshold Amount, and the Borrower will not become obligated to, or permit any
Subsidiary to become obligated to, contribute to any Multiemployer Plan if such contribution
obligation could reasonably be expected to result in withdrawal liability in excess of the
Threshold Amount.




 

 

 

 


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7.14 Accounting Changes; Fiscal Year. Make or permit, or permit any Subsidiary to
make or permit, any change in (a) any of its accounting policies affecting the presentation of
financial statements or reporting practices, except as required or permitted by GAAP, or (b) its
fiscal year.



7.15 Amendment of Organization Documents; Partnership Agreements. Amend, modify or
supplement, or permit any Subsidiary to amend, modify or supplement, (a) its Organizational
Documents in any way that would be materially adverse to the interests of the Lenders, (b) the
definition of “Available Cash” in the Borrower Partnership Agreement or the CESL Partnership
Agreement or increase the amount of any management fee or similar fee of any sort payable to any
Affiliate of the Borrower or its Subsidiaries (other than the Borrower and its Subsidiaries), (c)
any other provision of the Borrower Partnership Agreement or the CESL Partnership Agreement if such
amendment, modification or supplement would be materially adverse to the interests of the Lenders
or (d) the Omnibus Agreement in any way that would increase the amount of any management fee or
similar fee of any sort payable to any Affiliate of the Borrower or its Subsidiaries (other than
the Borrower and its Subsidiaries) under the Omnibus Agreement.



7.16 Prepayments and Modifications of Certain Indebtedness. Make any optional or
scheduled payments or prepayments on account of principal (whether by redemption, purchase,
retirement, defeasance, set-off or otherwise) of any Indebtedness permitted by Section
7.03(h) or Section 7.03(i) prior to the Maturity Date, except, provided that no Default
has occurred and is continuing or would result from such payment, (a) prepayments, redemptions or
purchases of up to 35% of the original principal amount of such Indebtedness with Equity Issuance
Proceeds and (b) other prepayments, redemptions, purchases and defeasances of such Indebtedness in
an aggregate amount not to exceed $7,500,000 during the term of this Agreement. The Borrower shall
not amend, supplement or otherwise modify the terms of any Indebtedness permitted by Section
7.03(h) or Section 7.03(i) if such amendment, supplement or other modification would
not be permitted by the terms of Section 7.03(i) without the prior written consent of the
Required Lenders, which consent will not be unreasonably withheld.



7.17 Hydrocarbon Hedge Agreements and Swap Contracts. The Borrower shall not and will
not permit any Subsidiary to be a party to or in any manner liable on any Hydrocarbon Hedge
Agreement or Swap Contract except:




(a) Hydrocarbon Hedge Agreements with the purpose and effect of hedging prices on
Hydrocarbons that are (i) consistent in all material respects with the Borrower’s risk
management policies and historical practices, which risk management policies shall at all
times prohibit maintaining an “open” position in natural gas or other commodities or goods,
or in any derivative of any thereof and (ii) not speculative in nature; and




(b) Swap Contracts with respect to the interest rates on a principal amount of
Indebtedness of the Borrower that are (i) consistent with the Borrower’s risk management
policies and historical practices, which risk management policies shall at all times
prohibit maintaining an “open” position in natural gas or other commodities or goods, or in
any derivative of any thereof and (ii) not speculative in nature.




 

 

 

 


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ARTICLE VIII




EVENTS OF DEFAULT AND REMEDIES





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




(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three Business Days after the same becomes due, any interest on
any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five Business
Days after the same becomes due, any other amount payable hereunder or under any other Loan
Document; or




(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03, 6.05, 6.10,
6.11, or 6.12 or Article VII; or




(c) Deliverables Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, or
6.16 and such failure continues for 15 days after the earlier of (i) written notice
thereof being given to the Borrower by the Administrative Agent, and (ii) such time as a
Responsible Officer of the Borrower knows or reasonably should have known of such failure;
or




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




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




(f) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee having an aggregate principal amount (including undrawn committed
or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of




 

 

 

 


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more than the Threshold Amount or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater
than the Threshold Amount; or




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




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




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




 

 

 

 


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




(k) Invalidity of Loan Documents. Any provision of the Credit Agreement or any
material provision of any other Loan Document, at any time after its execution and delivery
and for any reason other than as expressly permitted hereunder or thereunder or satisfaction
in full of all the Obligations or any action or inaction by any Secured Party, ceases to be
in full force and effect; or any Loan Party or any other Person contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any provision of any Loan Document; or




(l) Change of Control. There occurs any Change of Control, provided,
however, the merger or consolidation permitted by Section 7.04(c) shall not
constitute a Change in Control.



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




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




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




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




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



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




 

 

 

 


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



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



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer and amounts payable under Article III), ratably among them in proportion
to the respective amounts described in this clause Second payable to them;



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



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



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



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



Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Secured Obligations, if any, in the order set forth above. Notwithstanding
the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured
Hedge Agreements shall be excluded from the application described above if the Administrative Agent
has not received written notice thereof two Business Days (or such shorter time




 

 

 

 


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 as may be acceptable to the Administrative Agent) prior to the date that the Administrative
Agent sets (by written notice to the Lenders) for such application, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank and
Hedge Bank, as the case may be. The Administrative Agent shall be entitled to rely on, and shall
not bear any liability for relying upon, any notice received from a Cash Management Bank or a Hedge
Bank regarding Secured Cash Management Agreements or Secured Hedge Agreements and shall not be
responsible for or have any duty to ascertain or inquire into the validity, authenticity, or
accuracy of any statement or representation contained therein or otherwise with respect thereto.



ARTICLE IX




ADMINISTRATIVE AGENT





9.01 Appointment and Authority.




(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.




(b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, potential Hedge Bank and
potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer
for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by
any of the Loan Parties to secure any of the Secured Obligations, together with such powers
and discretion as are reasonably incidental thereto. In this connection, the Administrative
Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed
by the Administrative Agent pursuant to Section 9.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of this
Article IX and Article X (including Section 10.04(c), as though such
co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan
Documents) as if set forth in full herein with respect thereto. Without limiting the
generality of the foregoing, the Administrative Agent is further authorized on behalf of all
the Lenders, without the necessity of any notice to or further consent from the Lenders,
from time to time to take any action, or permit the any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent to take any action, with respect to
any Collateral or the Loan Documents which may be necessary to perfect and maintain
perfected the Liens upon any Collateral granted pursuant to any Loan Document.




 

 

 

 


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



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




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




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




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



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



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




 

 

 

 


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



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



9.06 Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative





 

 

 

 


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Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and the L/C Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.



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



9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Bookrunners, Arrangers or Co-Syndication Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



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




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




 

 

 

 


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



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



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



9.10 Collateral and Guaranty Matters. The Lenders (including in their capacity as a
potential Cash Management Bank and a potential Hedge Bank, and on behalf of their Affiliates in
such capacities) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option
and in its discretion,




(a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations), and the
expiration or termination of all Letters of Credit (other than Letters of Credit as to which
other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have
been made), (ii) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document, or (iii) subject to Section
10.01, if approved, authorized or ratified in writing by the Required Lenders;




(b) to subordinate or release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 7.01, and to enter into any intercreditor agreement,
subordination agreement or similar agreement with respect to any such property; and




(c) to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.



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




 

 

 

 


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9.11 Secured Cash Management Agreements and Secured Hedge Agreements. No Cash
Management Bank or Hedge Bank that obtains the benefits of Section 8.03, any Guaranty or
any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document
shall have any right to notice of any action or to consent to, direct or object to any action
hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the
release or impairment of any Collateral) other than in its capacity as a Lender and, in such case,
only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision
of this Article IX to the contrary, the Administrative Agent shall not be required to
verify the payment of, or that other satisfactory arrangements have been made with respect to,
Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements
unless the Administrative Agent has received written notice of such Secured Obligations, together
with such supporting documentation as the Administrative Agent may request, from the applicable
Cash Management Bank or Hedge Bank, as the case may be.



ARTICLE X




MISCELLANEOUS




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




(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;




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




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




 

 

 

 


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(d) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or (subject to clause (iii) of the second proviso to this Section
10.01)
any fees or other amounts payable hereunder or under any other Loan Document, or change
the manner of computation of any financial ratio (including any change in any applicable
defined term) used in determining the Applicable Rate that would result in a reduction of
any interest rate on any Loan or any fee payable hereunder without the written consent of
each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at
the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used
therein) or waive any Default or Event of Default related to a financial covenant;




(e) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;




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




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




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



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iii)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except
that the Commitment of such Lender may not be increased or extended without the consent of such
Lender. If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrower may replace such non-consenting Lender in accordance with
Section 10.13; provided that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this sentence). Notwithstanding
anything to the contrary
contained in this Section, if the Administrative Agent and the Borrower shall have jointly
identified an obvious error or omission of a technical or immaterial nature, in each case, in any
provision of the Loan Documents, then the Administrative Agent and the applicable Loan Parties
shall be permitted to amend such provision and such amendment shall become effective without any
further action or consent of any other party to any Loan Document if the same is not objected to in
writing by the Required Lenders within five Business Days following the posting of such amendment
to the Lenders.




 

 

 

 


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10.02 Notices; Effectiveness; Electronic Communication.




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




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




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




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




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




 

 

 

 


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




(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no
event shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any Lender, the
L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).




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




 

 

 

 


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(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon
any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf
of the Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender
and the Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by or on behalf
of the Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.



10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law (but in no event shall the Administrative
Agent, L/C Issuer or any Lender be entitled to recover for the same loss more than once).



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




 

 

 

 


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10.04 Expenses; Indemnity; Damage Waiver.




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




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




 

 

 

 


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INDEMNITEE; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee, (y) result from a claim brought by the Borrower or
any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower or such other Loan
Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction or (z) result from claims solely between or
among the Indemnitees.




(c) Reimbursement by Lenders. To the extent that the Borrower for any reason
fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the
case may be, such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).




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




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




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




 

 

 

 


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




10.06 Successors and Assigns.




(a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that, except as permitted by Section
7.04(c), the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative Agent and each
Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection
(d) of this Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




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




(i) Minimum Amounts.




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




 

 

 

 


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




(ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not prohibit any Lender from assigning
all or a portion of its rights and obligations among separate facilities on a
non-pro rata basis;




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




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




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




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




 

 

 

 


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Notwithstanding anything to the contrary contained herein, any Lender may
assign, as security, all or a part of its rights under the Loan Documents to
any Federal Reserve Bank.




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




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




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




Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits
of Sections 3.01, 3.04, 3.05, and 10.04 with respect to
facts and circumstances occurring prior to the effective date of such assignment. Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.




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




 

 

 

 


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




Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that affects such Participant.
Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.13 as though it
were a Lender.




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




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




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 107










 








(g) Resignation as L/C Issuer after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of its Commitment
and Loans pursuant to subsection (b) above, Bank of America may, upon 30 days’ notice to the
Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C
Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C
Issuer hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of Bank of America as L/C Issuer.
If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges
and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as
of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Committed Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). Upon
the appointment of a successor L/C Issuer, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
(b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of America
with respect to such Letters of Credit.



10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.14(c), (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, or (iii) any insurance provider of the Administrative Agent, the Lenders and the
L/C Issuer relating to the Loan Parties and the Obligations, (g) with the consent of the Borrower,
or (h) to the extent such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C
Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.



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




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 108










 







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



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



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



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




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 109










 







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



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



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




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




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




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




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 110










 








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



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




10.14 Governing Law; Jurisdiction; Etc.




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




(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.




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



 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 111











 








(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. THIS SECTION 10.14 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT, AND ANY SATISFACTION AND DISCHARGE OF EACH LOAN PARTY BY VIRTUE OF ANY
PAYMENT, COURT ORDER, OR LAW.



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



10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent, the Arranger, and the other Lead
Arranger(s) are arm’s-length commercial transactions between the Borrower and its Affiliates, on
the one hand, and the Administrative Agent, the Arranger, and the other Lead Arranger(s), on the
other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents; (ii) (A) the Administrative Agent, the Arranger, and each other
Lead Arranger each is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its
Affiliates, or any other Person and (B) neither the Administrative Agent, the Arranger nor any
other Lead Arranger has any obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent, the Arranger and the other Lead
Arranger(s) and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent, the Arranger nor any other Lead Arranger has any obligation to disclose any
of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the
Borrower hereby waives and releases any claims that it may have against the Administrative Agent,
the Arranger, with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 112










 






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



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




10.19 Time of the Essence. Time is of the essence of the Loan Documents.



10.20 Amendment and Restatement; Existing Indebtedness. The Borrower, the
Administrative Agent and the Lenders have agreed that this Agreement is an amendment and
restatement of the Existing Credit Agreement in its entirety and the terms and provisions hereof
supersede the terms and provisions thereof, and this Agreement is not a new or substitute credit
agreement or novation of the Existing Credit Agreement. The Indebtedness of the Borrower evidenced
under this Agreement and the other Loan Documents is given in renewal, extension, modification but
not in extinguishment or discharge of the Indebtedness under the Existing Credit Agreement.



10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.




 

 

 

 


AMENDED
AND RESTATED CREDIT
AGREEMENT —   Page 113










 







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



	 	 	 	 	 
	 	CROSSTEX ENERGY, L.P.

 	 
	 	By:  	Crosstex Energy GP, L.P.,
 	 
	 	 	its general partner 	 
	 	 	 
	 	By:  	Crosstex Energy GP, LLC,
 	 
	 	 	its general partner 	 
	 	 	 
	 	By:  	                    /s/ Michael J. Garberding
 	 
	 	 	Michael J. Garberding 	 
	 	 	Senior Vice President — Finance 	 




 

 

 



AMENDED
AND RESTATED CREDIT AGREEMENT - Signature Page 1










 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/ Tyler D. Levings
 	 
	 	 	Tyler D. Levings 	 
	 	 	Senior Vice President 	 



 


 


Signature Page to Amended
and Restated Credit Agreement


 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as a Lender and L/C Issuer

 	 
	 	By:  	/s/ Tyler D. Levings
 	 
	 	 	Tyler D. Levings 	 
	 	 	Senior Vice President 	 



 


 


Signature Page to Amended
and Restated Credit Agreement


 









 





	 	 	 	 	 
	 	BNP PARIBAS

 	 
	 	By:  	/s/ Greg Smothers
 	 
	 	 	Name:  	Greg Smothers 	 
	 	 	Title:  	Director 	 
	 	 	 
	 	By:  	                          /s/ Andrew Ostrov
 	 
	 	 	Name:  	Andrew Ostrov 	 
	 	 	Title:  	Director 	 



 


 


Signature Page to Amended
and Restated Credit Agreement


 









 





	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ V. Mark Fuqua
 	 
	 	 	Name:  	V. Mark Fuqua 	 
	 	 	Title:  	Senior Vice President 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 





	 	 	 	 	 
	 	COMPASS BANK

 	 
	 	By:  	/s/ Greg Determann
 	 
	 	 	Name:  	Greg Determann 	 
	 	 	Title:  	Senior Vice President 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 






	 	 	 	 	 
	 	COMERICA BANK, as successor in interest to

GUARANTY BANK

 	 
	 	By:  	/s/ Greg Determann
 	 
	 	 	Name:  	Greg Determann 	 
	 	 	Title:  	Senior Vice President 	 




 


 


Signature Page to Amended
and Restated Credit Agreement



 









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA

 	 
	 	By:  	/s/ Jason S. York
 	 
	 	 	Name:  	Jason S. York 	 
	 	 	Title:  	Authorized Signatory 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 






	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING

CORPORATION

 	 
	 	By:  	/s/ Yoshihiro Hyakutome
 	 
	 	 	Name:  	Yoshihiro Hyakutome 	 
	 	 	Title:  	General Manager 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Justin M. Alexander
 	 
	 	 	Name:  	Justin M. Alexander 	 
	 	 	Title:  	Vice President 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.,

as a Lender and a Co-Syndication Agent

 	 
	 	By:  	/s/ Charles D. Kirkham
 	 
	 	 	Name:  	Charles D. Kirkham 	 
	 	 	Title:  	Senior Vice President 	 



 



 









 





	 	 	 	 	 
	 	WACHOVIA BANK, N.A.

 	 
	 	By:  	/s/ Charles D. Kirkham
 	 
	 	 	Name:  	Charles D. Kirkham 	 
	 	 	Title:  	Senior Vice President 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 






	 	 	 	 	 
	 	UBS LOAN FINANCE LLC

 	 
	 	By:  	/s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director 	 
	 
	 	 	 
	 	By:  	                       /s/ Marie Haddad
 	 
	 	 	Name:  	Marie Haddad 	 
	 	 	Title:  	Associate Director 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 






	 	 	 	 	 
	 	CAPITAL ONE, N.A.

 	 
	 	By:  	/s/ Michael Higgins
 	 
	 	 	Name:  	Michael Higgins 	 
	 	 	Title:  	Vice President 	 


 


 


Signature Page to Amended
and Restated Credit Agreement



 









 






	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA

 	 
	 	By:  	/s/ Alexis Maged
 	 
	 	 	Name:  	Alexis Maged 	 
	 	 	Title:  	Authorized Signatory 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 









 






	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A.

 	 
	 	By:  	/s/ Ryan Vetsch
 	 
	 	 	Name:  	Ryan Vetsch 	 
	 	 	Title:  	Authorized Signatory 	 



 


 


Signature Page to Amended
and Restated Credit Agreement



 











 




SCHEDULE 2.01




COMMITMENTS

AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 
	 
	 
	Bank of America, N.A.
	 	 	50,000,000.00	 	 	 	11.904761905	%
	BNP Paribas
	 	 	50,000,000.00	 	 	 	11.904761905	%
	Royal Bank of Canada
	 	 	50,000,000.00	 	 	 	11.904761905	%
	Wells Fargo Bank, N.A.
	 	 	20,017,629.00	 	 	 	4.766102143	%
	UBS Loan Finance LLC
	 	 	40,000,000.00	 	 	 	9.523809524	%
	Capital One, N.A.
	 	 	35,000,000.00	 	 	 	8.333333333	%
	Compass Bank
	 	 	13,600,000.00	 	 	 	3.238095238	%
	Compass Bank, as successor in interest
to Guaranty Bank
	 	 	16,400,000.00	 	 	 	3.904761905	%
	Comerica Bank
	 	 	25,000,000.00	 	 	 	5.952380952	%
	Goldman Sachs Bank USA
	 	 	25,000,000.00	 	 	 	5.952380952	%
	Morgan Stanley Bank, N.A.
	 	 	25,000,000.00	 	 	 	5.952380952	%
	Wachovia Bank, N.A.
	 	 	29,982,371.00	 	 	 	7.138659762	%
	U.S. Bank National Association
	 	 	25,000,000.00	 	 	 	5.952380952	%
	Sumitomo Mitsui Banking Corporation
	 	 	15,000,000.00	 	 	 	3.571428571	%
	 
	 	 	 	 	 	 	 	 
	Total
	 	$	420,000,000.00	 	 	 	100.000000000	%






 


 









 





SCHEDULE 5.06




LITIGATION





	1.	 	The matter captioned “DENBURY V. CROSSTEX” in the Crosstex Litigation Report, dated as of
February 2, 2010 (the “Litigation Report”), delivered to the Administrative Agent.

	 
	2.	 	The matter captioned “FORMOSA CLAIM” in the Litigation Report delivered to the Administrative
Agent.

	 
	3.	 	The matter captioned “CROSSTEX NORTH TEXAS GATHERING, L.P. V. ROBERT L. DOW” in the
Litigation Report delivered to the Administrative Agent.





 


 









 





SCHEDULE 5.13




SUBSIDIARIES AND

OTHER EQUITY INVESTMENTS




Part (a)




	 	 	 	 	 	 	 
	 	 	 	 	Material	 	 
	 	 	 	 	(indicate	 	 
	 	 	Jurisdiction in which	 	with	 	 
	Entity	 	registered or qualified	 	“Material”)	 	Owners
	 
	 
	1. Crosstex Energy Services, L.P.
	 	Delaware*, Louisiana, Texas	 	Material	 	Crosstex Energy, L.P. (99.999% common) and Crosstex Operating GP, LLC (.001% general partner interest)
	2. Crosstex Energy Services GP, LLC
	 	Delaware, Texas	 	Material	 	Crosstex Energy Services, L.P. (100%)
	3. Crosstex Operating GP, LLC
	 	Delaware, Texas	 	Material	 	Crosstex Energy, L.P. (100%)
	4. Crosstex Louisiana Energy, L.P.
	 	Delaware	 	 	 	Crosstex Energy, L.P. (99.999% limited partner interest) and Crosstex Operating GP, LLC (.001% general partner interest)
	5. LIG Chemical GP, LLC
	 	Delaware	 	 	 	Crosstex Louisiana Energy, L.P. (100%)
	6. LIG Chemical, L.P.
	 	Delaware	 	 	 	Crosstex Louisiana Energy, L.P. (99.999% limited partner interest) and LIG Chemical GP, LLC (.001% general partner interest)
	7. LIG Liquids Holdings, L.P.
	 	Delaware	 	 	 	Crosstex Louisiana Energy, L.P. (90%) and LIG Chemical, L.P. (10%)
	8. Crosstex Acquisition Management, L.P.
	 	Delaware, Louisiana, Texas	 	Material	 	Crosstex Energy Services, L.P. (99.999% limited partner interest) and Crosstex Energy Services GP, LLC (.001% general partner interest)
	9. Crosstex CCNG Processing Ltd.
	 	Texas	 	Material	 	Crosstex Energy Services, L.P. (99.999% limited partner interest) and Crosstex Energy Services GP, LLC (.001% general partner interest)






 


 









 





	 	 	 	 	 	 	 
	 	 	 	 	Material	 	 
	 	 	 	 	(indicate	 	 
	 	 	Jurisdiction in which	 	with	 	 
	Entity	 	registered or qualified	 	“Material”)	 	Owners
	 
	 
	10. Crosstex Gulf Coast Marketing Ltd.
	 	Louisiana, Texas	 	Material	 	Crosstex Energy Services, L.P. (99.999% limited partner interest) and Crosstex Energy Services GP, LLC (.001% general partner interest)
	11. Crosstex NGL Marketing, L.P.
	 	Louisiana, Texas	 	Material	 	Crosstex Energy Services, L.P. (99.999% limited partner interest) and Crosstex Energy Services GP, LLC (.001% general partner interest)
	12. Crosstex NGL Pipeline, L.P.
	 	Texas	 	Material	 	Crosstex Energy Services, L.P. (99.999% limited partner interest) and Crosstex Energy Services GP, LLC (.001% general partner interest)
	13. Crosstex North Texas Gathering, L.P.
	 	Texas	 	Material	 	Crosstex Energy Services, L.P. (99.999% limited partner interest) and Crosstex Energy Services GP, LLC (.001% general partner interest)
	14. Crosstex North Texas Pipeline, L.P.
	 	Texas	 	Material	 	Crosstex Energy Services, L.P. (99.999% limited partner interest) and Crosstex Energy Services GP, LLC (.001% general partner interest)
	15. Crosstex DC Gathering Company, J.V.
	 	Texas	 	 	 	Crosstex North Texas Gathering, L.P. (71%); other third parties (29%)
	16. Crosstex LIG, LLC
	 	Louisiana	 	Material	 	Crosstex Energy Services, L.P. (100%)
	17. Crosstex LIG Liquids, LLC
	 	Louisiana	 	Material	 	Crosstex Energy Services, L.P. (100%)
	18. Crosstex Tuscaloosa, LLC
	 	Louisiana	 	Material	 	Crosstex Energy Services, L.P. (100%)
	19. Crosstex Louisiana Gathering, LLC
	 	Louisiana	 	 	 	Crosstex Energy Services, L.P. (100%)






 


 









 





	 	 	 	 	 	 	 
	 	 	 	 	Material	 	 
	 	 	 	 	(indicate	 	 
	 	 	Jurisdiction in which	 	with	 	 
	Entity	 	registered or qualified	 	“Material”)	 	Owners
	 
	 
	20. Crosstex Eunice, LLC
	 	Louisiana	 	Material	 	Crosstex Energy Services, L.P. (100%)
	21. Crosstex Processing Services, LLC
	 	Delaware, Louisiana	 	Material	 	Crosstex Energy Services, L.P. (100%)
	22. Crosstex Pelican, LLC
	 	Delaware, Louisiana	 	Material	 	Crosstex Energy Services, L.P. (100%)
	23. Sabine Pass Plant Facility Joint Venture
	 	Louisiana, Texas	 	Material	 	Crosstex Processing Services, LLC (81.05%) and Crosstex Pelican, LLC (18.95%)
	24. Crosstex Energy Finance Corporation
	 	Delaware	 	 	 	Crosstex Energy, L.P. (100%)






Part (b)




None.


 





	 	 	 
	*	 	States listed in bolded text indicate the jurisdiction in which the entity is organized.




 


 









 









SCHEDULE 7.01




EXISTING LIENS





	1.	 	Financing Statement 74530415 filed with the Delaware Secretary of State listing Crosstex
Energy Services, L.P. as Debtor, and Banc of America Leasing & Capital, LLC, as Secured Party,
in connection with items 2 through 7 on Schedule 7.03.







	2.	 	Financing Statement 80564730 filed with the Delaware Secretary of State listing Crosstex
Energy Services, L.P., as Debtor, and Banc of America Leasing & Capital, LLC, as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.







	3.	 	Financing Statement 81087459 filed with the Delaware Secretary of State listing Crosstex
Energy Services, L.P., as Debtor, and AIG Commercial Equipment Finance, Inc., as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.







	4.	 	Financing Statement 82723961 filed with the Delaware Secretary of State listing Crosstex
Energy Services, L.P., as Debtor, and AIG Commercial Equipment Finance, Inc., as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.







	5.	 	Financing Statement 83396130 filed with the Delaware Secretary of State listing Crosstex
Energy Services, L.P., as Debtor, and Bank of the West, as Secured Party, in connection with
items 2 through 7 on Schedule 7.03.







	6.	 	Financing Statement 83475280 filed with the Delaware Secretary of State listing Crosstex
Energy Services, L.P., as Debtor, and Caterpillar Financial Services Corp., as Secured Party,
in connection with items 2 through 7 on Schedule 7.03.







	7.	 	Financing Statement 90180437 filed with the Delaware Secretary of State listing Crosstex
Energy Services, L.P., as Debtor, and Centex Service Company, LLC, as Secured Party, in
connection with personal property located in leased premises.







	8.	 	Financing Statement 090005463592 filed with the Texas Secretary of State listing Crosstex
Energy Services, L.P, as Debtor, and Centex Service Company, LLC, as Secured Party, in
connection with personal property located in leased premises.







	9.	 	Financing Statement 53485993 filed with the Delaware Secretary of State listing Crosstex
Processing Services, LLC, as Debtor, and J.P. Morgan Trust Company, National Association, as
Secured Party in connection with that certain Indenture of Trust, Pledge and Security
Agreement, dated as of May 18, 1987, in connection with the processing plant in Acadia Parish,
Louisiana.







	10.	 	Financing Statement 080026624008 filed with the Texas Secretary of State listing Crosstex
North Texas Gathering, L.P., as Debtor, and AIG Commercial Equipment Finance, Inc., as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.





 


 









 











	11.	 	Financing Statement 080032963950 filed with the Texas Secretary of State listing Crosstex
North Texas Gathering, L.P., as Debtor, and Bank of the West, as Secured Party, in connection
with items 2 through 7 on Schedule 7.03.







	12.	 	Financing Statement 080033719112 filed with the Texas Secretary of State listing Crosstex
North Texas Gathering, L.P., as Debtor, and Caterpillar Financial Services Corp., as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.







	13.	 	Financing Statement 090008220253 filed with the Texas Secretary of State listing Crosstex
North Texas Gathering, L.P., as Debtor, and Banc of America Leasing & Capital, LLC, as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.







	14.	 	Financing Statement 090008221052 filed with the Texas Secretary of State listing Crosstex
North Texas Gathering, L.P., as Debtor, and Banc of America Leasing & Capital, LLC, as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.







	15.	 	Financing Statement 080010882209 filed with the Texas Secretary of State listing Crosstex
North Texas Gathering, L.P., as Debtor, and AIG Commercial Equipment Finance, Inc., as Secured
Party, in connection with items 2 through 7 on Schedule 7.03.







	16.	 	Financing Statement 28-436885 filed in Lafayette Parish, Louisiana listing Crosstex LIG, LLC,
as Debtor, and MidSouth Bank, N.A., as Secured Party, in connection with item 8 on Schedule
7.03.







	17.	 	Financing Statement 01-052003 filed in Acadia Parish, Louisiana listing Crosstex Processing
Services, LLC, as Debtor, and J.P. Morgan Trust Company, as Secured Party, in connection with
that certain Indenture of Trust, Pledge and Security Agreement, dated as of May 18, 1987, in
connection with the processing plant in Acadia Parish, Louisiana.





 


 









 










SCHEDULE 7.02




EXISTING INVESTMENTS




None









 


 









 







SCHEDULE 7.03




EXISTING INDEBTEDNESS





	1.	 	Amounts owed pursuant to the Eunice Lease Documents.







	 	•	 	Balance as of January 21, 2010: $18,053,622.45







	2.	 	Amounts owed in connection with the lease of certain natural gas compressors pursuant to the
Master Lease Agreement, dated as of November 2, 2007, between Banc of America Leasing &
Capital, LLC (the “Lessor”) and Crosstex Energy Services, L.P. (the “Lease Agreement”),
maturing on December 30, 2017.







	 	•	 	Original lease amount: $4,010,950.00







	 	•	 	Balance as of December 31, 2009: $3,403,795.46







	3.	 	Amounts owed in connection with the lease of certain natural gas compressors pursuant to the
Lease Agreement as supplemented by that certain Schedule to Master Lease Agreement, dated as
of February 15, 2008, between the Lessor and Crosstex North Texas Gathering, L.P., maturing on
March 15, 2018.







	 	•	 	Original lease amount: $4,595,808.00







	 	•	 	Balance as of December 31, 2009: $3,961,658.88







	4.	 	Amounts owed in connection with the lease of certain natural gas compressors pursuant to the
Lease Agreement as supplemented by that certain Schedule to Master Lease Agreement, dated as
of March 30, 2008, between the Lessor and Crosstex North Texas Gathering, L.P., maturing on
April 30, 2017.







	 	•	 	Original lease amount: $7,662,631.00







	 	•	 	Balance as of December 31, 2009: $6,583,995.63







	5.	 	Amounts owed in connection with the lease of certain natural gas compressors pursuant to the
Lease Agreement as supplemented by that certain Schedule to Master Lease Agreement, dated as
of August 5, 2008, between the Lessor and Crosstex North Texas Gathering, L.P., maturing on
August 31, 2017.







	 	•	 	Original lease amount: $2,883,867.00







	 	•	 	Balance as of December 31, 2009: $2,589,412.76





 


 









 











	6.	 	Amounts owed in connection with the lease of certain natural gas compressors pursuant to the
Lease Agreement as supplemented by that certain Schedule to Master Lease Agreement, dated as
of October 6, 2008, between the Lessor and Crosstex North Texas Gathering, L.P., maturing on
October 9, 2017.







	 	•	 	Original lease amount: $3,149,458.14







	 	•	 	Balance as of December 31, 2009: $2,860,644.75







	7.	 	Amounts owed in connection with the lease of certain natural gas compressors pursuant to the
Lease Agreement as supplemented by that certain Schedule to Master Lease Agreement, dated as
of October 14, 2008, between the Lessor and Crosstex North Texas Gathering, L.P., maturing on
October 16, 2018.







	 	•	 	Original lease amount: $4,820,288.84







	 	•	 	Balance as of December 31, 2009: $4,372,260.25







	8.	 	Amounts owed in connection with the lease of an American Eagle Forklift pursuant to the
Master Lease Agreement, dated as of September 10, 2008, between MidSouth Bank and Crosstex
LIG, LLC, maturing on September 1, 2010.







	 	•	 	Original lease amount: $68,479.00







	 	•	 	Balance as of December 31, 2009: $27,128.60





 


 









 










SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




CROSSTEX ENERGY, L.P.:

2501 Cedar Springs

Suite 100

Dallas, Texas 75201

Attention: General Counsel 

Telephone: 214-953-9500

Telecopier: 214-721-9383

Electronic Mail: joe.davis@crosstexenergy.com

Website Address:        www.crosstexenergy.com

U.S. Taxpayer Identification Number: 16-1616605

 

with a copy to:

 

CROSSTEX ENERGY, L.P.

2501 Cedar Springs

Suite 100

Dallas, Texas 75201

Attention: Chief Financial Officer

Telephone: 214-953-9500

Electronic Mail: bill.davis@crosstexenergy.com

 

with a copy to:

 

BAKER BOTTS L.L.P

2001 Ross Avenue

Suite 600

Dallas, Texas 75201

Attention: Luke A. Weedon, Esq. 

Telephone: 214-953-6970

Telecopier: 214-661-4970

Electronic Mail: luke.weedon@bakerbotts.com



 


 









 





ADMINISTRATIVE AGENT:




Administrative Agent’s Office

(for payments and Requests for Credit Extensions):

Bank of America, N.A.

901 Main Street, 66th Floor

Mail Code: TX1-492-14-04

Dallas, Texas 75202-3714

Attention: Melissa Lopez

Telephone: (214) 209-2031

Telecopier: (214) 290-9485

Electronic Mail: melissa.lopez@baml.com

Account No.: 1292000883

Ref: Crosstex Energy LP, L.P.- Attn – Melissa Lopez

ABA# 026009593




Other Notices as Administrative Agent:

Bank of America, N.A.

Agency Management

901 Main Street, 66th Floor

Mail Code: TX1-492-14-11

Dallas, Texas 75202-3714

Attention: Renita Cummings

Telephone: (214) 209-4130

Telecopier: (214) 290-8371

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




L/C ISSUER:




Bank of America, N.A.

Trade Operations

Street Address: 100, Temple Street

Mail Code: CA9-705-07-05

City, State ZIP Code: Los Angeles CA 900012-1514

Attention: Sandra Leon

Telephone: 213-580-8369

Telecopier: 213-457-8841

Electronic Mail: sandra.leon@baml.com



 


 









 





EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date:                     , _____




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




Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of
February [_____], 2010 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Crosstex Energy, L.P., a Delaware limited partnership (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C
Issuer.




The undersigned hereby requests (select one):



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	o
	 	A Borrowing of Committed Loans
	 	 	 	o
	 	A conversion of [Base Rate Loan][Eurodollar
Rate Loan] or continuation of Eurodollar Rate Loans







	1.	 	On                                          (a Business Day).

	 
	2.	 	In the amount of $                                        .







[principal amount to be borrowed, converted or continued]




	 	3.	 	Comprised of                                        .







[Type of Committed Loan requested or to which an existing Committed
Loan is to be converted into]




	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of
 _____ 
months.

	 
	 	[5.	 	Description of conversion or continuation:                                                                       
                                       ]







[For conversions or continuations, provide additional description of the Committed Loan to be
converted or continued]



[The Committed Borrowing requested herein complies with the proviso to the first sentence of
Section 2.01 of the Agreement.]1


 





	 	 	 
	1	 	Applicable if requesting a Borrowing of Committed Loans





A - 1

Form of Committed Loan Notice






 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	CROSSTEX ENERGY, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Crosstex Energy GP, L.P.,

its general partner	 	 
	 	 	By:	 	Crosstex Energy GP, LLC,

its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






A - 2

Form of Committed Loan Notice





 


 









 







EXHIBIT B




FORM OF NOTE




                                        




FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                         or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the aggregate unpaid principal amount of each
Loan (as defined in the Agreement described below) from time to time made by the Lender to the
Borrower under that certain Amended and Restated Credit Agreement, dated as of February [_____], 2010
(as amended, restated, extended, supplemented or otherwise modified in writing from time to time,
the “Agreement;” the terms defined therein being used herein as therein defined), among the
Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative
Agent and L/C Issuer.



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



This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty and is secured by the
Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also endorse on Schedule A attached hereto the date, amount and
maturity of its Loans and payments with respect thereto; provided that the failure of Lender to
endorse Schedule A, or the inaccuracy of any amount endorsed on Schedule A, shall not impair the
Lender’s rights under this Note.



To the extent set forth in the Agreement, the Borrower, for itself, its successors and
assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.



Except as provided in the Agreement, this Note may not be assigned by the Lender to any
Person.



B - 1

Form of Note



 


 









 





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



THIS WRITTEN NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF 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.



	 	 	 	 	 	 	 	 	 
	 	 	CROSSTEX ENERGY, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Crosstex Energy GP, L.P.,

its general partner	 	 
	 	 	By:	 	Crosstex Energy GP, LLC,

its general partner	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






B - 2

Form of Note




 


 









 





Schedule A




LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Principal or	 	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	End of	 	 	Interest	 	 	Principal	 	 	 	 
	 	 	Type of	 	 	Amount of	 	 	Interest	 	 	Paid This	 	 	Balance	 	 	Notation	 
	Date	 	Loan Made	 	 	Loan Made	 	 	Period	 	 	Date	 	 	This Date	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





  



B - 3

Form of Note



 


 









 





EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     , _____




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

Ladies and Gentlemen:




Reference is made to that certain Amended and Restated Credit Agreement, dated as of
February [_____], 2010 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Crosstex Energy, L.P., a Delaware limited partnership (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C
Issuer thereunder.



The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                                             of the Borrower, and that, as such, he/she is authorized to execute and deliver this Compliance
Certificate to the Administrative Agent on the behalf of the Borrower in the undersigned’s capacity
as a Responsible Officer of the Borrower and not in the undersigned’s individual capacity, and
that:



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




1. The Borrower has delivered the audited consolidated balance sheet of the Borrower and its
Subsidiaries for the fiscal year ended                     , and the related consolidated statements of
income or operations for such fiscal year, and the related consolidated statements of changes in
shareholders’ equity, and cash flows for the Borrower’s fiscal year then ended. Such consolidated
financial statements fairly present in all material respects the financial condition, results of
operations, changes in shareholders’ equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP as at such date and for such period, subject only to normal year-end audit
adjustments and the absence of footnotes.



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




1. The Borrower has delivered a consolidated balance sheet of the Borrower and its
Subsidiaries dated                     , and the related consolidated statements of income or operations
for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, and the
related consolidated statements of changes in shareholders’ equity, and cash flows for the portion
of the Borrower’s fiscal year then ended. Such consolidated financial statements fairly present in
all material respects the financial condition, results of operations, changes in shareholders’
equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date
and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



C - 1

Form of Compliance Certificate



 


 









 





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



3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



[select one:]




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



—or—




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



4. The financial covenant analyses and information set forth on Schedules 1 and
2 attached hereto (or in such other format acceptable to the Administrative Agent) are true
and accurate on and as of the date of this Compliance Certificate.



IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of                                         ,
February _____, 2010.



	 	 	 	 	 	 	 	 	 
	 	 	CROSSTEX ENERGY, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Crosstex Energy GP, L.P.,

its general partner	 	 
	 	 	By:	 	Crosstex Energy GP, LLC,

its general partner	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






C - 2

Form of Compliance Certificate



 


 









 





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




SCHEDULE 1

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 
	I. Section 7.11(a) — Consolidated Interest Coverage Ratio.
	 	 	 	 
	A. Consolidated EBITDA for four consecutive fiscal quarters ending
on above date (“Subject Period”):
	 	$	                    	 
	1. Consolidated Net Income for Subject Period:
	 	$	                    	 
	2. Consolidated Interest Charges for Subject Period:
	 	$	                    	 
	3. Provision for Federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for Subject Period:
	 	$	                    	 
	4. Depreciation expenses for Subject Period:
	 	$	                    	 
	5. Amortization expenses for Subject Period:
	 	$	                    	 
	6. Non-cash items of the Borrower and its Subsidiaries reducing
Consolidated Net Income for Subject Period:
	 	$	                    	 
	7. Other non-recurring items of the Borrower and its Subsidiaries
reducing Consolidated Net Income for Subject Period:
	 	$	                    	 
	8. Any Transaction Costs allocated to Subject Period (not to exceed
$35,000,000):
	 	$	                    	 
	9. Federal, state, local and foreign income tax credits of the
Borrower and its Subsidiaries for Subject Period:
	 	$	                    	 
	10. Non-cash items of the Borrower and its Subsidiaries increasing
Consolidated Net Income for Subject Period:
	 	$	                    	 
	11. Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 +7
+8-9-10):
	 	$	                    	 
	 
	 
	B. Consolidated Interest Charges for Subject Period, or such other
period as set forth in the Credit Agreement:
	 	$	                    	 
	 
	 
	C. Consolidated Interest Coverage Ratio (Line I.A.11  ̧ Line
I.B):
	 	             to 1	 






C - 3

Form of Compliance Certificate



 


 









 






Minimum required:



	 	 	 
	 	 	Minimum Consolidated
	 	 	Interest Coverage
	Fiscal Quarter(s) Ending	 	Ratio
	March 31, 2010
	 	1.50 to 1.00
	June 30, 2010 through December 31, 2010
	 	1.75 to 1.00
	March 31, 2011
	 	2.00 to 1.00
	June 30, 2011
	 	2.25 to 1.00
	September 30, 2011 and each fiscal quarter thereafter
	 	2.50 to 1.00






	 	 	 	 	 
	II. Section 7.11(b) — Consolidated Leverage Ratio.
	 	 	 	 
	A. Consolidated Funded Indebtedness at Statement Date:
	 	$	                    	 
	B. Consolidated EBITDA for Subject Period (Line I.A.11
above):
	 	$	                    	 
	C. Consolidated Leverage Ratio (Line II.A  ̧ Line II.B):
	 	                         to 1	 







Maximum permitted:



	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Four Fiscal Quarters Ending	 	Leverage Ratio
	March 31, 2010 and June 30, 2010
	 	5.75 to 1.00
	September 30, 2010
	 	5.50 to 1.00
	December 31, 2010
	 	5.25 to 1.00
	March 31, 2011
	 	5.00 to 1.00
	June 30, 2011
	 	4.75 to 1.00
	September 30, 2011 and each fiscal quarter thereafter
	 	4.50 to 1.00






	 	 	 	 	 
	III. Section 7.11(c) — Consolidated Senior Leverage Ratio.
	 	 	 	 
	A. Consolidated Secured Funded Indebtedness at Statement
Date (Lines II.A above):
	 	$	                    	 
	B. Consolidated EBITDA for Subject Period (Line I.A.11
above):
	 	$	                    	 
	C. Consolidated Senior Leverage Ratio (Line III.A ÷ Line
III.B):
	 	$	                    	 







Maximum permitted:



	 	 	 	 	 
	 	 	Maximum	 
	 	 	Consolidated	 
	Commencing with the Fiscal Quarter	 	Senior Leverage	 
	Ending March 31, 2010	 	Ratio = 2.50 to 1.00	 
	 
	 	 	 	 






C - 4

Form of Compliance Certificate



 


 









 





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




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




Consolidated EBITDA

(in accordance with the definition of Consolidated EBITDA

as set forth in the Agreement)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Twelve	 
	 	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Months	 
	Consolidated	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 
	EBITDA	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Consolidated
Net Income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ Consolidated
Interest Charges
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ Federal,
state, local and
foreign income
taxes payable by
the Borrower and
its Subsidiaries
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ depreciation
expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ amortization
expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ non-cash items
of the Borrower
and its
Subsidiaries
reducing
Consolidated Net
Income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ other
non-recurring
items of the
Borrower and its
Subsidiaries
reducing
Consolidated Net
Income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ any allocated
Transaction
Costs (not to
exceed
$35,000,000)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- Federal,
state, local and
foreign income
tax credits of
the Borrower and
its Subsidiaries
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- non-cash items
of the Borrower
and its
Subsidiaries
increasing
Consolidated Net
Income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	= Consolidated
EBITDA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






C - 5

Form of Compliance Certificate



 


 









 





EXHIBIT D




ASSIGNMENT AND ASSUMPTION




This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each]1 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not
joint.]4 Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified in item 5 below (the “Credit Agreement”), receipt of a copy
of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in
Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if set forth herein in
full.



For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit included in such facilities)
and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors
(in their respective capacities as Lenders)] against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based on or related to any
of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by
[the Assignor][each Assignor] to the Assignee[s] pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”). Each such sale and assignment
is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor.


 





	 	 	 
	1	 	For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is to a single Assignor, choose
the first bracketed language. If the assignment is to multiple Assignors,
choose the second bracketed language.

	 
	2	 	For bracketed language here and elsewhere in this form
relating to the Assignee(s), if the assignment is to a single Assignee, choose
the first bracketed language. If the assignment is to multiple Assignees,
choose the second bracketed language.

	 
	3	 	Select as appropriate.

	 
	4	 	Include bracketed language if there are multiple
Assignors, multiple Assignees or both.





D - 1

Form of Assignment and Assumption





 


 









 










	 	 	 	 	 	 	 
	1.

	 	Assignor[s]:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee[s]:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 







[if applicable, for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]



3. Borrower: Crosstex Energy, L.P., a Delaware limited partnership



4. Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement



5. Credit Agreement: Amended and Restated Credit Agreement, dated as of February [_____],
2010, among Crosstex Energy, L.P., a Delaware limited partnership, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer



6. Assigned Interest[s]:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Assigned of	 	 	 	 
	 	 	 	 	 	 	Facility	 	 	Commitment	 	 	Commitment	 	 	Commitment	 	 	CUSIP	 
	Assignor [s] 5	 	Assignee [s] 6	 	 	Assigned7	 	 	for all Lenders8	 	 	Assigned	 	 	for all Lenders9	 	 	Number	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






[7. Trade Date:                     ]10

Effective Date:                                          20
 _____ 
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



 





	 	 	 
	5	 	List each Assignor, as appropriate.

	 
	6	 	List each Assignee, as appropriate.

	 
	7	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Committed Loan”, participation in “L/C Obligations”, etc.).

	 
	8	 	Amounts in this column and in the column immediately to
the right to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.

	 
	9	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment of all Lenders thereunder.

	 
	10	 	To be completed if the Assignor and the Assignee
intend that the minimum assignment amount is to be determined as of the Trade
Date.





D - 2

Form of Assignment and Assumption





 


 









 










The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR


[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	[Consented to and] Accepted:





BANK OF AMERICA, N.A., as11

Administrative Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	[Consented to:]





BANK OF AMERICA, N.A., as12

L/C Issuer

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 


 





	 	 	 
	11	 	Consent of Administrative Agent required (1) for any
assignment of less than $5,000,000.00 and (2) when such assignment is to a
Person that is not a Lender with a Commitment, an Affiliate of such Lender, or
an Approved Fund with respect to such Lender.

	 
	12	 	Consent of L/C Issuer required for any assignment that
increases the obligation of the assignee to participate in exposure under
Letter(s) of Credit.





D - 3

Form of Assignment and Assumption




 


 









 





	 	 	 	 	 	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 	 	 	 	 
	Crosstex Energy, L.P., as Borrower13	 	 
	 
	 	 	 	 	 	 	 	 
	By:	 	Crosstex Energy GP, L.P.,

Its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Crosstex Energy GP, LLC,

Its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 





 





	 	 	 
	13	 	Consent of Borrower required for any assignment unless
(1) an Event of Default has occurred and is continuing or (2) such assignment
is to a Lender, an Affiliate of a Lender, or an Approved Fund.





D - 4

Form of Assignment and Assumption





 


 









 










ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




Amended and Restated Credit Agreement dated as of February [__], 2010,

among Crosstex Energy, L.P., a Delaware limited partnership, as Borrower,

the Lenders from time to time party thereto, and Bank of America, N.A.

as Administrative Agent and L/C Issuer thereunder




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[its portion of the] Assigned Interest, (ii) [the][such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes
no responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents,
if any, as may be required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][its portion of the] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and
information as it 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.



D - 5

Form of Assignment and Assumption



 


 









 





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][the applicable] Assignor for amounts which have accrued to but
excluding the Effective Date and to [the][the applicable] Assignee for amounts which have accrued
from and after the Effective Date.



3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy or electronic transmission shall be effective as delivery of
a manually executed counterpart of this Assignment and Assumption; provided that any such delivery
by electronic transmission shall be effective only if transmitted in .pdf format, .tif format or
other format in which the text is not readily modifiable by any recipient thereof. This Assignment
and Assumption shall be governed by, and construed in accordance with, the laws of the State of New
York.



D - 6

Form of Assignment and Assumption





 


 









 







EXHIBIT E




FORM OF GUARANTY



 

 

 

 

 

 

 

 


E - 1

Form of Security Agreement





 


 











 




Amended and Restated Guaranty




AMENDED AND RESTATED GUARANTY (this agreement, together with all amendments, restatements and
other modifications hereto and all Guaranty Supplements, this “Guaranty”), dated as of February 10,
2010, made by each of the parties listed on the signature pages hereof and each other Person which
may from time to time become a party to this Guaranty pursuant to Section 22 (collectively,
the “Additional Guarantors,” and each, an “Additional Guarantor,” and together with each of the
signatories party hereto, collectively the “Guarantors,” and each, a “Guarantor”), in favor of Bank
of America, N.A., as administrative agent for the Lenders party to the Credit Agreement
(hereinafter defined) (“Administrative Agent”), for the benefit of the Guaranteed Parties.



BACKGROUND.




Crosstex Energy, L.P., a Delaware limited partnership (“Borrower”), Bank of America, N.A., as
the administrative agent (the “Original Administrative Agent”), and the other lenders party thereto
(the “Original Lenders”), executed that certain Fourth Amended and Restated Credit Agreement dated
as of November 1, 2005 (as amended, restated or otherwise modified, the “Existing Credit
Agreement”).



Pursuant to the Existing Credit Agreement, (i) certain subsidiaries of the Borrower executed
that certain Second Amended and Restated Subsidiary Guaranty, dated as of November 1, 2005 (as
amended, restated or otherwise modified, the “Original Guaranty”), and (ii) Crosstex Eunice, LLC
(“Crosstex Eunice”) executed that certain Subsidiary Guaranty dated as of October 15, 2009 (the
“Eunice Guaranty”), in each case in favor of the financial institutions party thereto and the
administrative agent referenced therein for the benefit of the guaranteed parties referenced
therein.



The Borrower, the Original Administrative Agent and the Original Lenders desire to amend and
restate (but not novate) the Existing Credit Agreement. To evidence the credit facility requested
under the Credit Agreement referenced below, the Borrower, the Administrative Agent (as defined in
such Credit Agreement) and the Lenders (as defined in such Credit Agreement) have agreed that such
Credit Agreement is an amendment and restatement of (but not a novation of) the Existing Credit
Agreement.



The Guarantors party hereto desire to amend and restate (but not novate) the Original Guaranty
and the Eunice Guaranty, and it is a condition precedent to the effectiveness of the Credit
Agreement that each Guarantor listed on the signature pages hereto shall have executed and
delivered this Guaranty. This Guaranty is an amendment and restatement of (but not a novation of)
the Original Guaranty and the Eunice Guaranty.



Borrower and each of the Guarantors are members of the same consolidated group of companies
and are engaged in operations which require financing on a basis pursuant to which credit can be
made available from time to time to Borrower, and each Guarantor will derive direct and indirect
economic benefit from the Loans, Letters of Credit and other financial accommodations under the
Credit Agreement, the other Loan Documents, the Secured Cash Management Agreements and the Secured
Hedge Agreements.



Administrative Agent, L/C Issuer, Lenders, Hedge Banks, Cash Management Banks and the other
Persons to whom the Guaranteed Obligations are owed are the “Guaranteed Parties”.



 


 









 





AGREEMENT.




NOW, THEREFORE, in consideration of the premises set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party
hereto, and in order to induce (a) Lenders to make the Loans and issue Letters of Credit under the
Credit Agreement and to extend other credit and financial accommodations under the Loan Documents,
and (b) the Guaranteed Parties to make financial accommodations under the Secured Cash Management
Agreements and the Secured Hedge Agreements, as applicable, each Guarantor hereby agrees with
Administrative Agent, for the benefit of the Guaranteed Parties, and each Guaranteed Party as
follows:




SECTION 1. Definitions; Other Terms.




(a) For purposes of this Guaranty:




“Guaranteed Obligations” has the meaning set forth in Section 2.



“Insolvency Proceeding” means any voluntary or involuntary liquidation, dissolution, sale of
all or substantially all assets, marshaling of assets or liabilities, receivership,
conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization,
arrangement or composition of any Guarantor, any other Loan Party or any Subsidiary (whether or not
pursuant to any Debtor Relief Laws) or any other proceedings involving any Guarantor, any other
Loan Party or any Subsidiary or any of the assets of any Guarantor, any other Loan Party or any
Subsidiary under any Debtor Relief Laws.



“Louisiana Regulated Entities” means Crosstex LIG, LLC, a Louisiana limited liability company
and Crosstex Tuscaloosa, LLC, a Louisiana limited liability company.



“Release Date” means, for each Guarantor, the earliest date on which either of the following
occurs: (i) delivery of an approval, authorization or ratification in writing by the Required
Lenders releasing such Guarantor from its obligations hereunder and (ii) if any Guarantor ceases to
be a Subsidiary as a result of a transaction permitted by the Credit Agreement, delivery of a
release by the Administrative Agent releasing such Guarantor from its obligations hereunder.



“Termination Date” means the earliest date on which all of the following occurs: termination
of the Aggregate Commitments and payment in full of all Obligations (other than contingent
indemnification obligations), and the expiration or termination of all Letters of Credit (other
than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and
the L/C Issuer shall have been made).



(b) Each capitalized term not otherwise defined herein has the meaning specified for such term
in the Credit Agreement, and, to the extent of a conflict between the definition assigned to a term
in the Credit Agreement and the definition assigned to such term herein, such term as defined
herein shall control (provided, that a more expansive or explanatory definition shall not
be deemed a conflict).



(c) 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
(i) 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 herein or any other Loan Document, Secured Cash Management
Agreement or Secured Hedge Agreement, as applicable), (ii) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (iii) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to this Guaranty in its
entirety and not to any particular provision hereof, (iv) all references herein to Sections shall
be construed to refer to Sections of this Guaranty and (v) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights. This
Guaranty is a Loan Document.



 


2









 





SECTION 2. Guaranty. Each of the Guarantors hereby jointly and severally,
unconditionally and irrevocably guarantees the full and prompt payment when due, whether at stated
maturity, by acceleration or otherwise, of, and the performance of, (a) the Secured Obligations,
(b) any and all reasonable out-of-pocket expenses (including, without limitation, expenses and
counsel fees and expenses of Administrative Agent and each Lender) incurred by any of the
Guaranteed Parties in enforcing any rights under this Guaranty, and (c) all present and future
amounts that would become due with respect to the foregoing but for the operation of any provision
of Debtor Relief Laws, and all present and future accrued and unpaid interest with respect to the
foregoing, including, without limitation, all post-petition interest if Borrower or any Guarantor
becomes subject to any Insolvency Proceeding or Debtor Relief Laws; provided that the maximum
obligation of the Louisiana Regulated Entities hereunder shall be limited to $500 million in the
aggregate (the items set forth in clauses (a), (b) and (c), being herein
referred to as the “Guaranteed Obligations”). Upon failure of Borrower to pay any of the
Guaranteed Obligations when due (whether at stated maturity, by acceleration or otherwise), each
Guarantor hereby further jointly and severally agrees to promptly pay the same to Administrative
Agent for the benefit of the Guaranteed Parties, without any other demand or notice whatsoever,
including without limitation, any notice having been given to any Guarantor of either the
acceptance of the benefits of this Guaranty or the creation or incurrence of any of the Guaranteed
Obligations (other than the giving of notice by the Administrative Agent and/or any of the
Guaranteed Parties after the expiration of any applicable cure period in each case provided for in
the Credit Agreement and the other Loan Documents, any Secured Hedge Agreement or any Secured Cash
Management Agreement, as applicable); provided that in no event shall the Louisiana Regulated
Entities be required to pay more than $500 million in the aggregate in respect of this Guaranty.
This Guaranty is an absolute guaranty of payment and performance of the Guaranteed Obligations and
not a guaranty of collection, meaning that it is not necessary for Administrative Agent (for and on
behalf of the Guaranteed Parties), in order to enforce payment by Guarantors, first or
contemporaneously to accelerate payment of any of the Guaranteed Obligations, to institute suit or
exhaust any rights against any Loan Party or any other Person, or to enforce any rights against any
Collateral or other security for the Secured Obligations. Notwithstanding anything herein or in
any other Loan Document, Secured Cash Management Agreement or Secured Hedge Agreement to the
contrary, in any action or proceeding involving any state corporate or other business entity Law,
or any state or federal bankruptcy, insolvency, reorganization or other Law affecting the rights of
creditors generally (including any Debtor Relief Law), if, as a result of applicable Law relating
to fraudulent conveyance or fraudulent transfer, including Section 548 of the Bankruptcy Code or
any applicable provisions of comparable state Law (collectively, “Fraudulent Transfer Laws”), the
obligations of any Guarantor under this Section 2 would otherwise, after giving effect to
all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement
or contribution of such Guarantor pursuant to (a) applicable Law, or (b) any agreement providing
for rights of subrogation, reimbursement or contribution in favor of such Guarantor, or for an
equitable allocation among such Guarantor, Borrower, any other Loan Party, and any other Person of
obligations arising under guaranties or grants of collateral by such Persons, be held or determined
to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on
account of the amount of its liability under this Section 2, then the amount of such
liability shall, without any further action by such Guarantor, any Guaranteed Party or any other
Person, be automatically limited and reduced to the highest amount that is valid and enforceable
and not subordinated to the claims of other creditors as determined in such action or proceeding.


 


3









 





SECTION 3. Guaranty Absolute. Subject to the limitations on the maximum obligation of
the Louisiana Regulated Entities set forth in Section 2, each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents,
the Secured Cash Management Agreements and the Secured Hedge Agreements, as applicable, without
set-off or counterclaim, and regardless of any applicable Law now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Guaranteed Parties with respect
thereto. The liability of each Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:



(a) any lack of validity or enforceability of any provision of any Loan Document, any Secured
Cash Management Agreement or any Secured Hedge Agreement, any other agreement or instrument
relating to any of the foregoing or avoidance or subordination of any of the Guaranteed
Obligations;



(b) any change in the time, manner or place of payment of, or in any other term of, or any
increase in the amount of, all or any of the Guaranteed Obligations, or any other amendment or
waiver of any term of, or any consent to departure from any requirement of, any of the Loan
Documents, the Secured Cash Management Agreements or the Secured Hedge Agreements;



(c) any exchange, release or non-perfection of any Lien on any Collateral or other security
for, or any release of any other Loan Party or amendment or waiver of any term of any other
guaranty of, or any consent to departure from any requirement of any other guaranty of, all or any
of the Guaranteed Obligations;



(d) the absence of any attempt to collect any of the Guaranteed Obligations from Borrower or
from any other Loan Party or any other action to enforce the same or the election of any remedy by
any of the Guaranteed Parties;



(e) any waiver, consent, extension, forbearance or granting of any indulgence by any of the
Guaranteed Parties with respect to any provision of any other Loan Document, any Secured Cash
Management Agreement or any Secured Hedge Agreement (except to the extent any written waiver,
consent, forbearance or indulgence executed in accordance with such Loan Document, such Secured
Cash Management Agreement or such Secured Hedge Agreement, as applicable, expressly modifies or
terminates the obligations of such Guarantor);




(f) the election by any of the Guaranteed Parties in any Insolvency Proceeding;



(g) any borrowing or grant of a security interest by Borrower, as debtor-in-possession, under
any Debtor Relief Law; or



(h) any other circumstance which might otherwise constitute a legal or equitable discharge or
defense of Borrower, any Guarantor or any other Loan Party other than payment or performance of the
Guaranteed Obligations.




SECTION 4. Waiver.



(a) Each Guarantor hereby (i) waives (A) promptness, diligence, and, except as otherwise
provided herein, notice of acceptance and any and all other notices, including, without limitation,
notice of intent to accelerate and notice of acceleration, with respect to any of the Guaranteed
Obligations or this Guaranty, (B) any requirement that any of the Guaranteed Parties protect,
secure, perfect or insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against Borrower or any other Person or any Collateral or
other security, (C) the filing of any claim with a court in the event of any Insolvency Proceeding
of any Loan Party or any other Person, (D) except as otherwise provided herein, protest or notice
with respect to nonpayment of all or any of the Guaranteed Obligations, (E) except as otherwise
provided herein, all demands whatsoever (and any requirement that demand be made on any Loan Party
or any other Person as a condition precedent to such Guarantor’s obligations hereunder), (F) all
rights by which any Guarantor might be entitled to require suit on an accrued right of action in
respect of any of the Guaranteed Obligations or require suit against any Loan Party or any other
Person, (G) any defense based upon an election of remedies by any Guaranteed Party, or (H) notice
of any events or circumstances set forth in clauses (a) through (h) of
Section 3; and (ii) covenants and agrees that, except as otherwise agreed by the parties,
this Guaranty will not be discharged as to such Guarantor except on earliest to occur of the
Release Date applicable to such Guarantor and the Termination Date.


 


4









 





(b) If, in the exercise of any of its rights and remedies in accordance with the provisions of
applicable Law, any of the Guaranteed Parties shall forfeit any of its rights or remedies,
including, without limitation, its right to enter a deficiency judgment against any Loan Party or
any other Person, whether because of any applicable Law pertaining to “election of remedies” or the
like, each Guarantor hereby consents to such action by such Guaranteed Party and waives any claim
based upon such action. Any election of remedies which, by reason of such election, results in the
denial or impairment of the right of such Guaranteed Party to seek a deficiency judgment against
any Loan Party or any other Person shall not impair the obligation of such Guarantor to pay the
full amount of the Guaranteed Obligations or any other obligation of such Guarantor contained
herein.



(c) If any of the Guaranteed Parties shall bid at any foreclosure or trustee’s sale or at any
private sale permitted by Law or under any of the Loan Documents, the Secured Cash Management
Agreements, and the Secured Hedge Agreements, to the extent not prohibited by applicable Law, such
Guaranteed Party may bid all or less than the amount of the Guaranteed Obligations and the amount
of such bid, if successful, need not be paid by such Guaranteed Party but shall be credited against
the Guaranteed Obligations.



(d) Each Guarantor agrees that, notwithstanding any provision of this Guaranty and without
limiting the generality of any provision of this Guaranty, if an Event of Default exists and
(i) Administrative Agent or the Guaranteed Parties are prevented by applicable Law from exercising
their respective rights to accelerate the maturity of the Guaranteed Obligations, to collect
interest on the Guaranteed Obligations, or to enforce or exercise any other right or remedy with
respect to the Guaranteed Obligations, or (ii) Administrative Agent is prevented from taking any
action to realize on any Collateral or other security, such Guarantor shall pay to Administrative
Agent for the account of the Guaranteed Parties, upon demand therefor, for application to the
Guaranteed Obligations, the amount that would otherwise have been due and payable had such rights
and remedies been permitted to be exercised by the Guaranteed Parties.



(e) Each Guarantor hereby assumes responsibility for keeping itself informed of the financial
condition of Borrower and of each other Loan Party, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations or any part thereof, that diligent inquiry would
reveal. Each Guarantor hereby agrees that the Guaranteed Parties shall have no duty to advise any
Guarantor or any other Loan Party of information known to any of the Guaranteed Parties regarding
such condition or any such circumstance. In the event that any of the Guaranteed Parties in its
sole discretion undertakes at any time or from time to time to provide any such information to any
Guarantor or other Loan Party, such Guaranteed Party shall be under no obligation (i) to undertake
any investigation not a part of its regular business routine, (ii) to disclose any information
which, pursuant to accepted or reasonable banking or commercial finance practices or agreement,
such Guaranteed Party wishes to maintain as confidential, or (iii) to make any other or future
disclosures of such information or any other information to such Guarantor or other Loan Party.



(f) Each Guarantor consents and agrees that the Guaranteed Parties shall be under no
obligation to marshal any assets in favor of any Guarantor or any other Loan Party or otherwise in
connection with obtaining payment of any or all of the Guaranteed Obligations from any Person or
source.


 


5









 





(g) Each Guarantor acknowledges and agrees that nothing contained in this Guaranty or in any
other Loan Document shall be construed as requiring the Administrative Agent to reduce a claim for
payment under this Guaranty to judgment or otherwise pursue any remedy under this Guaranty before
exercising the rights and remedies granted the Administrative Agent in respect of the Collateral in
any Loan Document.




SECTION 5. No Waiver; Remedies.



(a) No failure on the part of any Guaranteed Party to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any remedies provided by
applicable Law or any of the other Loan Documents, the Secured Cash Management Agreements or the
Secured Hedge Agreements.



(b) No waiver by the Guaranteed Parties of any default shall operate as a waiver of any other
default or the same default on a future occasion, and no action by any of the Guaranteed Parties
permitted hereunder shall in way affect or impair any of the rights of the Guaranteed Parties or
the obligations of any Guarantor under this Guaranty or under any of the other Loan Documents, any
Secured Cash Management Agreement or any Secured Hedge Agreement, except as specifically set forth
in any such waiver. Any determination by a court of competent jurisdiction of the amount of any
principal and/or interest or other amount constituting any of the Guaranteed Obligations shall be
conclusive and binding on each Guarantor irrespective of whether such Guarantor was a party to the
suit or action in which such determination was made.



SECTION 6. Representations and Warranties. Each Guarantor hereby represents and
warrants to the Guaranteed Parties that the representations and warranties set forth in
Article V of the Credit Agreement as they relate to such Guarantor or to the Loan Documents
to which such Guarantor is a party are true and correct in all material respects in the manner
specified in the Credit Agreement on and as of the date hereof, except for any such representations
and warranties that were made as of a specified date and the Guaranteed Parties shall be entitled
to rely on such representations and warranties as if they were fully set forth herein.



SECTION 7. Amendments, Etc. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by any Guarantor herefrom shall in any event be effective unless the
same shall be in writing and signed by Administrative Agent and each Guarantor, and then such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given.



SECTION 8. Addresses for Notices. Notices and Deliveries. All notices and
other communications provided for hereunder shall be effectuated in the manner provided for in
Section 10.02 of the Credit Agreement, said notice addressed to a Guarantor shall be to its
notice address set forth opposite its signature hereto.



SECTION 9. Right of Set-off. If an Event of Default exists, each of the Guaranteed
Parties is hereby authorized at any time and from time to time, to the fullest extent not
prohibited by applicable Law, to set-off and apply any and all deposits (general or special (except
trust and escrow accounts), time or demand, provisional or final) at any time held and other
Indebtedness at any time owing by such Guaranteed Party to or for the credit or the account of each
Guarantor against the Guaranteed Obligations, irrespective of whether or not such Guaranteed Party
shall have made any demand under this Guaranty and although such obligations may be contingent and
unmatured; provided, however, such Guaranteed Party shall promptly notify such
Guarantor and Borrower after such set-off and the application made by such Guaranteed Party;
provided, further, any failure to deliver such notice shall not invalidate any such
action. The rights of each Guaranteed Party under this Section 9 are in addition to other
rights and remedies (including, without limitation, other rights of set-off) which such Guaranteed
Party may have.



 


6









 





SECTION 10. Continuing Guaranty; Transfer of Guaranteed Obligations. This Guaranty
(a)(i) is a continuing guaranty and, as to each Guarantor, shall remain in full force and effect
until the earliest to occur of the Release Date applicable to such Guarantor and the Termination
Date and (ii) is binding upon each Guarantor, its heirs, devisees, executors, administrators,
permitted successors and assigns, and such Guarantor as debtor–in–possession, and (b) subject to
Section 10.03 of the Credit Agreement, inures to the benefit of and is enforceable by the
Guaranteed Parties and their respective successors, permitted transferees, and permitted assigns.
Without limiting the generality of the foregoing clause (b), to the extent so permitted in
the Credit Agreement, each of the Guaranteed Parties may assign or otherwise transfer any
Guaranteed Obligations owed to it to any other Person, and such other Person shall thereupon become
vested with all the rights in respect thereof granted to such Guaranteed Party herein or otherwise
with respect to such Guaranteed Obligations so transferred or assigned. No Guarantor may assign
any of its obligations under this Guaranty except in connection with a transaction permitted by
Sections 7.04(a) or (b) of the Credit Agreement.



SECTION 11. Application of Payments. All amounts and property received by
Administrative Agent and the Guaranteed Parties pursuant to this Guaranty (including amounts and
property received or applied pursuant to Section 9 or application of other rights of
set-off) shall be applied to the Guaranteed Obligations as provided in Section 8.03 of the
Credit Agreement.



SECTION 12. Reinstatement; Termination. This Guaranty shall remain in full force and
effect and continue to be effective (i) should any petition be filed by or against any Loan Party
under any Debtor Relief Law, (ii) should any Loan Party become insolvent or make an assignment for
the benefit of creditors or (iii) should a receiver or trustee be appointed for all or any
significant part of any Loan Party’s assets, and this Guaranty shall, to the fullest extent
permitted by applicable Law, continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Guaranteed Obligations, or any part thereof, is, pursuant
to applicable Law, rescinded or reduced in amount, or must otherwise be restored or returned by any
obligees of the Guaranteed Obligations or such part thereof, whether as a “voidable preference,”
“fraudulent transfer,” or otherwise, all as though such payment or performance had not been made.
In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Guaranteed Obligations shall, to the fullest extent not prohibited by Law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Subject to the reinstatement provisions of this Section 12, this Guaranty shall, as to each
Guarantor, remain in full force and effect until the earliest to occur of the Release Date
applicable to such Guarantor and the Termination Date.




SECTION 13. Governing Law; Jurisdiction; Consent to Service of Process.



(a) This Guaranty shall be construed in accordance with and governed by the Laws of the State
of New York (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the
State of New York without regard to conflict of law principles that would require application of
laws of another jurisdiction) and federal Laws applicable to national banking associations.


 


7









 





(b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of the State of New York sitting in the
County of New York and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Guaranty, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York state or, to the extent not prohibited by
Law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by Law. Nothing in this Guaranty shall affect any right
that Administrative Agent or any other Guaranteed Party may otherwise have to bring any action or
proceeding relating to this Guaranty against any Guarantor or the Collateral or other security in
the courts of any jurisdiction.



(c) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty or any other
Loan Document in any court referred to in Section 13(b). Each of the parties hereto hereby
irrevocably waives, to the fullest extent not prohibited by Law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.



(d) Each party to this Guaranty irrevocably consents to service of process in the manner
provided for notices in Section 8. Nothing in this Guaranty or any other Loan Document
will affect the right of any party to this Guaranty to serve process in any other manner permitted
by Law. This Section 13 shall survive the termination of this Guaranty, and any
satisfaction and discharge of each Guarantor by virtue of any payment, court order, or Law.



SECTION 14. WAIVER OF JURY TRIAL. EACH PARTY HERETO AND, BY ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY, EACH GUARANTEED PARTY, HEREBY WAIVES, TO THE FULLEST EXTENT NOT
PROHIBITED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO AND, BY ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY, EACH GUARANTEED
PARTY, (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO OR ACCEPT THE BENEFITS OF THIS GUARANTY (AS APPLICABLE) BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. THIS SECTION 14 SHALL
SURVIVE THE TERMINATION OF THIS GUARANTY, AND ANY SATISFACTION AND DISCHARGE OF EACH GUARANTOR BY
VIRTUE OF ANY PAYMENT, COURT ORDER, OR LAW.



SECTION 15. Section Titles. The Section titles contained in this Guaranty are and
shall be without substantive meaning or content of any kind whatsoever and are not to be used in
any interpretation of this Guaranty.



SECTION 16. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
were upon the same instrument. Executed counterpart signature pages delivered by facsimile or as
an attachment to electronic mail shall be deemed to be an original.


 


8









 





SECTION 17. Miscellaneous. All references herein to any Loan Party or to any
Guarantor shall include their respective successors and assigns, including, without limitation,
heirs, devisees, executors, administrators, receivers, trustees or debtor-in-possession of or for
such Loan Party or such Guarantor. All references to the singular shall be deemed to include the
plural where the context so requires.




SECTION 18. Subrogation and Subordination.



(a) Until the Termination Date, no Guarantor shall assert, enforce, or otherwise exercise
(i) any right of subrogation to any of the rights or Liens of Administrative Agent or any other
Guaranteed Party or any Person acting for the benefit of Administrative Agent or any other
Guaranteed Party against any other Loan Party or any Collateral or any other security, or (ii) any
right of recourse, reimbursement, contribution, indemnification, or similar right against any other
Loan Party on all or any part of the Guaranteed Obligations, and each Guarantor hereby, until the
Termination Date, waives any and all of the foregoing rights and the benefit of, and any right to
participate in, any Collateral or other security given to Administrative Agent, any other
Guaranteed Party or any Person acting for the benefit of Administrative Agent or any other
Guaranteed Party to secure payment of the Guaranteed Obligations.



(b) With respect to each Guarantor, all debt and other liabilities of each other Loan Party to
such Guarantor (“Loan Party Debt”) are expressly subordinate and junior to the Guaranteed
Obligations and any instruments evidencing the Guaranteed Obligations to the extent provided below.




(i) Until the Termination Date, each Guarantor agrees that it will not request, demand,
accept, or receive (by set-off or other manner) any payment amount, credit or reduction of
all or any part of the amounts owing under the Loan Party Debt or any security therefor,
except as specifically allowed pursuant to clause (ii);




(ii) Notwithstanding the provisions of clause (i), Borrower and each other Loan
Party may pay to such Guarantor and such Guarantor may request, demand, accept and receive
and retain from Borrower and such other Loan Party payments, credits or reductions of all or
any part of the amounts owing under the Loan Party Debt or any security therefor on the Loan
Party Debt, provided that each Borrower’s and other Loan Party’s right to pay and
such Guarantor’s right to receive any such amount shall automatically and be immediately
suspended and cease (A) if an Event of Default exists or (B) if, after taking into account
the effect of such payment, an Event of Default would exist. Such Guarantor’s right to
receive amounts under this clause (ii) (including any amounts which theretofore may
have been suspended) shall automatically be reinstated at such time as the Event of Default
which was the basis of such suspension has been cured or waived (provided that no subsequent
Event of Default exists) or such earlier date, if any, as Administrative Agent gives notice
to Guarantors of reinstatement by Administrative Agent, in Administrative Agent’s sole
discretion;




(iii) If any Guarantor receives any payment on the Loan Party Debt in violation of this
Guaranty, such Guarantor will hold such payment in trust for the Guaranteed Parties and will
promptly deliver such payment to Administrative Agent; and




(iv) If Borrower or any other Loan Party is subject to an Insolvency Proceeding, the
Guaranteed Obligations shall first be paid, discharged and performed in full before any
payment or performance is made upon the Loan Party Debt notwithstanding any other provisions
which may be made in such Insolvency Proceeding. In the event of any Insolvency Proceeding,
each Guarantor will at any time prior to the earliest to occur of the Release Date
applicable to such Guarantor and the Termination Date (A) file, at the request of the
Administrative Agent, any claim, proof of claim or similar instrument necessary to enforce
Borrower’s or such other Loan Party’s obligation to pay the Loan Party Debt, and (B) hold in
trust for and pay to Administrative Agent, for the benefit of the Guaranteed Parties, any
and all monies, obligations, property, stock dividends or other assets received in any such
proceeding on account of the Loan Party Debt in order that the Guaranteed Parties may apply
such monies or the cash proceeds of such other assets to the Guaranteed Obligations.


 


9









 





SECTION 19. Guarantor Insolvency. Should any Guarantor voluntarily seek, consent to,
or acquiesce in the benefits of any Debtor Relief Law or become a party to or be made the subject
of any Insolvency Proceeding (other than as a creditor or claimant) that could suspend or otherwise
adversely affect the rights of any Guaranteed Party granted hereunder, then, the obligations of
such Guarantor under this Guaranty shall be, as between such Guarantor and such Guaranteed Party, a
fully-matured, due, and payable obligation of such Guarantor to such Guaranteed Party (without
regard to whether an Event of Default exists or whether any part of the Guaranteed Obligations is
then due and owing by Borrower to such Guaranteed Party), payable in full by such Guarantor to
Administrative Agent, for the benefit of such Guaranteed Party, upon demand, which shall be the
estimated amount owing in respect of the contingent claim created hereunder.



SECTION 20. Interest Rate Limitation. Notwithstanding any other provision of this
Guaranty, any other Loan Document, any Secured Cash Management Agreement or Secured Hedge
Agreement, each Guarantor and each Guaranteed Party (by its acceptance of the benefits hereof)
agrees that no Guarantor shall be required or obligated to pay interest in excess of the maximum
non-usurious interest rate as may be authorized by applicable Law for the written contracts which
constitute the Guaranteed Obligations. It is the intention of each Guarantor and each Guaranteed
Party to conform strictly to the applicable Laws which limit interest rates, and any of the
aforesaid contracts for interest, if and to the extent payable by any Guarantor, shall be held to
be subject to reduction to the maximum non-usurious interest rate allowed under said Law.



SECTION 21. No Setoff or Deductions; Taxes. Each Guarantor represents and warrants
that it is incorporated or formed, and resides in, the United States of America. All payments by
each Guarantor hereunder shall be paid in full, without setoff or counterclaim (other than
mandatory) or any deduction or withholding whatsoever, including for any and all present and future
Taxes except for any Excluded Taxes required by applicable Laws to be withheld or deducted. If
each Guarantor must make a payment under this Guaranty, each Guarantor represents and warrants that
it will make the payment from one of its U.S. resident offices to Administrative Agent or each
other Guaranteed Party. If, notwithstanding the foregoing, any Guarantor makes a payment under
this Guaranty, including payments made pursuant to this Section 21, from which Taxes are
required by applicable Laws to be withheld or deducted, such Guarantor shall pay all such Taxes to
the relevant authority in accordance with applicable Law and, to the extent such Taxes are
Indemnified Taxes or Other Taxes, such Guarantor shall pay additional amounts such that
Administrative Agent or any other Guaranteed Party receives the sum it would have received had no
such deduction or withholding been made on account of such Indemnified Taxes or Other Taxes. Each
Guarantor shall promptly provide Administrative Agent or any other Guaranteed Party with an
original receipt or certified copy issued by the relevant authority evidencing the payment of any
such amount required to be deducted or withheld.



SECTION 22. Additional Guarantors. Upon the execution and delivery by any other
Person of a Guaranty Supplement in substantially the form of Exhibit A (each, a “Guaranty
Supplement”), such Person shall become a “Guarantor” hereunder with the same force and effect as if
originally named as a Guarantor herein. The execution and delivery of any Guaranty Supplement
shall not require the consent of any other Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Guaranty.



 


10









 





SECTION 23. Amendment and Restatement. This Guaranty renews, extends, amends,
modifies, and restates in its entirety (but does not extinguish or novate) the Original Guaranty
and the Eunice Guaranty. Each Guarantor that was a guarantor under the Original Guaranty and
Crosstex Eunice as the guarantor under the Eunice Guaranty, by the execution hereof, acknowledges
and ratifies its obligations under the Original Guaranty and the Eunice Guaranty, respectively, and
recognizes the Loans outstanding under the Existing Credit Agreement and all accrued and unpaid
interest thereon, and all accrued and unpaid fees and expenses under the Existing Credit Agreement,
shall be extended, renewed, and deemed to be outstanding and owed (not extinguished or novated) by
the Borrower and shall be governed by the Credit Agreement and guaranteed hereby.



SECTION 24. Entire Agreement. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER LOAN
DOCUMENTS, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



The Remainder of This Page is Intentionally Left Blank.





 


11









 







IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and
delivered by its duly authorized officer on the date first above written.



	 	 	 	 	 	 	 
	ADDRESS FOR ALL GUARANTORS:	 	CROSSTEX ENERGY SERVICES, L.P.	 	 
	 
	 	 	 	 	 	 
	2501 Cedar Springs

	 	By:
	 	Crosstex Operating GP, LLC,	 	 
	Suite 100

	 	 	 	its general partner	 	 
	Dallas, Texas 75201
	 	 	 	 	 	 
	Attention: General Counsel
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Vice President — Finance	 	 
	 
	 	 	 	 	 	 
	 	 	CROSSTEX OPERATING GP, LLC

CROSSTEX ENERGY SERVICES GP, LLC

CROSSTEX LIG, LLC

CROSSTEX TUSCALOOSA, LLC

CROSSTEX LIG LIQUIDS, LLC

CROSSTEX PROCESSING SERVICES, LLC

CROSSTEX PELICAN, LLC

CROSSTEX EUNICE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Vice President — Finance	 	 
	 
	 	 	 	 	 	 
	 	 	CROSSTEX ACQUISITION MANAGEMENT, L.P.

CROSSTEX GULF COAST MARKETING LTD.

CROSSTEX CCNG PROCESSING LTD.

CROSSTEX NORTH TEXAS PIPELINE, L.P.

CROSSTEX NORTH TEXAS GATHERING, L.P.

CROSSTEX NGL MARKETING, L.P.

CROSSTEX NGL PIPELINE, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crosstex Energy Services GP, LLC,	 	 
	 

	 	 	 	general partner of each above limited	 	 
	 

	 	 	 	partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Michael J. Garberding	 	 
	 

	 	 	 	Vice President — Finance	 	 






Guaranty — Signature Page


 


 









 





	 	 	 	 	 	 	 
	 	 	SABINE PASS PLANT FACILITY JOINT VENTURE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crosstex Processing Services, LLC,	 	 
	 

	 	 	 	as general partner, and	 	 
	 

	 	By:
	 	Crosstex Pelican, LLC,	 	 
	 

	 	 	 	as general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Vice President — Finance	 	 






Guaranty — Signature Page


 


 









 





EXHIBIT A




 


 









 







Guaranty Supplement No. ___




THIS GUARANTY SUPPLEMENT NO.
 _____ 
(this “Guaranty Supplement”) is made as of
                                        , to the Amended and Restated Guaranty dated as of February 10, 2010 (such
agreement, together with all amendments, restatements, other modifications and Guaranty Supplements
(as such term is defined therein), the “Guaranty”), among the initial signatories thereto and each
other Person which from time to time thereafter became a party thereto pursuant to
Section 22 thereof (each, individually, a “Guarantor” and, collectively, the “Guarantors”),
in favor of Administrative Agent (as defined in the Guaranty) for the benefit of the Guaranteed
Parties (as defined in the Guaranty).



BACKGROUND.




Capitalized terms not otherwise defined herein have the meaning specified in the Guaranty.
The Guaranty provides that additional parties may become Guarantors under the Guaranty by execution
and delivery of this Guaranty Supplement. Pursuant to the provisions of Section 22 of the
Guaranty, the undersigned is becoming an Additional Guarantor under the Guaranty. The undersigned
desires to become a Guarantor under the Guaranty in order to induce the Guaranteed Parties to
continue to make credit extensions and accommodations under the Loan Documents, Secured Cash
Management Agreements and Secured Hedge Agreements.



AGREEMENT.




NOW, THEREFORE, the undersigned agrees with Administrative Agent and each other Guaranteed
Party as follows:



SECTION 1. In accordance with the Guaranty, the undersigned hereby becomes a Guarantor under
the Guaranty with the same force and effect as if it were an original signatory thereto as a
Guarantor and the undersigned hereby (a) agrees to all the terms and provisions of the Guaranty
applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations
and warranties made by it as a Guarantor thereunder are true and correct on and as of the date
hereof, except for any such representations and warranties that were made as of a specified date.
Each reference to a “Guarantor” or an “Additional Guarantor” in the Guaranty shall be deemed to
include the undersigned.



SECTION 2. Except as expressly supplemented hereby, the Guaranty shall remain in full force
and effect in accordance with its terms.



SECTION 3. THIS GUARANTY SUPPLEMENT AND THE GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT
WOULD REQUIRE APPLICATION OF LAWS OF ANOTHER JURISDICTION) AND FEDERAL LAWS APPLICABLE TO NATIONAL
BANKING ASSOCIATIONS.


  


 









 






SECTION 4. This Guaranty Supplement hereby incorporates by reference the provisions of the
Guaranty, which provisions are deemed to be a part hereof, and this Guaranty Supplement shall be
deemed to be a part of the Guaranty.



SECTION 5. This Guaranty Supplement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. Executed counterpart signature pages delivered by
facsimile or as an attachment to electronic mail shall be deemed to be an original.



The Remainder of This Page is Intentionally Left Blank.




 


 









 








EXECUTED as of the date above first written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	ADDRESS:	 	 	 	 	 	[ADDITIONAL GUARANTOR]	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Print Name:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Attention:

	 	 	 	 	 	 	 	Print Title:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	ACCEPTED BY:	 	 	 	 
	 
	 	 	 	 	 	 
	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	By: 
	 	 	 	 	 	 
	 	 	 	 
	 

	Print Name:	 	 	 	 
	 

	Print Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Guaranty Supplement — Signature Page




 


 












 




EXHIBIT F




FORM OF SECURITY AGREEMENT



 

 

 

 

 

 

 

 


F - 1

Form of Security Agreement





 


 









 







Amended and Restated Security Agreement




AMENDED AND RESTATED SECURITY AGREEMENT (this agreement, together with all amendments,
restatements, other modifications and Joinders, this “Agreement”), dated as of February 10, 2010,
is made by each of the signatories party hereto and each other Person who becomes a party hereto
pursuant to Section 6.15 (including any permitted successors and assigns, collectively, the
“Debtors” and each a “Debtor”), in favor of BANK OF AMERICA, N.A., as Administrative Agent under
the Credit Agreement referenced below (in such capacity, “Secured Party”), for the benefit of each
Creditor.



BACKGROUND.




Crosstex Energy, L.P., a Delaware limited partnership (“Borrower”), Bank of America, N.A., as
the administrative agent (the “Original Administrative Agent”), and the other lenders party thereto
(the “Original Lenders”), executed that certain Fourth Amended and Restated Credit Agreement dated
as of November 1, 2005 (as amended, supplemented or otherwise modified to date, the “Existing
Credit Agreement”).



Pursuant to the Existing Credit Agreement, Borrower and Bank of America, N.A., as the
collateral agent for the parties referenced therein, are party to that certain Amended and Restated
Security Agreement dated as of November 1, 2005 (as amended, supplemented or otherwise modified to
date, the “Borrower Security Agreement”).



Pursuant to the Existing Credit Agreement, certain subsidiaries of the Borrower (the “Existing
Grantors”) and Bank of America, N.A., as the collateral agent for the parties referenced therein,
are party to that certain Third Amended and Restated Subsidiary Security Agreement dated as of
November 1, 2005 (as amended, supplemented or otherwise modified to date, the “Subsidiary Security
Agreement”).



The Borrower, the Original Administrative Agent and the Original Lenders desire to amend and
restate (but not novate) the Existing Credit Agreement. To evidence the credit facility requested
under the Credit Agreement referenced below, the Borrower, the Administrative Agent (as defined in
such Credit Agreement) and the Lenders (as defined in such Credit Agreement) have agreed that such
Credit Agreement is an amendment and restatement of (but not a novation of) the Existing Credit
Agreement.



The Borrower, the Original Administrative Agent, the Existing Grantors and the Debtors party
hereto desire to amend and restate (but not novate) the Borrower Security Agreement and the
Subsidiary Security Agreement.



The Borrower, Bank of America, N.A., as Administrative Agent and L/C Issuer, and the Lenders
party thereto entered into the Amended and Restated Credit Agreement dated as of even date herewith
(such agreement, together with all amendments, restatements and other modifications thereto, the
“Credit Agreement”).



It is a condition precedent to the effectiveness of the Credit Agreement that each Debtor
shall have executed and delivered this Agreement. This Agreement is an amendment and restatement
of (but not a novation of) the Borrower Security Agreement and the Subsidiary Security Agreement.



Borrower and each other Debtor are members of the same consolidated group of companies and are
engaged in operations that require financing on a basis in which credit can be made available from
time to time to Borrower and the other Debtors, and Debtors will derive direct and indirect
economic benefit from the Loans, Letters of Credit and other financial accommodations under the
Credit Agreement, the other Loan Documents, the Secured Cash Management Agreements and the Secured
Hedge Agreements, as applicable.


 


 









 





It is the intent of the parties hereto that this Agreement create a first priority security
interest (subject to certain Liens permitted by Section 7.01 of the Credit Agreement) in
the Collateral in favor of Secured Party for the benefit of Creditors, in order to secure the
payment and performance of the Secured Obligations.



AGREEMENT.




NOW, THEREFORE, in consideration of the premises set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party
hereto, and in order to induce Creditors to (a) make Loans and issue Letters of Credit under the
Credit Agreement and to extend other credit and financial accommodations under the Loan Documents,
and (b) make financial accommodations under Secured Cash Management Agreements and Secured Hedge
Agreements, each Debtor hereby agrees with Secured Party, for the benefit of Creditors, that the
Borrower Security Agreement and the Subsidiary Security Agreement are hereby amended and restated
in their entirety (but not novated) as follows:



ARTICLE I

DEFINITIONS





1.01. Definitions. For purposes of this Agreement:



“Acquisition Rights” means all right, title, and interest of each Debtor (in each case whether
now or hereafter existing, owned, arising, or acquired) in and to each warrant, option, instrument,
subscription right, redemption right and other right (including any instrument or right convertible
into an Equity Interest) to acquire or sell any Equity Interest in any Person.




“Collateral” has the meaning specified in Section 2.01.



“Collateral Records” means books, records, ledger cards, files, correspondence, customer
lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes,
disks and related data processing software and similar items that at any time evidence or contain
information relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon.



“Control Agreement” means an agreement in form and substance reasonably acceptable to Secured
Party among Secured Party, the applicable Debtor that owns a Deposit Account, Securities Account or
Commodities Account, and the applicable bank with which the Deposit Account, is maintained,
Securities Intermediary or Commodity Intermediary, as applicable, which agreement grants Secured
Party control (as defined in the UCC) over such Deposit Account, Securities Account or Commodities
Account.



“Copyright License” means all right, title, and interest of each Debtor (in each case whether
now or hereafter existing, owned, arising, or acquired) in and to any written agreement, now or
hereafter in effect, granting any right to any third party under any Copyright now or hereafter
owned by such Debtor or which such Debtor otherwise has the right to license, or granting any right
to such Debtor under any Copyright now or hereafter owned by any third party, and all rights of
such Debtor under any such agreement.



“Copyrights” means all right, title, and interest of each Debtor (in each case whether now or
hereafter existing, owned, arising, or acquired) in and to (a) all copyright rights in any work
subject to the copyright Laws of any Governmental Authority, whether as author, assignee,
transferee, or otherwise, (b) all registrations and applications for registration of any such
copyright in any Governmental
Authority, including registrations, recordings, supplemental registrations, and pending
applications for registration in any jurisdiction, and (c) all rights to use and/or sell any of the
foregoing.


 


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“Creditor” means, singly and collectively, Secured Party, the L/C Issuer, the Lenders, the
Cash Management Banks, and Hedge Banks, each sub agent appointed by the Administrative Agent
pursuant to Section 9.05 of the Credit Agreement and the other Persons the Secured
Obligations owing to which are or are purported to be secured by the Collateral under this
Agreement.




“Crosstex Eunice” means Crosstex Eunice, LLC, a Louisiana limited liability company.




“Event of Default” has the meaning provided in Section 5.03.



“Excluded Property” means, collectively, (a) any lease, license, Permit, contract, Property
rights or agreement to which a Debtor is a party or any of its rights or interests thereunder if
and for so long as the grant of a security interest herein would constitute or result in the
abandonment, termination pursuant to the terms of, or a breach or default under, any such lease,
license, Permit, contract, Property rights or agreement (other than to the extent that any such
term would be rendered ineffective pursuant to Sections 9.406, 9.407, 9.408 or 9.409 of the UCC [or
any successor provision or provisions] of any relevant jurisdiction or any other applicable Law
[including any Debtor Relief Law] or principles of equity); provided, however, that such lease,
license, Permit, contract, Property rights or agreement (i) shall immediately and automatically
become part of the Collateral (and cease being Excluded Property) at such time as the condition
causing such abandonment, invalidation or unenforceability shall be remedied and (ii) to the extent
severable, shall immediately and automatically be a part of the Collateral (and not be Excluded
Property) as to any portion of such lease, license, Permit, contract, Property rights or agreement
that does not result in any of the consequences specified above; (b) any Property (and all
improvements and Accessions thereto and Proceeds thereof) of any Debtor that secures Indebtedness
permitted by Section 7.03(b), 7.03(e) or 7.03(j) of the Credit Agreement, if the contract or other
agreement in which such Lien is granted (or the documentation providing for such Indebtedness)
prohibits the creation of any other Lien on such Property; provided, however, that such Property
(and all improvements and Accessions thereto and Proceeds thereof) securing Indebtedness permitted
by Section 7.03(b), 7.03(e) or 7.03(j) of the Credit Agreement (i) shall immediately and
automatically become part of the Collateral (and cease being Excluded Property) at such time as
such prohibition in such contract or other agreement in which such Lien is granted (or the
documentation providing for such Indebtedness) shall be remedied, lifted, removed or otherwise
rendered ineffective and (ii) to the extent severable, shall immediately and automatically be a
part of the Collateral (and not be Excluded Property) as to any portion of such Property the grant
of a Lien in which is not so prohibited; (c) such portion and only such portion of each Deposit
Account, Securities Account, Securities Entitlements, Financial Assets credit to any Securities
Account, Commodity Accounts or Commodity Contracts of any Debtor secured by a Lien permitted by
Section 7.01(p) or 7.01(u) of the Credit Agreement; and (d) 35% of the issued and outstanding
Equity Interests of each Foreign Subsidiary.



“Foreign Subsidiary” means any Subsidiary of any Person that is organized under the Laws of a
jurisdiction other than the United States or a political subdivision of the United States.



“Insurance” means all insurance policies for which each Debtor is the owner, an insured, an
additional insured, a beneficiary or loss payee, including any policy covering any or all of the
Collateral (regardless of whether Secured Party is the loss payee or an additional insured
thereof).



“Intellectual Property” means all right, title, and interest of each Debtor (in each case
whether now or hereafter existing, owned, arising, or acquired) in and to all intellectual and
similar property of every kind and nature, including inventions, designs, Patents, Copyrights,
Licenses, Trademarks, Trade Secrets, confidential or proprietary technical and business
information, know-how, show-how or other
data or information, Software and databases and all embodiments or fixations thereof and
related documentation, registrations and franchises, and all additions, improvements and accessions
to, and books and records describing or used in connection with, any of the foregoing.


 


3









 






“Joinder” means a Security Agreement Joinder in substantially the form of Exhibit A.



“License” means any Patent License, Trademark License, Copyright License, or other similar
license or sublicense.



“Louisiana Regulated Entities” means Crosstex LIG, LLC, a Louisiana limited liability company
and Crosstex Tuscaloosa, LLC, a Louisiana limited liability company.



“Patent License” means all right, title, and interest of each Debtor (in each case whether now
or hereafter existing, owned, arising, or acquired) in and to any written agreement, now or
hereafter in effect, granting to any third party any right to make, use or sell any invention on
which a Patent, now or hereafter owned by such Debtor or which such Debtor otherwise has the right
to license, is in existence, or granting to such Debtor any right to make, use or sell any
invention on which a Patent, now or hereafter owned by any third party, is in existence, and all
rights of such Debtor under any such agreement.



“Patents” means all right, title, and interest of each Debtor (in each case whether now or
hereafter existing, owned, arising, or acquired) in and to (a) all letters patent of any
Governmental Authority, all registrations and recordings thereof, and all applications for letters
patent of any Governmental Authority, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals, or extensions thereof, and the inventions disclosed or claimed
therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.



“Permit” means all right, title, and interest of each Debtor (in each case whether now or
hereafter existing, owned, arising, or acquired) in and to any authorization, consent, approval,
permit, license or exemption of, registration or filing with, or report or notice to, any
Governmental Authority.




“Permitted Liens” means Liens permitted by Section 7.01 of the Credit Agreement.



“Pledged Debt” means all indebtedness owed to each Debtor, the instruments evidencing such
indebtedness, and all interest, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such
indebtedness.



“Pledged Equity Interests” means all Acquisition Rights, Pledged Stock, Pledged LLC Interests,
Pledged Partnership Interests and Pledged Trust Interests.



“Pledged LLC Interests” means, with respect to each Debtor, all interests of such Debtor in
any limited liability company and the certificates, if any, representing such limited liability
company interests and any limited liability company interest of such Debtor on the books and
records of such limited liability company or on the books and records of any securities
intermediary pertaining to each such limited liability company interest, and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such limited liability company interests.


 


4









 





“Pledged Partnership Interests” means, with respect to such Debtor, all interests of such
Debtor in any general partnership, limited partnership, limited liability partnership or other
partnership and the certificates, if any, representing such partnership interests and any
partnership interest of such Debtor on
the books and records of each such partnership or on the books and records of any securities
intermediary pertaining to such partnership interests and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such
partnership interests.



“Pledged Stock” means, with respect to each Debtor, all shares of capital stock of such Debtor
in any corporation and the certificates, if any, representing such shares and any equity interest
of such Debtor on the books of the issuer of such shares or on the books of any securities
intermediary pertaining to such shares, and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such shares.



“Pledged Trust Interests” means, with respect to each Debtor, all interests of such Debtor in
a business trust or other trust and the certificates, if any, representing such trust interests and
any interest of such Debtor on the books and records of such trust or on the books and records of
any securities intermediary pertaining to such interest and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such
trust interests.



“Release Date” means the date on which Liens securing the Obligations may be released pursuant
to Section 9.10(a)(i) of the Credit Agreement.



“Schedule Effective Date” means, with respect to any Schedule to this Agreement, the effective
date of such Schedule or any restatement of such Schedule, which effective date shall be stated on
such Schedule or restatement and agreed to by Secured Party as provided in Section 4.17.



“Secured Obligations” means (i) with respect to the Borrower, the Secured Obligations (as such
term is defined in the Credit Agreement) and (ii) with respect to each other Debtor, the Guaranteed
Obligations, as such term is defined in the Subsidiary Guaranty.



“Subsidiary Guaranty” means that certain Amended and Restated Guaranty, dated as of the date
hereof, by the Guarantors party thereto in favor of the Administrative Agent for the benefit of the
Guaranteed Parties, as such term is defined in the Subsidiary Guaranty.



“Trade Secrets” means all right, title, and interest of each Debtor (in each case whether now
or hereafter existing, owned, arising, or acquired) in and to trade secrets, all know-how,
inventions, processes, methods, information, data, plans, blueprints, specifications, designs,
drawings, engineering reports, test reports, materials standards, processing standards and
performance standards, and all Software directly related thereto, and all Licenses or other
agreements to which such Debtor is a party with respect to any of the foregoing.



“Trademark License” means all right, title, and interest of each Debtor (in each case whether
now or hereafter existing, owned, arising, or acquired) in and to any written agreement, now or
hereafter in effect, granting to any third party any right to use any Trademark now or hereafter
owned by such Debtor or which such Debtor otherwise has the right to license, or granting to such
Debtor any right to use any Trademark now or hereafter owned by any third party, and all rights of
such Debtor under any such agreement.



“Trademarks” means all right, title, and interest of each Debtor (in each case whether now or
hereafter existing, owned, arising, or acquired) in and to (a) all trademarks, service marks, trade
names, corporate names, company names, business names, fictitious business names, trade styles,
trade dress, logos, other source or business identifiers, designs and general intangibles of like
nature, all registrations
and recordings thereof, and all registration and recording applications filed with any
Governmental Authority in connection therewith, and all extensions or renewals thereof, (b) all
goodwill associated therewith or symbolized thereby, (c) all other assets, rights and interests
that uniquely reflect or embody such goodwill, (d) all rights to use and/or sell any of the
foregoing, and (e) the portion of the business to which each trademark pertains.


 


5









 





“UCC” means Chapters 1, 5, 8 and 9 of the Uniform Commercial Code as in effect from time to
time in the State of New York or, where applicable as to specific items or types of Collateral, any
other relevant state.



1.02. Other Definitional Provisions. Each capitalized term not otherwise defined herein has
the meaning specified for such term in the Credit Agreement, and, to the extent of a conflict
between the definition assigned to a term in the Credit Agreement and the definition assigned to
such term herein, such term as defined herein shall control (provided, that a more expansive or
explanatory definition that is not adverse to the interests of any party hereto shall not be deemed
a conflict). The following terms that are defined in the UCC are used herein as so defined
therein: Accessions, Account, Account Debtor, As-Extracted Collateral, Chattel Paper, Commercial
Tort Claim, Commodity Account, Commodity Contract, Commodity Intermediary, Deposit Account,
Document, Electronic Chattel Paper, Entitlement Holder, Equipment, Farm Products, Financial Asset,
Fixtures, General Intangible, Goods, Instrument, Inventory, Investment Property, Letter of Credit,
Letter-of-Credit Right, Money, Payment Intangible, Proceeds, Record, Securities Account, Securities
Intermediary, Security, Security Entitlement, Software, Supporting Obligation and Tangible Chattel
Paper.



1.03. Construction. Unless otherwise expressly provided in this Agreement or the context
requires otherwise, (a) the singular shall include the plural, and vice versa, (b) words of a
gender include the other gender, (c) monetary references are to Dollars, (d) time references are to
Eastern time, (e) references to the “Agreement” and to “Articles,” “Sections,” “Exhibits,” and
“Schedules” are to this Agreement and to the Articles, Sections, Exhibits, and Schedules of and to
this Agreement, together with all amendments, restatements or other modifications thereto,
(f) headings used in this Agreement are for convenience only and shall not be used in connection
with the interpretation of any provision hereof, (g) references to any Person include that Person’s
heirs, personal representatives, successors, trustees, receivers, and permitted assigns, that
Person as a debtor-in possession, and any receiver, trustee, liquidator, conservator, custodian, or
similar party appointed for such Person or all or substantially all of its assets, (h) references
to any Law include every amendment, restatement or other modification to it, rule and regulation
adopted under it, and successor or replacement for it, (i) references to a particular Loan Document
include each amendment, restatement or other modification made to it in accordance with the Credit
Agreement and such Loan Document, (j) references to a particular Secured Hedge Agreement include
each amendment, restatement or other modification made to it in accordance with such Secured Hedge
Agreement, (k) references to a particular Secured Cash Management Agreement include each amendment,
restatement or other modification made to it in accordance with such Secured Cash Management
Agreement, and (l) the inclusion of Proceeds in the definition of “Collateral” shall not be deemed
a consent by Secured Party or any other Creditor to any sale or other disposition of any Collateral
not otherwise specifically permitted by the terms of the Credit Agreement or this Agreement. This
Agreement is a Loan Document.


 


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ARTICLE II

GRANT OF SECURITY INTEREST




2.01. Assignment and Grant of Security Interest. As security for the payment and performance,
as the case may be, in full of the Secured Obligations, each Debtor hereby assigns to, and pledges
and grants to Secured Party, for the benefit of Creditors, a security interest in the entire right,
title, and interest of such Debtor in and to (a) all property of such Debtor, and (b) all of the
following property of such
Debtor, in each case whether now or hereafter existing, owned, arising or acquired:
(i) Accounts, (ii) Accessions, (iii) As-Extracted Collateral, (iv) Chattel Paper, (v) Collateral
Records, (vi) Commercial Tort Claims, including but not limited to the specific Commercial Tort
Claims described on Schedule 10, (vii) Commodity Accounts, (viii) Commodity Contracts,
(ix) Deposit Accounts, (x) Documents, (xi) Equipment, (xii) Financial Assets, (xiii) Fixtures,
(xiv) General Intangibles, (xv) Goods, (xvi) Instruments, (xvii) Insurance, (xviii) Intellectual
Property, (xix) Inventory, (xx) Investment Property, (xxi) Letters of Credit of which a Debtor is
the beneficiary, (xxii) Letter-of-Credit Rights, (xxiii) Licenses, (xxiv) Money, (xxv) Payment
Intangibles, (xxvi) Permits, (xxvii) Pledged Debt, (xxviii) Pledged Equity Interests,
(xxix) Securities, (xxx) Securities Accounts, (xxxi) Security Entitlements, (xxxii) Software,
(xxxiii) Supporting Obligations, and (xxxiv)  all Proceeds of the foregoing; provided, that in no
event shall the foregoing include the Excluded Property (collectively, the non-excluded Property
described in this Section 2.01 is referred to herein as the “Collateral”).



2.02. Debtors Remain Liable. Anything herein to the contrary notwithstanding, (a) each Debtor
shall remain liable with respect to and under all Collateral, (b) the exercise by Secured Party or
any other Creditor of any of the rights hereunder shall not release any Debtor from any of its
duties or obligations with respect to or under such Debtor’s Collateral or under this Agreement,
and (c) other than as specifically provided in this Agreement or non-waivable provisions of
applicable Law, neither Secured Party nor any other Creditor shall have any obligation or liability
with respect to or under any Collateral by reason of this Agreement, nor shall Secured Party or any
other Creditor be obligated to perform any of the obligations or duties of any Debtor thereunder or
to take any action to collect or enforce any claim for payment assigned or in which a security
interest is granted hereunder.



2.03. Delivery of Security and Instrument Collateral. All certificates, if any, or
Instruments having a value in excess of $500,000 in the aggregate, constituting or evidencing the
Collateral shall be delivered to and held by or on behalf of Secured Party pursuant hereto and
shall be in suitable form for transfer by delivery, or shall be accompanied by undated and duly
executed stock powers and instruments of transfer or assignment in blank, all in form and substance
reasonably satisfactory to Secured Party. If an Event of Default exists, Secured Party has the
right without notice to any Debtor to transfer to or to register in the name of Secured Party or
any of its nominees any or all of such Collateral described in the first sentence of this
Section 2.03. In addition, if an Event of Default exists, Secured Party has the right, if Secured
Party reasonably determines that the exercise of such right is necessary to protect its rights, to
exchange certificates or Instruments representing or evidencing the Collateral for certificates or
Instruments of smaller or larger denominations.



2.04. Agreement With Respect to Collateral. Each Debtor and Secured Party agree that to the
extent that any of the Collateral may be deemed to be a Fixture as opposed to Equipment, Inventory,
or any other form of Collateral that may be perfected by the filing of a UCC financing statement,
it is the intention of the Debtors and Creditors that such Collateral be deemed to be Equipment,
Inventory, or any other form of Collateral that, to the extent not prohibited by Law, may be
perfected by the filing of a UCC financing statement and such Collateral not be deemed to be a
Fixture.



2.05. Future Advances. Each Debtor acknowledges that the Loan Documents, each Secured Hedge
Agreement and each Secured Cash Management Agreement provide for future advances and financial
accommodations and this Agreement secures performance of such future advances and financial
accommodations.



2.06. Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall
the security interest granted in Section 2.01 attach to, or the representations and
warranties contained herein apply to, any Excluded Property. So long as any Property of a Debtor
is excluded from the security interest granted in Section 2.01 pursuant to the immediately
preceding sentence, such Property
shall be excluded from the term “Collateral” and each defined term used therein for all
purposes hereunder.


 


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2.07. Maximum Liability. Anything in this Agreement to the contrary notwithstanding, the
obligations of each Debtor (other than Borrower) hereunder shall be limited to a maximum aggregate
amount equal to the largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States
Code or any applicable provisions of comparable Law (collectively, the “Fraudulent Transfer Laws”),
in each case after giving effect to all other liabilities of such Debtor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any
liabilities of such Debtor in respect of intercompany indebtedness to other Loan Parties or
Affiliates of other Loan Parties to the extent that such indebtedness would be discharged in an
amount equal to the amount paid or property conveyed by such Debtor under the Loan Documents) and
after giving effect as assets, subject to Section 6.01, to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation or
contribution of such Debtor pursuant to (a) applicable Law or (b) any agreement providing for an
equitable allocation among such Debtor and other Loan Parties of obligations arising under the Loan
Documents, Secured Hedge Agreements and Secured Cash Management Agreements.



ARTICLE III

REPRESENTATIONS AND WARRANTIES




3.01. Representations and Warranties-All Debtors. Each Debtor represents and warrants to each
Creditor with respect to itself and its Collateral that:



(a) This Agreement and the grant of the security interest pursuant to this Agreement in the
Collateral create a valid security interest in the Collateral in favor of Secured Party for the
benefit of Creditors, securing the payment and performance of the Secured Obligations, and when
properly perfected by the (i) filing of UCC-1 financing statements or UCC-3 amendments, as
necessary, for such Debtor, in the form agreed to by such Debtor and Secured Party on or prior to
the date of this Agreement, in the filing offices applicable to such Debtor listed on
Schedule 1, Section (g), (ii) granting of control (as defined in the UCC) to
Secured Party, (iii) delivery to and continuing possession by Secured Party of all certificates
evidencing the Pledged Equity Interests, (iv) filing of an appropriate notice with the United
States Patent and Trademark office or the United States Copyright Office, as applicable, or
(v) notation of the Lien in favor of Secured Party created hereunder on certificates of title (as
defined in the UCC), as appropriate for the item and type of Collateral in question, shall
constitute a valid, first priority, perfected security interest in such Collateral, other than with
respect to Collateral constituting Fixtures and As-Extracted Collateral (subject (A) in the case of
Collateral other than Pledged Equity Interests, to Permitted Liens, and (B) in the case of Pledged
Equity Interests, to Liens arising under the Loan Documents and Liens for taxes not yet due or
which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of such Debtor in accordance
with GAAP) to the extent such security interests can be perfected by taking the actions described
in clauses (i)-(v) above.



(b) The execution, delivery and performance by such Debtor of this Agreement have been duly
authorized by all necessary corporate, limited liability company, partnership or similar action,
and do not and will not (i) contravene the terms of any of such Debtor’s Organization Documents;
(ii) conflict with or result in any breach or contravention of, or the creation of any Lien (other
than the Lien created by this Agreement) under, or require any payment to be made (other than
payments required under any Loan Document) under (A) any Contractual Obligation to which such
Debtor is a party or affecting such Debtor or the properties of such Debtor or any of its
Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Debtor or its property is subject; or (iii) violate any Law; except in
each case referred to in clause (ii) above, to the
extent that such conflict, breach, contravention or violation could not reasonably be expected
to have a Material Adverse Effect.


 


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(c) This Agreement has been duly executed and delivered by such Debtor. This Agreement
constitutes a legal, valid and binding obligation of such Debtor, enforceable against such Debtor
in accordance with its terms, subject as to enforcement of remedies to any Debtor Relief Laws and
to general equitable principles.



(d) Such Debtor has good title to, or a valid easements or leasehold interests in, all of the
Collateral (except for such defects in title as would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect) free and clear of any Lien, except for
Liens granted pursuant to this Agreement and Permitted Liens. Such Debtor has not granted a
security interest or other Lien in or made an assignment of any of the Collateral (except for the
security interest and Lien granted by this Agreement and Permitted Liens). Such Debtor has neither
entered into nor is it or any of its property subject to any agreement limiting the ability of such
Debtor to grant a Lien in any of the Collateral, or the ability of such Debtor to agree to grant or
not grant a Lien in any of the Collateral, except as permitted by Section 7.09 of the Credit
Agreement. No material portion of the Collateral is consigned goods, subject to any agreement of
repurchase, or subject to any dispute, defense, or counterclaim. No effective financing statement
or other similar effective document used to perfect and preserve a security interest or other Lien
under the Laws of any jurisdiction covering all or any part of the Collateral is on file in any
recording office, except such as may have been filed (i) pursuant to this Agreement or other Loan
Documents, (ii) relating to Permitted Liens or (iii) in favor of Bank of America, N.A., as
collateral agent under the Existing Credit Agreement. Such Debtor has not sold any interest in any
of its Accounts, Chattel Paper, promissory notes, Payment Intangibles, or consigned any of its
Goods or been a party to any securitization of any of its property in any transaction prohibited by
the Credit Agreement. Other than agreements in favor of Bank of America, N.A., as collateral agent
under the Existing Credit Agreement, no control agreement in favor of any Person other than Secured
Party exists with respect to any Collateral.



(e) All of the Pledged Equity Interests have been duly and validly issued, and the Pledged
Equity Interests (other than any general partner interest, if any), are fully paid and
nonassessable. None of the Pledged Equity Interests were issued in violation of the preemptive
rights of any Person or any agreement to which Debtor or the issuer thereof is a party or the
Pledged Equity Interest is subject. All capital contributions required to be made by the terms of
each partnership agreement for each partnership any interest in which is a Pledged Partnership
Interest have been made. All Pledged Equity Interests that are certificated, if any, have been
delivered and pledged to Secured Party duly endorsed and accompanied by such duly executed
instruments of transfer or assignment as are necessary for such pledge, to be held as pledged
collateral. Except with respect to partnership or limited liability company interests of issuers
the Organization Documents of which do not provide that any interest in such issuer is a security
governed by Article 8 of the UCC, there are no Pledged Equity Interests other than those
represented by certificated securities in the possession of Secured Party. As of each Schedule
Effective Date, the Pledged Equity Interests include (i) the percentage set forth on Schedule
13 of the issued and outstanding Equity Interests of each entity in which such Debtor owns a
direct interest and which entity is not a Foreign Subsidiary, and (ii) up to 65% of the issued and
outstanding Equity Interests of each first-tier Foreign Subsidiary, if any, issued to such Debtor.
There are no restrictions (other than those that have been effectively waived by all necessary
Persons) in any Organization Document governing any Pledged Equity Interest or any other document
related thereto which would limit or restrict (i) the grant of a Lien in the Pledged Equity
Interests, (ii) the perfection of such Lien, (iii) the exercise of remedies in respect of such
perfected Lien in the Pledged Equity Interests as contemplated by this Agreement or (iv) the
admission of any transferee of the Collateral as a shareholder, member, partner or equity holder of
the issuer of such Collateral. As of each Schedule Effective Date, Borrower has delivered to
Secured Party



 


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complete and correct copies of all Organization Documents for each issuer of the
Pledged Equity Interests. Except as set forth on Schedule 13, the Organization Documents of each
issuer that is a partnership or limited liability company do not provide that any interest in such
issuer is a security governed by Article 8 of the UCC and no Equity Interest of such issuer is
evidenced by a certificate or other instrument. Upon Secured Party’s exercise of remedies in
accordance with this Agreement in respect of Pledged Equity Interests, a transferee or assignee of
any such capital stock, partnership interest or membership interest, as the case may be, of such
corporation, partnership or limited liability company, as the case may be, shall become a
shareholder, partner or member, as the case may be, of such corporation, partnership or limited
liability company, as the case may be, entitled to participate in the management thereof and, upon
the transfer of the entire interest of such Debtor in such issuer, such Debtor shall cease to be a
shareholder, partner or member, as the case may be, of such issuer.




(f) As of each Schedule Effective Date:



(i) Schedule 1, Section (a) states the exact name of such Debtor, as such name
appears in its currently effective Organization Documents as filed with the appropriate authority
of the jurisdiction of such Debtor’s organization.



(ii) Schedule 1, Section (b) states the jurisdiction of organization of such
Debtor.




(iii) Such Debtor is not organized in more than one jurisdiction.



(iv) Schedule 1, Section (c) sets forth the current type of entity of such
Debtor.



(v) Schedule 1, Section (d) states each other entity type, jurisdiction of
organization and legal name such Debtor has had in the five-year period preceding such Schedule
Effective Date, together with the approximate date of each such change.



(vi) Except as set forth on Schedule 1, Section (d), such Debtor has not
changed its identity or type of entity, jurisdiction of organization or name in any way within the
five-year period preceding such Schedule Effective Date (changes in identity or type of entity
include mergers, consolidations, acquisitions (including both equity and asset acquisitions), and
any change in the form, nature or jurisdiction of organization).



(vii) Schedule 1, Section (e) states the Federal Taxpayer Identification
Number of such Debtor.



(viii) Schedule 1, Section (f) states the corporate or other organizational
number of such Debtor issued by such Debtor’s jurisdiction of organization (or “N/A” if such
jurisdiction does not issue an organizational number for such Debtor’s entity type).



Schedules 1 and 2 contain the information required by this Section as to
each acquiree or constituent party to a merger, consolidation or acquisition.


 


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(g) As of each Schedule Effective Date, the chief executive office of such Debtor is located
at the address stated next to such Debtor’s name on Schedule 2, Section (a). As
of each Schedule Effective Date, Schedule 2, Section (b) states all locations where
such Debtor maintains originals or copies of all books or records (other than invoices generated in
the ordinary course of business) relating to all Accounts having an aggregate value in excess of
$1,000,000 (with each such location at which Chattel Paper, if any, is kept being indicated by an
“*”). All Tangible Chattel Paper, promissory notes, and other Instruments evidencing the Accounts
having an aggregate value in excess of
$1,000,000, which this Agreement requires to be delivered to Secured Party have been delivered
and pledged to Secured Party duly endorsed and accompanied by such duly executed instruments of
transfer or assignment as are necessary for such pledge, to be held as pledged collateral. As of
each Schedule Effective Date, Schedule 2, Section (c) lists all locations where
such Debtor maintains any tangible personal property (including Equipment and Inventory, but
excluding pipelines and Property in transit) having a value in excess of $5,000,000 at any such
location. Schedule 2, Section (d) lists all real property (excluding pipelines)
owned or leased by such Debtor having a value in excess of $5,000,000 (or with respect to leased
real property, annual rental payments in excess of $500,000), and with respect to each parcel of
real property that is improved, whether such real property is located in a special flood hazard
area as designated by any federal Governmental Authority and, if so, whether such Debtor has flood
insurance for such real property and the amount thereof. As of each Schedule Effective Date,
Schedule 2, Section (e) states the names and addresses of all Persons other than
such Debtor who have possession of any of the Collateral or other property of such Debtor having a
value in excess of $5,000,000 (not including Equipment located with such Person in the ordinary
course of business).



(h) All Accounts have been originated by such Debtor and all Inventory has been acquired by
such Debtor in the ordinary course of business or in an Acquisition permitted by the Credit
Agreement.



(i) Such Debtor has exclusive possession and control of the Equipment and Inventory (other
than (i) Inventory and Equipment in transit (whether by pipeline or otherwise) in the ordinary
course of business, (ii) Inventory and Equipment leased by such Debtor to third parties, and
(iii) Inventory and Equipment in the possession of other Persons as is necessary for purposes of
maintenance, repair or otherwise in the ordinary course of such Debtor’s business) pledged by it
hereunder.



(j) As of each Schedule Effective Date, Schedule 3 is a complete and correct list of
all Pledged Debt, promissory notes and other instruments in excess of $500,000 in the aggregate
evidencing indebtedness held by such Debtor, including all intercompany notes and other instruments
between such Debtor and Borrower or any other Subsidiary of Borrower.



(k) As of each Schedule Effective Date, Schedule 4(a) is a complete and correct list
of substantially all Trademark registrations (but in any event all material Trademark
registrations) in which such Debtor has any interest (whether as owner, licensee, or otherwise),
including the name of the registered owner and the nature of such Debtor’s interest if not owned by
such Debtor, the registered Trademark, the Trademark serial and/or registration number, the date of
Trademark registration, and the country or state registering the Trademark.



(l) As of each Schedule Effective Date, Schedule 4(b) is a complete and correct list
of substantially all Trademark applications (but in any event all material Trademark applications)
in which such Debtor has any interest (whether as owner, licensee, or otherwise), including the
name of the Person applying to be the registered owner and the nature of such Debtor’s interest if
such Debtor is not the Person applying to be the registered owner, the applied for Trademark, the
Trademark application serial and/or registration number, the date of Trademark application, and the
country or state with which the Trademark application was filed.



(m) As of each Schedule Effective Date, Schedule 4(c) is a complete and correct list
of substantially all Patents (but in any event all material Patents) in which such Debtor has any
interest (whether as owner, licensee, or otherwise), including the name of the registered owner and
the nature of such Debtor’s interest if not owned by such Debtor, the Patent number, the date of
Patent issuance, and the country issuing the Patent.




 


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(n) As of each Schedule Effective Date, Schedule 4(d) is a complete and correct list
of substantially all Patent applications (but in any event all material Patent applications) in
which such Debtor has any interest (whether as owner, licensee, or otherwise), including the name
of the Person applying to be the registered owner and the nature of such Debtor’s interest if such
Debtor is not the Person applying to be the registered owner, the Patent application number, the
date of Patent application filing, and the country with which the Patent application was filed.



(o) As of each Schedule Effective Date, Schedule 4(e) is a complete and correct list
of substantially all Copyrights (but in any event all material Copyrights, regardless of whether
registered) in which such Debtor has any interest (whether as owner, licensee, or otherwise),
including, if applicable, the name of the registered owner (or owner, if not registered) and the
nature of such Debtor’s interest if such Debtor is not the owner, the title of the work which is
the subject of the registered Copyright (or, if not registered, a description of the work subject
to such unregistered Copyright), the date of Copyright issuance, the registration number (if
applicable) and the country issuing the Copyright.



(p) As of each Schedule Effective Date, Schedule 4(f) is a complete and correct list
of substantially all Copyright applications (but in any event all material Copyright applications)
in which such Debtor has any interest (whether as owner, licensee, or otherwise), including the
name of the Person applying to be the registered owner and the nature of such Debtor’s interest if
such Debtor is not the Person applying to be the registered owner, the title of the work which is
the subject of the applied for Copyright, the date of Copyright application, the registration
number (if applicable) and the country with which the Copyright application was filed.



(q) As of each Schedule Effective Date, Schedule 5 is a complete and correct list of
all Deposit Accounts maintained by or in which such Debtor has any interest, the name of the
depository bank, the ABA number of such bank, the account number, and account type.



(r) As of each Schedule Effective Date, Schedule 6 is a complete and correct list of
all Securities Accounts in which such Debtor has any interest, including the complete name and
identification number of the account, the jurisdiction the Law of which governs such account, and
the name and street address of the Securities Intermediary maintaining the account.



(s) As of each Schedule Effective Date, Schedule 7 is a complete and correct list of
all Commodity Accounts in which such Debtor has any interest, including the complete name and
identification number of the account, the jurisdiction the Law of which governs such account, and
the name and street address of the Commodity Intermediary maintaining the account.



(t) As of each Schedule Effective Date, Schedule 8 is a complete and correct list of
all letters of credit in which such Debtor has any interest (other than solely as an applicant) and
describes the bank which issued the letter of credit, and the letter of credit’s number, issue
date, expiry, and face amount.



(u) As of each Schedule Effective Date, Schedule 9 is a complete and correct list of
all insurance policies owned by such Debtor.



(v) As of each Schedule Effective Date, Schedule 10 is a complete and correct list of
all Commercial Tort Claims in which such Debtor knows it has any interest, including the complete
case name or style, the case number, and the court or other Governmental Authority in which the
case is pending.


 


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(w) As of each Schedule Effective Date, Schedule 11 is a complete and correct list of
all internet domain names, the complete name of the registered owner, and the domain registration
provider for each domain name and internet website in which such Debtor has any interest.



(x) As of each Schedule Effective Date, Schedule 12 is a complete and current list of
all rolling stock or other railroad equipment or aircraft (including engines) in which such Debtor
has any interest.



(y) As of each Schedule Effective Date, (i) Schedule 13 is a complete and correct list
of all Equity Interests in which such Debtor has a direct ownership interest, (ii) Schedule
13 contains a complete and correct description of each certificate or other instrument included
in or evidencing such Equity Interests, (iii) Schedule 13 is a complete and correct list of
the exact name of each issuer of all Equity Interests described on Schedule 13, such
issuer’s jurisdiction of organization, and the authorized, issued and outstanding Equity Interests
of such issuer, and (iv) such Debtor’s interest in each such issuer is as stated on Schedule
13.




(z) Such Debtor has no interest in any Farm Products.



(aa) Except for (i) the filing or recording of UCC financing statements and continuation
statements, (ii) the filing of appropriate notices with the United States Patent and Trademark
Office and the United States Copyright Office, (iii) Secured Party’s obtaining control to perfect
the Liens created by this Agreement with respect to certain types of Collateral, (iv) compliance
with the Federal Assignment of Claims Act or comparable state law, no consent of any other Person
and no authorization, approval or other action by, and no notice to or filing (other than filings
required hereunder) with, any Governmental Authority is required (x) for the pledge by such Debtor
of the Collateral pledged by it hereunder, for the grant by such Debtor of the security interest
granted hereby, or for the execution, delivery, or performance of this Agreement by such Debtor or
(y) for the perfection or maintenance of the pledge, assignment, and security interest created
hereby (including the first priority nature of such pledge, assignment, and security interest) and
(v) except as required by non-waivable provisions of applicable law, for the enforcement of
remedies by Secured Party or any other Creditor.



3.02. Representations and Warranties-Subsidiaries. Each Debtor (other than Borrower)
represents and warrants to each Creditor with respect to itself and its Collateral that: This
Agreement may reasonably be expected to benefit, directly or indirectly, such Debtor, and the Board
of Directors of such Debtor, the requisite number of its partners, the requisite number of its
members or the requisite number of the appropriate governance body or equity holders, as
appropriate, have determined that this Agreement may reasonably be expected to benefit, directly or
indirectly, such Debtor.



3.03. Survival. All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof and any update of any
Schedule. Such representations and warranties have been or will be relied upon by each Creditor,
regardless of any investigation made by any Creditor or on their behalf and notwithstanding that
any Creditor may have had notice or knowledge of any Default at the time of any credit extension,
and shall continue in full force and survive the Release Date.


 


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ARTICLE IV

COVENANTS





4.01. Further Assurances.



(a) Each Debtor will, from time to time and at such Debtor’s expense, promptly execute and
deliver all further instruments and documents (including the delivery of certificated securities,
if any, and supplements to all schedules), authenticate, execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or notices as Secured
Party may reasonably request, in order to perfect and preserve the pledge, collateral assignment,
and security interest granted or intended by the parties hereto to be granted hereby, and take all
further action that Secured Party may reasonably request, in order to perfect and protect any
pledge, collateral assignment, or security interest granted or intended by the parties hereto to be
granted hereby, and the priority thereof, or to enable Secured Party to exercise and enforce
Secured Party’s rights and remedies hereunder with respect to the Collateral.



(b) In addition to such other information as shall be specifically provided for herein, each
Debtor shall furnish to Secured Party such other information (including copies of documents) with
respect to such Debtor and the Collateral as Secured Party may reasonably request.



(c) Each Debtor authorizes Secured Party to file one or more financing or continuation
statements, and amendments thereto, relating to all or any part of the Collateral without the
authentication of such Debtor where permitted by Law and that (i) indicate the Collateral (A) as
“all assets of the Debtor” (or words of similar effect), regardless of whether any particular asset
included in the Collateral is within the scope of Article 9 of the Uniform Commercial Code of any
applicable jurisdiction or whether such assets are included in the Collateral, or (B) as being of
an equal or lesser scope or with greater detail, and (ii) contain any other information required by
Article 9 of the Uniform Commercial Code of any applicable jurisdiction for the sufficiency or
filing office acceptance of any financing statement, continuation or amendment, including (A)
whether such Debtor is an organization, the type of organization, and any organization
identification number issued to such Debtor and, (B) in the case of a financing statement filed as
a fixture filing or indicating the Collateral as Fixtures, As-Extracted Collateral or timber to be
cut, a sufficient description of the real property to which the Collateral relates. Each Debtor
agrees to furnish any such information required by this Section 4.01(c) to Secured Party promptly
upon the reasonable request of Secured Party. A photocopy or other reproduction of this Agreement
or any financing statement covering such Debtor’s Collateral or any part thereof shall be
sufficient as a financing statement where permitted by Law. Each Debtor ratifies its
authentication, execution and delivery of, and the filing of, any financing statement or amendment
thereto describing any of the Collateral which was filed prior to the date of this Agreement.



(d) Each Debtor shall (i) use commercially reasonable efforts to obtain a landlord
subordination agreement executed by each lessor of real property occupied by such Debtor with
annual lease payments in excess of $500,000 (but in any event where the chief executive office of
such Debtor is located, if leased) or at which is located any Collateral of such Debtor having a
value in excess of $5,000,000 (not including Equipment located with such lessor in the ordinary
course of business), in each case in form and substance acceptable to Secured Party; provided,
Secured Party may waive such requirement as to leased property if the operations of such Debtor or
the Collateral located at such real property are immaterial; and (ii) provide 30 days’ (or such
shorter period agreed to in writing by Secured Party in its sole discretion) notice to Secured
Party prior to (A) locating Collateral at leased real property the lessor of which has not executed
a subordination agreement in accordance with the immediately preceding clause (i) and at which will
be located Collateral having a value in excess of $5,000,000, or (B) entering into a lease with
annual lease payments in excess of $500,000 (or in any event, entering a lease where the chief
executive office of such Debtor will be located).


 


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(e) Each Debtor shall cooperate to determine what may or shall be required to satisfy the Laws
of the United States with respect to the recordation and validation of the license of, and Lien in,
Intellectual Property as Secured Party may reasonably require, or otherwise to render this
Agreement and the Intellectual Property effective, and shall execute all documents which may be
necessary or desirable to implement this subsection, including registered user statements or other
documents suitable for filing with the appropriate Governmental Authorities.




4.02. Place of Perfection; Records; Collection of Accounts, Chattel Paper and Instruments.



(a) No Debtor shall change its name from the name specified for such Debtor in Schedule
1, Section (a), the jurisdiction of its organization from the jurisdiction specified
for such Debtor in Schedule 1, Section (b), its type of entity from the type of
entity specified for such Debtor in Schedule 1, Section (c), or its organizational
identification number from the organizational number specified for such Debtor in Schedule
1, Section (f), unless such Debtor has delivered to Secured Party thirty days prior
written notice (unless Secured Party has agreed in writing to a shorter period) and taken such
actions as Secured Party may reasonably require with respect to such change. Each Debtor will hold
and preserve its Records and Chattel Paper and Instruments in a commercially reasonable manner and
will permit representatives of Secured Party at any time (or, if no Event of Default exists, upon
reasonable advance notice and not more than twice per calendar year) during normal business hours
to inspect and make abstracts from and copies of such Records and Chattel Paper and Instruments.
Each Debtor shall bear all reasonable costs associated with each such inspection, such costs being
part of the Secured Obligations and payable in accordance with Section 5.07.



(b) Except as otherwise provided in this Section 4.02(b) or in Section 7.05(i)
of the Credit Agreement, each Debtor shall continue to collect, in accordance with commercially
reasonable procedures and at its own expense, all amounts due or to become due to such Debtor under
such Debtor’s Accounts, Chattel Paper, and Instruments. In connection with such collections, each
Debtor may take (and, at Secured Party’s written request during an Event of Default, shall take)
such action as such Debtor (or, during the existence of an Event of Default, Secured Party) may
deem necessary or advisable to enforce collection of the Accounts, Chattel Paper, and Instruments;
provided, however, that Secured Party shall have the right, if an Event of Default exists, without
notice to any Debtor, to notify the Account Debtors or obligors under such Accounts, Chattel Paper,
and Instruments of the assignment of such Accounts, Chattel Paper, and Instruments to Secured Party
and to direct such Account Debtors or obligors to make payment of all amounts due or to become due
to such Debtor thereunder directly to Secured Party and, at the reasonable expense of such Debtor,
to enforce collection of any such Accounts, Chattel Paper, and Instruments, and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same extent as such
Debtor might have done in the ordinary course of business or as Secured Party reasonably deems
appropriate. Secured Party shall endeavor to provide notice to such Debtor of any action by
Secured Party described in the preceding sentence; provided, any failure to provide any such notice
shall not impair any right or action of Secured Party or any Creditor. If any Event of Default
exists, all amounts and proceeds (including proceeds in the form of Instruments) received by such
Debtor in respect of the Accounts, Chattel Paper, and Instruments shall be received in trust for
the benefit of Secured Party hereunder, shall be segregated from other funds and property of such
Debtor and shall be forthwith paid or delivered over to Secured Party in the same form as so
received (with any necessary endorsement) to be held as cash collateral, thereafter to be applied
as provided in Section 8.03 of the Credit Agreement and the other Loan Documents. No
Debtor shall adjust, settle, or compromise the amount or payment of any Account, Chattel Paper, or
Instrument, release wholly or partly any Account Debtor or obligor thereof, or allow any credit or
discount thereon, except in the ordinary course of business.


 


15









 






4.03. Intentionally Omitted.



4.04. Chattel Paper and Instruments. (a) Each Debtor will: (i) upon the request of Secured
Party, mark conspicuously each item of Tangible Chattel Paper and Instruments in the original
amount of $500,000 or greater and all Tangible Chattel Paper if the aggregate original amount of
all Tangible Chattel Paper and Instruments is $500,000 or greater and each of its Records
pertaining to such Collateral with the following legend:




THIS *[INSTRUMENT]*[OTHER RECORD]* IS SUBJECT TO THE SECURITY INTEREST AND LIEN PURSUANT TO
THE AMENDED AND RESTATED SECURITY AGREEMENT DATED FEBRUARY 10, 2010 (AS THE SAME MAY BE
AMENDED OR RESTATED) MADE BY *[DEBTOR NAME]*, IN FAVOR OF BANK OF AMERICA, N.A., AS SECURED
PARTY.



or such other legend, in form and substance reasonably satisfactory to and as specified by Secured
Party, indicating that such Tangible Chattel Paper or such Collateral is subject to the pledge,
assignment, and security interest granted hereby; and (ii) if any Collateral shall be or be
evidenced by a promissory note or other Instrument or be Tangible Chattel Paper, and is, in each
case, in the original amount of $500,000 or greater or the aggregate original amount of all
promissory notes, other Instruments and Tangible Chattel Paper is $500,000 or greater, pledge to
Secured Party hereunder and deliver to Secured Party such note, Instrument, or Tangible Chattel
Paper duly indorsed and accompanied by duly executed instruments of transfer or assignment, all in
form and substance reasonably satisfactory to Secured Party; provided, however, during the
existence of an Event of Default, such Debtor shall, upon the request of Secured Party, pledge to
Secured Party all Tangible Chattel Paper and all Collateral evidenced by a promissory note or other
Instrument and shall deliver to Secured Party such note, Instrument, or Tangible Chattel Paper duly
indorsed and accompanied by duly executed instruments of transfer or assignment, all in form and
substance reasonably satisfactory to Secured Party.



(b) No Debtor shall have any rights in any Electronic Chattel Paper unless such Debtor has, if
requested by Secured Party, taken all actions reasonably necessary to establish in Secured Party
control (as that term is defined in the UCC) of such Electronic Chattel Paper in the original
amount of $500,000 or greater and all Electronic Chattel Paper if the aggregate original amount of
all Electronic Chattel Paper is $500,000 or greater; provided, however, during the existence of an
Event of Default, such Debtor shall, upon the request of Secured Party, take all actions reasonably
necessary to establish in Secured Party control (as that term is defined in the UCC) of all
Electronic Chattel Paper.



(c) Each Debtor shall pledge to Secured Party all Tangible Chattel Paper, promissory notes or
other Instruments constituting or securing intercompany loans or intercompany leases in the
original amount of $1,000,000 or greater and all such Collateral if the aggregate original amount
of such Collateral is $1,000,000 or greater and shall deliver to Secured Party such notes,
Instruments, or Tangible Chattel Paper duly indorsed and accompanied by duly executed instruments
of transfer or assignment, all in form and substance reasonably satisfactory to Secured Party.



4.05. Deposit Accounts, Securities Accounts, Commodity Accounts and Letter-of-Credit Rights.
No Debtor shall establish or maintain any Deposit Account, Securities Account or Commodities
Account (other than any such Deposit Account, Securities Account or Commodities Account
constituting Excluded Property) with any Person other than Secured Party, unless such Debtor
delivers to Secured Party an updated Schedule as required by the first sentence of Section
4.17 and within 30 days (or such longer period as permitted by Secured Party in its sole
discretion) after the Closing Date or the establishment of such new Deposit Account, Securities
Account, or Commodity Account, whichever is later, such Debtor executes and delivers to Secured
Party a Control Agreement with respect to such Deposit Account, Securities Account, or Commodity
Account; provided that,



 


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with respect to Deposit Accounts, Commodity Accounts and Securities Accounts in existence on the Closing Date, the
Debtors shall obtain such Control Agreements within 270 days after the Closing Date (or such longer
period as permitted by Secured Party in its sole discretion). Promptly after the acquisition by
any Debtor of any rights in a letter of credit (other than rights solely as an applicant) having a
stated face amount of $1,000,000 or greater and tenor of one year or greater, such Debtor shall
deliver to Secured Party an updated Schedule 8 as required by the first sentence of
Section 4.17 and, if requested by Secured Party, exercise commercially reasonable efforts
to execute and deliver to Secured Party collateral assignments of, or control agreements with
respect to, such letter of credit and Letter-of-Credit Right in such form as Secured Party may
reasonably request, and cause the bank or other Person that is the issuer of such letter of credit
to deliver to Secured Party acknowledgments of the collateral assignment of, or control agreements
with respect to, such letter of credit and Letter-of-Credit Right in form and substance reasonably
satisfactory to Secured Party, and take all actions necessary to establish in Secured Party control
(as that term is defined in the UCC) with respect to such letter of credit and Letter-of-Credit
Right.



4.06. Transferable Record. Each Debtor shall, upon obtaining knowledge of the acquisition by
such Debtor of any transferable record, as that term is defined in the federal Electronic
Signatures in Global and National Commerce Act, or in the Uniform Electronic Transactions Act as in
effect in any relevant jurisdiction, promptly notify Secured Party thereof and take such action as
Secured Party may reasonably request to vest in Secured Party control (as that term is defined in
the UCC) of such transferable record or control under the federal Electronic Signatures in Global
and National Commerce Act or, as the case may be, the Uniform Electronic Transactions Act, as so in
effect in such jurisdiction, of such transferable record.



4.07. Rolling Stock, Aircraft. No Debtor shall obtain any interest in any rolling stock or
other railroad equipment or aircraft or aircraft parts (including engines and avionics), other than
rolling stock or other railroad equipment or aircraft or aircraft parts described in Schedule
12, unless such Debtor complies with Sections 4.01(a) and 4.17.




4.08. Patents, Trademarks, and Copyrights.



(a) Each Debtor shall deliver to Secured Party on or within 30 days after the date hereof with
respect to Intellectual Property owned on the Closing Date and, thereafter, concurrently with the
delivery of each updated Schedule required pursuant to Section 4.17 relating to
Intellectual Property (or, in either case, such longer period agreed to in writing by Secured Party
in its sole discretion) (i) an acknowledgment (approved in form and substance by Secured Party)
containing a description of all Collateral consisting of United States registered Patents and
Trademarks in suitable form for recordation by the United States Patent and Trademark Office and
(ii) an acknowledgment (approved in form and substance by Secured Party) containing a description
of all Collateral consisting of United States registered Copyrights pursuant to 35 U.S.C. § 261, 15
U.S.C. § 1060 or 17 U.S.C. § 205 in suitable form for recordation by the United States Copyright
Office, to protect the validity of and to establish a legal, valid, and perfected security interest
in favor of Secured Party in respect of all Collateral consisting of Patents, Trademarks, and
Copyrights in which a security interest may be perfected by filing, recording, or registration in
the United States and its territories and possessions, or in such other jurisdictions as may be
reasonably required by Secured Party, and no further or subsequent filing, refiling, recording,
rerecording, registration, or reregistration is necessary (other than such actions as are necessary
to perfect the security interest with respect to any Collateral consisting of Patents, Trademarks,
and Copyrights (or registration or application for registration thereof) acquired or developed
after the date hereof).



(b) Except as permitted pursuant to the Loan Documents and where an act or failure to act
could not reasonably be expected to result in a Material Adverse Effect, no Debtor (either itself
or through licensees or sublicensees) will do any act, or omit to do any act, whereby any Patent
may become
invalidated or dedicated to the public, and each Debtor (either itself or through licensees or
sublicensees) shall continue to mark any products covered by a Patent with the relevant patent
number as necessary and sufficient to establish and preserve its maximum rights under applicable
Laws.


 


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(c) Except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect, each Debtor (either itself or through licensees or sublicensees) will, for each
Trademark, (i) maintain such Trademark in full force free from any claim of abandonment or
invalidity for non-use, except as permitted pursuant to the Loan Documents; (ii) maintain the
quality of products and services offered under such Trademark, except products and services offered
under Trademarks disposed of as permitted pursuant to the Loan Documents, (iii) display such
Trademark with notice of United States federal or foreign registration to the extent necessary and
sufficient to establish and preserve its maximum rights under applicable Law, except as to
Trademarks disposed of as permitted pursuant to the Loan Documents, and (iv) not use or permit the
use of such Trademark in violation of any third party rights.



(d) Except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect, each Debtor (either itself or through licensees or sublicensees) will, for each
work covered by a Copyright, continue to publish, reproduce, display, adopt, and distribute the
work with appropriate copyright notice as necessary and sufficient to establish and preserve its
maximum rights under applicable Laws.



(e) Each Debtor shall notify Secured Party immediately if it knows or has reason to know that
any Intellectual Property may become abandoned, lost, or dedicated to the public, or of any adverse
determination or development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office, United States
Copyright Office, or any Governmental Authority in any jurisdiction) regarding such Debtor’s
ownership of any Intellectual Property, its right to register the same, or its rights with respect
to a License, or to keep and maintain the same, except to the extent that the abandonment, loss, or
dedication to the public, or any adverse determination or development regarding such Debtor’s
ownership of any Intellectual Property, its right to register the same, or to keep and maintain the
same, is permitted pursuant to the Loan Documents and could not reasonably be expected to have a
Material Adverse Effect.



(f) In no event shall any Debtor, either itself or through any agent, employee, licensee, or
designee, file an application for any Patent, Trademark, or Copyright (or for the registration of
any Trademark or Copyright) with the United States Patent and Trademark Office, United States
Copyright Office, or any Governmental Authority in any jurisdiction, unless it complies with
Section 4.08(a) and with Section 4.17 within the time periods specified therein,
and, upon request of Secured Party, executes and delivers any and all agreements, instruments,
documents, and papers as Secured Party may reasonably request to evidence Secured Party’s security
interest in such Patent, Trademark, or Copyright, and each Debtor hereby appoints Secured Party as
its attorney-in-fact to execute and file such writings for the foregoing purposes.



(g) Except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect, each Debtor will take all necessary steps that are consistent with the practice in
any proceeding before the United States Patent and Trademark Office, United States Copyright
Office, or any Governmental Authority in any other jurisdiction as may be reasonably required by
Secured Party, to maintain and pursue each application relating to the Patents, Trademarks, and/or
Copyrights (and to obtain the relevant grant or registration), and to maintain each issued Patent
and each registration of the Trademarks and Copyrights, including timely filings of applications
for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees,
and, if consistent with good business judgment, to initiate opposition, interference, and
cancellation proceedings against third parties.


 


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(h) If any Debtor has reason to believe that any Collateral consisting of a Patent, Trademark,
or Copyright has been or is about to be infringed, misappropriated, or diluted by a third party,
such Debtor promptly shall notify Secured Party and shall, if consistent with good business
judgment, unless such Debtor shall reasonably determine that such Patent, Trademark or Copyright is
not material to the conduct of its business or operations, promptly sue for infringement,
misappropriation, or dilution and to recover any and all damages for such infringement,
misappropriation, or dilution, and take such other actions as are appropriate under the
circumstances to protect such Collateral.



(i) Upon the request of Secured Party, each Debtor shall use commercially reasonable efforts
to obtain all requisite consents or approvals by the licensor of each Copyright License, Patent
License, or Trademark License to effect the assignment of all of such Debtor’s right, title, and
interest thereunder to Secured Party or its designee.



(j) In no event shall any Debtor acquire or purchase any Patent, Trademark, or Copyright
unless it complies with Section 4.08(a) and with Section 4.17 within the time
periods specified therein, and, upon request of Secured Party, executes and delivers any and all
agreements, instruments, documents, and papers as Secured Party may request to evidence Secured
Party’s and Creditors’ security interest in such purchased or acquired Patent, Trademark, or
Copyright. Each Debtor hereby appoints Secured Party as its attorney-in-fact to execute and file
any application for any Patent, Trademark, or Copyright (or for the registration of any Trademark
or Copyright) with the United States Patent and Trademark Office, United States Copyright Office,
or any Governmental Authority in any other jurisdiction as may be required by Secured Party, in
connection with such purchase or acquisition of any Patent, Trademark, or Copyright.



(k) Secured Party acknowledges and agrees that the Intellectual Property is the sole and
exclusive property of each Debtor, subject to the terms and conditions stated in this Agreement.
Other than in connection with any security interest in the Intellectual Property that a Debtor has
granted to Secured Party, or any rights and remedies of Secured Party under Laws, Secured Party
shall not challenge such Debtor’s ownership of the Intellectual Property. Each Debtor expressly
retains all rights, at such times when no Event of Default exists, to license third parties to use
the Intellectual Property for any purpose whatsoever not in violation of the Loan Documents and
which are not exclusive as to prevent Secured Party from using any of the Intellectual Property.



(l) The license granted to Secured Party hereunder shall include the right of Secured Party to
grant sublicenses to others to use the Intellectual Property if an Event of Default exists, and to
enable such sublicensees to exercise any rights and remedies of Secured Party with respect to the
Collateral, as Secured Party reasonably deems necessary or appropriate in the exercise of the
rights and remedies of Secured Party. In any country where sublicenses are incapable of
registration or where registration of a sublicense will not satisfactorily protect the rights of
each Debtor and Secured Party, Secured Party shall also have the right to designate other parties
as direct licensees of such Debtor to use such Debtor’s Intellectual Property if an Event of
Default exists and to enable such direct licensees to exercise any rights and remedies of Secured
Party as such licensees reasonably deem necessary or appropriate and each Debtor agrees to enter
into direct written licenses with the parties as designated on the same terms as would be
applicable to a sublicense, and any such direct license may, depending on the relevant local
requirements, be either (a) in lieu of a sublicense or (b) supplemental to a sublicense. In either
case, the parties hereto shall cooperate to determine what shall be necessary or appropriate in the
circumstances. For each sublicense to a sublicensee and direct license to a licensee, each Debtor
appoints Secured Party its agent for the purpose of exercising quality control over the
sublicensee. Each Debtor shall execute this Agreement and each other agreement necessary to effect
the purposes of this Agreement in any form, content and language suitable for recordation, notice
and/or registration in all available and appropriate agencies of foreign countries as Secured Party
may reasonably require.


 


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(m) In connection with the assignment or other transfer (in whole or in part) of its
obligations to any other Person, Secured Party may assign the license granted herein without any
Debtor’s consent (other than any consent required by the Credit Agreement) and upon such assignment
or transfer such other Person shall thereupon become vested with all rights and benefits in respect
thereof granted to Secured Party under this Agreement (to the extent of such assignment or
transfer).



(n) The parties hereto shall take reasonable action to preserve the confidentiality of the
Intellectual Property; provided, that Secured Party shall not have any liability to any Person for
any disclosure of the Intellectual Property in connection with Secured Party’s enforcement of its
rights under this Agreement or Laws.



4.09. Equity Interests; Dilution of Ownership. No Debtor will, nor will any Debtor permit any
Person to, revise, modify, amend or restate the Organization Documents of any issuer of such
Debtor’s Pledged Equity Interests in a manner that adversely affects the security interest of
Secured Party therein (except as permitted by the Loan Documents), or terminate, cancel, or
dissolve any such Person (except as permitted by the Loan Documents). As to any Pledged Equity
Interests, no Debtor will consent to or approve of the issuance of (a) any additional shares or
units of any class of Equity Interests of such issuer (unless promptly upon issuance additional
Equity Interests are pledged and delivered to Secured Party pursuant to the terms hereof to the
extent necessary to give Secured Party a security interest after such issuance in at least the same
percentage of such issuer’s outstanding securities or other Equity Interest as Secured Party had
before such issuance), (b) any instrument convertible voluntarily by the holder thereof or
automatically upon the occurrence or non-occurrence of any event or condition into, or exchangeable
for, any such securities or other Equity Interests, or (c) any warrants, options, contracts or
other commitments entitling any third party to purchase or otherwise acquire any such securities or
other Equity Interests (except as permitted by the Loan Documents).



4.10. Waiver. To the extent not prohibited by applicable Laws or Permits, each Debtor agrees
that any provision of any Organization Document of any issuer of any Collateral, any applicable
Law, any certificate or instrument evidencing Collateral or any other governance document that in
any manner restricts, prohibits or provides conditions to (a) the grant of a Lien on any Equity
Interest of such issuer or any other Collateral, (b) any transfer of any Equity Interest of such
issuer or any other Collateral, (c) any change in management or control of such issuer or any other
Collateral, (d) the admission of any transferee of any Collateral as a shareholder, member, partner
or other equity holder of the issuer of such Collateral, or (e) any other exercise by Secured Party
or any other Creditor of any rights pursuant to this Agreement, any other Loan Document or Law
shall not apply to (i) the grant of any Lien hereunder, (ii) the execution, delivery and
performance of this Agreement by such Debtor, (iii) the foreclosure or other realization upon any
interest in any Collateral, or (iv) the exercise of rights with respect to such Collateral,
including the right to participate in the management of such issuer. Furthermore, to the extent
not prohibited by applicable Laws or Permits, and except as otherwise permitted by the Credit
Agreement, no Debtor will permit any amendment to, or restatement of, any Organization Document or
any other governance document or enter into or permit to exist any agreement that in any manner
adversely affects Secured Party’s ability to foreclose on any Collateral or which conflicts with
the provisions of this Section.


 


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4.11. Restrictions on Securities. No issuer of any Pledged Equity Interests which is either a
partnership or limited liability company shall amend or restate its Organization Documents (if its
Organization Documents do not provide that any Equity Interest of such issuer is a security
governed by Article 8 of the UCC or that any Equity Interest of such issuer is evidenced by a
certificate or other instrument) to provide that any Equity Interest of such issuer is a security
governed by Article 8 of the UCC or permit any Equity Interest of such issuer to be evidenced by a
certificate or other instrument. No certificate or other instrument evidencing or constituting any
Pledged Equity Interest shall contain any restriction on transfer or other legend not reasonably
acceptable to Secured Party. With respect to each
certificate that contains any such legend that is not reasonably acceptable to Secured Party,
each Debtor shall, as to any issuer any Debtor Controls cause, and as to any issuer that no Debtor
Controls exercise commercially reasonable efforts to cause, the issuer of each such certificate to
issue one or more certificates in a form reasonably acceptable to Secured Party.



4.12. Rights to Dividends and Distributions. With respect to any certificates, bonds, or
other Instruments or Securities constituting a part of the Collateral, Secured Party shall have
authority if an Event of Default exists, without notice to any Debtor, either to have the same
registered in Secured Party’s name or in the name of a nominee, and, with or without such
registration, to demand of the issuer thereof, and to receive and receipt for, any and all
dividends and distributions (including any stock or similar dividend or distribution) payable in
respect thereof, whether they be ordinary or extraordinary. Secured Party shall endeavor to
provide such Debtor with notice of any such action by Secured Party pursuant to the preceding
sentence; provided, any failure to provide any such notice shall not impair any right or action of
Secured Party or any Creditor. If any Debtor shall become entitled to receive, or shall receive,
any interest in or certificate (including, without limitation, any interest in, or certificate
representing, a dividend or a distribution in connection with any reclassification, increase, or
reduction of capital, or issued in connection with any reorganization), or any option or rights
arising from or relating to any of the Collateral, whether as an addition to, in substitution of,
as a conversion of, or in exchange for, any of the Collateral, or otherwise, such Debtor agrees to
accept the same as Secured Party’s agent and to hold the same in trust on behalf of and for the
benefit of Secured Party, and, except as otherwise specified in this Agreement, to deliver the same
promptly to Secured Party in the exact form received, with appropriate undated stock or similar
powers, duly executed in blank, to be held by Secured Party, subject to the terms hereof, as
Collateral. Unless an Event of Default exists or will result therefrom and Secured Party has given
Borrower notice of its intent to exercise its rights under this Section, and subject to the
other Loan Documents, such Debtor shall be entitled to receive all cash dividends and distributions
not representing a return of capital or liquidating dividend paid or distributed with respect to
the Pledged Equity Interests and Securities, other than dividends or distributions or interests
payable in Securities of the issuer of such Securities (which, if evidenced by certificated
securities, shall be delivered to Secured Party as set forth in the immediately preceding sentence,
whether or not an Event of Default exists). Subject to the terms of the Credit Agreement, if an
Event of Default exists, Secured Party shall be entitled to all dividends and distributions, and to
any sums paid upon, or in respect of, any Collateral, upon the liquidation, dissolution, or
reorganization of the issuer thereof which during the continuance of an Event of Default shall be
paid to Secured Party to be held by it as additional collateral security for, and application to,
the Secured Obligations as provided in the Loan Documents. All dividends, distributions and
Proceeds paid or distributed in respect of the Collateral which are received by any Debtor in
violation of this Agreement shall, until paid or delivered to Secured Party, be held by such Debtor
in trust as additional Collateral of the applicable Debtor for the Secured Obligations.



4.13. Right of Secured Party to Notify Issuers. If an Event of Default exists, Secured Party
may notify issuers of any Collateral which is or represents a Security or an Equity Interest to
make payments of all dividends and distributions directly to Secured Party and Secured Party may
take control of all Proceeds of such Securities and Equity Interests. Until Secured Party elects
to exercise such rights, during the continuance of an Event of Default each Debtor, as agent of
Secured Party, shall collect, segregate and hold in trust all dividends and other amounts paid or
distributed with respect to Securities and Equity Interests.


 


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4.14. Insurance. Each Debtor shall, at its own expense, maintain insurance in accordance with
the terms set forth in the Credit Agreement. Upon request by Secured Party, each Debtor shall
promptly furnish to Secured Party evidence of such insurance in form and content reasonably
satisfactory to Secured Party. If such Debtor fails to perform or observe any applicable covenants
as to insurance, Secured Party may, after giving Borrower two Business Day’s prior notice of its
intent to exercise its remedies under this Section, at its option obtain insurance on only
Secured Party’s interest in the
Collateral, any premium thereby paid by Secured Party to become part of the Secured
Obligations, bear interest prior to the existence of an Event of Default, at the rate then
applicable to Base Rate Loans, and during the existence of an Event of Default, at the Default
Rate. If Secured Party maintains such substitute insurance, the premium for such insurance shall
be due on demand and payable by such Debtor to Secured Party. Subject to Borrower’s reinvestment
rights set forth in Section 2.05 of the Credit Agreement, each Debtor grants and appoints
Secured Party its attorney-in-fact to endorse any check or draft that may be payable to such Debtor
in order to collect any payments in respect of insurance, including any refunds of unearned
premiums in connection with any cancellation, adjustment, or termination of any policy of
insurance. Secured Party shall endeavor to provide such Debtor with a copy of each such item
endorsed by Secured Party; provided, any failure to provide any such copy shall not impair any
right or action of Secured Party or any other Creditor. Any such sums collected by Secured Party
shall be credited, except to the extent applied to the purchase by Secured Party of similar
insurance, to any amounts then owing on the Secured Obligations in accordance with the Credit
Agreement.



4.15. Transfers and Other Liens. Except as permitted by the Loan Documents, each Debtor shall
not (a) sell, assign (by operation of Law or otherwise) or otherwise Dispose of any of the
Collateral, or (b) create or permit to exist any Lien upon or with respect to any of the
Collateral.



4.16. Secured Party Appointed Attorney-in-Fact. Each Debtor hereby irrevocably appoints
Secured Party such Debtor’s attorney-in-fact, with full authority in the place and stead of such
Debtor and in the name of such Debtor or otherwise to take any action and to execute any instrument
which Secured Party may deem reasonably necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation (provided, Secured Party shall not have any duty to take
any such action or execute any such instrument):




(a) to obtain and adjust insurance required pursuant to Section 4.14



(b) if an Event of Default exists, to ask, demand, collect, sue for, recover, compromise,
receive, and give acquittance and receipts for moneys due and to become due under or in connection
with the Collateral;



(c) if an Event of Default exists, to receive, indorse, and collect any drafts or other
Instruments, Documents, and Chattel Paper, in connection with Section 4.16(b); and



(d) if an Event of Default exists, to file any claims or take any action or institute any
proceedings which Secured Party may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce compliance with the terms and conditions of any Collateral or
the rights of Secured Party with respect to any of the Collateral.



EACH DEBTOR HEREBY IRREVOCABLY GRANTS TO SECURED PARTY SUCH DEBTOR’S PROXY (EXERCISABLE ONLY
IF AN EVENT OF DEFAULT EXISTS) TO VOTE ANY SECURITIES INCLUDED IN THE COLLATERAL AND APPOINTS
SECURED PARTY SUCH DEBTOR’S ATTORNEY-IN-FACT (EXERCISABLE ONLY IF AN EVENT OF DEFAULT EXISTS) TO
PERFORM ALL OBLIGATIONS OF SUCH DEBTOR UNDER THIS AGREEMENT AND TO EXERCISE ALL OF SECURED PARTY’S
RIGHTS HEREUNDER. THE PROXY AND EACH POWER OF ATTORNEY HEREIN GRANTED, AND EACH STOCK POWER AND
SIMILAR POWER NOW OR HEREAFTER GRANTED (INCLUDING ANY EVIDENCED BY A SEPARATE WRITING), ARE COUPLED
WITH AN INTEREST AND ARE IRREVOCABLE BEFORE THE RELEASE DATE.


 


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Secured Party shall endeavor to provide such Debtor with notice of any action by Secured Party
pursuant to this Section; provided, any failure to provide any such notice shall not impair
any right or action of Secured Party or any other Creditor.



4.17. Changes to Representations, Schedules. Not later than 120 days after the last day of
each fiscal year of each Debtor commencing with the fiscal year ending December 31, 2010 during
which any information disclosed on any Schedule to this Agreement changed and at such other times
as required by this Agreement, each such Debtor shall deliver to Secured Party an updated Schedule
(which updates shall restate (and not supplement) such Schedule in its entirety); provided, the
delivery of any updated Schedule shall not be (a) deemed a waiver of any (i) obligation of any
Debtor under any Loan Document, or (ii) representation or warranty of any Debtor with respect to a
Schedule during the period such Schedule was effective, and (b) effective until Secured Party
agrees in writing to (i) the substitution of such updated Schedule, and (ii) the Schedule Effective
Date of such updated Schedule. Each Debtor shall promptly notify Secured Party of any change in
any representation herein and any information on any Schedule hereto if such change could
reasonably be expected to have a Material Adverse Effect. Each representation and warranty made as
of a particular Schedule Effective Date shall be deemed made as of such Schedule Effective Date
until the Schedule Effective Date of the next effective succeeding restated Schedule.



ARTICLE V

RIGHTS AND POWERS OF SECURED PARTY.




5.01. Secured Party May Perform. If any Debtor fails to perform any agreement of such Debtor
contained herein, Secured Party may itself perform, or cause performance of, such agreement, and
the reasonable expenses of Secured Party incurred in connection therewith shall be payable by
Debtor under Section 5.07. Secured Party shall endeavor to provide such Debtor with notice
of any action by Secured Party pursuant to the preceding sentence; provided, any failure to provide
any such notice shall not impair any right or action of Secured Party or any other Creditor.



5.02. Secured Party’s Duties. The powers conferred on Secured Party hereunder are solely to
protect Secured Party’s and Creditors’ interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by Secured Party and Creditors
hereunder, neither Secured Party nor any other Creditor shall have any duty as to any Collateral,
as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities,
tenders, or other matters relative to any Collateral, whether or not Secured Party or any other
Creditor has or is deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against prior parties or any other rights pertaining to any reasonable
care in the custody and preservation of any Collateral in its possession if such Collateral is
accorded treatment substantially equal to that which Secured Party accords its own property.
Except as provided in this Section, neither Secured Party nor any other Creditor shall have
any duty or liability to protect or preserve any Collateral or to preserve rights pertaining
thereto. Nothing contained in this Agreement shall be construed as requiring or obligating Secured
Party or any other Creditor, and neither Secured Party nor any other Creditor shall be required or
obligated, except as required by non-waivable provisions of applicable Law, to (a) present or file
any claim or notice or take any action, with respect to any Collateral or in connection therewith
or (b) notify any Debtor of any decline in the value of any Collateral. This Section shall
survive the termination of this Agreement, and any satisfaction and discharge of each Debtor by
virtue of any payment, court order, or Law.



5.03. Events of Default. The occurrence of any Event of Default (as defined in the Credit
Agreement) shall constitute an Event of Default (each, an “Event of Default”) under this Agreement.


 


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5.04. Remedies. If an Event of Default exists:



(a) Secured Party may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it or any other Creditor pursuant to any
applicable Laws, all the rights and remedies of a secured party on default under the UCC (whether
or not the UCC applies to the affected Collateral), and also may require each Debtor to, and each
Debtor will at its expense and upon request of Secured Party forthwith, assemble all or part of the
Collateral as directed by Secured Party and make it available to Secured Party at a place to be
designated by Secured Party which is reasonably convenient to both parties for public or private
sale, at any of Secured Party’s offices or elsewhere, for cash, on credit or for future delivery,
and upon such other terms as Secured Party may deem commercially reasonable. Each Debtor agrees
that, to the extent notice of sale shall be required by Law, ten days’ prior notice to such Debtor
of the time and place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Secured Party shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Secured Party may adjourn any public or
private sale from time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so adjourned.



(b) All proceeds received by Secured Party upon any sale of, collection of, or other
realization upon, all or any part of the Collateral shall be applied as set forth in Section
8.03 of the Credit Agreement.



(c) All payments received by each Debtor under or in connection with any Collateral shall be
received in trust for the benefit of Secured Party, shall be segregated from other funds of such
Debtor, and shall be forthwith paid or delivered over to Secured Party in the same form as so
received (with any necessary endorsement).



(d) Because of the Securities Act of 1933, as amended (“Securities Act”), and other Laws,
including without limitation state “blue sky” Laws, or contractual restrictions or agreements,
there may be legal restrictions or limitations affecting Secured Party in any attempts to dispose
of the Collateral and the enforcement of rights under this Agreement. For these reasons, Secured
Party is authorized by each Debtor, but not obligated, if any Event of Default exists, to sell or
otherwise dispose of any of the Collateral at private sale, subject to an investment letter, or in
any other manner which will not require the Collateral, or any part thereof, to be registered in
accordance with the Securities Act, or any other Law. Secured Party is also hereby authorized by
each Debtor, but not obligated, to take such actions, give such notices, obtain such consents, and
do such other things as Secured Party may deem required or appropriate under the Securities Act or
other securities Laws or other Laws or contractual restrictions or agreements in the event of a
sale or disposition of any Collateral. Each Debtor understands that Secured Party may in its
discretion approach a restricted number of potential purchasers and that a sale under such
circumstances may yield a lower price for the Collateral than would otherwise be obtainable if same
were registered and/or sold in the open market. No sale so made in good faith by Secured Party
shall be deemed to be not “commercially reasonable” because so made. Each Debtor agrees that if an
Event of Default exists, and Secured Party sells the Collateral or any portion thereof at any
private sale or sales, Secured Party shall have the right to rely upon the advice and opinion of
appraisers and other Persons, which appraisers and other Persons are acceptable to Secured Party,
as to the best price reasonably obtainable upon such a private sale thereof. In the absence of
fraud or gross negligence, such reliance shall be conclusive evidence that Secured Party and the
other Creditors handled such matter in a commercially reasonable manner under applicable Law. To
the extent required by non-waivable provisions of applicable Law, Secured Party shall provide
notice to the applicable Debtor of an action taken by Secured Party pursuant to this Section
5.04(d).


 


24









 





(e) After notice to any Debtor, Secured Party and such Persons as Secured Party may reasonably
designate shall have the right, at such Debtor’s own cost and expense, to verify under reasonable
procedures, the validity, amount, quality, quantity, value, condition, and status of, or any other
matter relating to, the Collateral, including, in the case of Accounts or Collateral in the
possession of any third person, by contacting Account Debtors or the third person possessing such
Collateral for the purpose of making such a verification. Secured Party shall have the absolute
right to share any information it gains from such inspection or verification with any Creditor.



(f) For purposes of enabling Secured Party to exercise rights and remedies under this
Agreement, each Debtor grants (to the extent not otherwise prohibited by such Debtor’s license with
respect thereto; provided, such prohibition is imposed upon such Debtor by a third party under such
license and not created by any Debtor) to Secured Party an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to any Debtor or any other Person;
provided, that if the license granted to Secured Party is a sublicense, each Debtor shall be solely
responsible for, and indemnify Secured Party and each Creditor against, any royalty or other
compensation payable to such Debtor’s licensor or other Person) to use all of such Debtor’s
Software, and including in such license reasonable access to all media in which any of the licensed
items may be recorded and all related manuals. The use of such license by Secured Party shall be
exercised, at the option of Secured Party, if an Event of Default exists; provided, that any
license, sub-license, or other transaction entered into by Secured Party in accordance herewith
shall be binding upon such Debtor notwithstanding any subsequent cure or waiver of an Event of
Default. Secured Party shall endeavor to provide such Debtor with notice of exercise of any rights
with respect to such license; provided, any failure to provide any such notice shall not impair any
right or action of Secured Party or any other Creditor.



(g) For the purpose of enabling Secured Party to exercise rights and remedies under this
Agreement, each Debtor grants (to the extent not otherwise prohibited by a license with respect
thereto) to Secured Party an irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to any Debtor or any other Person; provided, that if the license
granted to Secured Party is a sublicense, such Debtor shall be solely responsible for, and
indemnify Secured Party and Creditors against, any royalty or other compensation payable to such
Debtor’s licensor or other Person) to use, license, or sub-license any of the Collateral consisting
of Intellectual Property and wherever the same may be located, and including in such license
reasonable access to all media in which any of the licensed items may be recorded or stored and to
all Software used for the use, compilation, or printout thereof. In connection therewith, each
Debtor shall execute and deliver a license agreement to Secured Party to evidence the grant of
such license. The use of such license by Secured Party shall be exercised, at the option of
Secured Party, if an Event of Default exists; provided, that any license, sub-license, or other
transaction entered into by Secured Party in accordance herewith shall be binding upon each Debtor
notwithstanding any subsequent cure or waiver of an Event of Default. Secured Party shall endeavor
to provide such Debtor with notice of exercise of any rights with respect to such license;
provided, any failure to provide any such notice shall not impair any right or action of Secured
Party or any other Creditor.



Nothing contained in this Agreement or in any other Loan Document shall be construed as requiring
Secured Party to reduce a claim for payment under the Subsidiary Guaranty to judgment or otherwise
pursue any remedy under the Subsidiary Guaranty before exercising the rights and remedies granted
Secured Party in respect of the Collateral in this Agreement or in any other Loan Document.


 


25









 





5.05. Appointment of Receiver or Trustee. In connection with the exercise of Secured Party’s
rights under this Agreement or any other Loan Document, Secured Party may, if an Event of Default
exists, obtain the appointment of a receiver or trustee to assume, upon receipt of any necessary
judicial or other Governmental Authority consents or approvals, control of or ownership of any
Collateral. Such receiver or trustee shall have all rights and powers provided to it by Law or by
court order or provided to
Secured Party under this Agreement or any other Loan Document. Upon the appointment of such
trustee or receiver, each Debtor shall cooperate, to the extent necessary or appropriate, in the
expeditious preparation, execution, and filing of an application to any Governmental Authority or
for consent to the transfer of control or assignment of such Collateral to the receiver or trustee.
To the extent required by applicable Law, Secured Party shall provide to each Debtor notice of the
request for or appointment of such receiver or trustee.




5.06. Further Approvals Required.



(a) In connection with the exercise by Secured Party of rights under this Agreement that
affects the disposition of or use of any Collateral (including rights relating to the disposition
of or operation under any Permit), it may be necessary to obtain the prior consent or approval of
Governmental Authorities and other Persons to a transfer or assignment of Collateral. Each Debtor
shall execute, deliver, and file, and hereby appoints (to the extent not prohibited by applicable
Law) Secured Party as its attorney (exercisable only if an Event of Default exists), to execute,
deliver, and file on such Debtor’s behalf and in such Debtor’s name, all applications,
certificates, filings, instruments, and other documents (including without limitation any
application for an assignment or transfer of control or ownership) that may be necessary or
appropriate, in Secured Party’s reasonable opinion, to obtain such consents or approvals. Secured
Party shall endeavor to provide such Debtor with a copy of each such document executed, delivered
or filed by Secured Party; provided, any failure to provide any such copy shall not impair any
right or action of Secured Party or any Creditor. Upon Secured Party’s request, each Debtor shall
use commercially reasonable efforts to obtain the foregoing consents, waivers, and approvals,
including receipt of consents, waivers, and approvals under applicable agreements.



(b) Each Debtor acknowledges that there is no adequate remedy at Law for failure by it to
comply with the provisions of this Section and that such failure would not be adequately
compensable in damages, and therefore agrees that this Section may be specifically
enforced.




5.07. INDEMNITY AND EXPENSES.



(a) EACH DEBTOR WILL UPON DEMAND BY SECURED PARTY PAY TO EACH CREDITOR THE AMOUNT OF ANY AND
ALL EXPENSES, INCLUDING THE FEES AND EXPENSES OF ITS COUNSEL AND OF ANY EXPERTS AND AGENTS, WHICH
SECURED PARTY OR SUCH CREDITOR MAY INCUR IN CONNECTION WITH (I) THE CUSTODY, PRESERVATION, USE OR
OPERATION OF, OR THE SALE OF, COLLECTION FROM, OR OTHER REALIZATION UPON, ANY OF THE COLLATERAL,
(II) THE EXERCISE OR ENFORCEMENT OF ANY OF THE RIGHTS OF SECURED PARTY OR ANY CREDITOR HEREUNDER,
OR (III) THE FAILURE BY SUCH DEBTOR TO PERFORM OR OBSERVE ANY OF THE PROVISIONS HEREOF.



(b) EACH DEBTOR WILL UPON DEMAND BY SECURED PARTY PAY TO SECURED PARTY THE AMOUNT OF ANY AND
ALL REASONABLE EXPENSES, INCLUDING THE REASONABLE FEES AND EXPENSES OF ITS COUNSEL AND OF ANY
EXPERTS AND AGENTS, WHICH SECURED PARTY OR SUCH CREDITOR MAY INCUR IN CONNECTION WITH THE
ADMINISTRATION OF THIS AGREEMENT.


 


26









 





(c) EACH DEBTOR SHALL INDEMNIFY SECURED PARTY (AND ANY AGENT THEREOF), EACH CREDITOR, AND EACH
RELATED PARTY OF ANY OF THE FOREGOING (EACH SUCH PERSON BEING CALLED AN “INDEMNITEE”) AGAINST, AND
HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED
EXPENSES (INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY
INDEMNITEE),
INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY ANY THIRD PARTY OR BY ANY
DEBTOR OR ANY OTHER LOAN PARTY ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE
EXECUTION OR DELIVERY OF THIS AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR
THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR
THEREUNDER, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR THE
ADMINISTRATION OF THIS AGREEMENT, (II) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY ANY DEBTOR OR ANY OF ITS SUBSIDIARIES, OR
ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY DEBTOR OR ANY OF ITS SUBSIDIARIES, OR (III)
ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE
FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR
BY ANY DEBTOR OR ANY OTHER LOAN PARTY, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO,
IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT SUCH INDEMNITY SHALL NOT,
AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR
RELATED EXPENSES (I) ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR
(II) RESULT FROM CLAIMS SOLELY BETWEEN OR AMONG INDEMNITEES. THIS SECTION SHALL SURVIVE
THE TERMINATION OF THIS AGREEMENT, AND ANY SATISFACTION AND DISCHARGE OF EACH DEBTOR BY VIRTUE OF
ANY PAYMENT, COURT ORDER, OR LAW.



ARTICLE VI

MISCELLANEOUS




6.01. Waiver of Subrogation. Until the Release Date, no Debtor shall assert, enforce, or
otherwise exercise (a) any right of subrogation to any of the rights or Liens of Secured Party, any
other Creditor or any Person acting for the benefit of Secured Party or any other Creditor against
any other Loan Party or any Collateral or other security, or (b) any right of recourse,
reimbursement, contribution, indemnification, or similar right against any other Loan Party on all
or any part of the Secured Obligations or any other Loan Party, and until the date that is 370 days
after the Release Date, each Debtor hereby waives any and all of the foregoing rights and the
benefit of, and any right to participate in, and Collateral or other security given to Secured
Party or any other Creditor or any other Person acting for the benefit of Secured Party or any
other Creditor, to secure payment of the Secured Obligations. This Section 6.01 shall
survive the termination of this Agreement, and any satisfaction and discharge of each Debtor by
virtue of any payment, court order, or Law.



6.02. Cumulative Rights. All rights of Secured Party and each other Creditor under the Loan
Documents, Secured Hedge Agreements and Secured Cash Management Agreements are cumulative of each
other and of every other right which Secured Party and each other Creditor may otherwise have at
Law or in equity or under any other agreement. The exercise of one or more rights shall not
prejudice or impair the concurrent or subsequent exercise of other rights.


 


27









 





6.03. Amendments; Waivers. No amendment or waiver of any provision of this Agreement, and no
consent to any departure by any Debtor, shall be effective unless in writing signed by Secured
Party and each Debtor, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No election not to exercise, failure to
exercise or delay in
exercising any right, nor any course of dealing or performance, shall operate as a waiver of
any right of Secured Party or any Creditor under this Agreement or applicable Laws, nor shall any
single or partial exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right of Secured Party or any Creditor under this Agreement or applicable
Laws.



6.04. Continuing Security Interest; Release. This Agreement creates a continuing security
interest in the Collateral and shall (a) remain in full force and effect until the Release Date,
(b) be binding upon each Debtor, its successors and assigns, and (c) inure to the benefit of, and
be enforceable by, Secured Party and its successors, transferees and assigns. Upon the occurrence
of the Release Date, this Agreement and all obligations (other than those expressly stated to
survive such termination) of Secured Party and each Debtor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all rights to the Collateral
shall revert to the granting parties and Secured Party will, at each Debtor’s expense, execute and
deliver to each Debtor such documents (including without limitation UCC termination statements) as
such Debtor shall reasonably request to evidence such termination and shall deliver to such Debtor
any Collateral held by Secured Party hereunder. Each Debtor agrees that to the extent that Secured
Party or any other Creditor receives any payment or benefit and such payment or benefit, or any
part thereof, is subsequently invalidated, declared to be fraudulent or preferential, set aside or
is required to be repaid to a trustee, receiver, or any other Person under any Debtor Relief Law,
common law or equitable cause, then to the extent of such payment or benefit, the Secured
Obligations or part thereof intended to be satisfied shall be revived and continued in full force
and effect as if such payment or benefit had not been made and, further, any such repayment by
Secured Party or any other Creditor, to the extent that Secured Party or any other Creditor did not
directly receive a corresponding cash payment, shall be added to and be additional Secured
Obligations payable upon demand by Secured Party or any other Creditor and secured hereby, and, if
the Lien and security interest, any power of attorney, proxy or license hereof shall have been
released, such Lien and security interest, power of attorney, proxy and license shall be reinstated
with the same effect and priority as on the date of execution hereof all as if no release of such
Lien or security interest, power of attorney, proxy or license had ever occurred. This Section
6.04 shall survive the termination of this Agreement, and any satisfaction and discharge of
each Debtor by virtue of any payment, court order, or Law.




6.05. GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND SERVICE OF PROCESS.



(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
EXCEPT TO THE EXTENT THE VALIDITY OR PERFECTION OF THE SECURITY INTERESTS HEREUNDER OR THE REMEDIES
HEREUNDER, IN RESPECT OF ANY COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN NEW
YORK; PROVIDED, THAT SECURED PARTY AND EACH CREDITOR SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.



(b) SECURED PARTY AND EACH DEBTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH DEBTOR, SECURED PARTY AND
EACH CREDITOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST



 


28









 






EXTENT
NOT PROHIBITED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH DEBTOR, SECURED PARTY AND EACH
CREDITOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY
BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT SECURED PARTY OR ANY CREDITOR MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST ANY DEBTOR OR ITS
PROPERTIES IN THE COURTS OF OR ANY JURISDICTION.



(c) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 6.11. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.



(d) SECURED PARTY AND EACH DEBTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY
COURT REFERRED TO IN SECTION 6.05(b). EACH DEBTOR, SECURED PARTY, AND EACH CREDITOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. THIS
SECTION 6.05 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, AND ANY SATISFACTION AND
DISCHARGE OF EACH DEBTOR BY VIRTUE OF ANY PAYMENT, COURT ORDER, OR LAW.



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



6.07. Secured Party’s Right to Use Agents. Secured Party may exercise its rights under this
Agreement through an agent or other designee.



6.08. No Interference, Compensation or Expense. Secured Party may exercise its rights under
this Agreement (a) without resistance or interference by any Debtor and (b) without payment of any
rent, license fee, or compensation of any kind to any Debtor.


 


29









 





6.09. Waivers of Rights Inhibiting Enforcement. To the extent not prohibited by non-waivable
provisions of applicable Law, each Debtor waives (a) any claim that, as to any part of the
Collateral, a private sale, should Secured Party elect so to proceed, is, in and of itself, not a
commercially reasonable
method of sale for such Collateral, (b) except as otherwise provided in this Agreement, TO THE
FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTICE OR JUDICIAL HEARING IN CONNECTION WITH
SECURED PARTY’S DISPOSITION OF ANY OF THE COLLATERAL INCLUDING ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT SUCH DEBTOR WOULD OTHERWISE HAVE
UNDER ANY LAW AND ALL OTHER REQUIREMENTS AS TO THE TIME, PLACE AND TERMS OF SALE OR OTHER
REQUIREMENTS WITH RESPECT TO THE ENFORCEMENT OF SECURED PARTY’S OR CREDITORS’ RIGHTS HEREUNDER and
(c) all rights of redemption, appraisement or valuation.



6.10. Obligations Not Affected. To the fullest extent not prohibited by applicable Laws, the
obligations of each Debtor under this Agreement shall remain in full force and effect without
regard to, and shall not be impaired or affected by:



(a) any amendment, addition, or supplement to, or restatement of any Loan Document, Secured
Hedge Agreement, Secured Cash Management Agreement or any instrument delivered in connection
therewith or any assignment or transfer thereof;



(b) any exercise, non-exercise, or waiver by Secured Party or any other Creditor of any right,
remedy, power, or privilege under or in respect of, or any release of any guaranty, any collateral,
or the Collateral or any part thereof provided pursuant to, this Agreement, any Loan Document, any
Secured Hedge Agreement or any Secured Cash Management Agreement;



(c) any waiver, consent, extension, indulgence, or other action or inaction in respect of this
Agreement, any other Loan Document, any Secured Hedge Agreement or any Secured Cash Management
Agreement or any assignment or transfer of any thereof;



(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation, or the like of any Loan Party or any other Person, whether or not any Debtor shall
have notice or knowledge of any of the foregoing; or



(e) any other event which may give any Debtor or any other Loan Party a defense to, or a
discharge of, any of its obligations under any Loan Document, any Secured Hedge Agreement or any
Secured Cash Management Agreement (other than any defense of final payment in full of the Secured
Obligations).



6.11. Notices and Deliveries. All notices and other communications provided for herein shall
be effectuated (a) in the case of notices to Secured Party, in the manner provided for in the
Credit Agreement, and (b) in the case of notices to any Debtor, in the manner provided for in the
Credit Agreement. Each Debtor appoints Borrower such Debtor’s agent, and Borrower shall act as
agent for each other Debtor, for receipt of notices and other communications pursuant to the Loan
Documents.



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


 


30









 





6.13. Successors and Assigns. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns (including,
as to each
Debtor, all Persons who may become bound as a debtor or a new debtor to this Agreement);
provided, no Debtor may assign any of its rights or obligations under this Agreement except as
permitted by the Loan Documents.



6.14. Counterparts. This Agreement may be executed in any number of counterparts (and by
different parties hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. Executed counterpart
signature pages delivered by facsimile or as an attachment to electronic mail shall be deemed to be
an original.



6.15. Additional Debtors. Any Person who was not a “Debtor” under this Agreement at the time
of initial execution hereof shall become a “Debtor” hereunder if required pursuant to the terms of
the Loan Documents by executing and delivering to Secured Party a Joinder. Such Person shall also
deliver such items to Secured Party in connection with the execution of such Joinder as required by
the terms of the Loan Documents and this Agreement. Any such Person shall thereafter be deemed a
“Debtor” for all purposes under this Agreement.



6.16. Louisiana Regulated Entities. Notwithstanding anything contained in this Agreement to
the contrary, as to the Louisiana Regulated Entities only, the maximum amount of Secured
Obligations secured by this Agreement shall be limited to $500 million in the aggregate.



6.17. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND EACH RELATED AGREEMENT REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



6.18. This Agreement amends, restates, supplements, and consolidates (but does not extinguish
or novate) (i) the Subsidiary Security Agreement, and (ii) the Borrower Security Agreement. The
execution, delivery and effectiveness of this Agreement shall not discharge or release any Lien or
priority of any Lien granted by the Subsidiary Security Agreement, the Borrower Security Agreement,
or any security agreement, pledge agreement or other instrument securing the Secured Obligations.
This Agreement continues, renews and extends all Liens, rights, powers, privileges, superior
titles, estates and security interests existing by virtue of the Subsidiary Security Agreement and
the Borrower Security Agreement without interruption or lapse, but the terms, provisions and
conditions of such Liens, rights, powers, privileges, superior titles, estates and security
interests shall hereafter be governed by this Agreement and any amendments or supplements hereto.



The Remainder of This Page Is Intentionally Left Blank.




 


31









 







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



	 	 	 	 	 	 	 
	 	 	CROSSTEX ENERGY, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crosstex Energy GP, L.P.,	 	 
	 

	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crosstex Energy GP, LLC,	 	 
	 

	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Senior Vice President — Finance	 	 
	 
	 	 	 	 	 	 
	 	 	CROSSTEX ENERGY SERVICES, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crosstex Operating GP, LLC,	 	 
	 

	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Vice President — Finance	 	 
	 
	 	 	 	 	 	 
	 	 	CROSSTEX OPERATING GP, LLC

CROSSTEX ENERGY SERVICES GP, LLC

CROSSTEX LIG, LLC

CROSSTEX TUSCALOOSA, LLC

CROSSTEX LIG LIQUIDS, LLC

CROSSTEX PROCESSING SERVICES, LLC

CROSSTEX PELICAN, LLC

CROSSTEX EUNICE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Vice President — Finance	 	 






Security Agreement Signature Page




 


 









 







	 	 	 	 	 	 	 
	 	 	CROSSTEX ACQUISITION MANAGEMENT, L.P.

CROSSTEX GULF COAST MARKETING LTD.

CROSSTEX CCNG PROCESSING LTD.

CROSSTEX NORTH TEXAS PIPELINE, L.P.

CROSSTEX NORTH TEXAS GATHERING, L.P.

CROSSTEX NGL MARKETING, L.P.

CROSSTEX NGL PIPELINE, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crosstex Energy Services GP, LLC,	 	 
	 

	 	 	 	general partner of each above limited	 	 
	 

	 	 	 	partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Vice President — Finance	 	 
	 
	 	 	 	 	 	 
	 	 	SABINE PASS PLANT FACILITY JOINT VENTURE
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crosstex Processing Services, LLC,	 	 
	 

	 	 	 	as general partner, and	 	 
	 

	 	By:
	 	Crosstex Pelican, LLC,	 	 
	 

	 	 	 	as general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Michael J. Garberding
	 	 
	 

	 	 	 	Vice President — Finance	 	 






Security Agreement Signature Page




 


 









 







	 	 	 	 	 
	 	

SECURED PARTY:



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

 	 
	 	By:  	 	 
	 	 	Name:  	Tyler D. Levings 	 
	 	 	Title:  	Senior Vice President 	 
	 



Security Agreement Signature Page




 


 









 







EXHIBIT A




Security Agreement Joinder





 


 









 







Security Agreement Joinder No.     





SECURITY AGREEMENT JOINDER NO.       (this “Joinder”) dated as of                     , to the
Amended and Restated Security Agreement dated as of February 10, 2010 (such agreement, together
will all amendments, restatements, other modifications thereto and other Joinders (as such term is
defined in the Security Agreement), the “Security Agreement”), by the initial signatories (other
than Secured Party) thereto and each other Person who from time to time thereafter became a party
thereto pursuant to Section 6.15 thereof (each, individually, a “Debtor” and collectively,
the “Debtors”), in favor of BANK OF AMERICA, N.A., as Administrative Agent (in such capacity,
“Secured Party”), for the benefit of each Creditor.



BACKGROUND.




Capitalized terms not otherwise defined herein have the meaning specified in the Security
Agreement. The Security Agreement provides that additional parties may become Debtors under the
Security Agreement by execution and delivery of this Joinder. Pursuant to the provisions of
Section 6.15 of the Security Agreement, the undersigned by executing this Joinder is
becoming a Debtor under the Security Agreement. The undersigned desires to become a Debtor under
the Security Agreement in order to induce Creditors to continue to make and maintain financial
accommodations under the Loan Documents, Secured Hedge Agreements and Secured Cash Management
Agreements.



AGREEMENT.




NOW, THEREFORE, in consideration of the premises set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order
to induce Creditors to continue to make and maintain financial accommodations under the Loan
Documents, Secured Hedge Agreements and Secured Cash Management Agreements, the undersigned hereby
agrees with Secured Party, for the benefit of Creditors, as follows:



1. Joinder. In accordance with the Security Agreement, the undersigned hereby becomes a
Debtor under the Security Agreement with the same force and effect as if it were an original
signatory thereto as a Debtor and the undersigned hereby (a) agrees to all the terms and provisions
of the Security Agreement applicable to it as a Debtor thereunder and (b) represents and warrants
that the representations and warranties made by it as a Debtor thereunder are true and correct on
and as of the date hereof. Each reference to a “Debtor” in the Security Agreement shall be deemed
to include the undersigned.



2. Assignment and Grant of Security Interest. As security for the payment and performance, as
the case may be, in full of the Secured Obligations, the undersigned hereby assigns to, and pledges
and grants to Secured Party, for the benefit of each Creditor, a security interest in the entire
right, title, and interest of the undersigned in and to all Collateral, whether now or hereafter
existing, owned, arising or acquired.



3. Representations and Warranties. On and as of the date hereof, the undersigned makes each
representation and warranty set forth in Article III of the Security Agreement.



4. Notices. All communications and notices hereunder shall be in writing and given as
provided in Section 6.11 of the Security Agreement.


 


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5. GOVERNING LAW. THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, EXCEPT TO THE EXTENT THE VALIDITY OR PERFECTION OF THE SECURITY
INTERESTS HEREUNDER OR THE REMEDIES HEREUNDER, IN RESPECT OF ANY COLLATERAL ARE GOVERNED BY
THE LAW OF A JURISDICTION OTHER THAN NEW YORK; PROVIDED, THAT SECURED PARTY AND EACH CREDITOR SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.



6. Full Force of Security Agreement. Except as expressly supplemented hereby, the Security
Agreement remains in full force and effect in accordance with its terms.



7. Schedules. Schedules 1 through 13 to the Security Agreement shall be
supplemented by the addition of Schedules 1 through 13 attached hereto as to the
undersigned.



8. Severability. If any provision of this Joinder is held to be illegal, invalid, or
unenforceable under present or future Laws during the term thereof, such provision shall be fully
severable, this Joinder shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof, and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision there shall be added automatically as a part of this Joinder a
legal, valid, and enforceable provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible.



9. Counterparts. This Joinder may be executed in any number of counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Executed counterpart signature pages
delivered by facsimile or as an attachment to electronic mail shall be deemed to be an original.



10. ENTIRE AGREEMENT. THIS JOINDER AND EACH RELATED AGREEMENT REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



The Remainder of This Page Is Intentionally Left Blank.





 


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IN WITNESS WHEREOF, the undersigned has caused this Joinder to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.



	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Print Name:	 	 	 	 
	 

	 	 	 	Print Title:
	 	 

	 	 
	 

	 	 	 	 	 	 	 	 






Joinder Agreement (Security Agreement) — Signature Page




 


 









 







	 	 	 	 	 	 	 
	ACCEPTED BY:	 	 
	 
	 	 	 	 	 	 
	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Print Name:	 	 	 	 
	 

	 	Print Title:
	 	 

	 	 
	 

	 	 	 	 	 	 





 

 

 

 

 

 

 

 


Joinder Agreement (Security Agreement) — Signature Page