Exhibit 10.1

 

AMENDMENT AND RESTATEMENT AGREEMENT dated as of May 7, 2012 (this “Agreement”), to the Credit Agreement dated as of May 26, 2011, as amended by that certain First Amendment and Waiver to the Credit Agreement dated as of August 12, 2011 (as in effect immediately prior to the Restatement Effective Date (as defined below), the “Existing Credit Agreement”), among SUMMIT MIDSTREAM HOLDINGS, LLC, a Delaware limited liability company (the “Borrower”), and the other Loan Parties signatories hereto, the lenders from time to time party thereto (the “Existing Lenders”) and THE ROYAL BANK OF SCOTLAND PLC, as Administrative Agent (in such capacity, the “Administrative Agent”), as Collateral Agent (in such capacity, the “Collateral Agent”), and together with Bank of America, National Association, each as an Issuing Bank (each as an “Issuing Bank”, and together, the “Issuing Banks”).

 

WHEREAS, pursuant to the Existing Credit Agreement, the Existing Lenders have extended credit to the Borrower.

 

WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended and restated in the form attached hereto as Exhibit A (the “Credit Agreement”) (a) to allow Bank of America, N.A., Morgan Stanley Bank, N.A., Deutsche Bank Trust Company Americas, Royal Bank of Canada, Comerica Bank, Capital One, N.A., Compass Bank, Amegy Bank National Association, Goldman Sachs Bank USA, and MidFirst Bank, collectively, the “New Lenders”,  and each individually a “New Lender”, and collectively with the Existing Lenders the “Lenders”, and each individually, a “Lender”) to become “Lenders” party to the Credit Agreement, and (b) to modify certain other provisions of the Credit Agreement as provided therein;

 

WHEREAS, on October 27, 2011, Summit Midstream Partners, LLC, a Delaware limited liability company (the “Sponsor”), acquired 100% of the ownership interests in Grand River Gathering, LLC, a Delaware limited liability company (“GRG”), and such company is engaged in certain midstream activities related to the oil and natural gas markets;

 

WHEREAS, on the Restatement Effective Date, the Sponsor will contribute 100% of the ownership interests in GRG to the Borrower, such that GRG will become, as of the Restatement Effective Date, a Subsidiary Loan Party under and as defined in the Credit Agreement, and in connection therewith, has entered into this Agreement; and

 

WHEREAS, each of the Borrower, GRG, the Administrative Agent, the Lenders comprising at least the Required Lenders party to the Existing Credit Agreement immediately prior to the effectiveness of this Agreement, and the New Lenders are willing to amend and restate the Existing Credit Agreement on the terms and conditions hereinafter set forth, and each New Lender whose signature appears below has entered into this Agreement to join the Credit Agreement.

 

NOW, THEREFORE, in consideration of the above recitals and the covenants and conditions hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the parties hereby agrees as follows:

 

SECTION 1.   Defined Terms.  Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.

 











 

SECTION 2.   Amendment and Restatement of the Existing Credit Agreement.  Effective on the Restatement Effective Date, the Existing Credit Agreement is hereby amended and restated to read in its entirety in the form of the Amended and Restated Credit Agreement attached as Exhibit A hereto. From and after the Restatement Effective Date, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”, “hereto”, “hereof” and words of similar import, as used in the Credit Agreement, shall, unless the context otherwise requires, refer to the Credit Agreement, and the term “Credit Agreement”, as used in the other Loan Documents, shall mean the Credit Agreement.

 

SECTION 3.   New Lenders.

 

(a)                                       Upon the effectiveness of this Agreement and by its execution and delivery hereof, each of the New Lenders shall be deemed automatically to have become a party to the Credit Agreement, shall have all the rights and obligations, severally and not jointly, of a “Lender” under the Credit Agreement and the other Loan Documents as of the Restatement Effective Date (as defined below), and shall agree, and does hereby agree, severally and not jointly, to be bound by the terms and conditions set forth in the Credit Agreement and the other Loan Documents to which the Lenders are a party, in each case, in accordance with the terms and conditions thereof.

 

(b)                                      Each of the New Lenders severally and not jointly, (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 5.04 thereof and most recently delivered pursuant to Section 4.02 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and the Credit Agreement; (ii) agrees that it has independently and without reliance upon the assignor or the Administrative Agent , the Joint Lead Arrangers or any of their affiliates and based on such information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the Credit Agreement (and that it will, independently and without reliance upon the Administrative Agent, the Joint Lead Arrangers, the Issuing Banks, the Collateral Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement); (iii) represents and warrants that (1) its name set forth herein is its legal name, (2) it has the full power and authority and the legal right to make, deliver and perform, and has taken all necessary action, to authorize the execution, delivery and performance of this Agreement, and any and all other documents delivered by it in connection herewith and to fulfill its obligations under, and to consummate the transactions contemplated by, this Agreement, the Credit Agreement and the Loan Documents, (3) no consent or authorization of, filing with, or other act by or in respect of any Governmental Authority, is required in connection herewith or therewith, and (4) this Agreement constitutes its legal, valid and binding obligation; (iv) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (v) appoints and authorizes each of the Issuing Banks to take such action as letter of credit issuing bank on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the applicable Issuing Bank by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (vi) agrees that it will perform in accordance with

 

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their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender; and (vii) represents and warrants that under applicable laws no tax will be required to be withheld by the Administrative Agent or the Borrower with respect to any payments to be made to such New Lender hereunder or under any Loan Document, and no tax forms described in Section 3.12 of the Credit Agreement are required to be delivered by such New Lender (or if required, such tax forms have been delivered to the Administrative Agent as required under Section 3.12 of the Credit Agreement).

 

(c)                                       Each of the New Lenders hereby advises each other party hereto that its respective address for notices and its respective lending office shall be as set forth below its name on Schedule 9.01 to the Credit Agreement.

 

SECTION 4.   Representations and Warranties.  To induce the other parties hereto to enter into this Agreement, each Loan Party hereby represents and warrants to each of the other parties hereto, that:

 

(a)                                       This Agreement has been duly executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

 

(b)                                      Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct (i) in the case of representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each case on and as of the Restatement Effective Date as if made on the Restatement Effective Date, except to the extent that such representations and warranties specifically relate to an earlier date, in which case they shall be so true and correct in all material respects as of such earlier date.

 

(c)                                       No Default or Event of Default has occurred and is continuing on the Restatement Effective Date or would result from the consummation of the transactions anticipated to take place on the Restatement Effective Date.

 

SECTION 5.   Conditions Precedent.  This Agreement and the Credit Agreement shall become effective as of the date (the “Restatement Effective Date”) on which each of the following conditions precedent shall have been satisfied or waived:

 

(a)                                       The Administrative Agent (or its counsel) shall have received from each of the Loan Parties, the Issuing Banks, the Required Lenders and each New Lender either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.

 

(b)                                      The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party and the authorization of this Agreement and the

 

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Credit Agreement and the transactions contemplated hereby and thereby, all in form and substance reasonably satisfactory to the Administrative Agent.

 

(c)                                       The Administrative Agent shall have received all fees and, to the extent invoiced, other amounts due and payable hereunder or under the Credit Agreement on or prior to the Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses (including, without limitation, the reasonable fees, charges and disbursements of Mayer Brown LLP, counsel for the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.

 

(d)                                      Each of the conditions set forth in Sections 4.01 and 4.02 of the Credit Agreement shall be satisfied as of the Restatement Effective Date, and the Administrative Agent shall have received a certification of a Responsible Officer of the Borrower to that effect.

 

(f)                                         Each of the representations set forth in Section 4 hereof shall be true and correct in all material respects as of the Restatement Effective Date.

 

The Administrative Agent shall notify the Borrower and the Lenders of the effectiveness of the Credit Agreement, and such notice shall be conclusive and binding.

 

SECTION 6.   GOVERNING LAW.  (a)                                         This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Each of the Borrower, the Administrative Agent, the Collateral Agent, each Issuing Bank and the Lenders hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, 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 permitted by law, in such federal court. The Borrower further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to the Borrower at the address specified for the Loan Parties in Section 9.01 of the Credit Agreement. 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 shall affect any right that any Lender or any Issuing Bank may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrower or any Loan Party or their properties in the courts of any jurisdiction.

 

(b)                                      Each of the Borrower, the Administrative Agent, the Collateral Agent, each Issuing Bank and the Lenders 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 Agreement or the other Loan Documents in any New York State or federal court sitting in New York County. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by

 

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law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

SECTION 7.   WAIVERS OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (i) 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 (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.

 

SECTION 8.   Consent and Reaffirmation.  Each of the Sponsor, DFW Management and each Loan Party (other than the Borrower) hereby consents to this Agreement and the Credit Agreement and the transactions contemplated hereby and thereby, and each of the Sponsor, DFW Management and each Loan Party (other than the Borrower) hereby (a) agrees that, notwithstanding the effectiveness of this Agreement and the Credit Agreement, the Collateral Agreement and each of the other Collateral Documents to which it is a party continue to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (b) to the extent it is a Guarantor, confirms its guarantee of the Obligations (as defined in the Collateral Agreement) and, to the extent it is a Pledgor or Grantor, confirms its grant of a security interest, in each case pursuant to the Collateral Documents to which it is a party, all as provided in the Loan Documents as in effect immediately prior to the Restatement Effective Date and (c) acknowledges that such guarantee and/or grant, as applicable, continues in full force and effect in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents.

 

SECTION 9.   No Novation.  Neither this Agreement nor the effectiveness of the Credit Agreement shall extinguish the Obligations (as defined in the Existing Credit Agreement) for the payment of money outstanding under the Existing Credit Agreement or discharge or release the Lien or priority of any Loan Document or any other security therefor or any guarantee thereof, and the liens and security interests in favor of the Collateral Agent for the benefit of the Intercreditor Secured Parties securing payment of the Obligations are in all respects continuing and in full force and effect with respect to all Obligations. Nothing herein contained shall be construed as a substitution or novation, or a payment and reborrowing, or a termination, of the Obligations (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement or instruments guaranteeing or securing the same, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith. Nothing expressed or implied in this Agreement, the Credit Agreement or any other document contemplated hereby or thereby shall be construed as a release or other discharge of the Borrower under the Existing Credit Agreement or the Borrower or any other Loan Party under any Loan Document from any of its obligations and liabilities thereunder, and such obligations are in all respects continuing with only the terms thereof being modified as provided in this

 

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Agreement and in the Credit Agreement. The Existing Credit Agreement and each of the other Loan Documents (as defined in the Existing Credit Agreement) shall remain in full force and effect, until and except as modified hereby. This Agreement shall constitute a Loan Document for all purposes of the Existing Credit Agreement and the Credit Agreement.

 

SECTION 10.   Miscellaneous.  Sections 9.01, 9.04, 9.07, 9.08, 9.11, 9.12, 9.13 and 9.14 of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

SECTION 11.   Counterparts.  This Agreement may be executed by one or more parties to this Agreement on any number of separate counterparts, each of which shall constitute an original, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile (or other electronic) transmission shall be effective as delivery of a manually executed counterpart hereof.

 

SECTION 12.   Headings.  The Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

 

[Remainder of this page intentionally left blank]

 

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

 

	
 
    	
LOAN PARTIES:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SUMMIT MIDSTREAM HOLDINGS, LLC,
    
	
 
    	
a Delaware limited liability company,
    
	
 
    	
as Borrower
    
	
 
    	
 
    
	
 
    	
By:
    	
Summit Midstream Partners, LLC,
    
	
 
    	
 
    	
its sole member
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brock Degeyter
    
	
 
    	
Name:
    	
Brock Degeyter
    
	
 
    	
Title:
    	
Senior Vice President, General Counsel and Secretary
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SUMMIT MIDSTREAM PARTNERS, LLC,
    
	
 
    	
a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brock Degeyter
    
	
 
    	
Name:
    	
Brock Degeyter
    
	
 
    	
Title:
    	
Senior Vice President, General Counsel and Secretary
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
DFW MIDSTREAM SERVICES LLC,
    
	
 
    	
a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
Summit Midstream Partners, LLC,
    
	
 
    	
 
    	
its Managing Member
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brock Degeyter
    
	
 
    	
Name:
    	
Brock Degeyter
    
	
 
    	
Title:
    	
Senior Vice President, General Counsel and Secretary
    


 

Amendment and Restatement Agreement

Signature Page

 

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DFW MIDSTREAM MANAGEMENT, LLC,
    
	
 
    	
a Delaware limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
Summit Midstream Partners, LLC,
    
	
 
    	
 
    	
its Managing Member
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brock Degeyter
    
	
 
    	
Name:
    	
Brock Degeyter
    
	
 
    	
Title:
    	
Senior Vice President, General Counsel and Secretary
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
GRAND RIVER GATHERING, LLC,
    
	
 
    	
a Delaware limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brock Degeyter
    
	
 
    	
Name:
    	
Brock Degeyter
    
	
 
    	
Title:
    	
Senior Vice President, General Counsel and Secretary
    


 

Amendment and Restatement Agreement

Signature Page

 

S-2











 

	
 
    	
THE ROYAL BANK OF SCOTLAND PLC,
    
	
 
    	
as Administrative Agent, Collateral Agent, as an
   Issuing Bank, and as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Stuart Gibson
    
	
 
    	
Name:
    	
Stuart Gibson
    
	
 
    	
Title:
    	
Authorised Signatory
    


 

Amendment and Restatement Agreement

Signature Page

 

S-2











 

	
 
    	
BANK OF AMERICA, N.A.,
    
	
 
    	
as an Issuing Bank and as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Adam H. Fey
    
	
 
    	
Name:
    	
Adam H. Fey
    
	
 
    	
Title:
    	
Director
    


 

Amendment and Restatement Agreement

Signature Page

 

S-3









 

	
 
    	
BMO   HARRIS FINANCING, INC.,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Kevin Utsey
    
	
 
    	
Name:
    	
Kevin   Utsey
    
	
 
    	
Title:
    	
Director
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-4











 

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


 

Amendment and Restatement Agreement
 Signature Page

 

S-5











 

	
 
    	
ING   CAPITAL LLC,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Cheryl LaBelle
    
	
 
    	
Name:
    	
Cheryl   LaBelle
    
	
 
    	
Title:
    	
Managing   Director
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-6











 

	
 
    	
BARCLAYS   BANK PLC,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Michael Mozer
    
	
 
    	
Name:
    	
Michael   Mozer
    
	
 
    	
Title:
    	
Vice   President
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-7











 

	
 
    	
CREDIT   AGRICOLE CORPORATE AND INVESTMENT BANK,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Gayer D. Bellamy Jr
    
	
 
    	
Name:
    	
Gayer   D. Bellamy Jr
    
	
 
    	
Title:
    	
Managing   Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Deborah Kross
    
	
 
    	
Name:
    	
Deborah   Kross
    
	
 
    	
Title:
    	
Director
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-8











 

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


 

Amendment and Restatement Agreement
 Signature Page

 

S-9











 

	
 
    	
MORGAN   STANLEY BANK, N.A.,
    
	
 
    	
as   a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Michael King
    
	
 
    	
Name:
    	
Michael   King
    
	
 
    	
Title:
    	
Authorized   Signatory
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-11









 

	
 
    	
DEUTSCHE BANK TRUST COMPANY AMERICAS,
    
	
 
    	
as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michael Getz
    
	
 
    	
Name:
    	
Michael Getz
    
	
 
    	
Title:
    	
Vice President
    


 

 

	
 
    	
By:
    	
/s/ Marcus M. Tarkington
    
	
 
    	
Name:
    	
Marcus M. Tarkington
    
	
 
    	
Title:
    	
Director
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-11











 

	
 
    	
ROYAL BANK OF CANADA,
    
	
 
    	
as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jason S. York
    
	
 
    	
Name:
    	
Jason S. York
    
	
 
    	
Title:
    	
Authorized Signatory
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-12











 

	
 
    	
COMERICA BANK,
    
	
 
    	
as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ John S. Lesikar
    
	
 
    	
Name:
    	
John S. Lesikar
    
	
 
    	
Title:
    	
Assistant Vice President
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-13











 

	
 
    	
COMPASS BANK,
    
	
 
    	
as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Kathleen J. Bowen
    
	
 
    	
Name:
    	
Kathleen J. Bowen
    
	
 
    	
Title:
    	
Senior Vice President
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-14











 

	
 
    	
CAPITAL ONE, N.A.,
    
	
 
    	
as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Matthew L. Molero
    
	
 
    	
Name:
    	
Matthew L. Molero
    
	
 
    	
Title:
    	
Vice President
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-15











 

	
 
    	
AMEGY BANK NATIONAL ASSOCIATION,
    
	
 
    	
as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jill McSorley
    
	
 
    	
Name:
    	
Jill McSorley
    
	
 
    	
Title:
    	
Vice President
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-16











 

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


 

Amendment and Restatement Agreement
 Signature Page

 

S-17











 

	
 
    	
MIDFIRST BANK,
    
	
 
    	
as a   Lender
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Chad Dayton
    
	
 
    	
Name:
    	
Chad Dayton
    
	
 
    	
Title:
    	
Assistant Vice President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ James P. Boggs
    
	
 
    	
Name:
    	
James P. Boggs
    
	
 
    	
Title:
    	
Senior Vice President
    


 

Amendment and Restatement Agreement
 Signature Page

 

S-18











 

EXHIBIT A

 

(please see attached)

 

 

Exhibit A to Amendment and Restatement Agreement

 









 

U.S.$550,000,000

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

Dated as of May 7, 2012

 

among

 

 

SUMMIT MIDSTREAM HOLDINGS, LLC,

as Borrower,

 

 

THE LENDERS PARTY HERETO,

 

THE ROYAL BANK OF SCOTLAND plc

and

BANK OF AMERICA, N.A.,

as Issuing Banks,

 

THE ROYAL BANK OF SCOTLAND plc,

as Administrative Agent and Collateral Agent,

 

RBS SECURITIES INC.,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

BMO CAPITAL MARKETS,

and

REGIONS BANK,

as Joint Lead Arrangers,

 

RBS SECURITIES INC.

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Bookrunners,

 

BARCLAYS BANK PLC

and

ING CAPITAL LLC,

as Co-Documentation Agents,

 

BANK OF AMERICA, N.A.,

BANK OF MONTREAL,

and

REGIONS BANK,

as Co-Syndication Agents

 











 

TABLE OF CONTENTS

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
ARTICLE I
    	
DEFINITIONS
    	
2
    
	
 
    	
 
    	
 
    
	
 
    	
Section 1.01
    	
Defined   Terms
    	
2
    
	
 
    	
Section 1.02
    	
Terms   Generally
    	
48
    
	
 
    	
Section 1.03
    	
Effectuation   of Transfers
    	
48
    
	
 
    	
Section 1.04
    	
Existing   Credit Agreement
    	
48
    
	
 
    	
 
    	
 
    
	
ARTICLE II
    	
THE CREDITS
    	
48
    
	
 
    	
 
    	
 
    
	
 
    	
Section 2.01
    	
Revolving   Facility Commitments
    	
48
    
	
 
    	
Section 2.02
    	
Loans   and Borrowings
    	
49
    
	
 
    	
Section 2.03
    	
Requests   for Borrowings
    	
50
    
	
 
    	
Section 2.04
    	
Swingline   Loans
    	
51
    
	
 
    	
Section 2.05
    	
Letters   of Credit
    	
52
    
	
 
    	
Section 2.06
    	
Funding   of Borrowings
    	
58
    
	
 
    	
Section 2.07
    	
Interest   Elections
    	
58
    
	
 
    	
Section 2.08
    	
Termination   and Reduction of Commitments
    	
60
    
	
 
    	
Section 2.09
    	
Promise   to Repay Loan; Evidence of Debt
    	
60
    
	
 
    	
Section 2.10
    	
Repayment   of Loans
    	
61
    
	
 
    	
Section 2.11
    	
Prepayment   of Loans
    	
62
    
	
 
    	
Section 2.12
    	
Fees
    	
63
    
	
 
    	
Section 2.13
    	
Interest
    	
64
    
	
 
    	
Section 2.14
    	
Alternate   Rate of Interest
    	
65
    
	
 
    	
Section 2.15
    	
Increased   Costs
    	
65
    
	
 
    	
Section 2.16
    	
Break   Funding Payments
    	
67
    
	
 
    	
Section 2.17
    	
Taxes
    	
67
    
	
 
    	
Section 2.18
    	
Payments   Generally; Pro Rata Treatment; Sharing of Set-offs
    	
70
    
	
 
    	
Section 2.19
    	
Mitigation   Obligations; Replacement of Lenders
    	
72
    
	
 
    	
Section 2.20
    	
Increase   in Revolving Facility Commitments
    	
73
    
	
 
    	
Section 2.21
    	
Illegality
    	
75
    
	
 
    	
Section 2.22
    	
Defaulting   Lenders
    	
75
    
	
 
    	
 
    	
 
    
	
ARTICLE III
    	
REPRESENTATIONS AND WARRANTIES
    	
77
    
	
 
    	
 
    	
 
    
	
 
    	
Section 3.01
    	
Organization;   Powers
    	
77
    
	
 
    	
Section 3.02
    	
Authorization
    	
77
    
	
 
    	
Section 3.03
    	
Enforceability
    	
78
    
					


 

i











 

TABLE OF CONTENTS

(continued)

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
Section 3.04
    	
Governmental   Approvals
    	
78
    
	
 
    	
Section 3.05
    	
Financial   Statements
    	
78
    
	
 
    	
Section 3.06
    	
No   Material Adverse Effect
    	
79
    
	
 
    	
Section 3.07
    	
Title   to Properties (Other than Real Property); Possession Under Leases Other than   Real Property Leases
    	
79
    
	
 
    	
Section 3.08
    	
Litigation;   Compliance with Laws; Relevant Regulatory Bodies; Lack of Impact on Lenders
    	
80
    
	
 
    	
Section 3.09
    	
Federal   Reserve Regulations
    	
81
    
	
 
    	
Section 3.10
    	
Investment   Company Act
    	
82
    
	
 
    	
Section 3.11
    	
Use   of Proceeds
    	
82
    
	
 
    	
Section 3.12
    	
Tax   Returns
    	
82
    
	
 
    	
Section 3.13
    	
No   Material Misstatements
    	
82
    
	
 
    	
Section 3.14
    	
Employee   Benefit Plans
    	
83
    
	
 
    	
Section 3.15
    	
Environmental   Matters
    	
83
    
	
 
    	
Section 3.16
    	
Mortgages
    	
84
    
	
 
    	
Section 3.17
    	
Real   Property
    	
84
    
	
 
    	
Section 3.18
    	
Solvency
    	
87
    
	
 
    	
Section 3.19
    	
Labor   Matters
    	
87
    
	
 
    	
Section 3.20
    	
Insurance
    	
88
    
	
 
    	
Section 3.21
    	
Status   as Senior Debt; Perfection of Security Interests
    	
88
    
	
 
    	
Section 3.22
    	
Material   Contracts
    	
88
    
	
 
    	
 
    	
 
    
	
ARTICLE IV
    	
CONDITIONS TO CREDIT EVENTS
    	
89
    
	
 
    	
 
    	
 
    
	
 
    	
Section 4.01
    	
All   Credit Events
    	
89
    
	
 
    	
Section 4.02
    	
Restatement   Date
    	
89
    
	
 
    	
 
    	
 
    
	
ARTICLE V
    	
AFFIRMATIVE COVENANTS
    	
93
    
	
 
    	
 
    	
 
    
	
 
    	
Section 5.01
    	
Existence,   Maintenance of Licenses, Property
    	
93
    
	
 
    	
Section 5.02
    	
Insurance
    	
93
    
	
 
    	
Section 5.03
    	
Taxes   and Contractual Obligations
    	
95
    
	
 
    	
Section 5.04
    	
Financial   Statements, Reports, Copies of Contracts, Etc.
    	
96
    
	
 
    	
Section 5.05
    	
Litigation   and Other Notices
    	
98
    
	
 
    	
Section 5.06
    	
Compliance   with Laws
    	
99
    
	
 
    	
Section 5.07
    	
Maintaining   Records; Access to Properties and Inspections; Maintaining Gathering System
    	
99
    
					


 

ii











 

TABLE OF CONTENTS

(continued)

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
Section 5.08
    	
Use of Proceeds
    	
100
    
	
 
    	
Section 5.09
    	
Compliance   with Environmental Laws
    	
100
    
	
 
    	
Section 5.10
    	
Further   Assurances
    	
100
    
	
 
    	
Section 5.11
    	
Fiscal   Year
    	
101
    
	
 
    	
 
    	
 
    
	
ARTICLE VI
    	
NEGATIVE   COVENANTS
    	
102
    
	
 
    	
 
    	
 
    
	
 
    	
Section 6.01
    	
Indebtedness
    	
102
    
	
 
    	
Section 6.02
    	
Liens
    	
104
    
	
 
    	
Section 6.03
    	
Sale   and Lease-back Transactions
    	
109
    
	
 
    	
Section 6.04
    	
Investments,   Loans and Advances
    	
109
    
	
 
    	
Section 6.05
    	
Mergers,   Consolidations, Sales of Assets and Acquisitions
    	
111
    
	
 
    	
Section 6.06
    	
Dividends   and Distributions
    	
114
    
	
 
    	
Section 6.07
    	
Transactions   with Affiliates
    	
115
    
	
 
    	
Section 6.08
    	
Business   of the Borrower and the Subsidiaries
    	
117
    
	
 
    	
Section 6.09
    	
Limitation   on Modifications of Indebtedness; Modifications of Certificate of   Incorporation, By-laws and Certain Other Agreements; Etc.
    	
117
    
	
 
    	
Section 6.10
    	
Leverage   Ratio
    	
119
    
	
 
    	
Section 6.11
    	
Interest   Coverage Ratio
    	
120
    
	
 
    	
Section 6.12
    	
Swap   Agreements and Power Purchase Agreements
    	
120
    
	
 
    	
Section 6.13
    	
Limitation   on Leases
    	
120
    
	
 
    	
 
    	
 
    
	
ARTICLE VII
    	
EVENTS   OF DEFAULT
    	
120
    
	
 
    	
 
    	
 
    
	
 
    	
Section 7.01
    	
Events   of Default
    	
120
    
	
 
    	
 
    	
 
    
	
ARTICLE VIII
    	
THE   AGENTS
    	
123
    
	
 
    	
 
    	
 
    
	
 
    	
Section 8.01
    	
Appointment   and Authority
    	
123
    
	
 
    	
Section 8.02
    	
Rights   as a Lender
    	
124
    
	
 
    	
Section 8.03
    	
Exculpatory   Provisions
    	
124
    
	
 
    	
Section 8.04
    	
Reliance   by Agents
    	
125
    
	
 
    	
Section 8.05
    	
Delegation   of Duties
    	
125
    
	
 
    	
Section 8.06
    	
Resignation   of the Agents
    	
126
    
	
 
    	
Section 8.07
    	
Non-Reliance   on the Agents, Other Lenders and Issuing Bank
    	
127
    
	
 
    	
Section 8.08
    	
No   Other Duties, Etc.
    	
127
    
	
 
    	
Section 8.09
    	
Administrative   Agent May File Proofs of Claim
    	
127
    
	
 
    	
Section 8.10
    	
Authorization   for Certain Releases
    	
128
    
					


 

iii











 

TABLE OF CONTENTS

(continued)

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
Section 8.11
    	
Cash Management Banks and Specified Swap Counterparty Regarding Collateral Matters
    	
128
    
	
 
    	
Section 8.12
    	
Indemnification
    	
129
    
	
 
    	
Section 8.13
    	
Appointment   of Supplemental Collateral Agents
    	
129
    
	
 
    	
Section 8.14
    	
Withholding
    	
130
    
	
 
    	
Section 8.15
    	
Enforcement
    	
131
    
	
 
    	
 
    	
 
    
	
ARTICLE IX
    	
MISCELLANEOUS
    	
131
    
	
 
    	
 
    	
 
    
	
 
    	
Section 9.01
    	
Notices
    	
131
    
	
 
    	
Section 9.02
    	
Survival   of Agreement
    	
132
    
	
 
    	
Section 9.03
    	
Binding   Effect
    	
132
    
	
 
    	
Section 9.04
    	
Successors   and Assigns
    	
132
    
	
 
    	
Section 9.05
    	
Expenses;   Indemnity
    	
137
    
	
 
    	
Section 9.06
    	
Right   of Set-off
    	
138
    
	
 
    	
Section 9.07
    	
Applicable   Law
    	
138
    
	
 
    	
Section 9.08
    	
Waivers;   Amendment
    	
139
    
	
 
    	
Section 9.09
    	
Interest   Rate Limitation
    	
141
    
	
 
    	
Section 9.10
    	
Entire   Agreement
    	
141
    
	
 
    	
Section 9.11
    	
Waiver   of Jury Trial
    	
141
    
	
 
    	
Section 9.12
    	
Severability
    	
142
    
	
 
    	
Section 9.13
    	
Counterparts
    	
142
    
	
 
    	
Section 9.14
    	
Headings
    	
142
    
	
 
    	
Section 9.15
    	
Jurisdiction;   Consent to Service of Process
    	
142
    
	
 
    	
Section 9.16
    	
Confidentiality
    	
143
    
	
 
    	
Section 9.17
    	
Communications
    	
143
    
	
 
    	
Section 9.18
    	
Release   of Liens and Guarantees
    	
145
    
	
 
    	
Section 9.19
    	
U.S.A.   PATRIOT Act and Similar Legislation
    	
146
    
	
 
    	
Section 9.20
    	
Judgment
    	
146
    
	
 
    	
Section 9.21
    	
Pledge   and Guarantee Restrictions
    	
146
    
	
 
    	
Section 9.22
    	
No   Fiduciary Duty
    	
147
    
	
 
    	
Section 9.23
    	
Application   of Funds
    	
147
    
	
 
    	
Section 9.24
    	
Transactions   on the Restatement Date
    	
148
    
					


 

iv











 

TABLE OF CONTENTS

(continued)

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
Exhibits   and Schedules
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Exhibit A
    	
Form of   Assignment and Acceptance
    	
 
    
	
Exhibit B
    	
Form of   Prepayment Notice
    	
 
    
	
Exhibit C-1
    	
Form of   Borrowing Request
    	
 
    
	
Exhibit C-2
    	
Form of   Swingline Borrowing Request
    	
 
    
	
Exhibit D
    	
Form of   Interest Election Request
    	
 
    
	
Exhibit E
    	
Form of   Collateral Agreement
    	
 
    
	
Exhibit F
    	
Intentionally   Omitted
    	
 
    
	
Exhibit G
    	
Form of   Revolving Note
    	
 
    
	
Exhibit H
    	
Form of   Non-U.S. Lender Tax Certificate
    	
 
    
	
Exhibit I
    	
Form of   Administrative Questionnaire
    	
 
    
	
Exhibit J
    	
Form of   Intercreditor Agreement
    	
 
    
	
 
    	
 
    	
 
    
	
Schedule   1.01
    	
Exception   to Collateral and Guarantee Requirement
    	
 
    
	
Schedule   2.01
    	
Existing   Credit Agreement Commitments; Restatement Date Commitments
    	
 
    
	
Schedule   3.04
    	
Governmental   Approvals
    	
 
    
	
Schedule   3.07(d)
    	
Subsidiaries
    	
 
    
	
Schedule   3.07(e)
    	
Subscriptions
    	
 
    
	
Schedule   3.08
    	
Litigation
    	
 
    
	
Schedule   3.12
    	
Taxes
    	
 
    
	
Schedule   3.15
    	
Environmental   Matters
    	
 
    
	
Schedule   3.17(a)
    	
Real   Property
    	
 
    
	
Schedule   3.17(b)
    	
Gathering   System Liens
    	
 
    
	
Schedule   3.17(d)
    	
Deeds
    	
 
    
	
Schedule   3.20
    	
Insurance
    	
 
    
	
Schedule   3.22
    	
Material   Contracts
    	
 
    
	
Schedule   6.01
    	
Indebtedness
    	
 
    
	
Schedule   6.02
    	
Liens
    	
 
    
	
Schedule   6.04
    	
Investments
    	
 
    
	
Schedule   6.07
    	
Transactions   with Affiliates
    	
 
    
	
Schedule   9.01
    	
Notice   Addresses of Borrower, Administrative Agent, Issuing Banks and Lenders
    	
 
    
	
 
    	
 
    	
 
    
	
Annex   A
    	
MLP   Conversion
    	
 
    
	
Annex   B
    	
Perfection   Certificate
    	
 
    


 

v











 

AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 7, 2012 (as further amended, restated, amended and restated, supplemented or modified from time to time, this “Agreement”), among Summit Midstream Holdings, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b)(vi), the “Borrower”), the LENDERS party hereto from time to time, THE ROYAL BANK OF SCOTLAND PLC (“RBS”), as administrative agent (in such capacity, together with any successor administrative agent appointed pursuant to the provisions of Article VIII, the “Administrative Agent”), BANK OF AMERICA, N.A. (“BAML”), and RBS, each as an Issuing Bank (each as an “Issuing Bank”), RBS, as collateral agent (in such capacity, together with any successor collateral agent appointed pursuant to the provisions of Article VIII, the “Collateral Agent”), BARCLAYS BANK PLC and ING CAPITAL LLC, as Co-Documentation Agents, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as joint lead arrangers (in such capacity, the “Joint Lead Arrangers”), and RBSSI and MERRILL, as Joint Lead Bookrunners.

 

W I T N E S S E T H :

 

WHEREAS, the Borrower, the Administrative Agent, RBS, as the Collateral Agent and the Issuing Bank, the lenders party thereto, and the other agents party thereto, have entered into that certain Credit Agreement, dated as of May 26, 2011, as amended by that certain First Amendment and Waiver to the Credit Agreement, dated as of August 12, 2011 (as so amended, the “Existing Credit Agreement”);

 

WHEREAS, on or about October 27, 2011, Sponsor acquired 100% of the ownership interests in Grand River Gathering, LLC, a Delaware limited liability company (“GRG”), that is engaged in certain Midstream Activities;

 

WHEREAS, on the Restatement Date, Sponsor will contribute 100% of the ownership interests in GRG to Borrower, such that GRG will become, as of the Restatement Date, a Subsidiary Loan Party, and, in connection therewith, the Borrower, the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders party thereto have entered into that certain Amendment and Restatement Agreement, dated as of the date hereof (the “Amendment and Restatement Agreement”), pursuant to which the Existing Credit Agreement has been amended and restated on the terms and conditions set forth herein;

 

WHEREAS, the Borrower desires to amend and restate the Existing Credit Agreement in its entirety in order to provide for (a) certain dividends or other distributions by the Borrower to the Sponsor, including reimbursement of invested capital, (b) capital expenditures of the Borrower and the Restricted Subsidiaries to construct, expand, acquire and maintain their respective Properties, to the extent permitted by this Agreement, (c) asset acquisitions, to the extent permitted by this Agreement, and (d) the ongoing working capital requirements and other general corporate purposes of the Borrower and the Restricted Subsidiaries, including the issuance of Letters of Credit and the payment of transaction costs and expenses in connection with the Amended and Restated Credit Agreement, the Borrower has requested that (i) the Lenders provide Commitments to make Loans and participate in Letters of Credit from time to time during the Availability Period and (ii) the Issuing Banks commit to issue Letters of Credit

 

1











 

from time to time during the Availability Period, in each case, subject to the terms and conditions hereinafter set forth; and

 

WHEREAS, the Lenders and each Issuing Bank are willing, subject to the terms and conditions hereinafter set forth, to extend Commitments and make Loans to the Borrower and issue (or participate in) Letters of Credit, the Administrative Agent is willing to serve as administrative agent for the Lenders and as the Issuing Bank, and the Borrower and the Existing Required Lenders under the Existing Credit Agreement have, on or prior to the Restatement Date, entered into an agreement to amend and restate the Existing Credit Agreement;

 

NOW, THEREFORE, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS

 

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

 

“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.

 

“ABR Loan” shall mean any Loan (including any Swingline Loan) bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

 

“Acquisition Period” shall mean a period elected by the Borrower, such election to be exercised by the Borrower delivering written notice thereof to the Administrative Agent (who shall thereafter promptly notify the Lenders), commencing with the funding of the purchase price for any Permitted Business Acquisition hereunder and ending on the earlier of (a) the date that is 180 days after the date of such funding, and (b) the Borrower’s election to terminate such Acquisition Period, such election to be exercised by the Borrower delivering notice thereof to the Administrative Agent (who shall thereafter promptly notify the Lenders); provided, that, (i) once any Acquisition Period is in effect, the next Acquisition Period may not commence until the termination of such Acquisition Period then in effect and (ii) after giving effect to the termination of such Acquisition Period in effect, the Borrower shall be in compliance with the Financial Performance Covenants and no Event of Default shall have occurred and be continuing.

 

“Additional Equity Contribution” shall mean an amount equal to the cash received by the Borrower from the Sponsor or any Sponsor Affiliate in exchange for the issuance by the Borrower of additional Equity Interests in the Borrower after the Restatement Date; provided, that the Borrower shall deliver written notice to the Administrative Agent concurrently with the receipt of such cash that it has elected to treat such equity contribution as an Additional Equity Contribution and clearly setting forth the amount of such Additional Equity Contribution; provided, further, that any such Equity Interests issued in connection with an Additional Equity Contribution shall be pledged to the Collateral Agent in accordance with the Collateral and Guarantee Requirement; provided, further, that Additional Equity Contributions shall be disregarded for the purpose of determining compliance with the Financial Performance Covenants and for all other purposes for which EBITDA is calculated under this Agreement; and

 

2











 

provided, further, that Additional Equity Contributions shall be disregarded for purposes of determining Available Cash and may not be included in Available Cash.

 

“Adjusted Eurodollar Rate” shall mean for any Interest Period with respect to any Eurodollar Loan, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1.00%) equal to (a) the Eurodollar Rate for such Interest Period multiplied by (b) the Statutory Reserves.

 

“Administrative Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

“Administrative Questionnaire” shall mean an Administrative Questionnaire in substantially the form of Exhibit I or any other form approved by the Administrative Agent.

 

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

 

“Agency Fee” shall have the meaning assigned to such term in Section 2.12(d).

 

“Agent Default Period” shall mean, with respect to any Agent, any time when such Agent is a Defaulting Lender and is not performing its role as such Agent hereunder and under the other Loan Documents.

 

“Agent Parties” shall have the meaning assigned to such term in Section 9.17(c).

 

“Agents” shall mean the Administrative Agent and the Collateral Agent.

 

“Agreed Security Principles” shall mean any grant of a Lien or provision of a guarantee by any Person that could, in the reasonable determination of the Lenders:

 

(a)                                 result in a Lien being granted over assets of such Person, the acquisition of which Person was financed from a subsidy or payments, the terms of which prohibit any assets acquired with such subsidy or payment being used as collateral but only to the extent such financing is permitted by this Agreement;

 

(b)                                 include any lease, license, contract or agreement to which such Person is a party, or any of such Person’s rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of a term, provision or condition of any such lease, license, contract or agreement, in each case solely to the extent that the applicable Loan Parties or Benefited Subsidiaries have previously used commercially reasonable efforts to remove such prohibition or limitation or to obtain any required consents to eliminate or have waived any such prohibition or limitation (unless such term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder 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 the U.S. Bankruptcy Code) or principles of equity); provided, that Agreed Security Principles shall not prohibit the

 

3











 

grant of a Lien or a provision of a guarantee at such time as the contractual prohibition shall no longer be applicable and, to the extent severable, which Lien shall attach immediately to any portion of such lease, license, contract or agreement not subject to the prohibitions specified above; and provided,  further, that the Agreed Securities Principles shall not exclude any “proceeds” (as defined in the UCC) of any such lease, license, contract or agreement;

 

(c)                                  result in the contravention of applicable law, unless such applicable law would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions); provided, that Agreed Security Principles shall not prohibit the grant of a Lien or a provision of a guarantee at such time as the legal prohibition shall no longer be applicable and to the extent severable (which Lien shall attach immediately to any portion not subject to the prohibitions specified above); or

 

(d)                                 result in a breach of a Material Contract existing on the Restatement Date and binding on such Person that may not be amended, supplemented, waived, restated or otherwise modified using commercially reasonable efforts to avoid such breach; provided, that this clause (d) shall only apply to the granting of Liens and not to the provision of any guarantee.

 

“Agreement” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

“Alternate Base Rate” shall mean the greatest of (a) the rate of interest per annum determined by the Administrative Agent from time to time as its prime commercial lending rate for U.S. Dollar loans in the United States for such day (the “Prime Rate”), (b) the Federal Funds Effective Rate plus 0.50% per annum, and (c) the Adjusted Eurodollar Rate as of such date for a one-month Interest Period plus 1.00% per annum.  The Prime Rate is not necessarily the lowest rate that the Administrative Agent is charging to any corporate customer.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate shall be effective from and including the date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurodollar Rate, respectively. Notwithstanding anything to the contrary above in this definition or in any other provision of this Agreement, the Alternate Base Rate in respect of any Reimbursement Revolving Loan shall, if such Reimbursement Revolving Loan would otherwise have the same rate of interest as any Revolving Facility Loan that is not a Reimbursement Revolving Loan hereunder, be one basis point higher than the Alternate Base Rate, that otherwise would apply to such Reimbursement Revolving Loan for all purposes under this Agreement.

 

“Amendment and Restatement Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“Applicable Margin” shall mean for any day (a) for any Incremental Revolving Loan, the applicable margin per annum set forth in the joinder agreement and (b) with respect to any Revolving Facility Loan or Swingline Loan then outstanding, as applicable, the applicable per annum percentage set forth below under the caption “Revolving Facility ABR Loans”, “Revolving

 

4









 

Facility Eurodollar Loans” or “Swingline Loans”, as applicable, based upon the Leverage Ratio as of the last date of the most recent fiscal quarter of the Borrower:

 

	
Leverage Ratio
    	
 
    	
Revolving Facility ABR
   Loans / Swingline Loans
    	
 
    	
Revolving Facility
   Eurodollar Loans
    	
 
    
	
Category 1: Greater than 4.50 to 1.00
    	
 
    	
2.50
    	
%
    	
3.50
    	
%
    
	
Category 2: Less than or equal to 4.50 to 1.00 but   greater than 4.00 to 1.00
    	
 
    	
2.25
    	
%
    	
3.25
    	
%
    
	
Category 3: Less than or equal to 4.00 to 1.00 but   greater than 3.50 to 1.00
    	
 
    	
2.00
    	
%
    	
3.00
    	
%
    
	
Category 4: Less than or equal to 3.50 to 1.00 but   greater than 3.00 to 1.00
    	
 
    	
1.75
    	
%
    	
2.75
    	
%
    
	
Category 5: Less than or equal to 3.00 to 1.00
    	
 
    	
1.50
    	
%
    	
2.50
    	
%
    


 

For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end of each fiscal quarter of the Borrower’s fiscal year based upon the consolidated financial information of the Borrower and the Restricted Subsidiaries delivered pursuant to Section 5.04(a) or Section 5.04(b) (and for the period commencing on the Restatement Date and continuing until the compliance certificate for the quarter ended June 30, 2012 is delivered pursuant to Section 5.04(c)(i)(B), the Applicable Margin in effect for Eurodollar Loans shall be 2.50% and for ABR Loans shall be 1.50%), and (ii) each change in the Applicable Margin resulting from a change in the Leverage Ratio shall be effective on the first Business Day after the date of delivery to the Administrative Agent of such consolidated financial information indicating such change and ending on the date immediately preceding the effective date of the next such change; provided, that the Leverage Ratio shall be deemed to be in Category 1 at the option of the Administrative Agent or the Required Lenders, at any time during which the Borrower fails to deliver the consolidated financial information when required to be delivered pursuant to Section 5.04(a) or Section 5.04(b), during the period from the expiration of the time for delivery thereof until such consolidated financial information is delivered.

 

Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the computation of the Leverage Ratio set forth in a certificate executed by a Responsible Officer of the Borrower delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest or fees for any period based on an Applicable Margin that is less than that which would have been applicable had the Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the “Applicable Margin” for any day occurring within the period covered by such certificate of a Responsible Officer of the Borrower shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Leverage Ratio for such period, and any shortfall in the interest or fees theretofor paid by the Borrower for the relevant period pursuant to Section 2.12 and Section 2.13 as a result of the miscalculation of the Leverage Ratio shall be deemed to be (and shall be) due and payable under the relevant provisions of Section 2.12 or Section 2.13, as applicable, at the time the interest or fees for such period were required to be paid pursuant to said Section (and shall remain due and payable until paid in full), in accordance with the terms of this Agreement; provided, that, notwithstanding the

 

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foregoing, so long as an Event of Default described in Section 7.01(h) or (i) has not occurred with respect to the Borrower, such shortfall shall be due and payable five Business Days following the determination described above.

 

“Approved Fund” shall have the meaning assigned to such term in Section 9.04(b).

 

“Asset Acquisition” shall mean any acquisition of all or substantially all of the assets of, or all of the Equity Interests (other than directors’ qualifying shares) in, a Person or division or line of business of a Person.

 

“Asset Disposition” shall mean any sale, transfer or other disposition by the Borrower or any Restricted Subsidiary to any Person other than the Borrower or a Restricted Subsidiary to the extent otherwise permitted hereunder of any material asset or group of related assets (other than inventory or other assets sold, transferred or otherwise disposed of in the ordinary course of business) in one or a series of related transactions.  For the avoidance of doubt, the consummation of the MLP Conversion in accordance herewith shall not be considered an Asset Disposition.

 

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee, and accepted by the Administrative Agent and the Borrower (if required pursuant to Section 9.04(b)), in substantially the form of Exhibit A or such other form as shall be approved by the Administrative Agent.

 

“Availability Period” shall mean the period from the Closing Date to but excluding the earlier of the Stated Maturity Date and the date of termination of the Revolving Facility Commitments.

 

“Available Cash” shall mean, with respect to any fiscal quarter:

 

(a) the sum of (i) all cash and cash equivalents of the Borrower and the Restricted Subsidiaries (or the Borrower’s and the Restricted Subsidiaries’ proportionate share of cash and cash equivalents in the case of Restricted Subsidiaries that are not wholly-owned) on hand at the end of such fiscal quarter (without duplication), including any cash proceeds from sales of Property by the Borrower or any Restricted Subsidiary (to the extent such sales are made in accordance with the Loan Documents), (ii) if the Borrower so determines, all or any portion of any additional cash and cash equivalents of the Borrower and the Restricted Subsidiaries (or the Borrower’s and the Restricted Subsidiaries’ proportionate share of cash and cash equivalents in the case of Restricted Subsidiaries that are not wholly-owned) on hand on the date of determination (without duplication) of Available Cash with respect to such fiscal quarter resulting from Working Capital Borrowings made subsequent to the end of such fiscal quarter and (iii) if the Borrower so determines, all or any portion of Available Working Capital Borrowings on the date of determination of Available Cash with respect to such fiscal quarter, less;

 

(b) the amount of any cash reserves established by the Borrower and the Restricted Subsidiaries (or the Borrower’s and the Restricted Subsidiaries’ proportionate share of cash reserves in the case of Restricted Subsidiaries that are not

 

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wholly owned) (without duplication) (i) necessary to provide for the proper conduct of the business of the Borrower and the Restricted Subsidiaries (including reserves for future Capital Expenditures and for future credit needs of the Borrower and the Restricted Subsidiaries) subsequent to such fiscal quarter, (ii) necessary to comply with applicable law or the Loan Documents or other obligation of any Loan Party or (iii) in the event that any MLP Conversion shall occur, and so long as the resulting Master Limited Partnership shall continue to exist, to provide funds for distributions in respect of any one or more of the next four fiscal quarters as provided in the partnership agreement of the Master Limited Partnership.

 

“Available Unused Commitment” shall mean, with respect to a Revolving Facility Lender, at any time of determination, an amount equal to the amount by which (a) the Revolving Facility Commitment of such Revolving Facility Lender at such time exceeds (b) the Revolving Facility Credit Exposure of such Revolving Facility Lender at such time.

 

“Available Working Capital Borrowings” shall mean any amounts available to be borrowed as Working Capital Borrowings on the applicable date of determination.

 

“BAML” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

“Benefited Subsidiary” shall mean each direct or indirect Subsidiary of the Borrower (a) that is Controlled by a Loan Party and the ownership by such Loan Party of the Equity Interests of which is not less than that required by clause (b)(ii) of the definition of “Change in Control” and (b) that has received or is receiving any portion of the proceeds of one or more Loans or on whose behalf a Letter of Credit has been issued; provided, that if (i) (A) any Subsidiary that is a Benefited Subsidiary has paid a dividend or made a distribution to any Loan Party, and/or on behalf of which an Additional Equity Contribution has been made (and which has not otherwise been applied), in an aggregate amount equal to or greater than the total amount of Investments it has received from all Loan Parties pursuant to Section 6.04(a)(ii) during the period from the Closing Date to the applicable date of determination, or (B) has received a portion of the proceeds of a Loan and (x) at the time such Subsidiary is being designated as an Unrestricted Subsidiary the Borrower or any of its Restricted Subsidiaries are permitted to make Investments pursuant to the terms of Section 6.04(a)(i), 6.04(i) or 6.04(k), as applicable, in an amount equal to the Investments previously received by the Subsidiary that were not paid as dividends to any Loan Party, and (y) the amount of such Investments received by such Subsidiary during the period from the Closing Date to the applicable date of determination, and not paid via dividend or distribution pursuant to clause (i) of this definition, shall be included in the calculation of the aggregate amount of Investments permitted under Section 6.04(a)(i), 6.04(i) and 6.04(k), (ii) any Letters of Credit issued on behalf of such Subsidiary have been cancelled or have expired as of the applicable date of determination (and no Revolving L/C Disbursement in respect of any such Letter of Credit remains unreimbursed), (iii) the Borrower provides written notice to the Administrative Agent of its intent to change the designation of such Subsidiary and (iv) the proceeds of any such dividend, distribution and/or Additional Equity Contribution described in clause (i) above, if any, are applied as required by Section 2.11(f), then such Subsidiary shall no longer be a Benefited Subsidiary for purposes of the Loan Documents, unless and until such Subsidiary subsequently meets the criteria described in this definition;

 

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provided, further, for clarification, a direct or indirect Subsidiary of the Borrower that has been designated to no longer be a Benefited Subsidiary that is subsequently to again become a Benefited Subsidiary may not receive proceeds of Loans or have a Letter of Credit issued on its behalf unless all actions or entering into of documents required by the Collateral and Guarantee Requirement with respect to the pledge of the direct or indirect Equity Interests by the Loan Parties of a Benefited Subsidiary have again been satisfied.

 

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

 

“Borrower” shall have the meaning assigned to such term in the introductory paragraph to this Agreement.

 

“Borrower Materials” shall have the meaning assigned to such term in Section 9.17(b).

 

“Borrowing” shall mean a group of Loans of a single Type made on a single date to the Borrower and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

 

“Borrowing Minimum” shall mean (a) in the case of a Revolving Facility Borrowing comprised entirely of Eurodollar Loans, U.S.$1,000,000, (b) in the case of a Revolving Facility Borrowing comprised entirely of ABR Loans, U.S.$1,000,000 and (c) in the case of a Swingline Borrowing, U.S.$500,000.

 

“Borrowing Multiple” shall mean (a) in the case of a Revolving Facility Borrowing comprised entirely of Eurodollar Loans, U.S.$500,000, (b) in the case of a Revolving Facility Borrowing comprised entirely of ABR Loans, U.S.$100,000 and (c) in the case of a Swingline Borrowing, U.S.$100,000.

 

“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C-1.

 

“Business Day” shall mean any day of the year, other than a Saturday, Sunday or other day on which banks are required or authorized to close in New York, New York or Houston, Texas, and, where used in the context of Eurodollar Loans, is also a day on which dealings are carried on in the London interbank market.

 

“Capital Expenditures” shall mean, for any period, the aggregate amount of all expenditures of the Loan Parties for fixed or capital assets made during such period which, in accordance with GAAP, would be classified as capital expenditures.

 

“Capital Lease Obligations” of any Person shall mean the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

 

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“Cash Interest Expense” shall mean, with respect to the Borrower and the Restricted Subsidiaries on a consolidated basis for any period, Interest Expense for such period, less, for each of clauses (a), (b), (c) and (e) below, to the extent included in the calculation of such Interest Expense, the sum of (a) pay-in-kind Interest Expense or other noncash Interest Expense (including as a result of the effects of purchase accounting), (b) the amortization of any financing fees or breakage costs paid by, or on behalf of, the Borrower or any of the Restricted Subsidiaries, including such fees paid in connection with the Transactions or any amendments, waivers or other modifications of this Agreement, (c) the amortization of debt discounts, if any, or fees in respect of Swap Agreements, (d) cash interest income of the Borrower and the Restricted Subsidiaries for such period and (e) all nonrecurring cash Interest Expense consisting of liquidated damages for failure to timely comply with registration rights obligations and financing fees, all as calculated on a consolidated basis in accordance with GAAP; provided, that Cash Interest Expense shall exclude, without duplication of any exclusion set forth in clause (a), (b), (c), (d) or (e) above, annual agency fees paid to the Administrative Agent and/or the Collateral Agent and one-time financing fees or breakage costs paid in connection with the Transactions or any amendments, waivers or other modifications of this Agreement.

 

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

 

“Cash Management Bank” shall mean any Person that, at the time it enters into a Cash Management Agreement, is a Lender, an Agent, or a Joint Lead Arranger or an Affiliate of a Lender, an Agent or a Joint Lead Arranger, in its capacity as a party to such Cash Management Agreement.

 

“Change in Control” shall mean the occurrence of any of the following: (a) the Sponsor shall cease to directly or indirectly own and Control, of record and beneficially, more than 50% of the outstanding Equity Interests of the Borrower, (b) except as permitted by Section 6.05(b), (i) the Borrower shall cease to directly or indirectly own and Control 100% of the outstanding Equity Interests of DFW (other than the Equity Interests held as of the Restatement Date by DFW Management), GRG or any other Loan Party or (ii) a Loan Party shall cease to own at least 45% of the Equity Interests in any Benefited Subsidiary or shall cease to Control such Benefited Subsidiary, except that a “Change in Control” shall not occur if a Loan Party ceases to own at least 45% of the Equity Interests in any Benefited Subsidiary that, together with each other Benefited Subsidiary in which a Loan Party owns less than 45% of the Equity Interests, accounts for less than 5.0% of the Consolidated Total Assets in the aggregate at any time during the Availability Period unless such Loan Party ceases to retain Control over such Benefited Subsidiary, (c) a “Change in Control”, as defined in any document pursuant to which Permitted Junior Debt that is Material Indebtedness has been issued, shall have occurred or (d) a “Change in Control”, as defined in any document pursuant to which secured Indebtedness under Section 6.01(k) that is Material Indebtedness has been issued, shall have occurred; provided, that, at any time after any MLP Conversion, the term “Change in Control” shall mean the occurrence of clauses (b), (c) or (d) above or any of the following: (i) a majority of the seats (other than vacant seats) on the board of directors of the General Partner shall at any time be occupied by Persons who were not appointed by the Sponsor or a Permitted Holder, (ii) any

 

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Person or group (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the Restatement Date), other than any combination of the Permitted Holders (or a single Permitted Holder), shall own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the Restatement Date), directly or indirectly, in the aggregate Equity Interests representing 35% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower and any combination of the Permitted Holders (including a single Permitted Holder) own beneficially (as defined above), directly or indirectly, a smaller percentage of such ordinary voting power at such time than the Equity Interests owned by such other Person or group, (iii) the Permitted Holders shall fail to own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the Restatement Date), directly or indirectly, in the aggregate Equity Interests representing more than 50% of (A) the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the General Partner or (B) the economic interest represented by the issued and outstanding Equity Interests of the General Partner, or (iv) (1) the Permitted Holders shall cease to directly or indirectly own and control, of record and beneficially more than 50% of the issued and outstanding general partner interests in the Borrower or (2) the Sponsor shall cease to be the General Partner.

 

“Change in Law” shall mean (a) the adoption or implementation of any treaty, law, rule or regulation after the Closing Date, (b) any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or Issuing Bank or by such Lender’s or Issuing Bank’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law but if not having the force of law, then being one with which the relevant party would customarily comply) of any Governmental Authority made or issued after the Closing Date; provided, that notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Charges” shall have the meaning assigned to such term in Section 9.09.

 

“Closing Date” shall mean May 26, 2011, and “Closing” shall mean the making of the initial Loans on the Closing Date hereunder.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

 

“Collateral” shall mean all the “Collateral” as defined in the Collateral Agreement, all “Mortgaged Property” as defined in the Mortgages and “Collateral” as defined in any other Collateral Document.

 

“Collateral Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

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“Collateral Agreement” shall mean the Guarantee and Collateral Agreement, as amended, supplemented or otherwise modified from time to time, substantially in the form of Exhibit E, executed pursuant to the Collateral and Guarantee Requirement, and any other guarantee and collateral agreement (as amended, supplemented or otherwise modified from time to time) that may be executed after the Restatement Date in favor of, and in form and substance acceptable to, the Collateral Agent.

 

“Collateral and Guarantee Requirement” shall mean the requirement that:

 

(a) on the Restatement Date, the Collateral Agent shall have received from each entity that is a Loan Party on the Restatement Date a counterpart of the Collateral Agreement, duly executed and delivered on behalf of such Loan Party and pursuant to which (i) each such Loan Party shall unconditionally guarantee, on a joint and several basis, all Obligations; (ii) each such Loan Party shall grant a first priority lien on and security interest in all of its personal property (except as specified therein); and (iii) each of the Sponsor, DFW Management, GRG and each Loan Party shall have granted a first priority lien on and security interest in, among other property, all Equity Interests in any Loan Party or Benefited Subsidiary held or owned by it on the Restatement Date;

 

(b) on the Restatement Date, the Collateral Agent shall be the beneficiary of a pledge of (i) all the issued and outstanding Equity Interests of each Loan Party, and (ii) all of the issued and outstanding Equity Interests of each Benefited Subsidiary to the extent directly owned by any Loan Party (except, in each case, to the extent that a pledge of such Equity Interests is not permitted under Section 9.21), and the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, or shall have otherwise received a security interest over such Equity Interests satisfactory to the Collateral Agent;

 

(c) in the case of any Person that becomes a Loan Party after the Restatement Date, the Collateral Agent shall have received a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Loan Party;

 

(d) with respect to any Equity Interests in any Loan Party or any Benefited Subsidiary (to the extent owned by any Loan Party) that are acquired by the Sponsor, DFW Management, GRG or any Loan Party, after the Restatement Date, all such Equity Interests shall have been pledged (or shall be pledged concurrently with the actions making such Equity Interest subject to this provision) in accordance with the Collateral Agreement (except, in each case, to the extent that a pledge of such Equity Interests is not permitted under Section 9.21), and the Collateral Agent shall have received (or shall receive concurrently with the actions making such Equity Interest subject to this provision) all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, or shall have otherwise received a security interest over such Equity Interests satisfactory to the Collateral Agent;

 

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(e) on or prior to the Restatement Date and on each date thereafter during the Availability Period, (i) all Indebtedness of the Borrower and each Subsidiary of the Borrower that is owing to any Loan Party shall have been pledged in accordance with the Collateral Agreement, (ii) all Indebtedness of the Borrower and each Subsidiary of the Borrower having an aggregate principal amount in excess of U.S.$5.0 million that is owing to any Loan Party shall be evidenced by a promissory note or an instrument (other than global intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries) and (iii) the Collateral Agent shall have, in respect of all such Indebtedness described in clause (ii), received originals of all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;

 

(f) on or prior to the Restatement Date and concurrently with, or promptly following, the execution and delivery of any Collateral Document delivered at any time thereafter, all documents and instruments, required by law or reasonably requested by the Collateral Agent to be executed, filed, registered or recorded to create, evidence or perfect the Liens intended to be created by the Collateral Documents, including UCC financing statements and UCC transmitting utility filings, to the extent required by, and with the priority required by, the Collateral Documents or reasonably requested by the Collateral Agent, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording;

 

(g) on or prior to the Restatement Date and concurrently with the execution and delivery of any Collateral Document delivered at any time thereafter, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with the execution and delivery of each Collateral Document to which it is a party and the granting by it of the Liens thereunder and the performance of its obligations thereunder;

 

(h) the Collateral Agent shall have received the following documents and instruments from the applicable Loan Parties on or before the Restatement Date, with respect to the Restatement Date Gathering Station Real Property:

 

(1)                     except as set forth in Schedule 1.01, one or more Mortgages duly authorized, executed and notarized (with sufficient counterparts thereof to file an original in each applicable jurisdiction), in form for recording in the recording office of each jurisdiction where such Gathering Station Real Property to be encumbered thereby is situated, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Collateral Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to Collateral Agent, which Mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Gathering Station Real Property, subject to no Liens other than Permitted Real Property Liens applicable to such Gathering Station Real Property;

 

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(2)                     policies or certificates of insurance of the type required by Section 5.02 (to the extent customary and obtainable after the use of commercially reasonable efforts);

 

(3)                     evidence of flood insurance with respect to each Gathering Station Real Property required by Section 5.02, if any, in form and substance reasonably satisfactory to Administrative Agent, shall be delivered as required in Section 5.02 and also on any day on which a Mortgage (or counterpart thereof, supplement or other modification thereto) is delivered pursuant to subclause (1) above; and

 

(4)                     except as set forth in Schedule 1.01, all such other items as shall be reasonably necessary in the opinion of counsel to the Lenders to create a valid and perfected first priority mortgage Lien on such Restatement Date Gathering Station Real Property, subject only to Permitted Real Property Liens.  Without limiting the generality of the foregoing, the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders, and each Issuing Bank, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and validity of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent;

 

(5)                     On or prior to the Restatement Date and each other date on which one or more Mortgages is delivered pursuant hereto, title diligence information of the type described in Section 5.10(c);

 

(i) the Collateral Agent shall have received from the applicable Loan Parties on or before the Restatement Date, one or more Mortgages duly authorized, executed and notarized (with sufficient counterparts thereof to file an original in each applicable jurisdiction), in form for recording in the recording office of each jurisdiction where such GRG Pipeline Systems Real Property to be encumbered thereby is situated, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Collateral Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to Collateral Agent, which Mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on at least 70% of the GRG Pipeline Systems Real Property (calculated based upon the length of the Pipeline System owned by GRG) on the Restatement Date, subject to no Liens other than Permitted Real Property Liens applicable to such GRG Pipeline Systems Real Property;

 

(j) to the extent required by Section 5.10, the Collateral Agent shall receive, with respect to any Material Gathering Station Real Property and GRG Pipeline Systems Real Property acquired after the Restatement Date, such documents and instruments required to be delivered pursuant to Section 5.10 at the times described in Section 5.10; and

 

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(k) with respect to each of the items identified in this definition of “Collateral and Guarantee Requirement” that are required to be delivered on a date after the Restatement Date, the Administrative Agent, in each case, may but shall not be obligated to (in its sole discretion without obtaining the consent of the Lenders) extend any such date on two separate occasions by up to 30 days on each such occasion.

 

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee Requirement” (i) shall be subject to exceptions and limitations set forth in the Collateral Documents and (ii) shall not contravene the Agreed Security Principles or Section 9.21, (b) in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts or securities accounts, (c) in no event shall the Administrative Agent or the Lenders require the Pipeline Systems (and, for the avoidance of doubt, the Real Property on which any portion of the Pipeline System is located) to be subject to a Mortgage, except as required by clause (i) and (j) above or Section 5.10(d), (d) in no event shall Borrower or any Subsidiary thereof be required to take any action with respect to the perfection of security interests in motor vehicles (it being understood that compression units, whether or not skid-mounted, shall not be deemed to be motor vehicles), and (e) in no event shall the Collateral include any Excluded Assets.  If the Administrative Agent determines (in its reasonable discretion without the consent of the Required Lenders) that the cost of taking the actions required to obtain a first priority security interest in any of the Properties described in this definition materially and substantially exceeds the value to the Secured Parties of obtaining such security interest, then the Loan Parties shall not be required to take such actions to the extent of such determination provided, however that no such determination may be made by the Administrative Agent with respect to Properties described in clauses (d) or (h).

 

“Collateral Documents” shall mean the Mortgages, the Collateral Agreement and each of the security agreements and other instruments and documents executed and delivered pursuant to any of the foregoing, the Collateral and Guarantee Requirement or Section 5.10 and each amendment, supplement or modification to any of the foregoing.

 

“Commitment Fee” shall have the meaning assigned to such term in Section 2.12(a).

 

“Commitments” shall mean (a) with respect to any Lender, such Lender’s Revolving Facility Commitment (including any Incremental Commitment), (b) with respect to any Lender that is a Swingline Lender, its Swingline Commitment, and (c) with respect to each Issuing Bank, its Revolving L/C Commitment.

 

“Communications” shall have the meaning assigned to such term in Section 9.17(a).

 

“Consolidated Debt” at any date shall mean (without duplication) all Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed money (other than letters of credit and performance bonds to the extent undrawn) and Indebtedness in respect of the deferred purchase price of property or services of the Borrower and the Restricted Subsidiaries determined on a consolidated basis on such date.

 

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“Consolidated First Lien Net Debt” at any date shall mean, Consolidated Net Debt on such date minus, to the extent included therein, (a) all Indebtedness under any Permitted Junior Debt (or any Permitted Refinancing Indebtedness thereof) or any other unsecured indebtedness of the Borrower and the Restricted Subsidiaries and (b) any Indebtedness of the Borrower and the Restricted Subsidiaries that is secured by Liens expressly subordinated to the Liens securing the Obligations.

 

“Consolidated Net Debt” at any date shall mean Consolidated Debt of the Borrower and the Restricted Subsidiaries on such date minus cash and Permitted Investments of the Borrower and the Restricted Subsidiaries on such date, to the extent the same (a) is not being held as cash collateral (other than as Collateral), (b) does not constitute escrowed funds for any purpose, (c) does not represent a minimum balance requirement and (d) is not subject to other restrictions on withdrawal.

 

“Consolidated Net Income” shall mean, for any period, the aggregate of the Net Income of the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis; provided, that

 

(a)                                 any net after-tax extraordinary, unusual or nonrecurring gains or losses (less all fees and expenses related thereto) or income or expenses or charges (including, without limitation, any pension expense, casualty losses, severance expenses, facility closure expenses, system establishment costs, mobilization expenses that are not reimbursed and other restructuring expenses, benefit plan curtailment expenses, bankruptcy reorganization claims, settlement and related expenses and fees, expenses or charges related to any offering of Equity Interests of the Borrower or any Restricted Subsidiaries, any Investment, acquisition or Indebtedness permitted to be incurred hereunder (in each case, whether or not successful), including all fees, expenses, charges and change of control payments related to the Transaction), in each case, shall be excluded; provided, that, with respect to each unusual or nonrecurring item, the Borrower shall have delivered to the Administrative Agent a certificate executed by a Financial Officer specifying and quantifying such item and stating that such item is an unusual or nonrecurring item,

 

(b)                                 any net after-tax income or loss from discontinued operations and any net after-tax gain or loss on disposal of discontinued operations shall be excluded,

 

(c)                                  any net after-tax gain or loss (including the effect of all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other than in the ordinary course of business (as determined in good faith by the board of directors of the Borrower) shall be excluded,

 

(d)                                 any net after-tax income or loss (including the effect of all fees and expenses or charges relating thereto) attributable to the refinancing, modification of or early extinguishment of indebtedness (including any net after-tax income or loss attributable to obligations under Swap Agreements) shall be excluded,

 

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(e)                                  the Net Income for such period of any Person that is not a Restricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included to the extent of the amount of cash dividends or cash distributions or other payments paid in cash (or to the extent converted into cash) to the Borrower or a Restricted Subsidiary thereof in respect of such period;

 

(f)                                   the Net Income for such period of any Restricted Subsidiary that is not a Loan Party shall be an amount equal to the ratio of the Net Income of the Restricted Subsidiary to the Borrower’s percentage of ownership of the total outstanding Equity Interest of such Restricted Subsidiary; provided, that the net loss of any such Restricted Subsidiary that is not a Loan Party also shall be included in the determination of “Consolidated Net Income” to the extent funds are disbursed by such Restricted Subsidiary or by any Restricted Subsidiary thereof in respect of such loss,

 

(g)                                  Consolidated Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,

 

(h)                                 any noncash charges from the application of the purchase method of accounting in connection with the Transactions or any future acquisition, to the extent such charges are deducted in computing such Consolidated Net Income, shall be excluded,

 

(i)                                     accruals and reserves that are established within twelve months after the Restatement Date and that are so required to be established in accordance with GAAP shall be excluded, and

 

(j)                                    any noncash expenses (including, without limitation, write-downs and impairment of property, plant, equipment, goodwill and intangibles and other long-lived assets), any noncash gains or losses on interest rate and foreign currency derivatives and any foreign currency transaction gains or losses and any foreign currency exchange translation gains or losses that arise on consolidation of integrated operations shall be excluded.

 

“Consolidated Total Assets” shall mean, as of any date, the total assets of the Borrower and its consolidated Restricted Subsidiaries, determined in accordance with GAAP, in each case as set forth on the consolidated balance sheet of the Borrower as of such date.

 

“Control” shall mean 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 ownership of voting securities, by contract or otherwise, and “Controlling” and “Controlled” shall have meanings correlative thereto.

 

“Credit Event” shall have the meaning assigned to such term in Article IV.

 

“deeds” shall have the meaning assigned to such term in Section 3.17(d).

 

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“Default” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.

 

“Defaulting Lender” shall mean, subject to Section 2.22(e), any Lender that (a) has failed to perform any of its funding obligations under this Agreement, including with respect to Loans, within two Business Days of the date such obligations were required to be funded, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, and participations in Letters of Credit or Swingline Loans within two Business Days of the date when due, unless the subject of a good faith dispute, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations under this Agreement or has made a public statement to such effect with respect to its funding obligations under this Agreement (and such notice or public statement has not been withdrawn), unless the subject of a good faith dispute or such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied, (c) has failed, within three Business Days after request by the Administrative Agent (whether acting on its own behalf or at the reasonable written request of the Borrower (it being understood that the Administrative Agent shall comply with any such reasonable request)), to confirm in writing to the Administrative Agent that it will comply with its funding obligations, unless the subject of a good faith dispute, (d) 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 two Business Days of the date when due, unless the subject of a good faith dispute or subsequently cured, or (e) has, or has a direct or indirect parent company that, other than via an Undisclosed Administration, has, become the subject of a proceeding under any bankruptcy or insolvency laws, or has had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment; provided, that a Lender shall not become a Defaulting Lender solely as the result of the acquisition or maintenance of an ownership interest in such Lender or its direct or indirect parent company or the exercise of control over a Lender or its direct or indirect parent company by a Governmental Authority or an instrumentality thereof. Any determination that a Lender is a Defaulting Lender hereunder shall be made by the Administrative Agent acting reasonably, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice to the Borrower, each Issuing Bank and each Lender until such time as Section 2.22(e) is satisfied.

 

“DFW” shall mean DFW Midstream Services LLC, a Delaware limited liability company, which as of the Restatement Date is a Subsidiary Loan Party.

 

“DFW Management” shall mean DFW Midstream Management, LLC, a Delaware limited liability company.

 

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“DFW Operating Agreement” shall mean that certain Second Amended and Restated Limited Liability Company Agreement, dated as of April 1, 2011, by and among the Sponsor, DFW Management and DFW.

 

“Domestic Subsidiary” shall mean each Subsidiary that is not a Foreign Subsidiary.

 

“EBITDA” shall mean, with respect to the Borrower and the Restricted Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of the Borrower and the Restricted Subsidiaries for such period plus (a) the sum of (in each case without duplication and to the extent the respective amounts described in subclauses (i) through (xii) of this clause (a) reduced such Consolidated Net Income for the respective period for which EBITDA is being determined (but excluding any noncash item to the extent it represents an accrual or reserve for a potential cash charge in any future period or amortization of a prepaid cash item that was paid in a prior period)):

 

(i)                         provision for Taxes based on income, profits, losses or capital of the Borrower and the Restricted Subsidiaries for such period (adjusted for the tax effect of all adjustments made to Consolidated Net Income),

 

(ii)                      Interest Expense of the Borrower and the Restricted Subsidiaries for such period (net of interest income of the Borrower and such Restricted Subsidiaries for such period) and to the extent not reflected in Interest Expense, costs of surety bonds in connection with financing activities,

 

(iii)                   depreciation, amortization (including, without limitation, amortization of intangibles and deferred financing fees) and other noncash expenses (including, without limitation write-downs and impairment of property, plant, equipment, goodwill and intangibles and other long-lived assets and the impact of purchase accounting on the Borrower and the Restricted Subsidiaries for such period),

 

(iv)                  the amount of any restructuring charges (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost or excess pension, other post-employment benefits, curtailment or other excess charges); provided, that with respect to each such restructuring charge, the Borrower shall have delivered to the Administrative Agent a Responsible Officer’s certificate specifying and quantifying such expense or charge and stating that such expense or charge is a restructuring charge,

 

(v)                     any other noncash charges,

 

(vi)                  equity earnings or losses in Affiliates unless funds have been disbursed to such Affiliates by the Borrower or any Restricted Subsidiary,

 

(vii)               other nonoperating expenses,

 

(viii)            the minority interest expense consisting of subsidiary income attributable to minority equity interests of third parties in any Subsidiary of the Borrower that is not a Subsidiary Loan Party in such period or any prior period,

 

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except to the extent of dividends declared or paid on Equity Interests held by third parties,

 

(ix)                  costs of reporting and compliance requirements pursuant to the Sarbanes-Oxley Act of 2002 and under similar legislation of any other jurisdiction;

 

(x)                     accretion of asset retirement obligations in accordance with SFAS No. 143, Accounting for Asset Retirement Obligations and under similar requirements for any other jurisdiction,

 

(xi)                  extraordinary losses and unusual or nonrecurring cash charges, severance, relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans,

 

(xii)               restructuring costs related to (A) acquisitions after the date hereof permitted under the terms hereof and (B) closure or consolidation of facilities, and

 

(xiii)            to the extent applicable and solely for the purpose of determining compliance with the Financial Performance Covenants and not for any other purpose for which EBITDA is calculated under this Agreement, any Specified Equity Contribution solely to the extent permitted to be included in this calculation pursuant to the definition of “Specified Equity Contribution”;

 

minus (b) to the extent such amounts increased such Consolidated Net Income for the respective period for which EBITDA is being determined, noncash items increasing Consolidated Net Income of the Borrower and the Restricted Subsidiaries for such period (but excluding any such items which represent the reversal in such period of any accrual of, or cash reserve for, anticipated cash charges in any prior period where such accrual or reserve is no longer required).

 

“Engagement Letter” shall mean that certain Engagement Letter dated March 29, 2012, by and among the Borrower and each of the Joint Lead Arrangers.

 

“Environment” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata or sediment, natural resources such as flora and fauna or as otherwise similarly defined in any Environmental Law.

 

“Environmental Claim” shall mean any and all actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, notices of liability or potential liability, investigations, proceedings, consent orders or consent agreements relating in any way to any actual or alleged violation of Environmental Law or any Release or threatened Release of, or exposure to, Hazardous Material.

 

“Environmental Event” shall have the meaning assigned to such term in Section 7.01(m).

 

“Environmental Law” shall mean, collectively, all federal, state, provincial, local or foreign laws, including common law, ordinances, regulations, rules, codes, orders, judgments or

 

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other requirements or rules of law that relate to (a) the prevention, abatement or elimination of pollution, or the protection of the Environment, natural resources or human health, or natural resource damages, and (b) the use, generation, handling, treatment, storage, disposal, Release, transportation or regulation of, or exposure to, Hazardous Materials, including the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Clean Water Act, 33 U.S.C. §§ 1251 et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq., the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq., each as amended, and their foreign, state, provincial or local counterparts or equivalents.

 

“Equity Interests” of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, any limited or general partnership interest, any limited liability company membership interest and any unlimited liability company membership interests.

 

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.

 

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

 

“ERISA Event” shall mean: (a) a Reportable Event; (b) the failure to meet the minimum funding standard of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA) or any lien shall arise with respect to any Plan on the assets of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate; (d) the incurrence by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA; (e) the receipt by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan, or to appoint a trustee to administer any Plan under Section 4042 of ERISA, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (f) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (g) the withdrawal or partial withdrawal by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from any Plan or Multiemployer Plan which could reasonably be expected to result in liability to the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate; (h) the receipt by the Borrower, any

 

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Subsidiary of the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower, a Subsidiary of the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in liability to the Borrower or a Subsidiary of the Borrower; (j) the filing of an application for a minimum funding waiver under Section 302 of ERISA or Section 412 of the Code with respect to any Plan; or (k) the Borrower or any Subsidiary of the Borrower incurs any liability or contingent liability for providing, under any employee benefit plan or otherwise, any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and section 4980B of the Code or applicable state law.

 

“Eurodollar Borrowing” shall mean a Borrowing comprised of Eurodollar Loans.

 

“Eurodollar Loan” shall mean any Revolving Facility Loan bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate in accordance with the provisions of Article II.

 

“Eurodollar Rate” shall mean for any Interest Period with respect to any Eurodollar Loan:

 

(a)                                 the rate per annum equal to the rate (rounded upward to the next 1/100th of 1%) determined by the Administrative Agent to be the offered rate that appears on Reuters or such other commercially available source as may be designated by the Administrative Agent from time to time (or any successor thereto) that displays the British Bankers Association Interest Settlement Rate for deposits in U.S. Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period (or, in the case of clause (c) of the definition of Alternate Base Rate, approximately 11:00 a.m. (London time) on the date referenced in such clause (c)); or

 

(b)                                 if the rate referenced in the preceding subsection (a) is not available, the rate per annum determined by the Administrative Agent as the rate of interest (rounded upward to the next 1/100th of 1%) at which deposits in U.S. Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Borrowing being made, continued or converted and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London branch to major banks in the offshore U.S. Dollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period (or, in the case of clause (c) of the definition of Alternate Base Rate, approximately 11:00 a.m. (London time) on the date referenced in such clause (c)).

 

Notwithstanding anything to the contrary above in this definition or in any other provision of this Agreement, the Eurodollar Rate in respect of any Reimbursement

 

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Revolving Loan shall, if such Reimbursement Revolving Loan would otherwise have the same rate of interest as any Revolving Facility Loan that is not a Reimbursement Revolving Loan hereunder, be one basis point higher than the Eurodollar Rate, that otherwise would apply to such Reimbursement Revolving Loan for all purposes under this Agreement.

 

“Eurodollar Revolving Facility Borrowing” shall mean a Borrowing comprised of Eurodollar Loans.

 

“Event of Default” shall have the meaning assigned to such term in Section 7.01.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

“Excluded Assets” shall mean (a) Equity Interests in any Person (other than (i) the Borrower or any Subsidiary Loan Party, (ii) any Benefited Subsidiary, to the extent owned by a Loan Party and in existence on the Restatement Date or (iii) any Subsidiary that is or becomes a Benefited Subsidiary after the Restatement Date) to the extent not permitted to be pledged by the terms of such Person’s constitutional or joint venture documents, in each case solely to the extent that the applicable Person has previously used commercially reasonable efforts to obtain any required consents to eliminate or have waived any such restrictions contained in such constitutional or joint venture documents (and, to the extent any such prohibition or limitation is removed, or such consent is acquired, such Equity Interests shall cease to be Excluded Assets), (b) Equity Interests constituting an amount greater than 65% of the voting Equity Interests of any Foreign Subsidiary or any Domestic Subsidiary substantially all of which Subsidiary’s assets consist of the Equity Interest in “controlled foreign corporations” under Section 957 of the Code, (c) Equity Interests or other assets that are held directly by a Foreign Subsidiary and (d) any “intent to use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. §1051, unless and until an “Amendment to Allege Use” or a “Statement of Use” under Section 1(c) or Section 1(d) of the Lanham Act has been filed, solely to the extent that such a grant of a security interest therein prior to such filing would impair the validity or enforceability of any registration that issues from such “intent to use” application.

 

“Excluded Indebtedness” shall mean all Indebtedness permitted to be incurred under Section 6.01.

 

“Excluded Taxes” shall mean, with respect to any Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder, (a) income or franchise taxes, in either case imposed on (or measured by) net income, net profits or capital by the United States of America (or any State or other subdivision thereof) or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or any jurisdiction in which such recipient has a present or former connection (other than any such connection arising solely from the Loan Documents and the transactions herein) or, in the case of any Lender or Issuing Bank, in which its applicable lending office is located, (b) any branch profits tax or any similar tax that is imposed by any jurisdiction in which the Borrower is located, (c) other than in the case of an assignee pursuant to a request by a Loan Party under Section 2.19(b), (i) any federal withholding tax imposed by the United States or (ii) a withholding tax imposed by the jurisdiction under the laws of which such Lender

 

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is organized or in which its principal office or applicable lending office (or other place of business) is located, in the case of each of clause (i) and (ii), pursuant to applicable requirements of law in effect at the time such Agent, Lender, Issuing Bank or other recipient becomes a party to any Loan Document (or designates a new lending office), except to the extent that such Lender or Issuing Bank or other recipient (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 2.17(a) or Section 2.17(c), (d) any withholding taxes attributable to such Lender’s or such other recipient’s failure (other than as a result of a Change in Law) to comply with Section 2.17(e), and (e) any U.S. federal withholding taxes imposed under FATCA.

 

“Existing Credit Agreement” shall have the meaning assigned to such term in the first recital of this Agreement.

 

“Existing Lenders” shall mean the Lenders under the Existing Credit Agreement, immediately prior to the Restatement Date.

 

“Existing Obligations” shall mean the obligations under and as defined in the Existing Credit Agreement outstanding on the Restatement Date.

 

“Existing Required Lenders” shall mean “Required Lenders” as defined in the Existing Credit Agreement immediately prior to the Restatement Date.

 

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

 

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

 

“Fees” shall mean the Commitment Fees, the Revolving L/C Participation Fees, the Issuing Bank Fees, the Agency Fee and any other fees payable under the Engagement Letter and, to the extent that an additional letter regarding fees payable to Incremental Lenders is entered into upon an increase of the Commitments pursuant to Section 2.20, such fees payable under such additional fee letter.

 

“FERC” shall mean the Federal Energy Regulatory Commission, and any successor agency thereto.

 

“Finance Co” shall mean a Wholly-Owned Subsidiary of the Borrower incorporated to become or otherwise serving as a co-issuer or co-borrower with the Borrower of Permitted Junior Indebtedness permitted by this Agreement, which Subsidiary meets the following conditions at all times:  (a) the provisions of Section 5.10 have been complied with in respect of such

 

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Subsidiary, and such Subsidiary is a Subsidiary Loan Party, (b) such Subsidiary shall be a corporation, (c) such Subsidiary shall not own or Control any portion of the Equity Interests of any other Person, including the Equity Interests of any other Subsidiary Loan Party or other Subsidiary of the Borrower and (d) such Subsidiary has not (i) incurred, directly or indirectly any Indebtedness or any other obligation or liability whatsoever other than the Indebtedness that it was formed to co-issue or co-borrow and for which it serves as co-issuer or co-borrower, (ii) engaged in any business, activity or transaction, or owned any property, assets or Equity Interests other than (A) performing its obligations and activities incidental to the co-issuance or co-borrowing of the Indebtedness that it was formed to co-issue or co-borrower and (B) other activities incidental to the maintenance of its existence, including legal, Tax and accounting administration, (iii) consolidated with or merged with or into any Person, or (iv) failed to hold itself out to the public as a legal entity separate and distinct from all other Persons.

 

“Financial Officer” of any Person shall mean the sole member or sole manager of such Person, the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer or Controller of such Person and, to the extent the Borrower is a limited partnership after the occurrence of an MLP Conversion, the “Financial Officer” of the Borrower shall be the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer or Controller of the General Partner.

 

“Financial Performance Covenants” shall mean the covenants of the Borrower set forth in Sections 6.10 and 6.11.

 

“Flood Insurance Laws” shall have the meaning assigned to such term in Section 5.02(c).

 

“Foreign Subsidiary” shall mean any Subsidiary that is (a) incorporated or organized under the laws of any jurisdiction other than the United States of America, any State thereof or the District of Columbia (other than an entity that is disregarded for U.S. federal tax purposes and is a direct Subsidiary of an entity organized in the United States of America, any State thereof or the District of Columbia), or (b) any Subsidiary of a Foreign Subsidiary.

 

“GAAP” shall have the meaning assigned to such term in Section 1.02.

 

“Gathering Agreements” shall mean each contract pertaining to the provision of gathering and compression services by DFW, GRG or any other Subsidiary Loan Party, the Borrower or a Benefited Subsidiary (including any such contracts entered into after the Restatement Date) that has a term of one year or greater and provides for annual revenues in any year in excess of U.S.$10.0 million, each as amended, restated, supplemented or otherwise modified as permitted hereunder.

 

“Gathering Station  Real Property” shall mean, on any date of determination, any Restatement Date Gathering Station Real Property and any other Real Property on which any Gathering Station owned, held or leased by the Borrower or any other Loan Party at such time is located.

 

“Gathering Stations” shall mean, collectively, (a) the Arlington Gathering Station No. 1, located at 1015 West Harris Road in Arlington, Texas, (b) the Dalworthington Gathering Station

 

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No. 1, located at 3018 W. Pioneer Parkway in Dalworthington Gardens, Texas, (c) the East Mamm Compressor Station, located in the N1/2N1/2 of Section 36, T6S, R93W, 6th PM, Garfield County, Colorado, (d) the Hunter Mesa Compressor Station, located in the SE1/4 SE1/4 of Section 1, T7S, R93W, 6th PM, Garfield County, Colorado, (e) the Pumba Compressor Station, located in the NE1/4 of Section 10, T7S, R93W, 6th P.M., Garfield County, Colorado, (f) the Rifle Booster Compressor Station, located in the NE1/4 of Section 13, T6S, R94W, 6th P.M., Garfield County, Colorado, (g) K-28E Field Compressor Station, located in the W1/2 of Section 28, T7S, R92W, 6th P.M., Garfield County, Colorado, (h) the High Mesa Compressor Station, located in the SE1/4 NW1/4 and the SW1/4 NE1/4 of Section 36, T7S, R96W, 6th P.M., Garfield County, (i) the Orchard Compressor Station, located in the SW1/4 of Section 27, T7S, R96W, 6th P.M., Garfield County, Colorado, (j) each other location, now owned or hereafter acquired, constructed, built or otherwise obtained by DFW, GRG, the Borrower or any other Loan Party, where any such Loan Party holds, stores or maintains compression and dehydration equipment, other than any such compression and dehydration equipment that, as of the applicable date of determination, (i) has not been used by Borrower or any Restricted Subsidiary for the conduct of its Midstream Activities for a period of at least thirty (30) days, and (ii) neither Borrower nor any Restricted Subsidiary intends to use for the conduct of Midstream Activities, and (k) any other processing plants and terminals, now or hereafter owned by any Loan Party, that are connected to (or are intended to be connected to) the Pipeline Systems.

 

“Gathering System” shall mean, collectively, the Gathering Stations and the Pipeline Systems.

 

“General Partner” shall mean the general partner of the Borrower after the consummation of the MLP Conversion, if applicable.

 

“Governmental Authority” shall mean any federal, state, provincial, local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body, or central bank.

 

“Governing Agreement” shall mean the Limited Liability Company Agreement of the Borrower, dated as of March 30, 2011, as amended, restated, supplemented or otherwise modified as permitted hereunder, including any replacement of such company agreement with a limited partnership agreement in connection with any MLP Conversion.

 

“GRG” shall have the meaning assigned to such term in the recitals to this Agreement.

 

“GRG Operating Agreement” shall mean that certain Second Amended and Restated Limited Liability Company Operating Agreement, dated as of May [  ], 2012, entered into by the Borrower.

 

“GRG Pipeline Systems Real Property” shall mean, on any date of determination, any Real Property on which any Pipeline System owned, held or leased by GRG or any other Loan Party owned by GRG at such time is located.

 

“Guarantee” of or by any Person (the “guarantor”) shall mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,

 

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whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness, (iv) entered into for the purpose of assuring in any other manner the holders of such Indebtedness of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part) or (v) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness, or (b) any Lien on any assets of the guarantor securing any Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a Lien) of any other Person, whether or not such Indebtedness is assumed by the guarantor; provided, that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Restatement Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement.

 

“Hazardous Materials” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances or petroleum or petroleum distillates or breakdown constituents, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature, in each case subject to regulation pursuant to, or which can give rise to liability under, any Environmental Law.

 

“Improvements” shall have the meaning assigned to such term in the Mortgages.

 

“Increased Amount Date” shall have the meaning assigned to such term in Section 2.20(a).

 

“Increasing Lender” shall mean an Existing Lender who will provide a Commitment under this Agreement which is greater than such Existing Lender’s Commitment under the Existing Credit Agreement immediately prior to the Restatement Date.

 

“Incremental Commitments” shall have the meaning assigned to such term in Section 2.20(a).

 

“Incremental Lender” shall have the meaning assigned to such term in Section 2.20(a).

 

“Incremental Revolving Loans” shall have the meaning assigned to such term in Section 2.20(a).

 

“Indebtedness” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (other than trade liabilities and intercompany liabilities incurred in the ordinary course

 

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of business and maturing within 365 days after the incurrence thereof), (e) all Guarantees by such Person of Indebtedness of others, (f) all Capital Lease Obligations and Purchase Money Obligations of such Person, (g) all payments that such Person would have to make in the event of an early termination, on the date Indebtedness of such Person is being determined, in respect of outstanding Swap Agreements (such payments in respect of any Swap Agreement with a counterparty being calculated subject to and in accordance with any netting provisions in such Swap Agreement), (h) the principal component of all obligations, contingent or otherwise, of such Person (i) as an account party in respect of letters of credit (other than any letters of credit, bank guarantees or similar instrument in respect of which a back-to-back letter of credit has been issued under or permitted by this Agreement) and (ii) in respect of banker’s acceptances.  The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof.

 

“Indemnified Taxes” shall mean all Taxes which arise from the transactions contemplated in, or otherwise with respect to, this Agreement, other than Excluded Taxes.

 

“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).

 

“Information” shall have the meaning assigned to such term in Section 3.13(a).

 

“Information Memorandum” shall mean the Confidential Information Memorandum as distributed to Initial Lenders on April 11, 2012, as modified or supplemented prior to the Restatement Date.

 

“Initial Lenders” shall mean the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the Lenders on the Restatement Date.

 

“Intercreditor Agreement” shall mean an intercreditor agreement, as amended, supplemented or otherwise modified from time to time, substantially in the form of Exhibit J.

 

“Interest Coverage Ratio” shall mean the ratio, for the applicable Test Period ended on, or if such date of determination is not the end of a fiscal quarter, most recently prior to the date on which such determination is to be made of (a) EBITDA to (b) Cash Interest Expense; provided,  that to the extent any Asset Disposition or any Asset Acquisition (or any similar transaction or transactions for which a waiver or a consent of the Required Lenders pursuant to Section 6.04 or 6.05 has been obtained) or incurrence or repayment of Indebtedness (excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes) has occurred during the relevant Test Period, the Interest Coverage Ratio shall be determined for the respective Test Period on a Pro Forma Basis for such occurrence.

 

“Interest Election Request” shall mean a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07, in substantially the form of Exhibit D.

 

“Interest Expense” shall mean, with respect to any Person for any period, the sum of (a) gross interest expense of such Person for such period on a consolidated basis, including (i) the amortization of debt discounts, (ii) the amortization of all fees (including fees with respect to Swap Agreements) payable in connection with the incurrence of Indebtedness to the extent

 

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included in interest expense, (iii) the portion of any payments or accruals with respect to Capital Lease Obligations allocable to interest expense, and (iv) redeemable preferred stock dividend expenses, and (b) capitalized interest of such Person.  For purposes of the foregoing, gross interest expense shall be determined after giving effect to any net payments made or received and costs incurred by the Borrower and the Restricted Subsidiaries with respect to Swap Agreements.

 

“Interest Payment Date” shall mean (a) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing and, in addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type, (b) with respect to any ABR Loan, the last Business Day of each calendar quarter and (c) with respect to any Swingline Loan, the day that such Swingline Loan is required to be repaid pursuant to Section 2.09(a).

 

“Interest Period” shall mean, as to any Borrowing consisting of a Eurodollar Loan, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or 12 months or shorter, if at the time of the relevant Borrowing, all Lenders make interest periods of such length available), as the Borrower may elect, or the date any Eurodollar Borrowing is converted to an ABR Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09, 2.10 or 2.11; provided, that, (a) if any Interest Period for a Eurodollar Loan would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period 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 Stated Maturity Date.  Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

 

“Investment” shall have the meaning assigned to such term in Section 6.04.

 

“Issuing Bank” shall mean RBS, BAML and each other Issuing Bank designated pursuant to Section 2.05(k), in each case, in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(i). An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

“Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.12(c).

 

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“Joint Lead Arrangers” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

“Lender” shall mean each financial institution listed on Schedule 2.01 (and any foreign branch of such Lender), as well as any Person (other than a natural person) that becomes a “Lender” hereunder pursuant to Section 9.04 (and any foreign branch of such Person), any Person (other than a natural person) holding outstanding Revolving Facility Loans, any Person (other than a natural person) holding outstanding Swingline Loans or any Person (other than a natural person) holding outstanding Incremental Revolving Loans.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

 

“Letter of Credit” shall mean any letter of credit issued pursuant to Section 2.05, including all extensions, renewals, supplements, amendments or other modifications thereto.

 

“Leverage Ratio” shall mean, on any date, the ratio of (a) Consolidated Net Debt as of such date to (b) EBITDA for the applicable Test Period of the Borrower most recently ended as of such date, all determined on a consolidated basis in accordance with GAAP; provided, that to the extent any Asset Disposition or any Asset Acquisition (or any similar transaction or transactions that require a waiver or a consent of the Required Lenders pursuant to Section 6.04 or Section 6.05) or incurrence or repayment of Indebtedness (excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes) has occurred during the relevant Test Period, the Leverage Ratio shall be determined for the respective Test Period on a Pro-Forma Basis for such occurrences.

 

“Lien” shall mean, with respect to any Property, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge or security interest in or on such asset, (b) any arrangement to provide priority or preference, (c) any financing statement filed in any jurisdiction or any other similar notice of lien under any similar notice or recording statute of any Governmental Authority, including any easement, right or way or other encumbrance on any Real Property, including any portion of or all of the Gathering System, in each of the foregoing cases described in clauses (a), (b) and (c) whether voluntary or involuntary or imposed by law, and any agreement to give any of the foregoing; (d) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such Property and (e) in the case of securities (other than securities representing an interest in a joint venture that is not a Subsidiary of the Borrower), any purchase option, call or similar right of a third party with respect to such securities.

 

“Liquidity” shall mean the aggregate Available Unused Commitments that would be permitted to be drawn in compliance with the Financial Performance Covenants together with cash and Permitted Investments of the Borrower.

 

“Loan Documents” shall mean this Agreement, the Letters of Credit, the Collateral Documents, the Intercreditor Agreement and any promissory note issued under Section 2.09(e), as amended, supplemented or otherwise modified from time to time.

 

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“Loan Document Obligations” shall mean all amounts owing to any of the Agents, any Issuing Bank or any Lender pursuant to the terms of this Agreement or any other Loan Document, or pursuant to the terms of any Guarantee thereof, including, without limitation, with respect to any Loan or Letter of Credit, together with the due and punctual performance of all other obligations of the Borrower and each Subsidiary Loan Party under or pursuant to the terms of this Agreement and the other Loan Documents, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against the Borrower and any Subsidiary Loan Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

“Loan Party” or “Loan Parties” shall mean the Borrower and each Subsidiary Loan Party.

 

“Loans” shall mean the Revolving Facility Loans, the Swingline Loans and the Incremental Revolving Loans.

 

“Margin Differential” shall have the meaning assigned to such term in Section 2.20(a).

 

“Margin Stock” shall have the meaning assigned to such term in Regulation U.

 

“Master Limited Partnership” shall mean a publicly traded limited partnership or limited liability company that is properly treated as a partnership for U.S. federal income tax purposes by virtue of meeting the requirements of Section 7704(c)(1) of the Code.

 

“Material Adverse Effect” shall mean the existence of events, circumstances, conditions and/or contingencies that have had or are reasonably likely to have, with the passage of time (a) a materially adverse effect on the business, operations, properties, assets or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, or (b) a material impairment of the validity or enforceability of the rights, remedies or benefits available to the Lenders, the Issuing Banks or the Agents under any Loan Document.

 

“Material Contracts” shall mean, collectively, (a) the Gathering Agreements, and (b) any contract or other arrangement, whether written or oral, to which the Borrower, any Subsidiary Loan Party or a Benefited Subsidiary is a party as to which, individually or in the aggregate, the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect, each as amended, restated, supplemented or otherwise modified as permitted hereunder, and whether such contract or arrangement exists as of the Restatement Date or is entered into thereafter.

 

“Material Gathering Station Real Property” shall mean, on the date of any determination, any Gathering Station Real Property acquired (whether acquired in a single transaction or in a series of transactions) or owned by a Loan Party having a fair market value (including the fair market value of improvements owned by any Loan Party and located thereon) on such date of determination exceeding U.S.$5.0 million.

 

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“Material Indebtedness” shall mean Indebtedness (other than Loans and Letters of Credit) of the Borrower, any Subsidiary Loan Party or a Benefited Subsidiary in an aggregate principal amount exceeding U.S.$25.0 million, and in any event shall include all Permitted Junior Debt, regardless of the principal amount outstanding of such Permitted Junior Debt.

 

“Maximum Leverage Ratio” shall mean, (a) on any date of determination other than during an Acquisition Period, 5.00:1.00 and (b) on any date of determination during an Acquisition Period, 5.50:1.00.

 

“Maximum Rate” shall have the meaning assigned to such term in Section 9.09.

 

“Midstream Activities” shall mean with respect to any Person, collectively, the treatment, processing, gathering, dehydration, compression, blending, transportation, terminalling, storage, transmission, marketing, buying or selling or other disposition, whether for such Person’s own account or for the account of others, of oil, natural gas, natural gas liquids or other liquid or gaseous hydrocarbons, including that used for fuel or consumed in the foregoing activities; provided, that “Midstream Activities” shall in no event include the drilling, completion or servicing of oil or gas wells, including, without limitation, the ownership of drilling rigs.

 

“MLP Conversion” shall mean the transaction described in Annex A hereto and permitted pursuant to Section 6.05(b)(vi) and the requirements of Annex A.

 

“Moody’s” shall mean Moody’s Investors Service, Inc.

 

“Mortgaged Properties” shall mean all Real Property that is subject to a Mortgage that is delivered pursuant to the terms of this Agreement.

 

“Mortgages” shall mean the mortgages, deeds of trust and assignments of leases and rents delivered pursuant to the Collateral and Guarantee Requirement and pursuant to Section 5.10, each as amended, supplemented or otherwise modified from time to time, with respect to Mortgaged Properties, each in form and substance reasonably satisfactory to the Collateral Agent, including all such changes as may be required to account for local law matters.

 

“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 3(37) of ERISA to which the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate has or may have any liability or contingent liability.

 

“Net Income” shall mean, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.

 

“Net Proceeds” shall mean:

 

(a)                                 100% of the cash proceeds actually received by the Borrower or any Restricted Subsidiary of the Borrower (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received) from any loss, damage, destruction

 

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or condemnation of, or any sale, transfer or other disposition (including any sale and leaseback of assets) to any Person of any asset or assets of the Borrower or any such Restricted Subsidiary of the Borrower (other than those pursuant to Section 6.05(a), (b), (c), (e), (h), (i), or (j) of this Agreement) net of (i) attorneys’ fees, accountants’ fees, investment banking fees, sales commissions, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset (other than any obligation pursuant to this Agreement or pursuant to Permitted Junior Debt) and any cash reserve for adjustment in respect of the sale price of such asset established in accordance with GAAP, including without limitation, pension and post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, provided, that upon termination of any such reserve, Net Proceeds are increased by the amount of funds from such reserve that are released to the Borrower or its applicable Restricted Subsidiary, other customary expenses and reasonable brokerage, consultant and other customary fees actually incurred in connection therewith, and (ii) Taxes paid or payable as a result thereof, including pursuant to Section 6.06; provided, that, subject to Section 6.04, if no Event of Default exists and the Borrower has delivered a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business or otherwise invest in the business of the Borrower and its Restricted Subsidiaries, or make investments pursuant to Section 6.04(j), in each case within twelve months of such receipt, such portion of such proceeds shall not constitute Net Proceeds, except to the extent (1) not so used within such twelve-month period or (2) not contracted to be used within such twelve-month period and not thereafter used within 180 days of such receipt; provided, further, that (A) no proceeds of the type described in this clause (a) realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such proceeds shall exceed U.S.$5.0 million and (B) no proceeds of the type described in this clause (a) shall constitute Net Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed U.S.$10.0 million;

 

(b)                                 100% of the cash proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Indebtedness (other than Excluded Indebtedness), net of all taxes and fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale; and

 

(c)                                  100% of the cash proceeds from the issuance or sale of Equity Interests by any Restricted Subsidiary, net of all taxes and fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale.

 

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the Borrower or any of its Affiliates shall be disregarded, except for financial advisory fees customary in type and amount paid to Affiliates of the Sponsor.

 

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“New Lender” shall mean a Lender under this Agreement who is not an Existing Lender.

 

“New Revolving Facility Loans” shall have the meaning assigned to such term in Section 2.01(d).

 

“Non-Consenting Lender” shall have the meaning assigned to such term in Section 2.19(c).

 

“Non-Recourse Debt” shall mean Indebtedness (a) as to which neither the Borrower nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor or otherwise or (iii) constitutes the lender; (b) no default with respect to which (including any rights that the holders of such Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit, upon notice, lapse of time or both, any holder of any other Indebtedness of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders of such Indebtedness have been notified in writing that they will not have any recourse to the Equity Interests or other Property of the Borrower or its Restricted Subsidiaries; provided, that the Borrower or any Restricted Subsidiary may pledge its Equity Interests in any Subsidiary that is not a Subsidiary Loan Party or a Benefited Subsidiary.

 

“Non-U.S. Lender” shall have the meaning assigned to such term in Section 2.17(e).

 

“Obligations” shall mean all amounts owing to any of the Agents, any Issuing Bank, any Lender or any other Secured Party pursuant to the terms of this Agreement or any other Loan Document (including all Loan Document Obligations), or to any Cash Management Bank or Specified Swap Counterparty pursuant to the terms of any Secured Cash Management Agreement or Secured Swap Agreement, respectively, or pursuant to the terms of any Guarantee of this Agreement or any other Loan Document or pursuant to the terms of any Guarantee of a Secured Swap Agreement or Secured Cash Management Agreement (to the extent such Guarantee of such Secured Swap Agreement or such Secured Cash Management Agreement is otherwise permitted hereunder), together with the due and punctual performance of all other obligations of the Borrower and each Subsidiary Loan Party under or pursuant to the terms of this Agreement, the other Loan Documents, any Secured Cash Management Agreement and any Secured Swap Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against any of the Borrower and any Subsidiary Loan Party of any proceeding under any bankruptcy or insolvency laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

“Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other excise or property, intangible or mortgage recording taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents.

 

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“Parent Company” shall mean any Person who, directly or indirectly, owns any of the issued and outstanding Equity Interests of the Borrower.

 

“Participant” shall have the meaning assigned to such term in Section 9.04(c).

 

“Participant Register” shall have the meaning assigned to such term in Section 9.04(d).

 

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

 

“Perfection Certificate” shall mean a certificate in the form of Annex B hereto, or any other form approved by the Collateral Agent.

 

“Permitted Business Acquisition” shall mean any acquisition of the assets of or Equity Interests in (including an acquisition of all or substantially all the assets of or all the Equity Interests in) a Person or division or line of business of a Person, other than such acquisition of the assets of or Equity Interests in any Loan Party, if (a) such acquisition was not preceded by, or effected pursuant to, an unsolicited or hostile offer, (b) such acquired Person, division or line of business of a Person is, or is engaged in, any business or business activity conducted by the Borrower and its Subsidiaries on the Restatement Date, Midstream Activities and any business or business activities incidental or related thereto, or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto; provided, that no such activity or expansion shall in any event include the drilling, completion or servicing of oil or gas wells, including the ownership of drilling rigs, (c) all transactions related to such acquisition shall be consummated in accordance with applicable laws, (d) both immediately before and after giving effect thereto: (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) (A) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such acquisition with the Interest Coverage Ratio recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries, and (B) both immediately before and immediately after giving effect to such acquisition, the Maximum Leverage Ratio shall not be more than 4.50:1.00 if such date of determination is not during an Acquisition Period, or not more than 5.00:1.00 if such date of determination is during an Acquisition Period, and (iii) Liquidity shall be equal to or greater than U.S.$30.0 million, (e) all actions (if any) required, necessary or appropriate to comply with the Collateral and Guarantee Requirement with respect to such acquired assets, or Equity Interests shall have been taken on or prior to the consummation of such acquisition, (f) to the extent required by Section 5.04(e), the Borrower shall have delivered to the Administrative Agent the relevant certification, documentation and financial information for such Restricted Subsidiary or assets and (g) any acquired Person shall not be liable for any Indebtedness (except for Excluded Indebtedness).

 

“Permitted Encumbrances” shall mean with respect to each Real Property, Pipeline System and Gathering Station, those Liens and other encumbrances permitted by paragraphs (a), (b), (c), (d), (e), (h), (i), (j), (k), (l), (m), (v), (w), (x), (aa), (bb) or (cc) of Section 6.02.

 

“Permitted Holder” shall mean each of the Sponsor and the Sponsor Affiliates.

 

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“Permitted Investments” shall mean:

 

(a)                                 direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof, in each case with maturities not exceeding two years;

 

(b)                                 time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company that is organized under the laws of the United States of America, any state thereof, or any foreign country recognized by the United States of America, having capital, surplus and undivided profits in excess of U.S.$250.0 million and whose long-term debt, or whose parent holding company’s long-term debt, is rated A (or such similar equivalent rating or higher) by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act);

 

(c)                                  repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;

 

(d)                                 commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of the Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of P-1 (or higher) according to Moody’s, or A-1 (or higher) according to S&P;

 

(e)                                  securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any State, commonwealth or territory of the United States of America or by any political subdivision or taxing authority thereof, and rated at least A by S&P or A-2 by Moody’s;

 

(f)                                   shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (a) through (e) above;

 

(g)                                  money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least U.S.$500.0 million; and

 

(h)                                 time deposit accounts, certificates of deposit and money market deposits in an aggregate face amount not in excess of 1/2 of 1% of the total assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis, as of the end of the Borrower’s most recently completed fiscal year.

 

“Permitted Junior Debt” shall mean (a) unsecured subordinated Indebtedness issued or incurred by the Borrower or the Borrower and Finance Co, as co-borrowers, and (b) unsecured senior Indebtedness issued by the Borrower or the Borrower and Finance Co, as co-borrowers, the terms of which, in the case of each of clauses (a) and (b), (i) (A) do not provide for a final maturity date, scheduled amortization or any other scheduled repayment, mandatory redemption

 

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or sinking fund obligation prior to the date that is 91 days after the Stated Maturity Date (provided, that the terms of such Permitted Junior Debt may require the payment of interest from time to time), (B) do not contain covenants and events of default that, taken as a whole, are more restrictive than the covenants and Events of Default set forth in this Agreement and the other Loan Documents, (C) provide for covenants and events of default customary for Indebtedness of a similar nature as such Permitted Junior Debt and (D) in the case of unsecured subordinated Indebtedness, provide for subordination of payments in respect of such Indebtedness to the Obligations and guarantees thereof under the Loan Documents customary for high yield securities and (ii) in respect of which no Subsidiary of the Borrower that is not an obligor under the Loan Documents is an obligor; provided, that immediately prior to and after giving effect on a Pro Forma Basis to any incurrence of Permitted Junior Debt, no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Borrower would be in compliance on a Pro Forma Basis with the Financial Performance Covenants as of the most recently completed fiscal quarter for which financial statements are available; and provided, further, that Permitted Junior Debt shall not be issued by Finance Co unless the applicable lenders or note purchasers of such Indebtedness recommend the issuance thereof to be by a corporation.

 

“Permitted Real Property Liens” shall mean with respect to any Real Property, those Liens and other encumbrances permitted by paragraphs (b), (c), (d), (e), (h), (i), (j), (k), (l), (m), (v), (w), (x), (aa), (bb) or (cc) of Section 6.02.

 

“Permitted Refinancing Indebtedness” shall mean any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided, that (a) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Permitted Refinancing Indebtedness, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries, (b) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest, breakage costs and premium thereon), (c) the average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to that of the Indebtedness being Refinanced, (d) if the Indebtedness being Refinanced is subordinated in right of payment to the Obligations under this Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, (e) no Permitted Refinancing Indebtedness shall have different obligors, or greater guarantees or security, than the Indebtedness being Refinanced, and (f) if the Indebtedness being Refinanced is secured by any collateral (whether equally and ratably with, or junior to, the Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be secured by such collateral on terms no less favorable to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced.

 

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“Person” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company, individual or family trusts, or government or any agency or political subdivision thereof.

 

“Pipeline Systems” shall mean, collectively, (a) the natural gas gathering pipelines and other appurtenant facilities such as meters and valve yard facilities located in the States of Texas and Colorado owned by one or more Loan Parties or Restricted Subsidiaries in connection with its or their Midstream Activities and (b) any other pipelines and other appurtenant facilities such as meters and valve yard facilities, located in Texas, Colorado or any other state, now or hereafter owned by one or more Loan Parties or Restricted Subsidiaries in connection with its or their Midstream Activities.

 

“Plan” shall mean any employee pension benefit plan subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 of ERISA and to which the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate has or may have any liability or contingent liability.

 

“Platform” shall have the meaning assigned to such term in Section 9.17(b).

 

“Pledged Collateral”, with respect to particular Collateral, shall have the meaning assigned to such term in the Collateral Agreement applicable to such Collateral.

 

“Power Purchase Agreements” shall mean those one or more agreements entered into for the purpose of (a) minimizing exposure to the volatility in power prices associated with operating electric-drive compression in the ordinary course of business and not for speculative purposes, and/or (b) purchasing power for use in the ordinary course of business, in each case, along with any related schedules or confirmations and as amended, supplements, restated or otherwise modified from time to time.

 

“primary obligor” shall have the meaning given such term in the definition of the term “Guarantee.”

 

“Prior Liens” shall mean those Liens and other encumbrances permitted by paragraphs (a), (c), (d), (e), (f), (i), (j), (l), (n), (o), (p), (q), (r), (dd) or (ee) of Section 6.02; provided,  that licenses permitted under paragraphs (q) or (ee) of Section 6.02 shall be deemed “Prior Liens” solely to the extent that such licenses are nonexclusive.

 

“Pro Forma Basis” shall mean, in connection with any calculation of compliance with any financial covenant or term, the calculation thereof after giving effect on a pro forma basis to the change in such calculation required by the applicable provision hereof, and otherwise on a basis in accordance with GAAP as used in the preparation of the latest financial statements provided pursuant to Section 5.04 and otherwise reasonably satisfactory to the Administrative Agent.  Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to the Transactions, any Asset Acquisition or Asset Disposition, in each case, consummated at any time on or after the first day of the four consecutive fiscal quarter period ended on or before the occurrence of such event thereof (the “Reference Period”) as if the Transactions, such Asset Acquisition or Asset Disposition had been consummated on the first day of such Reference Period:

 

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(a)                                 in making any determination of EBITDA on a Pro Forma Basis, pro forma effect shall be given to any Asset Disposition and to any Asset Acquisition (or any similar transaction or transactions that require a waiver or consent of the Required Lenders pursuant to Section 6.04 or 6.05), in each case that occurred during the Reference Period (or, unless the context otherwise requires, occurring during the Reference Period or thereafter and through and including the date upon which the respective Asset Acquisition or Asset Disposition is consummated); and

 

(b)                                 in making any determination on a Pro Forma Basis, (i) all Indebtedness (including Indebtedness incurred or assumed and for which the financial effect is being calculated, whether incurred under this Agreement or otherwise, but excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes) incurred or permanently repaid during the Reference Period shall be deemed to have been incurred or repaid at the beginning of such period, (ii) Interest Expense of such Person attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding clause (i), bearing floating interest rates shall be computed on a pro forma basis as if the rates that would have been in effect during the period for which pro forma effect is being given had been actually in effect during such periods and (iii) with respect to distributions made pursuant to Section 6.06(e), pro forma effect shall be given to the decrease in cash and Permitted Investments resulting from such distributions.

 

Pro forma calculations made pursuant to the definition of the term “Pro Forma Basis” shall be determined in good faith by a Responsible Officer of the Borrower and, for any fiscal period ending on or prior to the first anniversary of an Asset Acquisition or Asset Disposition (or any similar transaction or transactions that require a waiver or consent of the Required Lenders pursuant to Section 6.04 or 6.05), may include adjustments to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result from such Asset Acquisition, Asset Disposition or other similar transaction, to the extent that the Borrower delivers to the Administrative Agent (A) a certificate of a Financial Officer of the Borrower setting forth such operating expense reductions and other operating improvements or synergies and (B) information and calculations supporting in reasonable detail such estimated operating expense reductions and other operating improvements or synergies.

 

“Projections” shall mean the projections of the Borrower and its Restricted Subsidiaries included in the Information Memorandum and any other projections and any forward-looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of the Borrower or any of its Restricted Subsidiaries prior to the Restatement Date.

 

“Property” shall mean any interest in any kind of property or asset, whether real, personal or mixed, tangible or intangible.

 

“Purchase Money Obligation” shall mean, for any Person, the obligations of such Person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any Property (including Equity Interests of any Person) or the cost of installation, construction or improvement of any property and any refinancing thereof; provided, that (a) such Indebtedness is incurred prior to, contemporaneously

 

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with or within 270 days after such acquisition, installation, construction or improvement and (b) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction or improvement, as the case may be, including related transaction costs, fees and expenses.

 

“RBS” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

“RBSSI” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

“Real Property” shall mean, collectively, all right, title and interest of the Borrower or any Restricted Subsidiary in and to any and all parcels of real property owned or leased by, or subject to any rights of way, easements, servitudes, permits, licenses or other instruments in favor of, the Borrower or any Restricted Subsidiary together with all Improvements and appurtenant fixtures, easements and other property and rights incidental to the ownership, lease, occupancy, use or operation thereof.

 

“Reference Period” shall have the meaning assigned to such term in the definition of the term “Pro Forma Basis.”

 

“Refinance” shall have the meaning assigned to such term in the definition of the term “Permitted Refinancing Indebtedness,” and “Refinanced” and “Refinancing” shall have a meaning correlative thereto.

 

“Register” shall have the meaning assigned to such term in Section 9.04(b).

 

“Regulation S-X” shall mean Regulation S-X promulgated under the Securities Act.

 

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Reimbursement Revolving Loan” shall mean a Revolving Facility Loan, or any portion of a Revolving Facility Loan, that is distributed pursuant to Section 6.06 for the repayment of Indebtedness previously incurred by Sponsor or any Affiliate thereof (other than Borrower and any Subsidiary thereof) in respect of Borrower or any Restricted Subsidiary.

 

“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

“Release” shall mean any placing, spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or depositing in, into or onto the Environment.

 

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“Remaining Present Value” shall mean, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease, determined with a discount rate equal to a market rate of interest for such lease reasonably determined at the time such lease was entered into.

 

“Reportable Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period has been waived, with respect to a Plan.

 

“Required Lenders” shall mean, at any time, Lenders having (a) Loans (other than Swingline Loans) outstanding, (b) Revolving L/C Exposures, (c) Swingline Exposures and (d) Available Unused Commitments, that taken together, represent more than 50% of the sum of all (i) Loans (other than Swingline Loans) outstanding, (ii) Revolving L/C Exposures, (iii) Swingline Exposures, and (iv) the total Available Unused Commitments at such time; provided, that the Loans, Revolving L/C Exposures, Swingline Exposures and Commitments of, held by or deemed to be held by any Defaulting Lender shall be excluded for purposes of making a determination of the Required Lenders.

 

“Responsible Officer” of any Person shall mean any executive officer, Financial Officer, director, general partner, managing member or sole member of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement.

 

“Restatement Date” shall mean May 7, 2012.

 

“Restatement Date Gathering Station Real Property” shall mean all Real Property on which the Gathering Stations owned, held or leased by the Borrower or any Subsidiary Loan Party on the Restatement Date are located.

 

“Restricted Subsidiary” shall mean all Subsidiaries of the Borrower that are not Unrestricted Subsidiaries.

 

“Revolving Facility” shall mean the Revolving Facility Commitments and the extensions of credit made hereunder by the Revolving Facility Lenders.

 

“Revolving Facility Borrowing” shall mean a Borrowing comprised of Revolving Facility Loans.

 

“Revolving Facility Commitment” shall mean, with respect to each Revolving Facility Lender, the commitment of such Revolving Facility Lender to make Eurodollar Loans and ABR Loans pursuant to Section 2.01 representing the maximum aggregate permitted amount of such Revolving Facility Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.20, (c) reduced or increased from time to time pursuant to assignments by or to such Lender under Section 9.04 and (d) otherwise modified as permitted by this Agreement.  The initial amount of each Revolving Facility Lender’s Revolving Facility Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Revolving Facility Lender shall have assumed its Revolving Facility Commitment, as applicable. The

 

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aggregate amount of the Revolving Facility Commitments on the date hereof is U.S.$550.0 million.  To the extent applicable, Revolving Facility Commitments shall include the Incremental Commitments of any Incremental Lender.

 

“Revolving Facility Credit Exposure” shall mean, at any time, the sum of (a) the aggregate principal amount of the Revolving Facility Loans outstanding at such time, (b) the Swingline Exposure at such time and (c) the Revolving L/C Exposure at such time.  The Revolving Facility Credit Exposure of any Revolving Facility Lender at any time shall be the sum of (a) the aggregate principal amount of such Revolving Facility Lender’s Revolving Facility Loans outstanding at such time and (b) such Revolving Facility Lender’s Revolving Facility Percentage of the Swingline Exposure and Revolving L/C Exposure at such time.

 

“Revolving Facility Lender” shall mean a Lender with a Revolving Facility Commitment or with outstanding Revolving Facility Loans (including any Incremental Lender).

 

“Revolving Facility Loan” shall mean a Loan made to the Borrower by a Revolving Facility Lender pursuant to Section 2.01 or an Incremental Lender pursuant to Section 2.20.  Each Revolving Facility Loan shall be a Eurodollar Loan or an ABR Loan.

 

“Revolving Facility Percentage” shall mean, with respect to any Revolving Facility Lender, the percentage of the total Revolving Facility Commitments represented by such Lender’s Revolving Facility Commitment.  If the Revolving Facility Commitments have terminated or expired, the Revolving Facility Percentages shall be determined based upon the Revolving Facility Commitments most recently in effect, giving effect to any assignments pursuant to Section 9.04.

 

“Revolving L/C Commitment” shall mean, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit pursuant to Section 2.05, as such commitment may be (a) ratably reduced from time to time upon any reduction in the Revolving Facility Commitments pursuant to Section 2.08, (b) reduced or increased from time to time pursuant to assignments by or to such Issuing Bank under Section 9.04 and (c) otherwise modified as permitted by this Agreement.  The amount of each Issuing Bank’s Revolving L/C Commitment as of the Restatement Date is set forth in Schedule 2.01, or in the Assignment and Acceptance pursuant to which any Lender that becomes an Issuing Bank shall have assumed its Revolving L/C Commitment, as applicable.  The aggregate amount of the Revolving L/C Commitment of the Issuing Banks on the date hereof is U.S.$40.0 million.

 

“Revolving L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit, including, for the avoidance of doubt, a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit upon or following the reinstatement of such Letter of Credit.

 

“Revolving L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all Letters of Credit outstanding at such time and (b) the aggregate principal amount of all Revolving L/C Disbursements that have not yet been reimbursed at such time.  The Revolving L/C Exposure of any Revolving Facility Lender at any time shall mean its Revolving Facility Percentage of the aggregate Revolving L/C Exposure at such time.

 

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“Revolving L/C Participation Fees” shall have the meaning set forth in Section 2.12(b).

 

“Revolving L/C Reimbursement Obligation” shall mean the Borrower’s obligation to repay Revolving L/C Disbursements as provided in Sections 2.05(e) and (f).

 

“rights of way” shall have the meaning assigned to such term in Section 3.17(c).

 

“S&P” shall mean Standard & Poor’s Ratings Services, Inc., a division of The McGraw-Hill Companies, Inc.

 

“Sale and Lease-Back Transaction” shall have the meaning assigned to such term in Section 6.03.

 

“SEC” shall mean the Securities and Exchange Commission or any successor thereto.

 

“Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank, in connection with which such Cash Management Bank obtains the benefits of the Collateral Documents by virtue of the provisions hereof and of the Intercreditor Agreement.

 

“Secured Parties” shall mean (a) the Lenders, (b) the Administrative Agent, (c) the Collateral Agent, (d) each Issuing Bank, (e) each Specified Swap Counterparty that is a Lender or an Affiliate of a Lender, (f) each Cash Management Bank and (g) the successors and permitted assigns of each of the foregoing.

 

“Secured Swap Agreement” shall mean any Swap Agreement permitted by Section 6.12 that is entered into by and between the Borrower or any Loan Party and any Specified Swap Counterparty, in connection with which such Specified Swap Counterparty obtains the benefits of the Collateral Documents by virtue of the provisions hereof and of the Intercreditor Agreement.

 

“Securities Act” shall mean the Securities Act of 1933, as amended.

 

“Specified Equity Contribution” shall mean, with respect to any fiscal quarter, an amount equal to the cash received by the Borrower from the Sponsor or any Sponsor Affiliate in exchange for the issuance by the Borrower of additional Equity Interests in the Borrower, during the period between (and inclusive of) the first day of such fiscal quarter and the day that is ten days after the day on which financial statements with respect to such fiscal quarter are required to be delivered pursuant to Section 5.04(a) or Section 5.04(b) (provided, that with respect to the fiscal quarter in which the Restatement Date occurs, such amount shall include only any equity contribution that has been received after the Restatement Date); provided, that (a) the Borrower delivers written notice to the Administrative Agent concurrently with delivery of a timely delivered certificate required by Section 5.04(c) that it has elected to treat such equity contribution as a Specified Equity Contribution and clearly setting forth such equity contribution in the computation required by clause (ii) of such Section 5.04(c); (b) there is at least one fiscal quarter in each four consecutive fiscal quarter period in which no Specified Equity Contribution has been made; (c) the amount of the equity contribution deemed to be a Specified Equity Contribution shall not be greater than the amount required (in the sole discretion of the

 

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Administrative Agent) to cause the Borrower to be in compliance with the Financial Performance Covenants; (d) there shall be no more than four Specified Equity Contributions in the aggregate during the Availability Period; and (e) any additional Equity Interests in the Borrower issued to Sponsor or a Sponsor Affiliate in connection with an Additional Equity Contribution shall upon such issuance be pledged to the Collateral Agent in accordance with the Collateral and Guarantee Requirement.

 

“Specified Swap Counterparty” shall mean any Person that has entered into a Swap Agreement and that meets one or more of the following criteria: (a) to the extent such Swap Agreement is a natural gas Swap Agreement, such Person is engaged in the business of entering into commodity swap agreements and has a credit rating at the time of entering into such Swap Agreement (for purposes of this definition only, the “Credit Rating”) of at least Baa3 from Moody’s or BBB- from S&P, or (b) (i) such Person is a Lender, an Agent or a Joint Lead Arranger or an Affiliate of a Lender, an Agent or a Joint Lead Arranger, and (ii) to the extent of any Swap Agreement (except any natural gas Swap Agreement), such Person is a financial institution that has a Credit Rating at the time of entering into such Swap Agreement of at least A3 from Moody’s or A- from S&P (or if such Lender, Agent or Joint Lead Arranger or an Affiliate thereof is unrated, then such Lender, Agent or Joint Lead Arranger or an Affiliate thereof shall have a parent company that has a rating of at least A3 from Moody’s or A- from S&P and such rated parent guarantees the unrated Specified Swap Counterparty’s obligation); provided, that in the case of clauses (a) and (b)(ii), each such Person has executed and delivered counterparts of or supplements to the Intercreditor Agreement.  Notwithstanding the foregoing, (A) if only one of S&P and Moody’s have rated such Person, the Credit Rating shall be determined by reference to such available rating specified by S&P or Moody’s, as applicable; (B) if both S&P and Moody’s have rated such Person and the rating established by S&P and Moody’s shall fall within different levels, the Credit Rating shall be based upon the rating that is the lower of the two ratings specified by S&P or Moody’s; provided, that if the higher of such ratings is more than one level above the other of such ratings, the Credit Rating shall be determined by reference to the level that is one level above that corresponding to such lower rating; (C) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (D) if S&P or Moody’s shall change the basis on which ratings are established, each reference to a particular rating above shall refer to the then equivalent rating by S&P or Moody’s, as applicable.

 

“Sponsor Affiliate” shall mean each Affiliate of the Sponsor that is neither a portfolio company nor a company controlled by a portfolio company.

 

“Sponsor” shall mean Summit Midstream Partners, LLC, a Delaware limited liability company.

 

“Sponsor’s Operating Agreement” shall mean that certain Amended and Restated Limited Liability Company Operating Agreement, effective as of September 3, 2009, by and among Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B IP, LP, Energy Capital Partners II-C (Summit IP), LP, Summit Midstream Management, LLC and the Sponsor, as amended by that certain First Amendment to the Amended and Restated Limited Liability Company Operating Agreement of Summit Midstream Partners, LLC,

 

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dated May 19, 2011, as in effect on the Restatement Date, without giving effect to any other amendments or modifications.

 

“Stated Maturity Date” shall mean May 26, 2016 (or if such date is not a Business Day, the next succeeding Business Day).

 

“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent, any Lender or any Issuing Bank (including any branch, Affiliate or other fronting office making or holding a Loan or issuing a Letter of Credit) is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to the Administrative Agent, any Lender or any Issuing Bank under such Regulation D or any comparable regulation.  Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“Subordinated Intercompany Debt” shall have the meaning assigned to such term in Section 6.01(e).

 

“Subsidiary” shall mean, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, association, joint venture, limited liability company or other business entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held 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.

 

“Subsidiary Loan Party” or “Subsidiary Loan Parties” shall mean (a) DFW, (b) GRG and (c) each direct or indirect Wholly Owned Subsidiary of the Borrower that is not a Subsidiary whose guarantee of the Obligations is prohibited under Section 9.21; provided, that in no event shall an Unrestricted Subsidiary be a “Subsidiary Loan Party.”

 

“Supplemental Collateral Agent” shall have the meaning assigned to such term in Section 8.13(a).

 

“Swap Agreement” shall mean (a) any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions and (b) any and all transactions of any kind, and the related confirmations that 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,

 

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or any other master agreement to the extent relating to any of the transactions described in the preceding clause (a), in each case, together with any related schedules or confirmations and as amended, supplements, restated or otherwise modified from time to time; provided, that in no event shall any agreement for the sale of retainage gas in the ordinary course of business be deemed to be a “Swap Agreement.”

 

“Swingline Borrowing” shall mean a Borrowing comprised of Swingline Loans.

 

“Swingline Borrowing Request” shall mean a request by the Borrower substantially in the form of Exhibit C-2.

 

“Swingline Commitment” shall mean, with respect to each Swingline Lender, the commitment of such Swingline Lender to make Swingline Loans pursuant to Section 2.04.  The aggregate amount of the Swingline Commitments on the Restatement Date is U.S.$20 million.

 

“Swingline Exposure” shall mean at any time the aggregate principal amount of all outstanding Swingline Borrowings at such time.  The Swingline Exposure of any Revolving Facility Lender at any time shall mean its Revolving Facility Percentage of the aggregate Swingline Exposure at such time.

 

“Swingline Lender” shall mean RBS, in its capacity as a lender of Swingline Loans, and/or any other Revolving Facility Lender as successor or lender of Swingline Loans hereunder.

 

“Swingline Loans” shall mean the swingline loans made to the Borrower pursuant to Section 2.04.

 

“Taxes” shall mean any and all present or future taxes, levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges) or withholdings imposed by any Governmental Authority and any and all additions to tax, interest and penalties related thereto.

 

“Test Period” shall mean, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower ending on or prior to such date; provided, that, for GRG only, for purposes of calculating EBITDA, with respect to calculating the Financial Performance Covenants, for the Test Period ending March 31, 2012, EBITDA, shall be deemed to equal EBITDA, for the period starting on November 1, 2011 and ending on March 31, 2012, multiplied by 12/5, for the Test Period ending June 30, 2012, EBITDA, shall be deemed to equal EBITDA, for the period starting on November 1, 2011 and ending on June 30, 2012, multiplied by 3/2, and so on, until a period of four fiscal quarters is achieved.

 

“Transactions” shall mean, collectively, the transactions to occur on or prior to the Restatement Date pursuant to the Loan Documents, including (a) the execution and delivery of the Loan Documents; (b) any borrowings on the Restatement Date; and (c) the payment of all fees and expenses owing in connection with the foregoing.

 

“Type,” when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is

 

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determined.  For purposes hereof, the term “Rate” shall include the Adjusted Eurodollar Rate and the Alternate Base Rate.

 

“UCC” shall mean (a) the Uniform Commercial Code as in effect in the applicable jurisdiction and (b) certificate of title or other similar statutes relating to “rolling stock” or barges as in effect in the applicable jurisdiction.

 

“U.S. Bankruptcy Code” shall mean Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.

 

“U.S. Dollars” or “U.S.$” shall mean the lawful currency of the United States of America.

 

“U.S.A. PATRIOT Act” shall have the meaning assigned to such term in Section 3.08(c).

 

“Undisclosed Administration” shall mean, in relation to a Lender, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

 

“Unrestricted Subsidiary” shall mean a direct or indirect Subsidiary of the Borrower:

 

(a)                                 either (i) that has not received any portion of the proceeds of any Loan, (ii) has received a portion of the proceeds of a Loan but has paid a dividend or made a distribution to any Loan Party (who has then applied the proceeds of such dividend or distribution as required by Section 2.11(f)) in an amount equal to the total amount of Investments it has received from all Loan Parties pursuant to Section 6.04(a)(ii) during the period from the Closing Date to the applicable date of determination, or (iii) has received a portion of the proceeds of a Loan and (a) at the time such Subsidiary is being designated as an Unrestricted Subsidiary the Borrower or any of its Restricted Subsidiaries are permitted to make Investments pursuant to the terms of Section 6.04(a)(i), 6.04(i) or 6.04(k), as applicable, in an amount equal to the Investments previously received by the Subsidiary that were not paid as dividends to any Loan Party, and (b) the amount of such Investments received by such Subsidiary during the period from the Closing Date to the applicable date of determination, and not paid via dividend or distribution pursuant to clause (ii) of this definition, shall be included in the calculation of the aggregate amount of Investments permitted under Section 6.04(a)(i), 6.04(i) and 6.04(k).  At no time commencing on the date that any such Subsidiary is designated as an Unrestricted Subsidiary, shall there be any Letter of Credit issued and outstanding as of the applicable date of determination (and no Revolving L/C Disbursement in respect of any such Letter of Credit remains unreimbursed) on behalf of such Subsidiary being unrestricted pursuant to clauses (i),(ii) or (iii) of this definition,

 

(b)                                 that is designated by the Borrower as an Unrestricted Subsidiary in a written notice provided to the Administrative Agent, which such notice includes

 

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certifications by a Responsible Officer that (i) after giving effect to such designation, no Event of Default or Default shall have occurred and be continuing, and (ii) such proposed Unrestricted Subsidiary complies with all requirements set forth in this definition,

 

(c)                                  after giving effect to such designation, will have no Indebtedness other than Non-Recourse Debt,

 

(d)                                 that, except as permitted by Section 6.07, after giving effect to such designation is not party to any transaction with the Borrower or any Restricted Subsidiary,

 

(e)                                  after giving effect to such designation, as to which neither the Borrower nor any Restricted Subsidiary has or would have any direct or indirect obligation for any obligation or liability of such Unrestricted Subsidiary, and neither the Borrower nor any Restricted Subsidiary is required to maintain or preserve such Unrestricted Subsidiary’s financial condition or to cause such Person to achieve any specified levels of operating results,

 

(f)                                   that is subject to customary separateness covenants; provided, that no such Subsidiary shall be required to have, and such covenants shall not include, the obligation to appoint, any independent directors, and

 

(g)                                  after giving effect to such designation, has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower or any Restricted Subsidiary, in the case of each of clauses (f) and (g), other than pledging such Restricted Subsidiary’s Equity Interests in such Unrestricted Subsidiary to support Non-Recourse Debt of such Unrestricted Subsidiary.

 

If reasonably requested by the Administrative Agent, the Borrower shall have provided appropriate evidence demonstrating its compliance with the certifications set forth in the foregoing clause (b). If, at any time, any Unrestricted Subsidiary ceases to comply with the requirements set forth in clause (a) or (c) to (g) of this definition (or if any Default or Event of Default would be cured if an Unrestricted Subsidiary was a Restricted Subsidiary), the applicable Unrestricted Subsidiary shall immediately thereupon be deemed to be a Restricted Subsidiary (and, to the extent applicable, a Benefited Subsidiary) for all purposes of this Agreement and the other Loan Documents, including that any Indebtedness of such Subsidiary will be deemed to have been incurred by a Restricted Subsidiary of the Borrower as of such date.  The Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Borrower in an amount equal to the outstanding Indebtedness of such Unrestricted Subsidiary on such date of designation and such designation will only be permitted if (i) such Indebtedness is Excluded Indebtedness and (ii) no Default or Event of Default would be in existence upon such designation.  On the date of any such designation of an Unrestricted Subsidiary as a Restricted Subsidiary (or on the date any Subsidiary is deemed to be a Restricted Subsidiary pursuant to the first clause of this paragraph), to the extent that the Collateral and Guarantee Requirement requires such Subsidiary that has been redesignated or deemed to be a

 

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Restricted Subsidiary to take certain actions or enter into certain documents, such Subsidiary shall so comply.

 

“Wholly Owned Subsidiary” of any Person shall mean a Subsidiary of such Person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned, directly or indirectly, by such Person or any other Wholly Owned Subsidiary of such Person.

 

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.

 

“Working Capital Borrowings” shall mean Revolving Facility Borrowings used for working capital purposes or to pay distributions to the Sponsor in accordance with the terms of the Loan Documents, provided that, when incurred, it shall be the intent of the Borrower to repay such borrowings within twelve months from one or more sources other than Working Capital Borrowings.

 

Section 1.02                             Terms Generally.  The definitions set forth or referred to in Section 1.01 shall apply equally to both 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.”  All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require.  Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time.  Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with United States generally accepted accounting principles applied on a consistent basis (“GAAP”) and all terms of an accounting or financial nature shall be construed and interpreted in accordance with GAAP, as in effect from time to time; provided, that to the extent GAAP shall change after the Restatement Date, the parties hereto agree to negotiate in good faith to modify the covenants herein so that they may be construed and interpreted in accordance with GAAP as then in effect.

 

Section 1.03                             Effectuation of Transfers.  Each of the representations and warranties of the Borrower contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions, unless the context otherwise requires.

 

Section 1.04                             Existing Credit Agreement.  This Agreement restates and replaces, in its entirety, the Existing Credit Agreement. Any reference in any of the other Loan Documents to the Existing Credit Agreement (howsoever defined) shall mean this Agreement.

 

ARTICLE II

THE CREDITS

 

Section 2.01                             Revolving Facility Commitments.  (a) Subject to the terms and conditions set forth herein, each Revolving Facility Lender agrees to make Revolving Facility Loans, in

 

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each case from time to time during the Availability Period, comprised of Eurodollar Loans and ABR Loans to the Borrower in U.S. Dollars in an aggregate principal amount that will not result in (i) such Lender’s Revolving Facility Credit Exposure exceeding such Lender’s Revolving Facility Commitment and (ii) the Revolving Facility Credit Exposure exceeding the total Revolving Facility Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Facility Loans.  The Revolving Facility shall be available as ABR Loans or Eurodollar Loans.

 

(b)                                 As of the Restatement Date and immediately prior to giving effect to the transactions contemplated hereby, each of the Existing Lenders has such Commitments in such aggregate principal amount as set forth under the caption “Existing Credit Agreement Commitments” on Schedule 2.01.

 

(c)                                  Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties of Borrower set forth herein, each of the Existing Lenders shall continue its Commitments in such aggregate principal amount as set forth under the “Restatement Date Commitments” caption on Schedule 2.01.

 

(d)                                 Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties of Borrower set forth herein, each of the New Lenders shall have, on the Restatement Date, such Commitments in such aggregate principal amount as set forth under the “Restatement Date Commitments” caption on Schedule 2.01.

 

(e)                                  Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties of Borrower set forth herein, each of the Increasing Lenders shall have, on the Restatement Date, such Commitments in such aggregate principal amount as set forth under the “Restatement Date Commitments” caption on Schedule 2.01.

 

Section 2.02                             Loans and Borrowings.  (a) Each Loan to the Borrower shall be made as part of a Borrowing consisting of Loans of the same Type, (i) in the event of Revolving Facility Loans made by the Revolving Facility Lenders ratably in accordance with their respective Revolving Facility Percentages on the date such Loans are made hereunder, (ii) in the event of Swingline Loans, made by the Swingline Lenders ratably in accordance with their respective Swingline Commitments, and (iii) in any other event, made by the Lenders ratably in accordance with their respective Commitments; provided, that the Loans to be made on the Restatement Date shall be sized such that, after giving effect thereto, each of the Revolving Lenders will have Revolving Loans outstanding proportionate to its Revolving Facility Percentage. In the event that the Borrower requests a Borrowing that, after giving effect thereto, would cause the Revolving Facility Credit Exposure to exceed the total Revolving Facility Commitments, then the request for such Borrowing shall be deemed to be reduced to an amount equal to the difference between the total Revolving Facility Commitments and the Revolving Credit Exposure.  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b)                                 Each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith.

 

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(c)                                  At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that a Eurodollar Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Revolving Facility Commitments.  At the time that each ABR Borrowing by the Borrower is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Revolving Facility Commitments or that is required to finance the reimbursement of a Revolving L/C Disbursement as contemplated by Section 2.05(e).  Each Swingline Borrowing by the Borrower shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum.  Borrowings of more than one Type may be outstanding at the same time; provided, that there shall not at any time be more than a total of ten (10) Interest Periods in respect of Borrowings outstanding under the Revolving Facility.

 

(d)                                 Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Stated Maturity Date.

 

Section 2.03                             Requests for Borrowings.  To request a Revolving Facility Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Borrowing consisting of Eurodollar Loans, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of a Borrowing consisting of ABR Loans, not later than 12:00 noon, New York City time, one Business Day before the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or email of a properly executed PDF to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

 

(i)                                     the aggregate amount of the requested Borrowing;

 

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

 

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

 

(iv)                              in the case of a Borrowing consisting of a Eurodollar Loan, the initial Interest Period to be applicable thereto; and

 

(v)                                 the location and number of the Borrower’s account to which funds are to be disbursed.

 

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.  Promptly following receipt of a Borrowing Request in accordance with 

 

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this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

Section 2.04                             Swingline Loans.  (a) Subject to the terms and conditions set forth herein, each Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period in U.S. Dollars, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Commitment, (ii) the outstanding Swingline Loans of such Swingline Lender exceeding such Swingline Lender’s Swingline Commitments or (iii) the Revolving Facility Credit Exposure exceeding the total Revolving Facility Commitments; provided, that no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Borrowing.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.  All Swingline Loans shall be ABR Loans under this Agreement.

 

(b)                                 To request a Swingline Borrowing, the Borrower shall notify the Swingline Lenders of such request by telephone (confirmed by a Swingline Borrowing Request by facsimile a copy of which shall also be delivered to the Administrative Agent) not later than 11:00 a.m., New York City time on the day of the proposed Swingline Borrowing.  Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:

 

(i)                                     the requested date (which shall be a Business Day),

 

(ii)                                  the amount of the requested Swingline Borrowing,

 

(iii)                               the term of such Swingline Loan, and

 

(iv)                              the location and number of the Borrower’s account to which funds are to be disbursed.

 

Each Swingline Lender shall make each Swingline Loan to be made by it hereunder in accordance with Section 2.02(a) on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., New York City time, to the account of the Borrower (or, in the case of a Swingline Borrowing made to finance the reimbursement of a Revolving L/C Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank).

 

(c)                                  A Swingline Lender may by written notice given to the Administrative Agent (and to the other Swingline Lenders) not later than 10:00 a.m., New York City time on any Business Day, require the Revolving Facility Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans made by it.  Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate.  Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Lender, specifying in such notice such Lender’s Revolving Facility Percentage of such Swingline Loan or Loans.  Each Revolving Facility Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent for the account of the applicable Swingline Lender, such Revolving Facility Lender’s Revolving Facility Percentage of such Swingline Loan or Loans.  Each 

 

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Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Facility Lender shall comply with its payment obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Revolving Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to such payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Revolving Facility Lenders.  The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph (c), and thereafter payments by the Borrower in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender.  Any amounts received by a Swingline Lender from the Borrower (or any other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of participations therein shall be remitted promptly to the Administrative Agent; any such amounts received by the Administrative Agent shall be remitted promptly by the Administrative Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this paragraph and to such Swingline Lender, as their interests may appear; provided, that any such payment so remitted shall be repaid to such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.

 

(d)                                 Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 4.01 unless, at least one Business Day prior to the time such Swingline Loan was made, the Required Lenders shall have notified the Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.01 would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist).

 

Section 2.05                             Letters of Credit.  (a) General.  Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit denominated in U.S. Dollars for its own account or on behalf of any Restricted Subsidiary in a form, and containing terms, acceptable to the applicable Issuing Bank, at any time and from time to time during the Availability Period and prior to the date that is five Business Days prior to the Stated Maturity Date.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement or instrument submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

 

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(b)                                 Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit (or the amendment, renewal (other than an automatic renewal in accordance with paragraph (c) of this Section) or extension of an outstanding Letter of Credit), the Borrower shall deliver by hand or facsimile (or transmit by other electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent two Business Days in advance of the requested date of issuance, amendment, renewal or extension, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to issue, amend, renew or extend such Letter of Credit.  If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the Revolving Facility Credit Exposure shall not exceed the total Revolving Facility Commitments and (ii) the aggregate available amount of all Letters of Credit issued by any Issuing Bank shall not exceed such Issuing Bank’s Revolving L/C Commitment; provided, however, no Issuing Bank shall be required to make any Revolving L/C Disbursement without such Issuing Bank’s prior written approval if, after giving effect thereto, such Issuing Bank’s Revolving L/C Commitment would exceed U.S. $20,000,000.

 

(c)                                  Expiration Date.  Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) unless the applicable Issuing Bank agrees to a later expiration date, the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Stated Maturity Date; provided, that any Letter of Credit with a one-year tenor may provide for the automatic renewal thereof for additional one-year periods (which, in no event, shall extend beyond the date referred to in clause (ii) of this paragraph (c)).

 

(d)                                 Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Revolving Facility Lenders, such Issuing Bank hereby grants to each Revolving Facility Lender, and each Revolving Facility Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Facility Lender’s Revolving Facility Percentage of the aggregate amount available to be drawn under such Letter of Credit.  In consideration and in furtherance of the foregoing, each Revolving Facility Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent for the account of the applicable Issuing Bank, in U.S. Dollars such Revolving Facility Lender’s Revolving Facility Percentage of each Revolving L/C Disbursement made by such Issuing Bank not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason.  Each Revolving Facility Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall 

 

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not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

 

(e)                                  Reimbursement.  If the applicable Issuing Bank shall make any Revolving L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such Revolving L/C Disbursement by paying to the Administrative Agent an amount equal to such Revolving L/C Disbursement in U.S. Dollars, not later than 3:00 p.m., New York City time, on the Business Day immediately following the date the Borrower receives notice under paragraph (g) of this Section of such Revolving L/C Disbursement; provided, that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR Loan in an equivalent amount, and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Loan or Borrowing, as applicable.  If the Borrower fails to reimburse any Revolving L/C Disbursement when due, then the Administrative Agent shall promptly notify the applicable Issuing Bank and each other Revolving Facility Lender of the applicable Revolving L/C Disbursement, the payment then due from the Borrower and, in the case of a Revolving Facility Lender, such Lender’s Revolving Facility Percentage thereof.  Promptly following receipt of such notice, each Revolving Facility Lender shall pay to the Administrative Agent in U.S. Dollars its Revolving Facility Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Facility Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank in U.S. Dollars the amounts so received by it from the Revolving Facility Lenders.  Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Facility Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear.  Any payment made by a Revolving Facility Lender pursuant to this paragraph to reimburse an Issuing Bank for any Revolving L/C Disbursement shall not constitute a Loan and (other than the funding of an ABR Loan as contemplated above) shall not relieve the Borrower of its obligation to reimburse such Revolving L/C Disbursement.

 

(f)                                   Obligations Absolute.  The obligation of the Borrower to reimburse Revolving L/C Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Document, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not strictly comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder; provided, that, in each case, payment by the applicable Issuing Bank shall not have constituted 

 

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gross negligence or willful misconduct as determined in a final, non-appealable judgment of a court of competent jurisdiction.  Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing Bank; provided, that the foregoing shall not be construed to excuse the applicable Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are determined by the non-appealable judgment of a court having competent jurisdiction to have been caused by (A) such Issuing Bank’s failure to exercise reasonable care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or (B) such Issuing Bank’s refusal to issue a Letter of Credit to the extent that all conditions to issuance have been fully satisfied in accordance with the terms of this Agreement.  The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct as determined in a final, nonappealable judgment of a court of competent jurisdiction on the part of the applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised reasonable care in each such determination and each refusal to issue a Letter of Credit shall not result in any liability or responsibility.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit, and any such acceptance or refusal shall be deemed not to constitute gross negligence or willful misconduct.

 

(g)                                  Disbursement Procedures.  The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit.  Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make a Revolving L/C Disbursement thereunder; provided, that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Revolving Facility Lenders with respect to any such Revolving L/C Disbursement.

 

(h)                                 Interim Interest.  If an Issuing Bank shall make any Revolving L/C Disbursement, then, unless the Borrower shall reimburse such Revolving L/C Disbursement in full on the date such Revolving L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such Revolving L/C Disbursement is made to but excluding the date that the Borrower reimburses such Revolving L/C Disbursement in full, at the rate per annum equal to the rate per annum then applicable to ABR Loans; provided, that, if such Revolving L/C Disbursement is not fully reimbursed by the Borrower when due pursuant to 

 

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paragraph (e) of this Section, then Section 2.13(c) shall apply.  Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Facility Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Facility Lender to the extent of such payment.

 

(i)                                     Replacement of an Issuing Bank.  An Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank.  At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12.  From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of such Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement but shall not be required to issue additional Letters of Credit.

 

(j)                                    Cash Collateralization.  If any Event of Default shall occur and be continuing, (i) in the case of an Event of Default described in Section 7.01(h) or 7.01(i), as provided in the following proviso or (ii) in the case of any other Event of Default or to the extent required by Section 2.11(b), on the second Business Day following the date on which the Borrower receives notice from the Administrative Agent (or, if the maturity of the Loans has been accelerated, Revolving Facility Lenders with Revolving L/C Exposure representing greater than 50% of the total Revolving L/C Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent (or an account in the name of the Administrative Agent with another institution designated by the Administrative Agent), in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash in U.S. Dollars equal to the Revolving L/C Exposure in respect of the Borrower as of such date plus any accrued and unpaid interest thereon; provided, that, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Section 7.01, the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable in U.S. Dollars, without demand or other notice of any kind.  The Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent required by Sections 2.11(b) or 2.22(b).  Each such deposit pursuant to this paragraph or pursuant to Sections 2.11(b) or 2.22(b) shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement and the Borrower hereby grants to the Administrative Agent and its bailees for the benefit of the Administrative Agent, each Issuing Bank and the Lenders a security interest in such deposits (including all interest thereon and all proceeds thereof) and any deposit or securities accounts in which such deposits are held to secure the repayment of the Obligations under and in connection with the Letters of Credit and all other Obligations. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, such account.  Other than any interest earned on the investment of such deposits, 

 

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which investments shall be made at the option and sole discretion of (A) for so long as an Event of Default shall be continuing, the Administrative Agent and (B) at any other time, the Borrower, in each case, in term deposits constituting Permitted Investments and at the risk and expense of the Borrower, such deposits shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for Revolving L/C Disbursements for which such Issuing Bank has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the Revolving L/C Reimbursement Obligations of the Borrower for the Revolving L/C Exposure at such time or, if the maturity of the Loans to the Borrower has been accelerated (but subject to the consent of Revolving Facility Lenders with Revolving L/C Exposure representing greater than 50% of the total Revolving L/C Exposure), be applied to satisfy other obligations of the Borrower under this Agreement.  If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.  If the Borrower is required to provide an amount of cash collateral hereunder pursuant to Sections 2.11(b) or 2.22(b), such amount together with interest thereon (to the extent not applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such return, the Borrower would remain in compliance with Section 2.11(b) or Section 2.22(b), respectively, and no Default or Event of Default shall have occurred and be continuing.

 

(k)                                 Additional Issuing Banks.  From time to time, the Borrower may by notice to the Administrative Agent designate up to four Lenders that agree (in their sole discretion) to act in such capacity and are reasonably satisfactory to the Administrative Agent as Issuing Banks.  Each such additional Issuing Bank shall execute a counterpart of this Agreement upon the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder for all purposes.

 

(l)                                     Reporting.  Each Issuing Bank shall (i) provide to the Administrative Agent copies of any notice received from the Borrower pursuant to Section 2.05(b) promptly upon receipt thereof, (ii) provide the Administrative Agent with a copy of the Letter of Credit, or the amendment, renewal or extension of the Letter of Credit, as applicable, on the Business Day on which such Issuing Bank issues, amends, renews or extends any Letter of Credit, (iii) on each Business Day on which such Issuing Bank makes any Revolving L/C Disbursement, advise the Administrative Agent of the date of such Revolving L/C Disbursement and the amount of such Revolving L/C Disbursement, (iv) furnish the Administrative Agent with such other information as the Administrative Agent shall reasonably request and (v) on any Business Day on which the Borrower fails to reimburse a Revolving L/C Disbursement required to be reimbursed to such Issuing Bank on such day, notify the Administrative Agent of the date of such failure and the amount of such Revolving L/C Disbursement.  If requested by any Lender, the Administrative Agent shall provide copies to such Lender of the documents referred to in clause (ii) of the preceding sentence.

 

(m)                             L/C Exposure Determination.  For purposes of determining availability under this Agreement, the amount of a Letter of Credit that, by its terms, provides for one or more automatic increases in the stated amount thereof shall be deemed to be the maximum stated 

 

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amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time of determination.

 

Section 2.06                             Funding of Borrowings.  (a) Each Lender shall make each Loan to be made by it to the Borrower hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided, that Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to such account of the Borrower as is designated by the Borrower in the Borrowing Request; provided, that ABR Loans made to finance the reimbursement of a Revolving L/C Disbursement and reimbursements as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.

 

(b)                                 Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

 

Section 2.07                             Interest Elections.  (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.  This Section shall not apply to Swingline Borrowings, which may not be converted or continued.

 

(b)                                 To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or email of a properly executed PDF to the Administrative Agent of a 

 

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written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.

 

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

 

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

 

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

 

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

 

(iv)                              if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election.

 

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

 

(d)                                 Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e)                                  If the Borrower fails to deliver a timely Interest Election Request with respect to one of its Eurodollar Loans prior to the end of the Interest Period applicable thereto, then, unless such Loan is repaid as provided herein, at the end of such Interest Period, such Eurodollar Loan shall be continued as a Eurodollar Loan with the same Interest Period as previously was applicable thereto; provided that if such continuation would result in a violation of Section 2.02(d), then such Eurodollar Loan shall instead be converted to an ABR Loan at the end of the immediately preceding Interest Period. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders (unless such Event of Default is an Event of Default under Section 7.01(h) or (i), in which case no such request shall be required), so notifies the Borrower, then, so long as an Event of Default is continuing, (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

 

(f)                                   Notwithstanding the foregoing, the interest election made by the Borrower as of the date of its last Interest Election Request pursuant to the Existing Credit Agreement, shall remain in effect until the Borrower delivers an Interest Election Request pursuant to the requirements of this Section 2.07.

 

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Section 2.08                             Termination and Reduction of Commitments.  (a) Unless previously terminated, the Revolving Facility Commitments shall terminate on the Stated Maturity Date.

 

(b)                                 The Borrower may at any time terminate, or from time to time reduce, the Revolving Facility Commitments; provided, that (i) each reduction of the Revolving Facility Commitments shall be in an amount that is an integral multiple of U.S.$500,000 and not less than U.S.$2.0 million (or, if less, the remaining amount of the Revolving Facility Commitments), and (ii) the Borrower shall not terminate or reduce the Revolving Facility Commitments if, after giving effect to any concurrent prepayment of the Revolving Facility Loans by the Borrower in accordance with Section 2.11, the Revolving Facility Credit Exposure would exceed the total Revolving Facility Commitments.

 

(c)                                  The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Facility Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided, that a notice of termination of the Revolving Facility Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the Revolving Facility Commitments shall be permanent.

 

(d)                                 Each reduction of the Revolving Facility Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Facility Commitments.

 

Section 2.09                             Promise to Repay Loan; Evidence of Debt.  (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Facility Lender the then unpaid principal amount of each Revolving Facility Loan on the Stated Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Stated Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least seven Business Days after such Swingline Loan is made; provided, that on each date that a Revolving Facility Borrowing (other than a Borrowing that is required to finance the reimbursement of a Revolving L/C Disbursement contemplated by Section 2.05(e)) is made, the Borrower shall repay all Swingline Loans then outstanding.

 

(b)                                 Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(c)                                  The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Facility and the Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or 

 

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to become due and payable to each Lender hereunder, and (iii) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

 

(d)                                 The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence absent manifest error of the existence and amounts of the obligations recorded therein; provided, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans made in accordance with the terms of this Agreement.

 

(e)                                  Any Lender may request that Loans made by it be evidenced by a promissory note substantially in the form of Exhibit G.  In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including, to the extent requested by any assignee, after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

 

Section 2.10                             Repayment of Loans.  (a) All Loans shall be due and payable as set forth in Section 2.09(a).

 

(b)                                 (i) all Net Proceeds pursuant to Section 2.11(c) and repayments of Loans pursuant to Section 2.11(f) shall be (A) first, applied ratably among the Swingline Lenders to prepay any outstanding Swingline Loans and (B) second, if any excess remains after prepaying all Swingline Loans then outstanding, applied ratably among the Revolving Facility Lenders to prepay any Revolving Facility Loans then outstanding; (ii) any optional prepayments of the Revolving Facility Loans pursuant to Section 2.11(a) or mandatory prepayments of the Revolving Facility Loans pursuant to Section 2.11(b) shall be applied ratably among the Revolving Facility Lenders; and (iii) any mandatory payments or prepayments pursuant to Section 2.11(e) shall be applied as set forth in Section 9.23.  For the avoidance of doubt, the phrase “ratably among the Swingline Lenders” shall mean ratably based upon the respective Swingline Exposures of the Swingline Lenders at the time of such prepayment, and the phrase “ratably among the Revolving Facility Lenders” shall mean ratably based upon the respective Revolving Facility Credit Exposures of the Revolving Facility Lenders at the time of such prepayment.

 

(c)                                  Prior to any repayment of any Borrowing, the Borrower shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent by telephone (confirmed by facsimile) of such selection not later than 2:00 p.m., New York City time, (i) in the case of an ABR Borrowing, one Business Day before the scheduled date of such repayment and (ii) in the case of a Eurodollar Borrowing, three Business Days before the scheduled date of such repayment.  Each repayment of a Borrowing shall be applied to the Revolving Facility Loans included in the repaid Borrowing such that each Lender receives its ratable share of such repayment (based upon the respective Revolving Facility Credit Exposures of the Lenders at the time of such repayment).  To the extent that Section 2.04(c) permits the Borrower to repay a 

 

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Swingline Borrowing directly to the Swingline Lender (and the Borrower does make repayment directly to the Swingline Lender), prior to any repayment of a Swingline Borrowing hereunder, the Borrower shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent by telephone (confirmed promptly in writing) of such selection not later than 1:00 p.m., New York City time, on the scheduled date of such repayment, and to the extent that Section 2.04(c) requires the Borrower to make repayments of Swingline Borrowings directly to the Administrative Agent, the procedure and timing set forth in the immediately preceding sentence shall control.

 

(d)                                 All mandatory prepayments and, to the extent that the Borrower fails to make the selection required by Section 2.10(c) above, any payment, repayment, or voluntary prepayment shall be applied: first, ratably among any Revolving Facility Loans that are not Reimbursement Revolving Loans constituting ABR Loans, if any, until repaid in full, second, to any Revolving Facility Loans that are not Reimbursement Revolving Loans constituting Eurodollar Loans having the same Interest Period, beginning with such Eurodollar Loans having the shortest remaining Interest Period, until repaid in full, third, ratably among any Reimbursement Revolving Loans constituting ABR Loans, if any, until repaid in full, and fourth, to any Reimbursement Revolving Loans constituting Eurodollar Loans having the same Interest Period, beginning with such Eurodollar Loans having the shortest remaining Interest Period; provided, that to the extent amounts are being applied in accordance with Section 9.23(d), such amounts shall first be applied ratably among all Swingline Loans then proceeding as set forth above in this Section 2.10(d).

 

Section 2.11                             Prepayment of Loans.  (a) The Borrower shall have the right at any time and from time to time to prepay Revolving Facility Loans in whole or in part, without premium or penalty (but subject to Section 2.16), in an aggregate principal amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in the form of Exhibit B hereto provided in accordance with Section 2.10(c).

 

(b)                                 If on any date, the Administrative Agent notifies the Borrower that the Revolving Facility Credit Exposure exceeds the aggregate Revolving Facility Commitments of the Lenders on such date (for any reason, including a partial reduction of the Revolving Facility Commitments), the Borrower shall, as soon as practicable and in any event within two Business Days following such date, prepay the outstanding principal amount of any Revolving Facility Loans (and, to the extent after giving effect to such prepayment, the Revolving Facility Credit Exposure still exceeds the aggregate Revolving Facility Commitments of the Lenders, deposit cash collateral in an account with the Administrative Agent (or an account in the name of the Administrative Agent with another institution designated by the Administrative Agent) pursuant to Section 2.05(j)) such that the aggregate amount so prepaid by the Borrower and cash collateral so deposited) shall be sufficient to reduce the Revolving Facility Credit Exposure to an amount not to exceed the aggregate Revolving Facility Commitments of the Lenders on such date together with any interest accrued to the date of such prepayment on the aggregate principal amount of Revolving Facility Loans prepaid.  The Administrative Agent shall give prompt notice of any prepayment required under this Section 2.11(b) to the Borrower and the Lenders.

 

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(c)                                  The Borrower shall apply all Net Proceeds received by it or its Restricted Subsidiaries promptly upon (and in any event within three Business Days of) receipt thereof to prepay any outstanding Loan in accordance with paragraphs (b) and (c) of Section 2.10.

 

(d)                                 The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made by the Borrower pursuant to paragraph (c) of this Section 2.11 at least five Business Days prior to the date of such prepayment.  Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment.  The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Lender’s pro rata share of the prepayment.

 

(e)                                  In the event of any termination of all the Revolving Facility Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Facility Loans and all its outstanding Swingline Loans and terminate all its outstanding Letters of Credit and/or cash collateralize such Letters of Credit in accordance with Section 2.05(j).

 

(f)                                   The Borrower shall cause any Loan Party that receives any dividend or distribution paid to a Loan Party in accordance with, and/or any Additional Equity Contribution made in accordance with, clause (i) in the proviso of the definition of “Benefited Subsidiary” to apply the proceeds of such dividend or distribution in an amount equal to the lesser of (i) all of such proceeds received and (ii) the Loans then outstanding, promptly upon (and in any event within three Business Days of) receipt of such proceeds to prepay any outstanding Loan in accordance with paragraphs (b) and (c) of Section 2.10.

 

Section 2.12                             Fees.  (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender (other than any Defaulting Lender), without duplication of any other amounts paid to such Lender, on the last Business Day of March, June, September and December in each year, and on the date on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a commitment fee (a “Commitment Fee”) on the daily amount of the Available Unused Commitment of such Lender during the preceding quarter up until the last day of such quarter (or other period commencing with the Restatement Date (or the last date on which such fee was paid) and ending with the last day of such quarter or the Stated Maturity Date or the date on which the last of the Commitments of such Lender shall be terminated, as applicable) at the rate per annum equal to 0.50%.

 

All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days.  For the purpose of calculating any Lender’s Commitment Fee, the outstanding Swingline Loans during the period for which such Lender’s Commitment Fee is calculated shall be deemed to be zero.  The Commitment Fee due to each Lender shall begin to accrue on the Restatement Date and shall cease to accrue on the date on which the last of the Commitments of such Lender shall be terminated as provided herein.

 

(b)                                 The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Facility Lender (other than any Defaulting Lender), on the last Business Day of March, June, September and December of each year and on the date on which the Revolving

 

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Facility Commitments of all the Lenders shall be terminated as provided herein, a fee (a “Revolving L/C Participation Fee”) on such Lender’s Revolving Facility Percentage of the daily aggregate Revolving L/C Exposure (excluding any portion thereof attributable to unreimbursed Revolving L/C Disbursements), during the preceding quarter (or shorter period commencing with the Restatement Date, or the last date on which such fee was paid and ending with the last day of the quarter in which such date occurs, the Stated Maturity Date or the date on which the Revolving Facility Commitments shall be terminated, as applicable) at the rate per annum equal to the Applicable Margin for Eurodollar Revolving Facility Borrowings effective for each day in such period.

 

(c)                                  The Borrower from time to time agrees to pay to each Issuing Bank, for its own account, (i) on the last Business Day of March, June, September and December of each year and on the date on which the Revolving Facility Commitments of all the Lenders shall terminate as provided herein, a fronting fee in an amount equal to the greater of (A) $500 and (B) 0.125% per annum of the daily average stated amount of such Letter of Credit, in respect of each Letter of Credit issued by such Issuing Bank for the period from and including the date of issuance of such Letter of Credit to and including the termination of such Letter of Credit, plus (ii) in connection with the issuance, amendment or transfer of any such Letter of Credit or any Revolving L/C Disbursement thereunder, such Issuing Bank’s customary documentary and processing charges (collectively, “Issuing Bank Fees”).  All Revolving L/C Participation Fees and Issuing Bank Fees that are payable on a per annum basis shall be computed on the basis of the actual number of days elapsed in a year of 360 days.

 

(d)                                 The Borrower agrees to pay to the Administrative Agent, for the account of the Administrative Agent, an agency fee of $50,000 per annum (the “Agency Fee”) on the Closing Date and each anniversary of the Closing Date thereafter during the Availability Period.

 

(e)                                  All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that Issuing Bank Fees shall be paid directly to the applicable Issuing Bank.  Once paid, none of the Fees shall be refundable under any circumstances.

 

Section 2.13                             Interest.  (a) The Borrower shall pay interest on the unpaid principal amount of each ABR Loan at the Alternate Base Rate plus the Applicable Margin.

 

(b)                                 The Borrower shall pay interest on the unpaid principal amount of each Eurodollar Loan at the Adjusted Eurodollar Rate for the Interest Period in effect for such Eurodollar Loan plus the Applicable Margin.

 

(c)                                  Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, the Borrower shall pay interest on such overdue amount, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.00% plus the rate applicable to ABR Loans in paragraph (a) of this Section; provided, that this paragraph (c) shall

 

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not apply to any Default or Event of Default that has been waived by the Lenders pursuant to Section 9.08.

 

(d)                                 Accrued interest on each Loan shall be payable by the Borrower in arrears on each Interest Payment Date for such Loan, and upon the earlier of the Stated Maturity Date and the termination of the Revolving Facility Commitments; provided, that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

 

(e)                                  All computations of interest shall be made by the Administrative Agent taking into account the actual number of days occurring in the period for which such interest is payable pursuant to this Section, and (i) if based on the Alternate Base Rate (if based on the Prime Rate), a year of 365 days or 366 days, as the case may be; or (ii) otherwise, on the basis of a year of 360 days.

 

Section 2.14                             Alternate Rate of Interest.  If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

 

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

 

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

 

then the Administrative Agent shall give written notice thereof to the Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing on the last day of the Interest Period applicable to such Borrowing, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing or shall be made as a Borrowing bearing interest at such rate as the Required Lenders shall agree adequately reflects the costs to the Revolving Facility Lenders of making the Loans comprising such Borrowing.

 

Section 2.15                             Increased Costs.  (a)  If any Change in Law shall:

 

(i)                                     impose, modify or deem applicable any reserve, compulsory loan, special deposit, FDIC insurance or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted Eurodollar Rate) or Issuing Bank; or

 

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(ii)                                  impose on any Lender or Issuing Bank or the London interbank market any tax, costs, expenses or other condition affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein (including a condition similar to the events described in clause (i) above in the form of a tax, cost or expense) (except in each case (A) for Indemnified Taxes indemnified pursuant to Section 2.17 and Excluded Taxes and (B) for changes in the rate of tax on the overall rate of net income of such Lender);

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) to the Borrower or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) (except in each case (A) for Indemnified Taxes indemnified pursuant to Section 2.17 and Excluded Taxes and (B) for changes in the rate of tax on the overall rate of net income of such Lender), then the Borrower will pay to such Lender or Issuing Bank, as applicable (for the account of such Lender or Issuing Bank, as applicable), such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered in connection therewith.

 

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

 

(c)                                  A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or Issuing Bank, as applicable, the amount shown as due on any such certificate within ten days after receipt thereof.

 

(d)                                 As promptly as possible after any Lender or any Issuing Bank has determined that it will make a request for increased compensation pursuant to this Section 2.15, such Lender or Issuing Bank shall notify the Borrower thereof.  Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided, that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this

 

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Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as applicable, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

Section 2.16                             Break Funding Payments.  In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event.  In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to be the amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Eurodollar Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue a Eurodollar Loan, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate that such Lender would bid were it to bid, at the commencement of such period, for deposits in U.S. Dollars of a comparable amount and period from other banks in the Eurodollar market.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

 

Section 2.17                             Taxes.  (a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without deduction for any Taxes, except to the extent such withholding or deduction is required by applicable law.  If a Loan Party, the Administrative Agent or any other Person acting on behalf of the Administrative Agent in regards to payments hereunder shall be required to deduct Indemnified Taxes or Other Taxes from such payments by applicable law, then (i) the sum payable by the Loan Party shall be increased as necessary so that after making all required deductions for Indemnified Taxes and Other Taxes (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender, or Issuing Bank, as applicable, receives an amount equal to the sum it would have received had no such deductions for Indemnified Taxes and Other Taxes been made, (ii) such Loan Party, Administrative Agent or other Person acting on behalf of the Administrative Agent shall make such deductions and (iii) such Loan Party, Administrative Agent or other Person acting on behalf of the Administrative Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

 

If a payment made to a Lender under this Agreement would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the

 

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applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or Administrative Agent as may be necessary for the Borrower or Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.

 

(b)                                 In addition, each Loan Party shall pay any Other Taxes payable on account of any obligation of such Loan Party and upon the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents, to the relevant Governmental Authority in accordance with applicable law.

 

(c)                                  Each Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (other than Indemnified Taxes or Other Taxes resulting from gross negligence or willful misconduct of the Administrative Agent, such Lender or such Issuing Bank as determined in the final, nonappealable judgment of a court of competent jurisdiction) without duplication of any amounts indemnified under Section 2.17(a)) imposed or assessed on (and whether or not paid directly by) the Administrative Agent or such Lender or Issuing Bank, as applicable, with respect to any payment by or on account of any obligation of such Loan Party under, or otherwise with respect to, any Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any 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; provided, that a certificate as to the amount of such payment, liability, imposition or assessment and setting forth in reasonable detail the basis and calculation for such payment or liability delivered to such Loan Party by a Lender or an Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error of the Lender, an Issuing Bank or the Administrative Agent, as applicable.

 

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

 

(e)                                  Each Lender or Issuing Bank that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall, to the extent it may lawfully do so, deliver to the Borrower and the Administrative Agent two copies of U.S. Internal Revenue Service Form W-8BEN (claiming the benefits of an applicable income tax treaty), W-8EXP, W-8IMY (together with any required attachments) or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a statement substantially in

 

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the form of Exhibit H and a Form W-8BEN, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender (with any other required forms attached) claiming complete exemption from or a reduced rate of U.S. federal withholding tax on all payments by or on behalf of the Borrower under this Agreement and the other Loan Documents.  Each Lender or Issuing Bank that is not a Non-U.S. Lender shall, to the extent it may lawfully do so, deliver to the Borrower and the Administrative Agent two copies of U.S. Internal Revenue Service Form W-9, properly completed and duly executed by such Lender or Issuing Bank, claiming complete exemption (or otherwise establishing an exemption) from U.S. backup withholding on all payments under this Agreement and the other Loan Documents.  Such forms shall be delivered by each Lender or Issuing Bank, to the extent it may lawfully do so, on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation).  In addition, each Lender or Issuing Bank, to the extent it may lawfully do so, shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Lender or Issuing Bank.  Each Lender or Issuing Bank shall promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower or the Administrative Agent (or any other form of certification adopted by the U.S. taxing authorities for such purpose).  Without limiting the foregoing, any Lender or Issuing Bank that is entitled to an exemption from or reduction of withholding Tax otherwise indemnified against by a Loan Party pursuant to this Section 2.17 with respect to payments under any Loan Document shall deliver to the Borrower or the relevant Governmental Authority (with a copy to the Administrative Agent), to the extent such Lender or Issuing Bank is legally entitled to do so, at the time or times prescribed by applicable law such properly completed and executed documentation prescribed by applicable law as may reasonably be requested by the Borrower or the Administrative Agent to permit such payments to be made without such withholding tax or at a reduced rate; provided, that in such Lender’s or Issuing Bank’s judgment such completion, execution or submission would not materially prejudice such Lender or Issuing Bank.

 

(f)                                   The Administrative Agent shall deliver to the Borrower, on or before the Restatement Date, two duly completed copies of Internal Revenue Service Form W-8IMY certifying that it is a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with the Borrower to be treated as a United States person with respect to such payments (and the Borrower and the Administrative Agent agree to so treat the Administrative Agent as a United States person with respect to such payments), with the effect that the Borrower can make payments to the Administrative Agent without deduction or withholding of any Taxes imposed by the United States.

 

(g)                                  If the Administrative Agent, any Lender or any Issuing Bank determines, in good faith and in its sole discretion, that it has received a refund of Indemnified 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 2.17, it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.17 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, Lender or Issuing Bank (including any Taxes imposed with respect to such refund) as is determined by

 

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the Administrative Agent, Lender or Issuing Bank in good faith and in its sole discretion, 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, Lender or Issuing Bank, agrees to repay as soon as reasonably practicable 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, Lender or Issuing Bank in the event such Administrative Agent, Lender or Issuing Bank is required to repay such refund to such Governmental Authority.  This paragraph shall not be construed to require the Administrative Agent, Lender or Issuing Bank to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Loan Parties or any other Person.

 

Section 2.18                             Payments Generally; Pro Rata Treatment; Sharing of Set-offs.  (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of Revolving L/C Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., New York City time, on the date when due, in immediately available funds, without condition or deduction for any defense, recoupment, set-off or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to each Issuing Bank or the applicable Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All payments hereunder of (i) principal or interest in respect of any Loan or (ii) Revolving L/C Reimbursement Obligations shall in each case be made in U.S. Dollars.  All payments of other amounts due hereunder or under any other Loan Document shall be made in U.S. Dollars.  Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.

 

(b)                                 If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed Revolving L/C Disbursements, interest, fees and other amounts then due from the Borrower hereunder, such funds shall be applied first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of each Issuing Bank then due and payable pursuant to any of the Loan Documents, ratably among the Lenders and each Issuing Bank in proportion to the respective amounts of such fees and expenses payable to them; third, to interest and fees then due and payable hereunder, ratably among the Lenders

 

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and each Issuing Bank in proportion to the respective amounts of such interest and fees payable to them; fourth, to the principal balance of the Loans, until the same shall have been paid in full, ratably among the Lenders in proportion to such Lender’s Revolving Facility Percentage; and fifth, after the Loans have been paid in full and to the extent otherwise required under this Agreement, to cash collateralize the Letters of Credit in an amount in cash equal to the Revolving L/C Exposures as of such date plus any accrued and unpaid fees thereon.

 

(c)                                  If any Lender shall, by exercising any right of set-off or counterclaim, through the application of any proceeds of Collateral or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Revolving L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Revolving L/C Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in Loans and participations in Revolving L/C Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Revolving L/C Disbursements; provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Revolving L/C Disbursements to any assignee or participant, other than to the Borrower or any Restricted Subsidiary (as to which the provisions of this paragraph (c) shall apply).  The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

 

(d)                                 Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment by the Borrower is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank 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 applicable Issuing Bank, as applicable, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

(e)                                  If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Administrative Agent

 

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may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

Section 2.19                             Mitigation Obligations; Replacement of Lenders.  (a) If any Lender requests compensation under Section 2.15, or if the Borrower or any Subsidiary Loan Party is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the future and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)                                 If any Lender requests compensation under Section 2.15, or if the Borrower or any Subsidiary Loan Party is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04, all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, that (i) the Borrower shall have received the prior written consent of the Administrative Agent and, solely in the case of an assignment of Revolving Facility Commitments and/or Revolving Facility Loans, each Issuing Bank and each Swingline Lender, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Revolving L/C Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments.  Nothing in this Section 2.19 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender.

 

(c)                                  If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge or termination, which pursuant to the terms of Section 9.08 requires the consent of all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, then provided no Event of Default then exists, the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans and Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent and, solely in the case of an assignment of Revolving Facility Commitments and/or Revolving Facility Loans, each Issuing Bank and each Swingline Lender,

 

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provided, that:  (i) all Obligations of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment, and (ii) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon.  In connection with any such assignment the Borrower, Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 9.04.

 

Section 2.20                             Increase in Revolving Facility Commitments.  (a)  From time to time following the earlier of (i) completion of the syndication of the Revolving Facility (as reasonably determined by the Administrative Agent) and (ii) the date 90 days after the Restatement Date, and in no event on more than five separate occasions, the Borrower may by written notice to the Administrative Agent elect to request an increase to the existing Revolving Facility Commitments (all such increases, collectively, the “Incremental Commitments”), in an aggregate principal amount not to exceed U.S.$50.0 million and, on any one such occasion, not less than U.S.$10.0 million.  Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be made available, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent.  The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to an Incremental Commitment, reasonably acceptable to each Issuing Bank and the Swingline Lender (each, an “Incremental Lender”) to whom the Incremental Commitments have been allocated (in accordance with this Section) and the amounts of such allocations; provided, that (A) the Borrower first shall have given each Lender an opportunity, pursuant to this Section, to increase its Commitments in proportion to such Lender’s Revolving Facility Percentage and (B) to the extent that any existing Lender shall have declined to increase its Commitment ratably in proportion to such existing Lender’s Revolving Facility Percentage, the Borrower may request other Incremental Lenders (that are not Lenders at the time the Borrower makes such request) to provide the remaining portion of the proposed Incremental Commitments; provided,  further, that any Lender may elect or decline, in its sole discretion, to provide an Incremental Commitment and if any Lender does not respond, such Lender shall have been deemed to have declined.  Such Incremental Commitments shall become effective as of such Increased Amount Date; provided, that (1) on such Increased Amount Date, before and after giving effect to such Incremental Commitments (a) no Default or Event of Default shall exist; (b) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; and (c) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries; (2) simultaneously with delivering such written notice to the Administrative Agent regarding such increase to the existing Revolving Facility Commitments, the Borrower shall have delivered a written certificate to the Administrative Agent as to each item specified in clause (1) of this proviso; (3) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, each such Incremental Lender shall be recorded in the register; and each such Incremental Lender shall be

 

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reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (4) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (5) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments; and (6) if the Applicable Margin for any Incremental Revolving Loan exceeds the then-applicable Applicable Margin for the Revolving Facility by more than 50 basis points (the excess of (A) such Applicable Margin for the Incremental Revolving Loan over (B) the Applicable Margin for the Revolving Facility plus 50 ,basis points being the relevant “Margin Differential”), then the Applicable Margin for the Revolving Facility Commitments (other than any Incremental Commitment) shall automatically be increased by the Margin Differential effective upon the date that the relevant Incremental Commitment becomes effective.  Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any Lender.

 

(b)                                 On any Increased Amount Date on which Incremental Commitments are effected, subject to the satisfaction of the terms and conditions in the foregoing clause (a), (i) each of the existing Revolving Facility Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Revolving Facility Lenders, at the principal amount thereof, such interests in the outstanding Revolving Facility Loans and participations in Letters of Credit and Swingline Loans outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Facility Loans and participations in Letters of Credit and Swingline Loans being held by existing Revolving Facility Lenders and Incremental Lenders ratably in accordance with their Revolving Facility Commitments after giving effect to the addition of such Incremental Commitments to the Revolving Facility Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Revolving Facility Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Facility Loan and have the same terms as any existing Revolving Facility Loan and (iii) to the extent that an Incremental Lender was not already a Lender, such Incremental Lender shall become a Lender with respect to the Revolving Facility Commitments and all matters relating thereto.

 

(c)                                  The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the Incremental Lenders.

 

(d)                                 As a condition precedent to the Borrower’s incurrence of additional Indebtedness pursuant to this Section 2.20, (i) the Borrower shall, and shall cause each Subsidiary Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, reaffirmations of the guarantees and the security interests and Liens granted by such Persons under the Collateral Documents in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (ii) with respect to any Mortgaged Property, the Borrower shall, and shall cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, upon the reasonable request of the Administrative Agent or the Collateral Agent (A) mortgage modifications or new Mortgages with respect to any Mortgaged Property in

 

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each case in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (B) all other items reasonably requested by the Collateral Agent that are reasonably necessary to maintain the continuing perfection or priority of the Lien of the Mortgages as security for such Obligations.

 

Section 2.21                             Illegality.  If any Lender reasonably determines that any change in law has made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable lending office to make or maintain any Eurodollar Loans, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligations of such Lender to make or continue Eurodollar Loans or to convert ABR Borrowings to Eurodollar Borrowings, as the case may be, 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), convert all such Eurodollar Borrowings of such Lender to ABR Borrowings on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

 

Section 2.22                             Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

(a)                                 Fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.12(a).

 

(b)                                 If any Swingline Exposure or Revolving L/C Exposure exists at the time a Lender becomes a Defaulting Lender then:

 

(i)                                     all or any part of such Swingline Exposure or Revolving L/C Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Facility Percentages but only to the extent (A) such reallocation does not cause the aggregate Revolving Facility Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Facility Commitment and (B) the conditions set forth in Section 4.01 are satisfied at such time;

 

(ii)                                  if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within five Business Days following notice by the Administrative Agent (A) first, prepay such Swingline Exposure and (B) second, cash collateralize such Defaulting Lender’s Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (A) above) in accordance with the procedures set forth in Section 2.05(j) for so long as such Revolving L/C Exposure is outstanding;

 

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(iii)                               if the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving L/C Exposure pursuant to Section 2.22(b)(ii)(B), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12 with respect to such Defaulting Lender’s Revolving L/C Exposure during the period such Defaulting Lender’s Revolving L/C Exposure is cash collateralized;

 

(iv)                              if the Swingline Exposure or Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to Section 2.22(b)(i), then the fees payable to the Lenders pursuant to Section 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Facility Percentage; and

 

(v)                                 if any Defaulting Lender’s Revolving L/C Exposure is neither cash collateralized nor reallocated pursuant to Section 2.22(b)(i) or (ii), then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Lender hereunder, but subject Section 2.22(e) below, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving L/C Commitment that was utilized by such Revolving L/C Exposure) and all Revolving L/C Participation Fees payable under Section 2.12(b) with respect to such Defaulting Lender’s Revolving L/C Exposure shall be payable to the applicable Issuing Bank until such Revolving L/C exposure is cash collateralized and / or reallocated.

 

(c)                                  So long as any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders or cash collateral has been provided by the Borrower in accordance with Section 2.22(b), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(b)(i) (and Defaulting Lenders shall not participate therein).

 

(d)                                 Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender, (iii) third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, (iv) fourth, if so determined by the Administrative Agent or requested by an Issuing Bank or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (v) fifth, to the payment of any amounts owing to the Lenders, an Issuing Bank or a Swingline Lender as a result of any then final and nonappealable judgment of a court of competent jurisdiction obtained by any Lender, an Issuing Bank or such Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its

 

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obligations under this Agreement, (vi) sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any then final and nonappealable judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, that with respect to this clause (vii), that if such payment is (A) a prepayment of the principal amount of any Loans in respect of which a Defaulting Lender has funded its participation obligations and (B) made at a time when the conditions set forth in Section 2.11 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to Section 2.05(j) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

 

(e)                                  In the event that the Administrative Agent, the Borrower, each Issuing Bank and each Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Facility Percentage.

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES

 

The Borrower represents and warrants to each of the Lenders with respect to itself and each of its Restricted Subsidiaries (except as otherwise noted below), that:

 

Section 3.01                             Organization; Powers.  The Borrower, each Subsidiary Loan Party and each Benefited Subsidiary (a) is duly organized, and validly existing in the jurisdiction of its incorporation, organization or formation, (b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted, (c) is in good standing (to the extent that such concept is applicable in the relevant jurisdiction) and qualified to do business in each jurisdiction (including its jurisdiction of incorporation, organization or formation) where such qualification is required, except where the failure, individually or in the aggregate, to so qualify or to be in good standing could not reasonably be expected to have a Material Adverse Effect and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower, to borrow and otherwise obtain credit hereunder.

 

Section 3.02                             Authorization.  The execution, delivery and performance by the Borrower and each Subsidiary Loan Party of each Loan Document to which it is a party, and the Borrowings hereunder and the Transactions (a) have been duly authorized by all necessary

 

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corporate, stockholder, limited liability company or partnership action required to be obtained by the Borrower and each Subsidiary Loan Party and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of the Borrower or any Restricted Subsidiary, (B) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (C) any provision of any indenture, lease, agreement or other instrument to which the Borrower or any Restricted Subsidiary is a party or by which any of them or any of their respective property is or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, lease, agreement or other instrument, where any such conflict, violation, breach or default referred to in clauses (i)(C) or (ii) of this clause (b), could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (c) will not result in the creation or imposition of any Lien upon or with respect to any Property now owned or hereafter acquired by the Borrower or any Restricted Subsidiary, other than the Liens permitted by Section 6.02.

 

Section 3.03                             Enforceability.  This Agreement has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document when executed and delivered by the Borrower and each Subsidiary Loan Party that is party thereto will constitute, a legal, valid and binding obligation of such Person enforceable against each such Person in accordance with its terms, subject to (a) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other laws affecting creditors’ rights generally, (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (c) implied covenants of good faith and fair dealing.

 

Section 3.04                             Governmental Approvals.  No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions except for (a) the filing of UCC financing statements, (b) filings with the United States Patent and Trademark Office and the United States Copyright Office or, with respect to intellectual property which is the subject of registration or application for registration outside the United States, such applicable patent, trademark or copyright office or other intellectual property authority, (c) recordation of the Mortgages and (d) such consents, authorizations, filings or other actions that have either (i) been made or obtained and are in full force and effect or (ii) are listed on Schedule 3.04, and (iii) such actions, consents, approvals, registrations or filings, the failure to be obtained or made which could not reasonably be expected to have a Material Adverse Effect.  For the avoidance of doubt this Section 3.04 in no way limits Section 3.08(e).

 

Section 3.05                             Financial Statements.  There has heretofore been furnished to the Lenders the following (and the following representations and warranties are made with respect thereto):

 

(a)                                 The audited balance sheets as of December 31, 2011 and the related audited statements of operations and retained earnings, comprehensive income and cash flows of Borrower for the year ended December 31, 2011, were prepared in accordance with GAAP applied not only during such periods but also as compared to the periods covered by the financial statements of Borrower referred to in paragraph (b) of this Section 3.05 (except as may be

 

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indicated in the notes thereto) and fairly present the financial position of Borrower as of the dates thereof and its consolidated results of operations and cash flows for the period then ended.

 

(b)                                 The pro forma consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of March 31, 2012, prepared giving effect to the Transactions as if the Transactions had occurred on such date.  Such pro forma consolidated balance sheet (i) was prepared in good faith based on assumptions that are believed by the Borrower to be reasonable as of the Restatement Date (it being understood that such assumptions are based on good faith estimates with respect to certain items and that the actual amounts of such items on the Restatement Date is subject to variation), (ii) accurately reflects all adjustments necessary to give effect to the Transactions and (iii) presents fairly, in all material respects, the pro forma financial position of the Borrower and its Restricted Subsidiaries as of March 31, 2012, as if the Transactions had occurred on such date.

 

Section 3.06                             No Material Adverse Effect.  Since December 31, 2011, there has been no event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any Material Adverse Effect; provided, that any event, circumstance, condition and/or contingency occurring since December 31, 2011 that was described in that certain Lenders’ Meeting $500,000,000.00 Confidential Slide Presentation dated April 10, 2012, shall not constitute a Material Adverse Effect.

 

Section 3.07                             Title to Properties (Other than Real Property); Possession Under Leases Other than Real Property Leases.  This Section 3.07 pertains to all Property of the Borrower and its Restricted Subsidiaries, other than Real Property (which is specifically addressed below in Section 3.17).

 

(a)                                 The Borrower and the Restricted Subsidiaries have good and valid title to all Property (other than Real Property), subject solely to Prior Liens and Permitted Encumbrances and except where the failure to have such title could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  The Borrower and the Restricted Subsidiaries have maintained, in all material respects and in accordance with normal industry practice, all of the machinery, equipment, vehicles, facilities and other tangible personal property now owned or leased by the Borrower or any Restricted Subsidiary that is necessary to conduct their business as it is now conducted.

 

(b)                                 The Borrower and the Restricted Subsidiaries have complied with all obligations under all leases to which it is a party, except where the failure to comply could not have a Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect.  The Borrower and each Restricted Subsidiary enjoy peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(c)                                  The Borrower and the Restricted Subsidiaries own or possess, or have the right to use or could obtain ownership or possession of or a right to use, on terms not materially adverse to it, all patents, trademarks, service marks, trade names and copyrights (collectively, as

 

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used in this paragraph, the “intellectual property”) reasonably necessary for the present conduct of their business, without any known conflict with the rights of others, and free from any burdensome restrictions, except where such conflicts and restrictions could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  The use of intellectual property by the Borrower or any Restricted Subsidiary does not infringe on the rights of any Person in any material respect.

 

(d)                                 Schedule 3.07(d) sets forth as of the Restatement Date the name and jurisdiction of incorporation, formation or organization of each Subsidiary of the Borrower and, as to each such Subsidiary, the percentage of each class of Equity Interests owned by the Borrower or by any such Subsidiary, indicating the ownership thereof, and identifies each applicable Subsidiary as a “Benefited Subsidiary” or a “Subsidiary Loan Party”.

 

(e)                                  All Equity Interests issued, owned, held or Controlled by the Borrower or any of its Restricted Subsidiaries are fully paid, and there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments of any nature relating to any Equity Interests of the Borrower or any of its Restricted Subsidiaries, except as set forth on Schedule 3.07(e).  The constitutional documents of the issuers of all Equity Interests pledged or that should be pledged pursuant to the Collateral and Guarantee Requirement do not restrict or inhibit any transfer of such Equity Interests (other than restrictions imposed by applicable law and rights of first offer or first refusal or similar restrictions or limitations as may be commonly included in such constitutional documents), including both (i) pursuant to a collateral transfer of such Equity Interest and (ii) a direct transfer of such Equity Interests (for example, pursuant to enforcement of the Collateral Agreement or similar agreement).

 

Section 3.08                             Litigation; Compliance with Laws; Relevant Regulatory Bodies; Lack of Impact on Lenders.  (a) Except as set forth on Schedule 3.08, there are no actions, suits, investigations or proceedings at law or in equity or by or on behalf of any Governmental Authority or in arbitration now pending against, or, to the knowledge of the Borrower, threatened against or affecting, the Borrower or any of its Restricted Subsidiaries or any business, property or rights of any such Person (i) as of the Restatement Date, that involve any Loan Document or the Transactions or (ii) that individually or in the aggregate could reasonably be expected to have a Material Adverse Effect or which could reasonably be expected, individually or in the aggregate, to materially adversely affect the performance of any Loan Document or the Transactions.

 

(b)                                 To the Borrower’s knowledge, there are no outstanding judgments against the Borrower or any Restricted Subsidiary that individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

 

(c)                                  Neither the Borrower nor, to the Borrower’s knowledge, any Restricted Subsidiary or any Affiliate of the foregoing is in violation of any laws relating to terrorism or money laundering, including Executive Order No. 13224 on Terrorist Financing, effective September 23, 2001, and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (signed into law on October 26, 2001) (the “U.S.A. PATRIOT Act”).

 

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(d)                                 Excluding consideration of Environmental Laws, which are separately addressed in Section 3.15, and Employee Benefit Plans, which are separately addressed in Section 3.14, (i) the Borrower and each Restricted Subsidiary have complied with all applicable statutes, laws, rules, regulations, orders, decrees and restrictions of any Governmental Authority (including, without limitation, all regulations of FERC and all Public Utility Commission of Texas regulations, Railroad Commission of Texas regulations, Colorado Public Utilities Commission regulations, Colorado Department of Natural Resources regulations, Colorado Oil and Gas Conservation Commission regulations, zoning, building, ordinance, code or approval or any building permit), except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect and (ii) none of the Borrower’s or any Restricted Subsidiary’s Properties is in violation of (nor will the continued operation of such properties and assets as currently conducted violate) any applicable statutes, laws, rules, regulations, orders, decrees and restrictions of any Governmental Authority (including, without limitation, all regulations of FERC and all Public Utility Commission of Texas regulations, Railroad Commission of Texas regulations, Colorado Public Utilities Commission regulations, Colorado Department of Natural Resources regulations, Colorado Oil and Gas Conservation Commission regulations, zoning, building, ordinance, code or approval or any building permit), except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect.

 

(e)                                  Without in any way limiting Section 3.04, each of the Borrower and each Restricted Subsidiary holds all permits, licenses, registrations, certificates, approvals, consents, clearances and other authorizations from any Governmental Authority required under any currently applicable law, rule or regulation for the operation of its business as presently conducted, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(f)                                   Neither the Borrower nor any Restricted Subsidiary is subject to regulation “as a natural-gas company” under the Natural Gas Act.

 

(g)                                  None of the Lenders, the Agents and the Joint Lead Arrangers, solely by virtue of the execution, delivery and performance of this Agreement or the other Loan Documents, or consummation of the Transactions contemplated hereby and thereby, shall be or become:  (i) a “natural-gas company” or subject to regulation under the Natural Gas Act or (ii) subject to regulation under the laws of any state with respect to public utilities.

 

Section 3.09                             Federal Reserve Regulations.  (a) Neither the Borrower nor any of the Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.

 

(b)                                 No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose, or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.

 

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Section 3.10                             Investment Company Act.  Neither the Borrower nor any Restricted Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

 

Section 3.11                             Use of Proceeds.  The Borrower will use the proceeds of the Loans, and may request the issuance of Letters of Credit, solely for (a) to the extent expressly permitted by Section 6.06, dividends or other distributions by the Borrower, including reimbursement of invested capital, (b) to the extent permitted by this Agreement, Capital Expenditures of the Borrower or any Restricted Subsidiary to construct, expand, acquire and maintain its Properties, (c) to the extent permitted by this Agreement asset acquisitions, and (d) the ongoing working capital requirements and other general corporate purposes of the Borrower or any Restricted Subsidiary, including the issuance of Letters of Credit and the payment of transaction costs and expenses in connection with the Revolving Facility; provided, that, with respect to this clause (d), except as otherwise expressly permitted by Section 6.04(a) of this Agreement, in no case shall an entity that is not a Loan Party or a Restricted Subsidiary receive any portion of the proceeds of one or more Loans or have a Letter of Credit issued on its behalf or for its benefit.

 

Section 3.12                             Tax Returns.  Except as set forth on Schedule 3.12, each of the Borrower and its Restricted Subsidiaries (i) has timely filed or caused to be timely filed all federal, state, local and Tax returns and reports required to have been filed by it and each such Tax return is complete and accurate in all respects and (ii) has timely paid or caused to be timely paid all Taxes due and payable by it and all other Taxes or assessments, except in each case referred to in clauses (i) or (ii) above, (A) if the failure to comply would not cause a Material Adverse Effect or (B) if the Taxes or assessments are being contested in good faith by appropriate proceedings in accordance with Section 5.03 and for which the Borrower or any of its Restricted Subsidiaries (as the case may be) has set aside on its books adequate reserves in accordance with GAAP.  The Borrower knows of no pending investigation of the Borrower or any Restricted Subsidiary by any taxing authority or any pending but unassessed material Tax liability of the Borrower or any Restricted Subsidiary (other than any Taxes incurred in the ordinary course of business).

 

Section 3.13                             No Material Misstatements.  (a) All written information (other than the Projections, estimates and information of a general economic nature) (the “Information”) concerning any one or more of the Borrower, its Restricted Subsidiaries, the Transactions or any other transactions contemplated hereby, included in the Information Memorandum or otherwise, prepared by or on behalf of the Borrower or any of its Affiliates in connection with this Agreement, any other Loan Document or any transaction contemplated hereby, when taken as a whole, was true and correct in all material respects, as of the date such Information was furnished to the Agents, the Joint Lead Arrangers, each Issuing Bank or the Lenders and as of the Restatement Date, and did not contain any untrue statement of a material fact as of any such date or omit to state any material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made; provided, that the parties hereto hereby acknowledge that, notwithstanding anything to the contrary set forth in the Information Memorandum, DFW Management holds certain Equity Interests in DFW, which ownership has been accurately disclosed to the Lenders subsequent to dissemination of the Information Memorandum.

 

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(b)                                 (i) The Projections prepared by or on behalf of the Borrower or any of its representatives and that have been made available to any Agent, Joint Lead Arranger, Issuing Bank or Lender in connection with this Agreement, the Transactions or the other transactions contemplated hereby (A) have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the Restatement Date, and (B) as of the Restatement Date, have not been modified in any material respect by the Borrower.  (ii) Any other projections (including volume projections delivered pursuant to Section 5.04(k)) prepared by or on behalf of the Borrower or any of its representatives and that will be made available to any Agent, Joint Lead Arranger, Issuing Bank or Lender in connection with this Agreement, the Transactions or the other transactions contemplated hereby shall be prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the date thereof, as of the date such projections were furnished to the Agents, Joint Lead Arrangers, Issuing Banks or Lenders.  Without limiting this Section 3.13(b), the parties hereto agree and acknowledge that the assumptions reflected in the Projections and projections described in this Section 3.13(b) may or may not prove to be correct.

 

Section 3.14                             Employee Benefit Plans.  (a) Except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each Plan is in compliance with all applicable provisions of and has been administered in compliance with all applicable provisions of ERISA and the Code (and the regulations and published interpretations thereunder), (ii) the value of the assets of each Plan of the Borrower, and each Subsidiary of the Borrower and the ERISA Affiliates equals or exceeds the present value of all benefit liabilities under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) as of the last annual valuation date applicable thereto, and the value of the assets of all Plans equals or exceeds the present value of all benefit liabilities of all Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) as of the last annual valuation dates applicable thereto and (iii) no ERISA Event has occurred or is reasonably expected to occur.

 

(b)                                 Except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, any foreign pension schemes sponsored or maintained by the Borrower and each of its Subsidiaries or to which Borrower or any of its Subsidiaries may have any liability are maintained in accordance with the requirements of applicable foreign law and the value of the assets of each such foreign pension scheme equals or exceeds the present value of all benefit liabilities under each such foreign pension scheme.

 

Section 3.15                             Environmental Matters.  Except as set forth on Schedule 3.15 or for matters that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (i) no Environmental Claim or penalty has been received or incurred by the Borrower or any of its Restricted Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings pending or, to the knowledge of any of the Borrower or any Restricted Subsidiary, threatened against the Borrower or any of its Restricted Subsidiaries which allege a violation of or liability under any Environmental Laws, in each case relating to the Borrower or any of its Restricted Subsidiaries, (ii) the Borrower and each of its Restricted Subsidiaries have obtained, and maintains in full force and effect, all permits, registrations and licenses to the extent necessary for the conduct of its businesses and operations as currently conducted, including for the construction of all pipelines and facilities, (iii) the Borrower and

 

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each of its Restricted Subsidiaries is and has been in compliance with all applicable Environmental Laws, including the terms and conditions of permits, registrations and licenses required under applicable Environmental Laws, (iv) neither the Borrower nor any of its Restricted Subsidiaries is conducting, funding or responsible for any investigation, remediation, remedial action or cleanup of any Release or threatened Release of Hazardous Materials, (v) there has been no Release or threatened Release of Hazardous Materials at any property currently or, to the knowledge of any of the Borrower or any of its Restricted Subsidiaries, formerly owned, operated or leased by the Borrower or any of its Restricted Subsidiaries that would reasonably be expected to give rise to any liability of the Borrower or any of its Restricted Subsidiaries under any Environmental Laws or Environmental Claim against the Borrower or any of its Restricted Subsidiaries, and no Hazardous Material has been generated, owned or controlled by the Borrower or any of its Restricted Subsidiaries and transported for disposal to or Released at any location in a manner that would reasonably be expected to give rise to any liability of the Borrower or any of its Restricted Subsidiaries under any Environmental Laws or Environmental Claim against the Borrower or any of its Subsidiaries, (vi) neither the Borrower nor any of its Restricted Subsidiaries has entered into any agreement or contract to assume, guarantee or indemnify a third party for any Environmental Claims, and (vii) there are not currently and there have not been any underground storage tanks owned or operated by the Borrower or any of its Restricted Subsidiaries or, to the knowledge of any of the Borrower and each Restricted Subsidiary, present or located on the Borrower’s or any such Restricted Subsidiaries’ Real Property.  The Borrower and each of its Restricted Subsidiaries have made available to the Administrative Agent prior to the date hereof all environmental audits, assessment reports and other material environmental documents in its possession or control with respect to the operations of, or any Real Property owned, operated or leased by, the Borrower and its Restricted Subsidiaries, other than such audits, assessment reports and other environmental documents not containing information that would reasonably be expected to result in any material Environmental Claims or liability to the Borrower and its Restricted Subsidiaries, taken as a whole.  Representations and warranties of the Borrower or any of its Restricted Subsidiaries with respect to environmental matters are limited to those in this Section 3.15 unless expressly stated.

 

Section 3.16                             Mortgages.  The Mortgages executed and delivered on or after the Restatement Date pursuant to clauses (h), (i) and (j) of the Collateral and Guarantee Requirement and Section 5.10 or otherwise shall be effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) a legal, valid and enforceable security interest on all of the Loan Parties’ right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are filed or recorded in the proper real estate filing or recording offices, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Mortgaged Property and, to the extent applicable, subject to Section 9-315 of the UCC, the proceeds thereof, in each case prior and superior in right to any other Person, other than with respect to Permitted Real Property Liens.

 

Section 3.17                             Real Property.  (a)  Schedule 3.17(a) lists completely and correctly as of the Restatement Date all Gathering Station Real Property owned or leased by the Borrower or any Subsidiary Loan Party and the address or location thereof, including the state in which such property is located.

 

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(b)                                 Except as set forth on Schedule 3.17(b), the Gathering System (including all Mortgaged Property) owned, held or leased by DFW or any Loan Party owned by DFW and the Mortgaged Property owned, held or leased by GRG or any Loan Party owned by GRG are, in each case, free and clear of Liens other than Permitted Real Property Liens.

 

(c)                                  The Pipeline Systems are covered by fee deeds, rights of way, easements, leases, servitudes, permits, licenses, or other instruments (collectively, “rights of way”) in favor of the applicable Loan Parties or applicable Restricted Subsidiaries, recorded or filed, as applicable and if and to the extent required in accordance with applicable law to be so recorded or filed, in the official real property records of the county where the real property covered thereby is located or with the office of the applicable Railroad Commission or the applicable Department of Transportation or other Governmental Authority, except where the failure of the Pipeline Systems to be so covered, or any such documentation to be so recorded or filed, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Subject to Permitted Real Property Liens and except to the extent the failure would not reasonably be expected to have a Material Adverse Effect, the rights of way granted to the Borrower, any other Loan Party or any Restricted Subsidiary that cover any Pipeline Systems establish a continuous right of way for such Pipeline Systems such that the applicable Loan Parties or applicable Restricted Subsidiaries are able to construct, operate, and maintain the Pipeline Systems in, over, under, or across the land covered thereby in the same way that a prudent owner and operator would construct, operate, and maintain similar assets.

 

(d)                                 Subject to Permitted Real Property Liens and except as set forth in Schedule 3.17(d), the Gathering Stations are covered by fee deeds, real property leases, or other instruments (collectively “deeds”) in favor of the Loan Parties, except to the extent of Gathering Stations on Gathering Station Real Property that is not Material Gathering Station Real Property.  Subject to Permitted Real Property Liens and except to the extent the failure would not reasonably be expected to have a Material Adverse Effect, the deeds do not contain any restrictions that would prevent the Loan Parties from constructing, operating and maintaining the Gathering Stations in, over, under, and across the land covered thereby in the same way that a prudent owner and operator would construct, operate, and maintain similar assets.

 

(e)                                  There is no (i) breach or event of default on the part of the Borrower, any other Loan Party or any Restricted Subsidiary with respect to any right of way or deed granted to the Borrower, any other Loan Party or any Restricted Subsidiary that covers any portion of the Gathering System, (ii) to the knowledge of any of the Loan Parties, breach or event of default on the part of any other party to any right of way or deed granted to the Borrower, any other Loan Party or any Restricted Subsidiary that covers any portion of the Gathering System, and (iii) event that, with the giving of notice or lapse of time or both, would constitute such breach or event of default on the part of the Borrower, any other Loan Party or any Restricted Subsidiary with respect to any right of way or deed granted to the Borrower, any other Loan Party or any Restricted Subsidiary that covers any portion of the Gathering System or, to the knowledge of any of the Loan Parties, on the part of any other party thereto, in the case of clauses (i), (ii) and (iii) above, to the extent any such breach, default or event, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. The rights of way and deeds granted to the Borrower, any other Loan Party or any Restricted Subsidiary that cover any portion of the Gathering System (to the extent applicable) are in full force and effect in all

 

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material respects and are valid and enforceable against the applicable Loan Party or Restricted Subsidiary party thereto in accordance with the terms of such right of way and deeds (subject to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer, fraudulent conveyance or similar laws effecting creditors’ rights generally and subject, as to enforceability to the effect of general principles of equity) and all rental and other payments due thereunder by the applicable Loan Parties have been duly paid in accordance with the terms of the deeds and rights of way except, in each case, to the extent that a failure, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

 

(f)                                   The Pipeline Systems are located within the confines of the rights of way granted to the Borrower, any other Loan Party or any Restricted Subsidiary and do not encroach upon any adjoining property, except to the extent the failure to be so located or any such encroachment would not reasonably be expected to have a Material Adverse Effect. The Gathering Stations are located within the boundaries of the property affected by the deeds, leases or other instruments to the Borrower, the other Loan Parties or any Restricted Subsidiaries and do not encroach upon any adjoining property, except to the extent the failure to be so located or any such encroachment would not reasonably be expected to have a Material Adverse Effect. The buildings and improvements owned or leased by the Borrower, the other Loan Parties or any Restricted Subsidiary, and the operation and maintenance thereof, do not (i) contravene any applicable zoning or building law or ordinance or other administrative regulation or (ii) violate any applicable restrictive covenant or any Governmental Rule, except to the extent the contravention or violation of which would not reasonably be expected to have a Material Adverse Effect.

 

(g)                                  The material Properties used or to be used in the Borrower’s and its Restricted Subsidiaries’ Midstream Activities are in good repair, working order, and condition, normal wear and tear excepted, except to the extent the failure would not reasonably be expected to have a Material Adverse Effect. Neither the Properties of the Borrower nor any Restricted Subsidiary has been affected, since December 31, 2011, in any adverse manner as a result of any fire, explosion, earthquake, flood, drought, windstorm, accident, strike or other labor disturbance, embargo, requisition or taking of Real Property or cancellation of contracts, permits or concessions by a Governmental Authority, riot, activities of armed forces or acts of God or of any public enemy that would reasonably be expected to have a Material Adverse Effect; provided, that any event, circumstance, condition and/or contingency occurring since December 31, 2011 that was described in that certain Lenders’ Meeting $500,000,000.00 Confidential Slide Presentation dated April 10, 2012, shall not constitute a Material Adverse Effect.

 

(h)                                 No eminent domain proceeding or taking has been commenced or, to the knowledge of the Borrower or its Restricted Subsidiaries, is contemplated with respect to all or any material portion of the Mortgaged Property or material portion of the Gathering System, except for that which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

 

(i)                                     Other than Mortgaged Property with respect to which the requirements of clause (h)(3) of the definition of Collateral and Guarantee requirement have been satisfied, none of the Gathering Stations are located in a special flood hazard area as designated by any Governmental Authority.

 

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(j)                                    Neither the Borrower nor any Restricted Subsidiary is obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein, except as permitted under Section 6.02 or 6.05.

 

(k)                                 Neither GRG nor any Loan Party owned by GRG owns, or has rights to, any building or mobile home located on any portion of the GRG Pipeline System Real Property that constitutes Mortgaged Property.

 

Section 3.18                             Solvency.  (a) Immediately after giving effect to the Transactions (i) the fair value of the assets (for the avoidance of doubt, calculated to include goodwill and other intangibles) of the Borrower and its Restricted Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower and its Restricted Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of the Borrower and its Restricted Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Borrower and its Restricted Subsidiaries on a consolidated basis, on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Borrower and its Restricted Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Borrower and its Restricted Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Restatement Date.

 

(b)                                 The Borrower does not intend to, and does not believe that it or any of its Restricted Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Restricted Subsidiaries and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Restricted Subsidiaries.

 

Section 3.19                             Labor Matters.  There are no strikes pending or threatened against the Borrower or any of its Restricted Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.  The hours worked and payments made to employees of the Borrower and its Restricted Subsidiaries have not been in violation in any material respect of the Fair Labor Standards Act or any other applicable law dealing with such matters.  All material payments due from the Borrower or any of its Restricted Subsidiaries or for which any claim may be made against the Borrower or any of its Restricted Subsidiaries, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Borrower or such Restricted Subsidiary to the extent required by GAAP.  Consummation of the Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Borrower or any of its Restricted Subsidiaries (or any predecessor) is a party or by which the Borrower or any of its Restricted Subsidiaries (or any predecessor) is bound, other than collective bargaining agreements that, individually or in the aggregate, are not material to the Borrower and its Restricted Subsidiaries, taken as a whole.

 

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Section 3.20                             Insurance.  Schedule 3.20 sets forth a true, complete and correct description of all material insurance maintained by or on behalf of the Borrower and its Restricted Subsidiaries as of the Restatement Date.  As of such date, such insurance is in full force and effect.  The Borrower believes that the insurance maintained by or on behalf of it and its Restricted Subsidiaries is adequate.

 

Section 3.21                             Status as Senior Debt; Perfection of Security Interests.  The Obligations shall rank pari passu with or higher than any other senior Indebtedness or securities of the Borrower and shall constitute senior indebtedness of the Borrower and each Subsidiary Loan Party under and as defined in any documentation documenting any junior indebtedness of the Borrower and each Subsidiary Loan Party.  Each Collateral Document delivered pursuant to Section 4.02 and 5.10 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof.  In the case of the Pledged Collateral described in the Collateral Agreement, when stock certificates representing such Pledged Collateral are delivered to the Collateral Agent, and in the case of the other Collateral described in the Collateral Agreement, when financing statements and other filings specified therein in appropriate form are filed in the offices specified therein, the Lien created by the Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Borrower and each Subsidiary Loan Party in such Collateral and the proceeds thereof to the extent perfection can be obtained by filing financing statements, making such other filings specified therein or by possession, as security for the Obligations of the Borrower and each Subsidiary Loan Party.  In each case of the security interests in favor of the Collateral Agent, for the benefit of the Secured Parties, described in the preceding sentences, such security interests are prior and superior in right to any other Person, subject, in the case of Pledged Collateral, to Liens permitted by Section 6.02(d), (e), (o), (r) and (v); in the case of Mortgaged Property, to Permitted Real Property Liens; and in the case of any other Collateral (except Pledged Collateral and Mortgaged Property), to Prior Liens.

 

Section 3.22                             Material Contracts.  Other than as set forth on Schedule 3.22, as of the Restatement Date there are no Material Contracts.  Each Material Contract, including each Gathering Agreement, is in full force and effect, except for such matters in respect of such Material Contract that individually, or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.  Each of the Borrower, each Subsidiary Loan Party and each Benefited Subsidiary has performed, in all material respects, all its or their obligations under all Material Contracts (including all Gathering Agreements), and to the knowledge of the Borrower, no other party to such Material Contracts (including Gathering Agreements) is in default thereunder, except in each case to the extent such non-performance or default would not reasonably be expected to have a Material Adverse Effect.  None of the Borrower, any Subsidiary Loan Party or any Benefited Subsidiary has (a) assigned to any Person (other than the Administrative Agent) any of its rights under any Material Contract or (b) waived any of its rights of material value under any Material Contract, except in each case to the extent such assignment or waiver would not reasonably be expected to have a Material Adverse Effect.

 

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ARTICLE IV

CONDITIONS TO CREDIT EVENTS

 

The obligations of (a) each Lender to make Loans or (b) any Issuing Bank to issue, amend, extend or renew any Letter of Credit hereunder (each of (a) and (b), a “Credit Event”) are subject to the satisfaction of the following conditions (or waiver thereof in accordance with Section 9.08):

 

Section 4.01                             All Credit Events.  On the date of each Credit Event:

 

(a)                                 The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03) or, in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit as required by Section 2.05(b).

 

(b)                                 The representations and warranties set forth in Article III hereof shall be true and correct in all material respects on and as of the date of such Credit Event (other than an amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such Letter of Credit) with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).

 

(c)                                  At the time of and after giving effect to such Credit Event (other than an amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such Letter of Credit), no Event of Default or Default shall have occurred and be continuing.

 

Each Credit Event (other than an amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such Letter of Credit) shall be deemed to constitute a representation and warranty by the Borrower on the date of such Credit Event as to the matters specified in paragraphs (b) and (c) of this Section 4.01.

 

Section 4.02                             Restatement Date.  In addition to the satisfaction or waiver of each requirement set forth in Section 4.01, on the Restatement Date:

 

(a)                                 The Administrative Agent (or its counsel) shall have received from each party to each of the following Loan Documents either (x) an original counterpart of such Loan Document signed on behalf of such party or (y) evidence satisfactory to the Administrative Agent (which may include a facsimile copy or PDF copy of each signed signature page) that such party has signed a counterpart of each of the following:

 

(i)                                     the Amendment and Restatement Agreement,

 

(ii)                                  this Agreement,

 

(iii)                               each Collateral Document, and

 

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(iv)                              each promissory note requested pursuant to Section 2.09(e), if any.

 

(b)                                 The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Restatement Date, favorable written opinions of (i) Latham & Watkins LLP, counsel for the Loan Parties and (ii) Ducker, Montgomery, Lewis & Bess, P.C., special Colorado counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent (A) dated the Restatement Date, (B) addressed to each Issuing Bank, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.

 

(c)                                  The Administrative Agent shall have received in the case of the Borrower, each Subsidiary Loan Party, the Sponsor and DFW Management each of the following:

 

(i)                                     a copy (which shall be delivered as attachments to the certificates required in the following clause (ii)) of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Person, (A) in the case of any such Person that is an entity registered with the state of its formation (which shall include, without limitation, each such Person that is a corporation), certified as of a recent date by the Secretary of State (or other similar official) and a certificate as to the good standing (which, in the case of each such Person that is a Texas entity, shall include both a certificate of account status and a certificate of existence) of each such Person as of a recent date from such Secretary of State (or other similar official) or (B) in the case of each such Person that is not a registered business organization, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, as applicable, of such Person; and

 

(ii)                                  a certificate of the Secretary, Assistant Secretary or any Responsible Officer of the Borrower and each Subsidiary Loan Party, in each case dated the Restatement Date and certifying:

 

(A)                               that attached thereto is a true, correct and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Person, together with any and all amendments thereto, as in effect on the Restatement Date and at the time the resolutions described in clause (B) below were adopted,

 

(B)                               that attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Person (or its managing general partner or managing member); that such resolutions authorize (i) the execution, delivery and performance of the Loan Documents to which such Person is a party and (ii) in the case of the Borrower,

 

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the Borrowings hereunder; that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Restatement Date,

 

(C)                               that attached thereto is a true, correct and complete copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Person, certified as required in clause (i) above, and that such governing document or documents have not been amended since the date of the last amendment attached thereto,

 

(D)                               as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Person, and

 

(E)                                as to the absence of any pending proceeding for the dissolution or liquidation of such Person or, to the knowledge of such Person, threatening the existence of such Person.

 

(d)                                 The Collateral and Guarantee Requirement with respect to items to be completed as of the Restatement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate from each Person required to deliver one or more Collateral Documents pursuant to the Collateral and Guarantee Requirement, dated the Restatement Date and signed by a Responsible Officer of the Borrower and each Subsidiary Loan Party, as applicable, together with all attachments contemplated thereby, including the results of a search of the UCC (or equivalent under other similar law) filings made with respect to such Persons in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released.

 

(e)                                  The Administrative Agent shall have received evidence or assurances satisfactory to it that, after giving effect to the application of the proceeds of the initial Borrowing hereunder, the Borrower will have at least U.S.$30.0 million in Liquidity (comprised of cash or undrawn availability under the Revolving Facility that would be permitted to be drawn in compliance with the Financial Performance Covenants).

 

(f)                                   After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Excluded Indebtedness

 

(g)                                  The Administrative Agent shall have received a certificate demonstrating that (i) the Leverage Ratio on the Restatement Date shall not be in excess of 4.00 to 1.00 after giving effect to the Transactions and (ii) the Borrower and its Restricted Subsidiaries are otherwise in compliance with the Financial Performance Covenants after giving effect to the Transactions.

 

(h)                                 There has not been any Material Adverse Effect since December 31, 2011; provided, that any event, circumstance, condition and/or contingency occurring since December

 

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31, 2011 that was described in that certain Lenders’ Meeting $500,000,000.00 Confidential Slide Presentation dated April 10, 2012, shall not constitute a Material Adverse Effect.

 

(i)                                     The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Restatement Date (including amounts payable pursuant to the Engagement Letter) and, to the extent invoiced, all other amounts due and payable pursuant to the Existing Credit Agreement and Loan Documents on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Existing Credit Agreement, hereunder or under any Loan Document.

 

(j)                                    The Administrative Agent shall have received insurance certificates, endorsements or other appropriate evidence supplied by one or more insurance brokers or insurance companies demonstrating compliance with all insurance requirements set forth in Section 5.02.

 

(k)                                 The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (f) and (h) of this Section 4.02 and in clauses (b) and (c) of Section 4.01

 

(l)                                     The Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. PATRIOT Act, that has been reasonably requested by the Administrative Agent at least five Business Days in advance of the Restatement Date.

 

(m)                             The Administrative Agent and the Lenders shall have received true and correct copies of a balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower for the twelve-month period ending December 31, 2011, prepared as described in Section 5.04(a) and (ii) a balance sheet and related statements of operations and cash flows showing the financial position of GRG as of fiscal quarter ending March 31, 2012 and the results of GRG’s operations during such fiscal quarter, prepared as described in Section 5.04(b), including a year-to-date operating report of GRG showing results of operations on a monthly basis since November 1, 2011.

 

(n)                                 The Administrative Agent shall have received (i) a consolidated balance sheet, prepared on a Pro Forma Basis, of the Borrower as of the Restatement Date acceptable to the Administrative Agent and an income statement showing the financial position of the Borrower for the twelve-month period ended on March 31, 2012, and (ii) an updated financial model provided by the Sponsor, which shall not be materially inconsistent with the prior financial model delivered by the Sponsor to the Administrative Agent in connection with the amendment and restatement (except to the extent of any adjustments as may have been agreed between the Borrower and the Administrative Agent).

 

(o)                                 The Administrative Agent shall be satisfied that, after giving effect to the initial Borrowings to be made on the Restatement Date, the matters certified to in each certificate

 

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are true. All legal matters in connection with this Agreement, the other Loan Documents and the consummation of the Transactions shall be approved by the Administrative Agent and its legal counsel.

 

(p)                                 The Administrative Agent and each Lender shall have received an updated resource analysis report of W.D. Von Gonten & Co., in form and substance satisfactory to the Administrative Agent.

 

(q)                                 The Administrative Agent shall have received evidence of the contribution by the Sponsor of 100% of its membership interests in GRG to the Borrower.

 

ARTICLE V

AFFIRMATIVE COVENANTS

 

The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, the Borrower will, and will cause each of its Restricted Subsidiaries (and, to the extent expressly set forth below, other applicable Subsidiaries) to:

 

Section 5.01                             Existence, Maintenance of Licenses, Property.  (a) Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence or form, except (i) as otherwise expressly permitted under Section 6.05, (ii) for the liquidation or dissolution of any Restricted Subsidiary if the assets of such Restricted Subsidiary exceed estimated liabilities and are acquired by the Borrower or a Wholly Owned Subsidiary of the Borrower in such liquidation or dissolution; provided, that Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not Loan Parties and (iii) to the extent required or permitted to consummate any MLP Conversion in accordance with the requirements set forth in Annex A.

 

(b)                                 Do or cause to be done all things necessary to (i) in the Borrower’s reasonable business judgment obtain, preserve, renew, extend and keep in full force and effect the permits, franchises, authorizations, patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect thereto necessary to the normal conduct of its business and (ii) at all times maintain and preserve all property necessary to the normal conduct of its business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith, if any, may be properly conducted at all times (in each case except as expressly permitted by this Agreement); in each case in this paragraph (b) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.02                             Insurance.  (a) Keep its insurable properties insured at all times by financially sound and reputable insurers in such amounts as shall be customary for similar businesses and maintain such other reasonable insurance, of such types, to such extent and

 

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against such risks, as is customary with companies in the same or similar businesses and maintain such other insurance as may be required by law or any other Loan Document.

 

(b)                                 Cause all such property and casualty insurance policies with respect to the Mortgaged Properties and personal property located in the United States to be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable endorsement, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, which endorsement shall name the Collateral Agent as loss payee (on behalf of itself, the Administrative Agent, each Issuing Bank and the Lenders) and provide that, from and after the Restatement Date, if the insurance carrier shall have received written notice from either the Administrative Agent or the Collateral Agent of the occurrence of an Event of Default, the insurance carrier shall pay all proceeds otherwise payable to the Borrower or Restricted Subsidiaries under such policies directly to the Collateral Agent; cause all such policies to contain a “Replacement Cost Endorsement,” without any deduction for depreciation, and such other provisions as the Administrative Agent or the Collateral Agent may reasonably (in light of a Default or a material development in respect of the insured property) require from time to time to protect their interests; deliver original or certified copies of all such policies or a certificate of an insurance broker to the Collateral Agent; cause each such policy to provide that it shall not be canceled or not renewed upon less than thirty days’ prior written notice thereof by the insurer to the Administrative Agent and the Collateral Agent (or ten days’ written notice in the event of nonpayment of premiums); and deliver to the Administrative Agent and the Collateral Agent, prior to the cancellation or nonrenewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Administrative Agent and the Collateral Agent), or insurance certificate with respect thereto, together with evidence satisfactory to the Administrative Agent and the Collateral Agent of payment of the premium therefor.

 

(c)                                  To the extent any Gathering Station is subject to the provisions of the Flood Insurance Laws (as defined below), (i) (A) concurrently with the delivery of any Mortgage in favor of the Collateral Agent in connection therewith, and (B) at any other time if necessary for compliance with applicable Flood Insurance Laws, provide the Collateral Agent with a standard flood hazard determination form for such Gathering Station and (ii) if any such Gathering Station is located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), obtain flood insurance in such reasonable total amount as the Administrative Agent or the Collateral Agent may from time to time reasonably require, and otherwise to ensure compliance with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time (the “Flood Insurance Laws”).  In addition, to the extent the Borrower and the Loan Parties fail to obtain or maintain satisfactory flood insurance required pursuant to the preceding sentence with respect to any Gathering Station, the Collateral Agent shall be permitted, in its sole discretion, to obtain forced placed insurance at the Borrower’s expense to ensure compliance with any applicable Flood Insurance Laws.

 

(d)                                 With respect to each Mortgaged Property and any personal property located in the United States, carry and maintain comprehensive general liability insurance including the “broad form CGL endorsement” (or equivalent coverage) and coverage on an occurrence basis against claims made for personal injury (including bodily injury, death and

 

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property damage) and umbrella liability insurance against any and all claims, in each case in amounts and against such risks as are customarily maintained by companies engaged in the same or similar industry operating in the same or similar locations naming the Collateral Agent as an additional insured, on forms reasonably satisfactory to the Collateral Agent.

 

(e)                                  Notify the Administrative Agent and the Collateral Agent promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 5.02 is taken out by the Borrower or its Restricted Subsidiaries; and promptly deliver to the Administrative Agent and the Collateral Agent a duplicate original copy of such policy or policies, or an insurance certificate with respect thereto.

 

(f)                                   In connection with the covenants set forth in this Section 5.02, it is understood and agreed that:

 

(i)                                     none of the Agents, the Lenders, the Issuing Banks or their respective agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section 5.02, it being understood that (A) the Borrower and its Restricted Subsidiaries shall look solely to their insurance companies or any parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Agents, the Lenders, any Issuing Bank or their agents or employees.  If, however, the insurance policies do not provide waiver of subrogation rights against such parties, as required above, then the Borrower hereby agrees, to the extent permitted by law, to waive, and to cause each of its Restricted Subsidiaries to waive, its right of recovery, if any, against the Agents, the Lenders, any Issuing Bank and their agents and employees; and

 

(ii)                                  the designation of any form, type or amount of insurance coverage by the Administrative Agent, the Collateral Agent or the Lenders under this Section 5.02 shall in no event be deemed a representation, warranty or advice by the Administrative Agent, the Collateral Agent or the Lenders that such insurance is adequate for the purposes of the business of the Borrower or any of its Restricted Subsidiaries or the protection of their properties.

 

Section 5.03                             Taxes and Contractual Obligations.  (a) Pay and discharge promptly when due all material Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part thereof; provided, that such payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim to the extent that (i) the validity or amount thereof shall be contested in good faith by appropriate proceedings, and the Borrower or the affected Restricted Subsidiary of the Borrower, as applicable, shall have set aside on its books adequate reserves in accordance with GAAP with respect thereto or (ii) the aggregate amount of such Taxes, assessments, charges, levies or claims do not exceed U.S.$2.5 million.

 

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(b)                                 With respect to payment obligations in any contract or agreement, pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature that by law have become or might become a Lien (other than with respect to Liens permitted pursuant to Section 6.02) imposed upon it or upon its Properties, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and adequate reserves in conformity with GAAP with respect thereto have been provided on the books of the Borrower or the affected Restricted Subsidiary of the Borrower or if the failure to pay, discharge or otherwise satisfy such obligation would not reasonably be expected to have a Material Adverse Effect.

 

(c)                                  (i) Perform and observe in all material respects all of the covenants and agreements (other than covenants or agreements to pay covered in Section 5.03(b)) contained in each Material Contract to which any of the Borrower, a Subsidiary Loan Party or a Benefited Subsidiary is a party that are provided to be performed and observed on the part of DFW, GRG, the Borrower, any Subsidiary Loan Party or any Benefited Subsidiary (taking into account any grace period); and (ii) diligently and in good faith enforce, using appropriate procedures and proceedings, all of such Person’s material rights and remedies under (including taking all diligent actions required to collect amounts owed to such Person by any other parties thereunder) each Material Contract, except, in each case, where the failure to comply with any of the foregoing could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.04                             Financial Statements, Reports, Copies of Contracts, Etc.  Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):

 

(a)                                 within 120 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP;

 

(b)                                 within 60 days after the end of each of the first three fiscal quarters of each fiscal year, an unaudited consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all certified by a Financial Officer, on behalf of the Borrower, to the best of the Borrower’s knowledge, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);

 

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(c)                                  (i) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of a Responsible Officer of the Borrower (A) certifying (in the case of (b) above, to the best of the Borrower’s knowledge) that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent, and (ii) concurrently with any delivery of financial statements under (a) above, a certificate of its independent accounting firm stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default under the Financial Performance Covenants (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);

 

(d)                                 promptly after the same have been filed, notice that all periodic and other available reports, proxy statements and other materials have been filed by the Borrower or any of its Restricted Subsidiaries with the SEC, or distributed to its stockholders generally, if and as applicable;

 

(e)                                  (i) upon the consummation of any Permitted Business Acquisition, the acquisition of any Restricted Subsidiaries or any Person becoming a Restricted Subsidiaries in each case if the aggregate consideration for such transaction exceeds U.S.$10.0 million, or the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received regarding such entity, pursuant to Section 4.02(e), this paragraph (e) or Section 5.10(f) and (ii) on or before the first day of any Acquisition Period, a certificate of a Responsible Officer certifying compliance with the requirements of the definition of “Permitted Business Acquisition”, setting forth calculations demonstrating compliance with the Financial Performance Covenants and stating the consideration paid in connection with such acquisition;

 

(f)                                   concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c);

 

(g)                                  promptly, a copy of all reports submitted to the board of directors (or any committee thereof) of the Borrower or any of its Restricted Subsidiaries in connection with any material interim or special audit made by independent accountants of the books of the Borrower or any of its Restricted Subsidiaries;

 

(h)                                 promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Restricted Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);

 

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(i)                                     promptly upon request by the Administrative Agent, copies of: (i) each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or a Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request;

 

(j)                                    concurrently with any delivery of financial statements under (a) or (b) above, a report of gas gathering throughput with respect to the Gathering System;

 

(k)                                 no later than 60 days following the first day of each fiscal year of the Borrower, a copy of the annual budget for such fiscal year, in form and substance reasonably satisfactory to the Administrative Agent;

 

(l)                                     promptly, and in any event within five Business Days of the Borrower obtaining knowledge of (i) any loss, destruction, casualty or other insured damage to or (ii) any taking under power of eminent domain or by condemnation or similar proceeding of any Property of the Borrower or any of its Restricted Subsidiaries, that individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, the Borrower shall notify the Agents, providing reasonable details of such occurrence;

 

(m)                             promptly, and in any event within thirty days of the Borrower, any Subsidiary Loan Party or a Benefited Subsidiary executing any Material Contract (other than a Material Contract existing on the Restatement Date) and any material amendment, supplement or other modification to any other Material Contract, copies of such new Material Contract, amendment, supplement or other modification (it being understood that this clause (m) in no way expands or otherwise modifies the limitation set forth in Section 6.09 with respect to amendments and other modifications to Gathering Agreements or other Material Contracts); and

 

(n)                                 concurrently with the delivery of the financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying that as of December 31 of the preceding calendar year not less than 70% of the length of the GRG Pipeline Systems Real Property (calculated based upon the length of the Pipeline System owned by GRG) is subject to the Lien of the Mortgage;

 

Section 5.05                             Litigation and Other Notices.  Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders) written notice of the following promptly after any Responsible Officer of the Borrower or any Restricted Subsidiary obtains actual knowledge thereof :

 

(a)                                 any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;

 

(b)                                 the filing or commencement of, or any written threat or written notice of intention of any Person to file or commence, or any material development in any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against the Borrower or any of its Restricted Subsidiary, with respect to which there

 

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is a reasonable probability of adverse determination and which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;

 

(c)                                  any other development specific to the Borrower or any of its Restricted Subsidiary that is not a matter of general public knowledge and that has had, or could reasonably be expected to have, a Material Adverse Effect; and

 

(d)                                 the occurrence of any ERISA Event that, together with all other ERISA Events that have occurred, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.06                             Compliance with Laws.  Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property, whether now in effect or hereafter enacted, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; provided, that this Section 5.06 shall not apply to Environmental Laws, which are the subject of Section 5.09, or to laws related to Taxes, which are the subject of Section 5.03.

 

Section 5.07                             Maintaining Records; Access to Properties and Inspections; Maintaining Gathering System.  (a) Maintain all financial records in accordance with GAAP and permit the Administrative Agent (or any Persons designated thereby) or, upon the occurrence and during the continuation of an Event of Default, any Lender or any Issuing Bank, to visit and inspect the financial records and the properties of the Borrower or any of its Restricted Subsidiaries at reasonable times, upon reasonable prior notice to the Borrower, and as often as reasonably requested and to make extracts from and copies of such financial records, and permit the Administrative Agent (or any Persons designated thereby) or, upon the occurrence and during the continuation of an Event of Default, any Lender or any Issuing Bank, upon reasonable prior notice to the Borrower to discuss the affairs, finances and condition of the Borrower or any of its Restricted Subsidiaries with the officers thereof, or the general partner, managing member or sole member thereof, and independent accountants therefor (subject to reasonable requirements of confidentiality, including requirements imposed by law or by contract); provided, that, during any calendar year absent the occurrence and continuation of an Event of Default, only one visit by the Administrative Agent shall be at the Borrower’s expense; provided, further, that when an Event of Default exists, the Administrative Agent, any Lender or any Issuing Bank may do any of the foregoing at the expense of the Borrower.

 

(b)                                 (i) Maintain or cause the maintenance of the interests and rights with respect to the (1) Pipeline Systems (and the related rights of way, easements or other Real Property) to the extent that, individually or in the aggregate, the failure to maintain or cause the maintenance of such interests and rights would not reasonably be expected to have a Material Adverse Effect and (2) the Gathering Stations, (ii) subject to the Permitted Real Property Liens and consistent with industry standards, maintain the Pipeline Systems within the confines of the rights of way granted to the applicable Loan Party or Restricted Subsidiary with respect thereto without material encroachment upon any adjoining property and maintain the Gathering Stations within the boundaries of the deeds and without material encroachment upon any adjoining property, (iii) maintain such rights of ingress and egress necessary to permit the Loan Parties or Restricted Subsidiaries to inspect, operate, repair, and maintain the Gathering System in accordance with industry standards except to the extent that the failure to maintain or cause the

 

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maintenance of such interests and rights, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; provided, that the Borrower or any Restricted Subsidiary may hire third parties to perform these functions, and (iv) maintain all material agreements, licenses, permits, and other rights required for any of the foregoing described in clauses (i), (ii) and (iii) of this Section 5.07(b) in full force and effect in accordance with their terms, timely make any payments due thereunder, and prevent any default thereunder that could result in a termination or loss thereof, except any such failure to maintain any thereof or make any such payments, or any such default, that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 5.08                             Use of Proceeds.  Use the proceeds of the Loans and the issuance of Letters of Credit solely for the purposes described in Section 3.11.

 

Section 5.09                             Compliance with Environmental Laws.  Comply, cause all of the Restricted Subsidiaries to comply, and make commercially reasonable efforts to cause all lessees and other Persons occupying its properties to comply, with all Environmental Laws applicable to its business, operations and properties; obtain and maintain in full force and effect all material authorizations, registrations, licenses and permits required pursuant to Environmental Law for its business, operations and properties; and perform any investigation, remedial action or cleanup required pursuant to the Release of any Hazardous Materials as required pursuant to Environmental Laws, except, in each case with respect to this Section 5.09, to the extent the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 5.10                             Further Assurances.  (a) Execute and deliver (i) any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, transmitting utility filings, Mortgages and other documents and recordings of Liens in stock registries or land title registries, as applicable), that may be appropriate, or that otherwise may be reasonably requested by the Administrative Agent, to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties, and provide to the Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents and (ii) all such other documents, agreements and instruments reasonably requested by the Administrative Agent to cure any defects in, or otherwise give effect to, the Loan Documents and the Transactions contemplated hereby.

 

(b)                                 With respect to any Material Gathering Station Real Property that was not owned, held or leased by a Loan Party on the Restatement Date, (i) grant and cause each of the Loan Parties to grant to the Collateral Agent security interests and Mortgages in all such Material Gathering Station Real Property and satisfy the requirements of clause (h) of the definition of Collateral and Guarantee Requirement with respect to all such Material Gathering Station Real Property within sixty days after the date such Material Gathering Station Real Property is acquired and (ii) with respect to any Real Property that becomes Material Gathering Station Real Property during a fiscal quarter of the Borrower, grant and cause each of the Loan Parties to grant to the Collateral Agent security interests and Mortgages and otherwise satisfy the requirements of clause (h) of the definition of Collateral and Guarantee Requirement with

 

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respect to such Material Gathering Station Real Property within sixty days after the end of such fiscal quarter.

 

(c)                                  Provide to the Administrative Agent, concurrently or prior to the delivery of the Mortgages pursuant to clause (b) of this Section 5.10, title information (including without limitation deeds, permits and similar agreements) in form and substance reasonably satisfactory to the Administrative Agent evidencing the applicable Loan Party’s interests in the Gathering Station Real Property covered by such Mortgages.

 

(d)                                 Not later than the delivery of the financial statements under Section 5.04(a) each year, the Borrower shall cause not less than 70% of the GRG Pipeline Systems Real Property (calculated based upon the length of the Pipeline System owned by GRG) as of December 31 of the preceding calendar year, to be subject to the Lien of a Mortgage.

 

(e)                                  If any additional direct or indirect Subsidiary of a Borrower becomes a Subsidiary Loan Party or Benefited Subsidiary after the Restatement Date, then within five Business Days after the date such Subsidiary becomes a Subsidiary Loan Party or Benefited Subsidiary, notify the Administrative Agent and the Lenders thereof and, within sixty Business Days after the date such Subsidiary becomes a Subsidiary Loan Party or Benefited Subsidiary, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary.

 

(f)                                   In the case of the Borrower or any Restricted Subsidiary, furnish to the Collateral Agent (A) prompt written notice of any change in the Borrower’s or such Restricted Subsidiary’s corporate or organization name or organizational identification number or other change that may have an effect on the “know your customer” or U.S.A. PATRIOT ACT disclosures delivered in connection with this Agreement or any other Loan Document; and (B) prior written notice of any change in the Borrower’s or such Restricted Subsidiary’s identity or organizational structure (including prior notice, which shall not be construed to be prior consent, of any MLP Conversion); provided, that neither the Borrower nor any Restricted Subsidiary shall effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the UCC or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral for the benefit of the Secured Parties.

 

(g)                                  The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 need not be satisfied with respect to any assets or Equity Interests acquired after the Restatement Date in accordance with this Agreement if, and to the extent that, and for so long as doing so would violate the Agreed Security Principles or Section 9.21; provided, that, upon the reasonable request of the Collateral Agent, the Borrower shall, and shall cause any of its applicable Subsidiary Loan Parties to, use commercially reasonable efforts to have waived or eliminated any contractual obligation that causes a violation of the Agreed Security Principles, other than those set forth in a joint venture agreement to which the Borrower or any Restricted Subsidiary is a party.

 

Section 5.11                             Fiscal Year.  Cause its fiscal year to end on December 31.

 

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Section 5.12                             Post-Closing Conditions.  The Borrower shall deliver to the Administrative Agent within 180 days after the Restatement Date (which time period may be extended to 270 days after the Restatement Date with the consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed, and which consent may be freely given by the Administrative Agent), (i) either (A) a consent of the fee owner of the Real Property underlying the Gathering Station identified on Schedule 1.01 to GRG’s encumbering of such Real Property with a Mortgage or (B) evidence of the acquisition of a fee interest in such Real Property by Encana Oil & Gas (USA) Inc., and (ii) a Mortgage or amendment to Mortgage granting to the Collateral Agent a first priority Lien in such Real Property, subject only to Permitted Real Property Liens.

 

ARTICLE VI

NEGATIVE COVENANTS

 

The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, the Borrower will not, and will not cause or permit any of its Restricted Subsidiaries (and to the extent expressly stated below, other applicable Subsidiaries) to:

 

Section 6.01                             Indebtedness.  Incur, create, assume or permit to exist any Indebtedness, except:

 

(a)                                 Indebtedness existing on the Restatement Date and set forth on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Restricted Subsidiary of the Borrower);

 

(b)                                 Indebtedness created hereunder and under the other Loan Documents;

 

(c)                                  Indebtedness of the Borrower and the Restricted Subsidiaries pursuant to Secured Swap Agreements; provided, that (i) both before and after giving effect to the incurrence of any Indebtedness arising out of such Swap Agreements, no Default or Event of Default shall have occurred or be continuing or would result therefrom, (ii) the Borrower shall be in compliance (on a Pro Forma Basis and both before and after giving effect to the incurrence of Indebtedness under such Swap Agreement) with the Financial Performance Covenants as of the end of the immediately preceding fiscal quarter and (iii) such Swap Agreements do not contain covenants or events of default that, taken as a whole, are more restrictive than those set forth in this Agreement and the other Loan Documents;

 

(d)                                 Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability 

 

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insurance to the Borrower or any Restricted Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such Person; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;

 

(e)                                  unsecured Indebtedness of any Loan Party owing to any other Loan Party (the “Subordinated Intercompany Debt”), provided, that such unsecured Indebtedness is not held, assigned, transferred, negotiated or pledged to any Person other than a Loan Party, and provided, further, that any such unsecured Indebtedness shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;

 

(f)                                   Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice;

 

(g)                                  Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided, that (i) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;

 

(h)                                 (i) Indebtedness of a Restricted Subsidiary acquired after the Restatement Date or a Person merged into, amalgamated or consolidated with the Borrower or any Restricted Subsidiary after the Restatement Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that the aggregate principal amount of such Indebtedness outstanding at any time (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), shall not exceed the greater of (A) U.S.$50.0 million and (B) 5.5% of Consolidated Total Assets;

 

(i)                                     Capital Lease Obligations (including any Sale and Lease-Back Transaction that is permitted under Section 6.03) and Purchase Money Obligations to the extent that (i) the aggregate total of all Capital Lease Obligations and Purchase Money Obligations outstanding at any one time shall not exceed the greater of (A) U.S.$50.0 million and (B) 5.5% of Consolidated Total Assets, (ii) immediately prior to and after giving effect to the incurrence of any Capital Lease Obligation or Purchase Money Obligation, no Default or Event of Default shall have occurred or be continuing or would result therefrom, (iii) the Borrower shall be in compliance (on a Pro Forma Basis and both before and after giving effect to the incurrence of 

 

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such Indebtedness) with the Financial Performance Covenants as of the end of the immediately preceding fiscal quarter and (iv) such Capital Lease Obligations or Purchase Money Obligations do not contain covenants or events of default that, taken as a whole, are more restrictive than the covenants and events of default set forth in this Agreement and the other Loan Documents;

 

(j)                                    other secured Indebtedness entered into by the Borrower or the Borrower and Finance Co as co-borrowers, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(j) not to exceed the greater of (i) U.S.$30.0 million and (ii) 3.0% of Consolidated Total Assets; provided, that the Indebtedness hereunder shall be at least pari passu in payment and priority with such other Indebtedness and on or prior to the incurrence or creation of such other Indebtedness, the agent and lenders under such facility shall have entered into the Intercreditor Agreement and such other intercreditor agreements as may be reasonably required or agreed by the Administrative Agent;

 

(k)                                 Guarantees (i) by any Loan Party of any Indebtedness of the Borrower or any other Loan Party expressly permitted to be incurred under this Agreement, (ii) by the Borrower or any Restricted Subsidiary of Indebtedness of any Restricted Subsidiary that is not a Loan Party to the extent permitted by Section 6.04, and (iii) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party; provided, that Guarantees under clause (ii) of this Section 6.01(k) and any other Guarantees by any Loan Party under this Section 6.01(k) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;

 

(l)                                     Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;

 

(m)                             Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;

 

(n)                                 Indebtedness consisting of Permitted Junior Debt;

 

(o)                                 Indebtedness assumed in connection with a Permitted Business Acquisition to the extent permitted under Section 6.04(j); and

 

(p)                                 all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (o) above.

 

Section 6.02                             Liens.  Create, incur, assume or permit to exist any Lien on any Property (including stock or other securities of any Person, including of any Restricted Subsidiaries) at the time owned by it or on any income or revenues or rights in respect of any thereof, except (without duplication):

 

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(a)                                 Liens on Property of the Borrower and its Restricted Subsidiaries existing on the Restatement Date and set forth on Schedule 6.02; provided, that such Liens shall secure only those obligations that they secure on the Restatement Date (and extensions, renewals and Refinancings of such obligations permitted by Section 6.01(a)) and shall not subsequently apply to any other Property of the Borrower or any of its Restricted Subsidiaries;

 

(b)                                 any Lien created under the Loan Documents or permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage;

 

(c)                                  any Lien on any Property of the Borrower or any Restricted Subsidiary securing Indebtedness or Permitted Refinancing Indebtedness permitted by Section 6.01(h); provided, that (i) such Lien does not apply to any other Property of the Borrower or any Restricted Subsidiary not securing such Indebtedness at the date of the acquisition of such Property (other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such date and which Indebtedness and other obligations are permitted hereunder that require a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), (ii) such Lien is not created in contemplation of or in connection with such acquisition and (iii) in the case of a Lien securing Permitted Refinancing Indebtedness, such Lien is permitted in accordance with clause (e) of the definition of the term “Permitted Refinancing Indebtedness”;

 

(d)                                 Liens for Taxes, assessments or other governmental charges or levies not yet delinquent or that are being contested in compliance with Section 5.03;

 

(e)                                  Liens imposed by law (including, without limitation, Liens in favor of customers for equipment under order or in respect of advances paid in connection therewith) such as landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than 45 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or any Restricted Subsidiary shall have set aside on its books adequate reserves in accordance with GAAP;

 

(f)                                   (i) pledges and deposits made in the ordinary course of business in compliance with the Federal Employers Liability Act or any other workers’ compensation, unemployment insurance and other social security laws or regulations under U.S. or foreign law and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii) pledges and deposits 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 Borrower or any of its Restricted Subsidiaries;

 

(g)                                  deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, costs of litigation where required by law, performance and return of money bonds, warranty bonds, bids, leases, government contracts, trade contracts, completion or performance guarantees and other obligations of a like nature incurred in the ordinary course of business, 

 

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including those incurred to secure health, safety and environmental obligations in the ordinary course of business;

 

(h)                                 zoning restrictions, by-laws and other ordinances of Governmental Authorities, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, permits, special assessments, development agreements, deferred services agreements, restrictive covenants, owners’ association encumbrances, rights of way, restrictions on use of real property and other similar encumbrances that do not render title unmarketable and that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary or would not result in a Material Adverse Effect;

 

(i)                                     security interests in respect of Purchase Money Obligations with respect to equipment or other property or improvements thereto acquired (or, in the case of improvements, constructed) by the Borrower or any of its Restricted Subsidiaries (including the interests of vendors and lessors under conditional sale and title retention agreements); provided, that (i) such security interests secure Indebtedness permitted by Section 6.01(i) (including any Permitted Refinancing Indebtedness in respect thereof) and (ii) such security interests do not apply to any other Property of the Borrower or any Restricted Subsidiaries (other than to accessions to such equipment or other property or improvements) except to the extent that individual financings of equipment provided by a single lender may be cross-collateralized to other financings of equipment provided solely by such lender;

 

(j)                                    Liens arising out of capitalized lease transactions permitted under Section 6.03 so long as such Liens attach only to the property sold and being leased in such transaction and any accessions thereto or proceeds thereof and related property; and Liens securing other Capital Lease Obligations, to the extent such Capital Lease Obligation is permitted by Section 6.01(h) and such Liens attach only to the property being leased in such transaction and any accessions thereto or proceeds thereof;

 

(k)                                 Liens securing judgments that do not constitute an Event of Default under Section 7.01(j);

 

(l)                                     Liens disclosed by any title insurance policies, title commitments or title reports with respect to the Mortgaged Properties and any replacement, extension or renewal of any such Lien; provided, that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal; provided, further, that the Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted by this Agreement;

 

(m)                             any interest or title of, or Liens created by, a lessor under any leases or subleases entered into by the Borrower or any Restricted Subsidiary, as tenant, in the ordinary course of business;

 

(n)                                 Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or securities intermediaries not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any of the Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations 

 

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incurred in the ordinary course of business of the Borrower and the Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of the Restricted Subsidiaries in the ordinary course of business;

 

(o)                                 Liens arising solely by virtue of any statutory or common law provision relating to security intermediaries’ or banker’s liens, rights of set-off or similar rights;

 

(p)                                 Liens securing obligations in respect of trade-related letters of credit permitted under Section 6.01(f) and covering the goods (or the documents of title in respect of such goods) financed by such letters of credit and the proceeds and products thereof;

 

(q)                                 licenses of intellectual property granted in the ordinary course of business;

 

(r)                                    Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods, machinery or other equipment;

 

(s)                                   Liens solely on any cash earnest money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

 

(t)                                    Liens arising from precautionary UCC financing statement filings regarding operating leases entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

 

(u)                                 Liens securing insurance premium financing arrangements in an aggregate principal amount not to exceed 2.0% of Consolidated Total Assets; provided, that such Lien is limited to the applicable insurance contracts;

 

(v)                                 Liens given to a public utility or any Governmental Authority when required by such utility or Governmental Authority in connection with the operations of the Borrower or any Restricted Subsidiary;

 

(w)                               Liens in connection with subdivision agreements site plan control agreements, development agreements, facilities sharing agreements, cost sharing agreements and other similar agreements in connection with the use of Real Property;

 

(x)                                 Liens in favor of any tenant, occupant or licensee under any lease, occupancy agreement or license with the Borrower or any Restricted Subsidiary;

 

(y)                                 Liens restricting or prohibiting access to or from lands abutting controlled access highways or covenants affecting the use to which lands may be put;

 

(z)                                  Liens incurred or pledges or deposits made in favor of a Governmental Authority to secure the performance of the Borrower or any Restricted Subsidiary under any Environmental Law to which any assets of such Person are subject;

 

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(aa)                          Liens consisting of minor irregularities in title, boundaries, or other minor survey defects, easements, leases, restrictions, servitudes, licenses, permits, reservations, exceptions, zoning restrictions, rights of way, conditions, covenants, mineral or royalty rights or reservations or oil, gas and mineral leases and rights of others in any property of the Borrower or any Restricted Subsidiary, including rights of eminent domain (including those for streets, roads, bridges, pipes, pipelines, natural gas gathering systems, processing facilities, railroads, electric transmission and distribution lines, telegraph and telephone lines, the removal of oil, gas or other minerals or other similar purposes, flood control, air rights, water rights, rights of others with respect to navigable waters, sewage and drainage rights) that exist as of the Restatement Date or at the time the affected property is acquired, or are granted by the Borrower or any Restricted Subsidiary in the ordinary course of business and other similar charges or encumbrances which do not secure the payment of Indebtedness by the Borrower or any Restricted Subsidiary and otherwise do not materially interfere with the occupation, use and enjoyment by the Borrower or any Restricted Subsidiary of any Mortgaged Property in the normal course of business or materially impair the value thereof;

 

(bb)                          contractual Liens that arise in the ordinary course of business under operating agreements, joint venture agreements, oil and gas partnership agreements, oil and gas leases, farm-out agreements, division orders, contracts for the sale, transportation or exchange of oil and natural gas, unitization and pooling declarations and agreements, area of mutual interest agreements, overriding royalty agreements, marketing agreements, processing agreements, net profits agreements, development agreements, gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or other geophysical permits or agreements, gathering agreements, storage and terminalling agreements, throughput agreements, equipment rental agreements and other agreements which are usual and customary in the oil and gas business and are for claims which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; provided, that any such Lien referred to in this clause (bb) does not materially impair (i) the use of the property covered by such Lien for the purposes for which such Property is held by the Borrower or Restricted Subsidiary, or (ii) the value of such Property subject thereto;

 

(cc)                            Liens that secure Indebtedness permitted to be incurred under Section 6.01(j) and Liens not otherwise permitted under this Section 6.02 securing obligations in an aggregate amount not to exceed the greater of (i) U.S.$30.0 million and (ii) 3.0% of Consolidated Total Assets; provided, however, that no part of the Pipeline Systems that is not the subject of a Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, may be the subject of a Lien permitted by this clause (cc); and provided further, that to the extent such Liens permitted under this clause (cc) secure Indebtedness incurred in connection with a Permitted Business Acquisition pursuant to Section 6.01(o), such Liens shall only be permitted to encumber the assets acquired pursuant to such Permitted Business Acquisition and shall not be permitted to encumber any other assets of the Borrower or any Restricted Subsidiary;

 

(dd)                          Liens created in the ordinary course of business upon specific items of inventory or other goods and proceeds of the Borrower or any of its Restricted Subsidiary securing such Person’s obligations in respect of banker’s acceptances issued or created for the 

 

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account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; and

 

(ee)                            licenses granted in the ordinary course of business and leases of property of the Loan Parties that are not material to the business and operations of the Loan Parties.

 

Notwithstanding the foregoing, (i) no Liens shall be permitted to exist, directly or indirectly, on Pledged Collateral, other than as permitted by clauses (b), (d), (e), (v) and (cc) (such clauses being the clauses that permit Liens arising by operation of law, Liens in favor of the Collateral Agent pursuant to the Loan Documents and Liens in support of Indebtedness incurred under Section 6.01(j)), (ii) no Liens shall be permitted to exist, directly or indirectly, on Pledged Collateral that are prior and superior in right to Liens in favor of the Collateral Agent other than Liens that have priority by operation of law, (iii) no Liens shall be permitted to exist, directly or indirectly, on Collateral (other than Pledged Collateral or Mortgaged Property) that are prior and superior in right to any Liens in favor of the Collateral Agent other than Prior Liens or Permitted Real Property Liens and (iv) no Liens shall be permitted to exist, directly or indirectly, on Mortgaged Property or the Pipeline Systems, other than Liens in favor of the Collateral Agent and Permitted Real Property Liens.

 

Section 6.03                             Sale and Lease-back Transactions.  Enter into any arrangement, directly or indirectly, with any Person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a “Sale and Lease-Back Transaction”); provided, that a Sale and Lease-Back Transaction shall be permitted so long as at the time the lease in connection therewith is entered into, and after giving effect to the entering into of such lease, the Remaining Present Value of such lease, when aggregated with the Indebtedness referred to in Section 6.01(i), does not exceed the limitation set forth in Section 6.01(i).

 

Section 6.04                             Investments, Loans and Advances.  Purchase, hold or acquire (including pursuant to any merger or amalgamation with a Person that is not a Restricted Subsidiary immediately prior to such merger) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Restricted Subsidiaries, which cash management operations shall not extend to any Person that is not a Restricted Subsidiary) to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest (each, an “Investment”), in any other Person, except:

 

(a)                                 Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Restatement Date by (i) so long as no Default or Event of Default has occurred and is continuing (both before and immediately after giving effect to the applicable Investment), Loan Parties in Subsidiaries that are not Loan Parties and that are not Benefited Subsidiaries in an aggregate amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed an amount equal to the sum of, without duplication, U.S.$35.0 million plus any return of capital actually received by the respective 

 

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investors in respect of Investments previously made by them pursuant to clause (i) of this Section 6.04(a), (ii) so long as no Default or Event of Default has occurred and is continuing (both before and immediately after giving effect to the applicable Investment), Loan Parties in Subsidiaries that are Benefited Subsidiaries in an aggregate amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed an amount equal to the sum of, without duplication, U.S.$150.0 million plus any return of capital actually received by the respective investors in respect of Investments previously made by them pursuant to clause (ii) of this Section 6.04(a), plus, the amount of Investments included in the calculation of Investments permitted under Section 6.04(a)(i), 6.04(i) or 6.04(k), pursuant to clause (a)(iii)(b) of the definition of Unrestricted Subsidiary to the extent such Unrestricted Subsidiary was previously a Benefited Subsidiary, and (iii) Loan Parties in other Loan Parties; provided, that notwithstanding anything to the contrary set forth in this Agreement, subject to the provisions of the definition of “Additional Equity Contributions”, the Borrower shall be entitled to make Investments in any Subsidiary, without limitation and at any time (including after the occurrence and during the continuance of a Default or Event of Default) from the proceeds of any Additional Equity Contributions made to the Borrower and not otherwise applied; and provided, further, any Investments made with such Additional Equity Contributions shall not count against any of the limitations on Investment set forth in this Section 6.04;

 

(b)                                 Permitted Investments and Investments that were Permitted Investments when made;

 

(c)                                  Investments arising out of the receipt by the Borrower or any of its Restricted Subsidiaries of noncash consideration for the sale of assets permitted under Section 6.05;

 

(d)                                 (i) so long as no Default or Event of Default has occurred and is continuing (both before and immediately after giving effect to the applicable loans or advances), loans and advances to employees of the Borrower, any of its Restricted Subsidiaries or, to the extent such employees are providing services rendered on behalf of the Loan Parties, any Parent Company in the ordinary course of business not to exceed U.S.$5.0 million in the aggregate at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii) advances of payroll payments and expenses to employees of the Borrower, any of its Restricted Subsidiaries or, to the extent such employees are providing services on behalf of the Loan Parties, any Parent Company in the ordinary course of business;

 

(e)                                  accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;

 

(f)                                   Secured Swap Agreements;

 

(g)                                  Investments existing on the Restatement Date and set forth on Schedule 6.04;

 

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(h)                                 Investments resulting from pledges and deposits referred to in Section 6.02(f) and (g);

 

(i)                                     so long as immediately before and after giving effect to such Investment, no Default or Event of Default has occurred and is continuing, other Investments by the Borrower or any of its Restricted Subsidiaries in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the greater of (A) U.S.$100.0 million and (B) 10.0% of Consolidated Total Assets (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (i));

 

(j)                                    Investments constituting Permitted Business Acquisitions; provided, that for clarification, that with respect to any transaction that would be a Permitted Business Acquisition, but for the failure of the Borrower (or one of its Restricted Subsidiaries) to satisfy one or more of the conditions set forth in the definition of “Permitted Business Acquisition”, the Borrower (or its Restricted Subsidiary) shall be permitted to undertake such transaction to the extent such transaction is (i) expressly required by one or more Gathering Agreements or other Material Contracts or (ii) is an ordinary course Capital Expenditure reasonably required to continue the development of the Gathering System;

 

(k)                                 additional Investments to the extent made with proceeds of additional Equity Interests of the Borrower that are otherwise permitted to be issued pursuant to this Agreement;

 

(l)                                     Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Restatement Date by Restricted Subsidiaries that are not Loan Parties in any Loan Party;

 

(m)                             Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business;

 

(n)                                 Investments of a Restricted Subsidiary of the Borrower acquired after the Restatement Date or of a corporation merged or amalgamated or consolidated into the Borrower or merged or amalgamated into or consolidated with a Restricted Subsidiary of the Borrower in accordance with Section 6.05 after the Restatement Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation; and

 

(o)                                 Guarantees by the Borrower or any of its Restricted Subsidiaries of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by any Restricted Subsidiary in the ordinary course of business.

 

Section 6.05                             Mergers, Consolidations, Sales of Assets and Acquisitions.  Merge into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into, 

 

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amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any other Loan Party or other Restricted Subsidiary of the Borrower, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other Person or, except as permitted by Section 5.01(a), liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), except that this Section shall not prohibit:

 

(a)                                 (i) the purchase and sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, (ii) the sale of any other asset in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries or (iv) the sale of Permitted Investments in the ordinary course of business;

 

(b)                                 if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger or consolidation of any Restricted Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) the merger or consolidation of any Restricted Subsidiary of the Borrower into or with any Loan Party in a transaction in which the surviving or resulting entity is a Loan Party and, in the case of each of clauses (i) and (ii), no Person other than the Borrower or a Loan Party receives any consideration, (iii) the merger, amalgamation or consolidation of any Restricted Subsidiary of the Borrower that is not a Loan Party into or with any other Restricted Subsidiary of the Borrower that is not a Loan Party, (iv) the liquidation, winding up or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the change in form of entity of the Borrower if the Borrower determines in good faith that such change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (vi) to the extent required or permitted to consummate any MLP Conversion in accordance with the requirements set forth in Annex A;

 

(c)                                  sales, transfers, leases or other dispositions to the Borrower or a Restricted Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Restricted Subsidiary to a Subsidiary of the Borrower that is not a Restricted Subsidiary shall be made in compliance with Section 6.07; and provided, further, that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Restricted Subsidiary to a Subsidiary that is not a Restricted Subsidiary in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (g) below shall not exceed, in any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;

 

(d)                                 Sale and Lease-Back Transactions permitted by Section 6.03;

 

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(e)                                  Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;

 

(f)                                   the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;

 

(g)                                  sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; provided, that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(c); and provided, further, that after giving effect thereto, no Default or Event of Default shall have occurred;

 

(h)                                 any merger or consolidation in connection with a Permitted Business Acquisition; provided, that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Subsidiary Loan Party (but not the Borrower), the surviving or resulting entity shall be a Subsidiary Loan Party and (ii) involving a Restricted Subsidiary (but not a Loan Party), the surviving or resulting entity shall be a Restricted Subsidiary;

 

(i)                                     licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary in the ordinary course of business; and

 

(j)                                    abandonment, cancellation or disposition of any intellectual property of the Borrower in the ordinary course of business.

 

Notwithstanding anything to the contrary contained in Section 6.05 above, (i) the Borrower or any Subsidiary of the Borrower may, so long as no Event of Default shall have occurred and be continuing or would result therefrom, (A) provided the Collateral and Guarantee Requirements relating to the pledge of all of the issued and outstanding Equity Interests of the Borrower shall at all times remain satisfied, sell, grant or otherwise issue Equity Interests to members of management of the Borrower or any Subsidiary of the Borrower pursuant to stock option, stock ownership, stock incentive or similar plans, and (B) sell, transfer or otherwise dispose of the assets of, or Equity Interests in, any Unrestricted Subsidiary to any Person, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to the foregoing clause (i)(B) or paragraph (c) hereof) unless such disposition is for fair market value, (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a)(i), (a)(ii), (a)(iv) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iv) no sale, transfer or other disposition of assets in excess of U.S.$5.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided, that for purposes of clauses (iii) and (iv), the amount of any secured Indebtedness or other Indebtedness of a Subsidiary of the Borrower that is not a Loan Party (as shown on the 

 

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Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash.

 

Section 6.06                             Dividends and Distributions.  Declare or pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests of the Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value any shares of any class of its Equity Interests or set aside any amount for any such purpose; provided, that:

 

(a)                                 any Restricted Subsidiary of the Borrower may declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, directly or indirectly, the Borrower or any Restricted Subsidiary (or, with respect to any Restricted Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, to each parent of such Restricted Subsidiary (including the Borrower, any other Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary and each other owner of Equity Interests of such Restricted Subsidiary) on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary) based on their relative ownership interests);

 

(b)                                 the Borrower and each of its Restricted Subsidiaries may repurchase, redeem or otherwise acquire or retire to finance any such repurchase, redemption or other acquisition or retirement for value any Equity Interests of the Borrower or any of its Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower or, to the extent such Equity Interests were issued as compensation for services rendered on behalf of the Loan Parties, any employee of any Parent Company, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Restricted Subsidiaries may declare and pay dividends to the Borrower or any other Restricted Subsidiary of the Borrower the proceeds of which are used for such purposes; provided, that the aggregate amount of such purchases or redemptions in cash under this paragraph (b) shall not exceed in any fiscal year U.S.$5.0 million (plus the amount of net proceeds (i) received by the Borrower during such calendar year from sales of Equity Interests of the Borrower to directors, consultants, officers or employees of the Borrower or any of its Affiliates in connection with permitted employee compensation and incentive arrangements and (ii) of any key-man life insurance policies received during such calendar year) which, if not used in any year, may be carried forward to any subsequent calendar year;

 

(c)                                  if no Default or Event of Default then exists or would result therefrom, then the Borrower may declare and pay dividends or make other distributions from the proceeds of any substantially concurrent issuance or sale of Equity Interests permitted to be made under this Agreement; provided, that the proceeds of an issuance or sale to a Restricted Subsidiary may not be used to declare or pay dividends or make other distributions; and provided, further, that any proceeds hereunder constituting Net Cash Proceeds shall be applied as set forth in Section 2.11(c);

 

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(d)                                 noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;

 

(e)                                  if (i) no Default or Event of Default then exists or would result therefrom, (ii) the Borrower shall be in compliance (on a Pro Forma Basis and after giving effect to the making of such distribution) with the provisions of Section 6.11 as of the end of the immediately preceding fiscal quarter, (iii) the Leverage Ratio as of the end of the immediately preceding fiscal quarter and calculated on a Pro Forma Basis after giving effect to the making of such distribution, shall not exceed 4.00 to 1.00, and (iv) the Available Unused Commitment on the day of such distribution is equal to or greater than U.S.$30.0 million, then the Borrower may repay capital invested in it by the Sponsor (including the contribution of Equity Interests in any Person (including GRG), to the extent same would constitute a Permitted Business Acquisition) or may declare or make a distribution on or with respect to the Equity Interests of the Borrower during any fiscal quarter in accordance with the Governing Agreement in an amount not to exceed Available Cash as of the end of the immediately preceding fiscal quarter;

 

(f)                                   notwithstanding the foregoing clause (e), in the event that any MLP Conversion shall occur, and at all times after such MLP Conversion has occurred (and so long as the resulting Master Limited Partnership shall continue to exist), the Borrower may repay capital invested in it by the Sponsor or may declare or make distributions on or with respect to the Equity Interests of the Borrower, DFW or GRG with Available Cash on a quarterly basis; provided, that immediately before and after giving effect to such repayment, declaration or distribution, (i) no Default or Event of Default then exists or would result therefrom, and (ii) the Borrower shall be in compliance (on a Pro Forma Basis and after giving effect to the making of such distribution) with the Financial Performance Covenants as of the end of the immediately preceding fiscal quarter; and

 

(g)                                  the Borrower may make quarterly distributions to the Sponsor in an amount not in excess of any tax distributions permitted to be made by the Sponsor pursuant to Section 5.03 of the Sponsor’s Operating Agreement and calculated as if the Sponsor did not hold any assets other than Equity Interests of the Borrower; provided, that, (i) the Borrower may not make any such distribution after the occurrence, and during the continuance, of a Default or an Event of Default pursuant to Sections 7.01(b), (c), (f), (h) or (i), and (ii) unless the Secured Parties have exercised or the Required Lenders have voted to exercise any rights or remedies pursuant hereto or under the Collateral Documents, the Borrower may make only one such quarterly distribution after the occurrence, and during the continuance, of any other Event of Default.

 

Section 6.07                             Transactions with Affiliates.  (a) Sell or transfer any Property to, or purchase or acquire any Property from, or otherwise engage in any other transaction with, any of its Affiliates, unless such transaction is upon terms no less favorable to the Borrower or such Restricted Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate; provided, that this clause (a) shall not apply to the indemnification of directors (or persons holding similar positions for non-corporate entities) of the Borrower and its Restricted Subsidiaries in accordance with customary practice.

 

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(b)                                 The foregoing paragraph (a) shall not prohibit, to the extent otherwise permitted under this Agreement,

 

(i)                                     any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options, stock ownership plans, including restricted stock plans, stock grants, directed share programs and other equity based plans customarily maintained by similar companies and the granting and performance of registration rights approved by the board of directors of any Restricted Subsidiary, as applicable,

 

(ii)                                  transactions among the Borrower and the other Loan Parties and transactions among the Restricted Subsidiaries that are not Loan Parties otherwise permitted by this Agreement,

 

(iii)                               any indemnification agreement or any similar arrangement entered into with directors, officers, consultants and employees of the Borrower or any of its Affiliates in the ordinary course of business and the payment of fees and indemnities to directors, officers, consultants and employees of the Borrower and its Restricted Subsidiaries in the ordinary course of business and, to the extent such fees and indemnities are directly attributable to services rendered on behalf of the Loan Parties, any employee of any Parent Company,

 

(iv)                              transactions pursuant to permitted agreements in existence on the Restatement Date and set forth on Schedule 6.07 or any amendment thereto to the extent such amendment would not have a Material Adverse Effect,

 

(v)                                 any employment agreement or employee benefit plan entered into by the Borrower or any of its Affiliates in the ordinary course of business or consistent with past practice and payments pursuant thereto,

 

(vi)                              transactions otherwise permitted under Section 6.06 and Investments permitted by Section 6.04; provided, that this clause (vi) shall not apply to any Investment, whether direct or indirect, in either (A) Persons that were not Loan Parties immediately prior to such Investment or (B) Persons that are not Loan Parties immediately after such Investment,

 

(vii)                           any purchase by the Sponsor or any Sponsor Affiliate of Equity Interests of the Borrower, so long as the Collateral and Guarantee Requirement is complied with in respect of such Equity Interests,

 

(viii)                        payments by the Borrower or any of its Restricted Subsidiaries to the Sponsors or any Sponsor Affiliate made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by General Partner or the board of directors of any Restricted Subsidiary, as applicable, in good faith,

 

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(ix)                              transactions with any Affiliate for the purchase or sale of goods, products, parts and services entered into in the ordinary course of business in a manner consistent with past practice,

 

(x)                                 any transaction in respect of which the Borrower delivers to the Administrative Agent (for delivery to the Lenders) a letter addressed to the Borrower from an accounting, appraisal or investment banking firm, in each case of nationally recognized standing that is (A) in the good faith determination of the Borrower qualified to render such letter and (B) reasonably satisfactory to the Administrative Agent, which letter states that such transaction is on terms that are no less favorable to the Borrower or Restricted Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate,

 

(xi)                              if such transaction is with a Person in its capacity as a holder (A) of Indebtedness of the Borrower or any Restricted Subsidiary of the Borrower where such Person is treated no more favorably than the other holders of Indebtedness of the Borrower or any such Restricted Subsidiary or (B) of Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower where such Person is treated no more favorably than the other holders of Equity Interests of the Borrower or such Restricted Subsidiary,

 

(xii)                           payments by the Borrower or any of its Restricted Subsidiaries to any Affiliate in respect of compensation, expense reimbursement, or benefits to or for the benefit of current or former employees, independent contractors or directors of the Borrower or any of its Subsidiaries or, to the extent such compensation, expense reimbursement, or benefits are directly attributable to services rendered on behalf of the Loan Parties, any employee of any Parent Company and

 

(xiii)                        the sale, transfer or other disposition of the assets of, or Equity Interests in, any Unrestricted Subsidiary.

 

Section 6.08                             Business of the Borrower and the Subsidiaries.  Notwithstanding any other provisions hereof, with respect to the Borrower and each Restricted Subsidiary, engage at any time in any business or business activity other than any business or business activity conducted by it on the Restatement Date, Midstream Activities and any business or business activities incidental or related thereto, or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto, including, without limitation, the consummation of the Transactions.

 

Section 6.09                             Limitation on Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-laws and Certain Other Agreements; Etc.  (a) Amend or modify or grant any waiver or release under or terminate in any manner (i) with respect to the Borrower or any Restricted Subsidiary, the articles or certificate of incorporation or the by-laws, partnership agreement or limited liability company operating agreement (including the Governing Agreement, the GRG Operating Agreement and the DFW Operating Agreement); provided, that the limitation in this subsection (a) shall not prevent the Borrower from modifying the Governing Agreement in connection with any MLP Conversion, to the extent permitted under this

 

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Agreement, or (ii) the Gathering Agreements or any other Material Contract, in the case of the foregoing clauses (i) and (ii), if such amendment, modification, waiver, release or termination could reasonably be expected to result in a Material Adverse Effect or affect the assignability of any such contract or agreement in a manner that would have an adverse effect on the rights of the Secured Parties in the Collateral (including in such agreement as Collateral).  In no event shall an Unrestricted Subsidiary enter into, assume, take assignment of or otherwise obtain any rights of DFW, GRG, any other Loan Party or any Benefited Subsidiary under any Gathering Agreement now or hereinafter in effect relating to or providing for the provision of services by DFW, GRG, any other Loan Party or any Benefited Subsidiary in connection with the Gathering System. For the avoidance of doubt, amendments or modifications to any such contracts for the addition of any drill pad or any receipt and delivery point, and modifications to fees (except any decrease to fees such that the overall expected benefit to DFW, GRG or the Loan Party party thereto would be materially adversely affected) received by any Loan Party in respect thereof shall not in itself be considered to have a Material Adverse Effect;

 

(b)                                 (i) Make, or agree or offer to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on Permitted Junior Debt or any payment or other distribution (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 Permitted Junior Debt, except for (to the extent permitted by the subordination provisions thereof) (A) payments of regularly scheduled interest, (B) payments made solely with the proceeds from the issuance of common Equity Interests or from equity contributions, (C) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, prepayments of any Permitted Junior Debt; provided, that, no such prepayments shall be made with the proceeds of Loans, and (D) (1) prepayments made with the proceeds of any Permitted Refinancing Indebtedness in respect thereof or (2) prepayments with the proceeds of any non-cash interest bearing Equity Interests issued for such purchase that are not redeemable prior to the date that is six months following the Stated Maturity Date and that have terms and covenants no more restrictive than the Permitted Junior Debt being so refinanced; or (ii) amend or modify, or permit the amendment or modification of, any provision of any Permitted Junior Debt or any agreement relating thereto other than amendments or modifications that are not materially adverse to the Lenders and that do not affect the subordination provisions thereof in a manner adverse to the Lenders.

 

(c)                                  Enter into any agreement or instrument that by its terms restricts (i) the payment of dividends or distributions or the making of cash advances to the Borrower or any other Loan Party by a Restricted Subsidiary or (ii) the granting of Liens by the Borrower or a Restricted Subsidiary pursuant to the Collateral Documents, in each case other than those arising under any Loan Document, except, in each case, restrictions existing by reason of:

 

(A)                               restrictions imposed by applicable law;

 

(B)                               contractual encumbrances or restrictions in effect on the Restatement Date under any agreements related to any permitted renewal, extension or refinancing of any Indebtedness existing on the Restatement Date that does not expand the scope of any such encumbrance or restriction;

 

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(C)                               any restriction on a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Equity Interests or assets of such Restricted Subsidiary pending the closing of such sale or disposition (but only to the extent such sale or disposition would be permitted under this Agreement, if consummated);

 

(D)                               customary provisions in joint venture agreements and other similar agreements applicable to joint ventures entered into in the ordinary course of business;

 

(E)                                any restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent that such restrictions apply only to the Property securing such Indebtedness;

 

(F)                                 customary provisions contained in leases or licenses of intellectual property and other similar agreements entered into in the ordinary course of business;

 

(G)                               customary provisions restricting subletting or assignment of any lease governing a leasehold interest; provided, however, that this clause (G) shall not apply to any lease or other agreement in respect of any portion of the Gathering System;

 

(H)                              customary provisions restricting assignment of any agreement entered into in the ordinary course of business;

 

(I)                                   customary restrictions and conditions contained in any agreement relating to the sale of any asset permitted under Section 6.05 pending the consummation of such sale;

 

(J)                                   in the case of any Person that becomes a Restricted Subsidiary after the Restatement Date, any agreement in effect at the time such Person so becomes a Restricted Subsidiary, so long as such agreement was not entered into in contemplation of such Person becoming such a Restricted Subsidiary; or

 

(K)                              restrictions imposed by any Permitted Junior Debt that are (i) substantially similar to restrictions set forth in this Agreement, (ii) do not require the direct or indirect granting of any Lien to secure such Permitted Junior Debt or other obligation by virtue of the granting of a Lien on or pledge of any Property of any Loan Party, and (iii) in any case do not directly or indirectly restrict the granting of Liens pursuant to the Collateral Documents.

 

Section 6.10                             Leverage Ratio.  Beginning at the end of the first full fiscal quarter ending after the Restatement Date, for any Test Period, permit the Leverage Ratio on the last day of any fiscal quarter, to be in excess of the Maximum Leverage Ratio then in effect.

 

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Section 6.11                             Interest Coverage Ratio.  Beginning at the end of the first full fiscal quarter after the Restatement Date, for any Test Period, permit the Interest Coverage Ratio on the last day of any fiscal quarter to be less than 2.50:1.00.

 

Section 6.12                             Swap Agreements and Power Purchase Agreements.  Enter into any Swap Agreement, other than Swap Agreements (a) with respect to commodities entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Loan Party is exposed in the conduct of its business or the management of its liabilities, and (b) entered into in the ordinary course of business to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Loan Party, which in the case of each of clauses (a) and (b) are entered into for bona fide risk mitigation purposes and that are not speculative in nature; provided, that the entry into such Swap Agreements shall be permitted under this Section 6.12 only to the extent that the conditions set forth in Section 6.01(c) have been satisfied.  Notwithstanding the foregoing, the Borrower may enter into any Power Purchase Agreement in the ordinary course of business.

 

Section 6.13                             Limitation on Leases.  The Borrower will not and will not permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist any obligation for the payment of rent or hire of its or their assets of any kind whatsoever (real or personal but excluding Capitalized Lease Obligations otherwise permitted under this Agreement), under operating leases that would cause the aggregate amount of all payments made by any such Restricted Subsidiary or the Borrower pursuant to all such leases including any residual payments at the end of any lease, to exceed U.S.$30.0 million in any period of twelve (12) consecutive calendar months during the life of such leases.

 

ARTICLE VII

EVENTS OF DEFAULT

 

Section 7.01                             Events of Default.  In case of the happening of any of the following events (“Events of Default”):

 

(a)                                 any representation or warranty made or deemed made by the Borrower, any Restricted Subsidiary, DFW Management or the Sponsor in any Loan Document, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished by the Borrower, any Restricted Subsidiary, DFW Management or the Sponsor; provided, that (i) to the extent the fact, event or circumstance that caused a representation or warranty to be false or incorrect in any material respect is capable of being cured, corrected or otherwise remedied and (ii) such fact, event or circumstance has been cured, corrected or otherwise remedied within 30 days after notice thereof from the Administrative Agent or any Lender to the Borrower, any such false or incorrect representation or warranty shall not be an Event of Default; provided, that such extension of time to cure could not reasonably be expected to have a Material Adverse Effect;

 

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(b)                                 default shall be made in the payment of any principal of any Loan or the reimbursement with respect to any Revolving L/C Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;

 

(c)                                  default shall be made in the payment of any interest on any Loan or on any Revolving L/C Disbursement or in the payment of any Fee or any other amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days;

 

(d)                                 default shall be made in the due observance or performance by the Borrower or any of its Restricted Subsidiaries of any covenant, condition or agreement contained in (i) Section 5.01(a) (with respect to the Borrower), 5.05(a), 5.08, 5.10 or in Article VI;

 

(e)                                  default shall be made in the due observance or performance by the Borrower or any of its Restricted Subsidiaries of any covenant, condition or agreement of such Person contained in any Loan Document (other than those specified in paragraphs (b), (c) and (d) above) and such default shall continue unremedied for a period of thirty days after notice thereof from the Administrative Agent or any Lender to the Borrower;

 

(f)                                   (i) any event or condition occurs that (A) results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, or (ii) without limiting the foregoing clause (i), the Borrower or any of its Restricted Subsidiaries shall fail to pay any principal of any Material Indebtedness at the stated final maturity thereof; provided, that this clause (f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the Property securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;

 

(g)                                  there shall have occurred a Change in Control;

 

(h)                                 an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower or any of its Restricted Subsidiaries, or of a substantial part of the Property of the Borrower or any of its Restricted Subsidiaries, taken as a whole, under Title 11 of the United States Code, as now constituted or hereafter amended or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Restricted Subsidiaries or for a substantial part of the Property of the Borrower or any of its Restricted Subsidiaries, taken as a whole, or (iii) the winding-up or liquidation of the Borrower or any of its Restricted Subsidiaries (except, in the case of any Restricted Subsidiary, in a transaction permitted by Section 6.05); and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

 

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(i)                                     the Borrower or any of its Restricted Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (h) above, (iii) apply for, request or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Restricted Subsidiaries or for a substantial part of the Property of the Borrower or any of its Restricted Subsidiaries, taken as a whole, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due;

 

(j)                                    the failure by the Borrower or any of its Restricted Subsidiaries to pay one or more final judgments aggregating in excess of U.S.$20.0 million (to the extent not covered by third-party insurance as to which the insurer does not dispute coverage or bonded), which judgments are not discharged or effectively waived or stayed for a period of 60 consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Borrower or any of its Restricted Subsidiaries to enforce any such judgment;

 

(k)                                 one or more ERISA Events shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

 

(l)                                     (i) any Loan Document shall for any reason be asserted in writing by the Borrower or any Restricted Subsidiary not to be a legal, valid and binding obligation of any party thereto, (ii) any security interest purported to be created by any Collateral Document and to extend to Collateral that is not immaterial to the Loan Parties on a consolidated basis shall cease to be in full force and effect, or shall be asserted in writing by the Borrower or any Restricted Subsidiary not to be, a valid and perfected security interest (having the priority required by this Agreement or the relevant Collateral Document) in the securities, assets or properties covered thereby, except to the extent that (A) any such loss of perfection or priority results from the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or to file UCC continuation statements, (B) such loss is covered by a lender’s title insurance policy and the Administrative Agent shall be reasonably satisfied with the credit of such insurer or (C) any such loss of validity, perfection or priority is the result of any failure by the Collateral Agent or the Administrative Agent to take any action necessary to secure the validity, perfection or priority of the Liens or (iii) the Guarantees by any Loan Party of any of the Obligations shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any other Loan Party or any other Person not to be in effect or not to be legal, valid and binding obligations;

 

(m)                             (A) any Environmental Claim against the Borrower or any of its Restricted Subsidiaries or (B) any Liability of the Borrower or any of its Restricted Subsidiaries for any Release or threatened Release of Hazardous Materials or (C) any Liability of the Borrower or any of its Restricted Subsidiaries for any actual or alleged presence, Release or threatened

 

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Release of Hazardous Materials at, under, on or from any real property currently or formerly owned, leased or operated by any predecessor of the Borrower or any of its Restricted Subsidiaries, or any property at which the Borrower or any of its Restricted Subsidiaries has sent Hazardous Materials for treatment, storage or disposal (each, an “Environmental Event”) shall have occurred that, when taken together with all other Environmental Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or

 

(n)                                 any one or more Gathering Agreements that account(s) for 25% or more of the revenue of the Borrower and the Restricted Subsidiaries, on a consolidated basis, shall have been terminated and (i) such termination would reasonably be expected to have a Material Adverse Effect, and (ii) a replacement Gathering Agreement with substantially similar terms (or as otherwise approved by Administrative Agent) is not entered into within 30 days after the effective date of such termination;

 

then, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) above), and at any time thereafter during the continuance of such event, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower, take any or all of the following actions, at the same or different times:  (i) terminate forthwith the Commitments, (ii) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities (including all amounts under Letters of Credit then outstanding) of the Borrower accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding and (iii) demand cash collateral pursuant to Section 2.05(j); and in any event described in paragraph (h) or (i) above, the Commitments shall automatically terminate, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities (including all amounts under Letters of Credit then outstanding) of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for cash collateral to the full extent permitted under Section 2.05(j), without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.

 

ARTICLE VIII

THE AGENTS

 

Section 8.01                             Appointment and Authority.  (a) Each of the Lenders and each Issuing Bank hereby irrevocably appoints RBS 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.

 

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(b)                                 RBS shall also act as the Collateral Agent under the Loan Documents, and each of the Lenders (including in its capacities, as a potential Specified Swap Counterparty and a potential Cash Management Bank) and each of the Issuing Banks hereby irrevocably appoints and authorizes RBS to act as the agent of such Lender or Issuing Bank, as the case may be, for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Borrower, each Subsidiary Loan Party, DFW Management and the Sponsor to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Collateral Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 8.05 or Section 8.13 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 VIII (including Section 8.12) and Article IX as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents.

 

(c)                                  The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, any co-agents, sub-agents, attorneys-in-fact or other appointees thereof, the Lenders and the Issuing Banks, and neither the Borrower nor any Restricted Subsidiary shall have rights as a third party beneficiary of any of such provisions.

 

Section 8.02                             Rights as a Lender.  Any Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender, and may exercise the same as though it were not an Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include a Person serving as an 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 an Agent hereunder and without any duty to account therefor to the Lenders.

 

Section 8.03                             Exculpatory Provisions.  No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, no Agent:

 

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

 

(b)                                 shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Agent is required to exercise as directed in writing by the 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 no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law;

 

(c)                                  shall, 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

 

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information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity;

 

(d)                                 shall 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 such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.08 and 7.01) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment;

 

(e)                                  shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent; and

 

(f)                                   shall be deemed to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to such Agent by the Borrower, a Lender or an Issuing Bank.

 

Section 8.04                             Reliance by Agents.  Any 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 an appropriate Person.  Any Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by an appropriate 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, extension, renewal or increase of a Letter of Credit that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, any Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or issuance of a Letter of Credit, as applicable.  Any Agent may consult with legal counsel (who may include 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.

 

Section 8.05                             Delegation of Duties.  Without in any way limiting Section 8.13, any 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 co-agents, sub-agents and/or attorneys-in-fact appointed by such Agent.  Any Agent and any such co-agents, sub-agents

 

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and/or attorneys-in-fact 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 co-agents, sub-agents and/or attorneys-in-fact and to the Related Parties of each Agent and any such co-agents, sub-agents and/or attorneys-in-fact, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent.

 

Section 8.06                             Resignation of the Agents.  Any Agent may at any time give notice of its resignation to the Lenders, Issuing Banks and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Borrower (not to be unreasonably withheld or delayed), which shall be a financial institution with an office in the United States, or an Affiliate of any such financial institution with an office in the United States, and having a combined capital and surplus of at least U.S.$1.0 billion.  During an Agent Default Period, the Borrower and the Required Lenders may remove the relevant Agent subject to the execution and delivery by the Borrower and the Required Lenders of removal and liability release agreements reasonably satisfactory to the relevant Agent, which removal shall be effective upon the acceptance of appointment by a successor as such Agent.  Upon any proposed removal of an Agent during an Agent Default Period, the Required Lenders shall have the right to appoint a successor with the consent of the Borrower (not to be unreasonably withheld or delayed), which shall be a financial institution with an office in the United States, or an Affiliate of any such financial institution with an office in the United States, and having a combined capital and surplus of at least U.S.$1.0 billion. In the case of the resignation of an Agent, if no such successor shall have been appointed by the Required Lenders and the Borrower and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring 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 Collateral Agent on behalf of the Secured Parties under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security, as bailee, until such time as a successor Collateral Agent is appointed), (b) except for indemnity payments owed to the retiring or removed Administrative Agent, 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 or Issuing Bank directly, until such time as the Required Lenders and the Borrower appoint a successor Administrative Agent as provided for above in this Section and (c) the Borrower and the Lenders agree that in no event shall the retiring Agent or any of its Affiliates or any of their respective officers, directors, employees, agents advisors or representatives have any liability to the Borrower or any Restricted Subsidiary, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the failure of a successor Agent to be appointed and to accept such appointment.  Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring, retired or removed Agent (other than any rights to indemnity payments owed to the retiring or removed Agent), and the retiring, retired or removed Agent shall be discharged from all of its duties and obligations hereunder and 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 Agent shall be the same as those payable to its

 

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predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring or removed Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article (including Section 8.12) and Section 9.05 shall continue in effect for the benefit of such retiring or removed 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 or removed Agent was acting as Agent.

 

Section 8.07                             Non-Reliance on the Agents, Other Lenders and Issuing Bank.  Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon any Agent or any other Lender or Issuing Bank or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or Issuing Bank 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.

 

Section 8.08                             No Other Duties, Etc.  Anything herein to the contrary notwithstanding, no Joint Lead Arranger shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, if any, as an Agent, a Lender or an Issuing Bank hereunder.

 

Section 8.09                             Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any federal, state or foreign bankruptcy, insolvency, receivership or similar law or any other judicial proceeding relative to the Borrower or any Restricted Subsidiary, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated), by intervention in such proceeding or otherwise:

 

(a)                                 to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other 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, any Issuing Bank and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, any Issuing Bank and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, any Issuing Bank and the Administrative Agent under Sections 2.12, 8.12, and 9.05) allowed in such judicial proceeding; and

 

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

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the

 

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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 2.12, 8.12, and 9.05.

 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any Issuing Bank to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing Bank in any such proceeding and to subordinate any Lien on any Property granted to or held by the Administrative Agent under any Loan Document to the holder of any Permitted Lien.

 

Section 8.10                             Authorization for Certain Releases.  With respect to releases and terminations delivered pursuant to Section 9.18, each Issuing Bank, each Agent, each Lender (including in its capacities as a Lender, as a potential Cash Management Bank and a potential Specified Swap Counterparty), hereby irrevocably authorizes (and each other Intercreditor Secured Party (as defined in the Intercreditor Agreement) shall authorize, under the Intercreditor Agreement) either or both Agents to enter into such releases and terminations without further or additional consents being delivered by any Issuing Bank, any Agent, any Lender or any Specified Swap Counterparty.  Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing each Agent’s authority provided for in the previous sentence.  For purposes of this Section 8.10 and Section 8.15, each Lender that is or becomes a Specified Swap Counterparty and/or Cash Management Bank is executing this Credit Agreement in its capacity as both or each of a Lender, Specified Swap Counterparty and/or Cash Management Bank.

 

Section 8.11                             Cash Management Banks and Specified Swap Counterparty Regarding Collateral Matters.  (a) No Cash Management Bank or Specified Swap Counterparty that obtains the benefits of the Collateral Documents or any Collateral by virtue of the provisions hereof, of the Collateral Documents or of the Intercreditor Agreement 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) unless such Specified Swap Counterparty shall also be a Lender, Joint Lead Arranger or Agent hereunder and in such case, only in such Person’s capacity as a Lender, Joint Lead Arranger or Agent and only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article VIII 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, obligations (including any Obligations) arising under the Secured Cash Management Agreements and Secured Swap Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Specified Swap Counterparty, as the case may be.

 

(b)                                 The benefit of the Collateral Documents and the provisions of this Agreement and the other Loan Documents relating to the Collateral shall also extend to, secure and be available on a pro rata basis (as set forth in Section 9.23 of this Agreement) to each Specified Swap Counterparty (including any Secured Swap Agreement in existence prior to the

 

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date hereof and listed on the schedules hereto) and each Cash Management Bank with respect to any obligations of the Borrower or any Loan Party arising under such Secured Swap Agreement or Secured Cash Management Agreement, as applicable, but only to the extent specified in the Intercreditor Agreement, until such obligations are paid in full or otherwise expire or are terminated (and notwithstanding that the outstanding Obligations have been repaid in full and the Commitments have terminated); provided, that with respect to any Secured Swap Agreement or Secured Cash Management Agreement that remains secured after the counterparty thereto is no longer a Specified Swap Counterparty or Cash Management Bank, as applicable, or the outstanding Obligations (other than any obligations arising under or pursuant to one or more Secured Swap Agreement) have been repaid in full and the Commitments have terminated, the provisions of this Article VIII shall also continue to apply to such Specified Swap Counterparty or Cash Management Bank, as applicable, in consideration of its benefits hereunder and each such Specified Swap Counterparty or Cash Management Bank, as applicable, shall, if requested by the Administrative Agent, promptly execute and deliver to the Administrative Agent all such other documents, agreements and instruments reasonably requested by the Administrative Agent to evidence the continued applicability of the provisions of Article VIII.

 

Section 8.12                             Indemnification.  Each Lender and Issuing Bank severally agrees (i) to reimburse each Agent, on demand, in the amount of its pro rata share (based on its Commitments hereunder (or if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of its applicable outstanding Loans) or portion of outstanding Revolving L/C Disbursements owed to it, as applicable) of any reasonable expenses incurred for the benefit of the Lenders and the Issuing Banks by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders and the Issuing Banks, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless each Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent in its capacity as Administrative Agent or Collateral Agent, as applicable, or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided, that no Lender or Issuing Bank shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent found in a final nonappealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents.

 

Section 8.13                             Appointment of Supplemental Collateral Agents.  (a) This Section 8.13 shall not in any way limit Section 8.05.  It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations or other institutions to transact business as agent or trustee in such jurisdiction.  It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Collateral Agent deems that by reason of any present or future law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any

 

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of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Collateral Agent appoint an additional institution as a separate trustee, co-trustee, collateral agent, collateral sub-agent or collateral co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Collateral Agent” and collectively as “Supplemental Collateral Agents”).

 

(b)                                 In the event that the Collateral Agent appoints a Supplemental Collateral Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Collateral Agent to the extent, and only to the extent, necessary to enable such Supplemental Collateral Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Collateral Agent shall run to and be enforceable by either or both the Collateral Agent and/or such Supplemental Collateral Agent, and (ii) the provisions of this Article and of Section 9.05 that refer to the Administrative Agent, the Collateral Agent or the Agents shall inure to the benefit of such Supplemental Collateral Agent and all references therein to the Administrative Agent, the Collateral Agent or the Agents shall be deemed to be references to the Administrative Agent, the Collateral Agent or the Agents and/or such Supplemental Collateral Agent, as the context may require.

 

(c)                                  Should any instrument in writing from any Loan Party be required by any Supplemental Collateral Agent so appointed by the Collateral Agent for more fully and certainly vesting in and confirming to it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent.  In case any Supplemental Collateral Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall vest in and be exercised by the Collateral Agent until the appointment of a new Supplemental Collateral Agent.

 

Section 8.14                             Withholding.  To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender or Issuing Bank an amount equivalent to any applicable withholding Tax.  If any payment has been made to any Lender or Issuing Bank by the Administrative Agent without the applicable withholding Tax being withheld from such payment and the Administrative Agent has paid over the applicable withholding Tax to the Internal Revenue Service or any other Governmental Authority, or the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender or Issuing Bank because the appropriate form was not delivered or was not properly executed or because such Lender or Issuing Bank failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, such Lender or Issuing Bank shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.

 

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Section 8.15                             Enforcement.  The authority to enforce rights and remedies hereunder and under the other Loan Documents against any Loan Party or any of them shall be vested in, and all actions and proceedings at law in connection with such enforcement may be instituted and maintained by, the Administrative Agent or the Collateral Agent in accordance with Section 7.01 and the Collateral Documents for the benefit of each Lender (including in its capacities as a Lender, as a potential Cash Management Bank and a potential Specified Swap Counterparty), the Issuing Banks and each other Intercreditor Secured Party (as defined in the Intercreditor Agreement), as applicable; provided, that the foregoing shall not prohibit (a) the Administrative Agent or the Collateral Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent or Collateral Agent, as applicable) hereunder and under the other Loan Documents, (b) any Lender or Issuing Bank from exercising any enforcement rights, including setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.18(c)), or (c) any Lender or Issuing Bank 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 federal, state or foreign bankruptcy, insolvency, receivership or similar law; and provided, further, that if at any time there is no Person acting as the Administrative Agent or the Collateral Agent, as applicable, hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent or the Collateral Agent, as applicable, pursuant to Section 7.01 and the Collateral Documents, as applicable and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.18(c), any Lender or Issuing Bank may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.  For purposes of Section 8.10 and this Section 8.15, each Lender that is or becomes a Specified Swap Counterparty and/or Cash Management Bank is executing this Credit Agreement in its capacity as both or each of a Lender, Specified Swap Counterparty and/or Cash Management Bank.

 

ARTICLE IX

MISCELLANEOUS

 

Section 9.01                             Notices.  (a) Except in the case of notices expressly permitted to be given by telephone and except as provided in the following Subsection (b), all notices and other communications provided for herein shall be in writing and shall be delivered by hand, overnight service, courier service, mailed by certified or registered mail or sent by facsimile, as set forth on Schedule 9.01;

 

(b)                                 Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided, that the foregoing shall not apply to service of process, or to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender.  Each of the Administrative Agent, the Collateral Agent and 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.

 

(c)                                  All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given (i) on the

 

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date of receipt if delivered prior to 5:00 p.m., New York City time on a Business Day, on such date by hand, overnight courier service, facsimile or (to the extent permitted by paragraph (b) above) electronic means, or (ii) on the date five Business Days after dispatch by certified or registered mail with respect to both foregoing clauses (i) and (ii), to the extent properly addressed and delivered, sent or mailed to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01.

 

(d)                                 Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.

 

Section 9.02                             Survival of Agreement.  All covenants, agreements, representations and warranties made by the Borrower, each Subsidiary Loan Party, and each other Restricted Subsidiary herein, in the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and each Issuing Bank and shall survive the making by the Lenders of the Loans, the execution and delivery of the Loan Documents and the issuance of the Letters of Credit, regardless of any investigation made by such Persons or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or Revolving L/C Disbursement or any Fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not been terminated.  Without prejudice to the survival of any other agreements contained herein, indemnification and reimbursement obligations contained herein (including pursuant to Section 2.15, 2.17 and 9.05) shall survive the payment in full of the principal and interest hereunder, the expiration of the Letters of Credit and the termination of the Commitments or this Agreement.

 

Section 9.03                             Binding Effect.  This Agreement shall become effective when it shall have been executed by the Borrower and the Agents and when the Administrative Agent shall have received copies hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the Borrower, each Issuing Bank, the Agents and each Lender and their respective permitted successors and assigns.

 

Section 9.04                             Successors and Assigns.  (a) 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 (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.  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 (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section), the Lenders, the Agents, each Issuing Bank and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, each Issuing Bank, and the Lenders, and the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b)                                 (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may 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 at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:

 

(A)                               the Borrower; provided, that no consent of the Borrower shall be required (1) for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or a Federal Reserve Bank or a central bank or (2) if an Event of Default has occurred and is continuing any other assignee (provided, that, in the case of either of clauses (1) or (2), any liability of the Borrower to an assignee under Section 2.15 or 2.17 shall be limited to the amount, if any, that would have been payable hereunder by the Borrower in the absence of such assignment); provided, that if the Borrower shall fail to respond to a request for consent to an assignment within ten Business Days of receipt of such request for consent, the Borrower shall be deemed to have consented;

 

(B)                               the Administrative Agent; provided, that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Person that is a Lender, an Affiliate of a Lender or an Approved Fund immediately prior to giving effect to such assignment;

 

(C)                               in the case of any assignment of any Revolving Facility Commitment, each Issuing Bank; and

 

(D)                               in the case of any assignment of any Revolving Facility Commitment, each Swingline Lender.

 

(ii)                                  Assignments shall be subject to the following additional conditions:

 

(A)                               except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, an assignment of the entire remaining amount of the assigning Lender’s Commitment or contemporaneous assignments to related Approved Funds that equal at least U.S.$2.5 million in the aggregate, the amount of the Commitment and/or Loans, as applicable, of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than U.S.$5.0 million and increments of U.S.$1.0 million in excess thereof unless the Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed); provided, that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;

 

(B)                               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;

 

(C)                               the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance;

 

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(D)                               the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and any other administrative information that the Administrative Agent may reasonably request;

 

(E)                                no such assignment shall be made to the Borrower or any of its Affiliates, or a Defaulting Lender;

 

(F)                                 notwithstanding anything to the contrary herein, no such assignment shall be made to a natural person; and

 

(G)                               in connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

The term “Approved Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by a Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that administers or manages a Lender.

 

(iii)                               Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section below, from and after the effective date specified in each Assignment and Acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender hereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance 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 Section 2.15, 2.16, 2.17 and 9.05 provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim

 

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of any party hereunder arising from that Lender’s having been a Defaulting Lender).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall not be effective as an assignment hereunder.

 

(iv)                              The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans and Revolving L/C Disbursements 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 Agents, each Issuing Bank and the Lenders shall 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, any Issuing Bank and any Lender (as to its Commitments only), at any reasonable time and from time to time upon reasonable prior notice.

 

(v)                                 The parties to each assignment shall deliver to, and for the account of, the Administrative Agent a processing and recordation fee in the amount of $3,500; provided, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, any administrative information reasonably requested by the Administrative Agent (unless the assignee shall already be a Lender hereunder), any written consent to such assignment required by paragraph (b) of this Section, and the processing and recordation fee referred to above (unless waived as set forth above), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

 

(c)                                  (i)                                     Any Lender may, without the consent of the Borrower, the Administrative Agent or any Issuing Bank, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans and Revolving L/C Disbursements owing to it); provided, that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents, each Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument (oral or written) pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to exercise rights under and to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided, that (x) such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 9.04(a)(i) or clause (i) through (vii)

 

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of the first proviso to Section 9.08(b) that affects such Participant and (y) no other agreement (oral or written) in respect of the foregoing with respect to such Participant may exist between such Lender and such Participant.  Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits (and subject to the requirements and limitations) of Section 2.15, 2.16 and 2.17 to the same extent as if it were the Lender from whom it obtained its participation and had acquired its interest by assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided, that such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.

 

(ii)                                  A Participant shall not be entitled to receive any greater payment under Section 2.15, 2.16 or 2.17 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 (which shall not be unreasonably withheld or delayed) and the Borrower may withhold its consent if a Participant would be entitled to require greater payment than the applicable Lender under such Sections.  A Participant that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 2.17 to the extent such Participant fails to comply with Section 2.17(e) as though it were a Lender.

 

(d)                                 Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the applicable Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

 

(e)                                  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement and its promissory note, if any, to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or central bank having jurisdiction over such Lender, and this Section shall not apply to any such pledge or assignment of a security interest; provided, that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto, and any such pledgee (other than a pledgee that is the Federal Reserve Bank or central bank) shall acknowledge in writing that its rights under such pledge are in all respects subject to the limitations applicable to the pledging Lender under this Agreement or the other Loan Documents.

 

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Section 9.05                             Expenses; Indemnity.  (a) The Borrower agrees to pay all reasonable and documented out-of-pocket expenses incurred by the Agents, the Joint Lead Arrangers and their respective Affiliates in connection with the preparation of this Agreement and the other Loan Documents, (i) the syndication of the Commitments, (ii) the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower and the reasonable fees, disbursements and charges for counsel in each jurisdiction where Collateral is located) and (iii) any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated).  The Borrower agrees to pay all reasonable and documented out-of-pocket expenses incurred by the Agents, the Joint Lead Arrangers, their respective Affiliates or each Lender in connection with the enforcement and protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the reasonable fees, charges and disbursements of counsel for the Agents and the Joint Lead Arrangers (including external counsel and the reasonable and documented allocated costs of internal counsel for the Agents, the Joint Lead Arrangers, each Issuing Bank or any Lender); provided, that, absent any conflict of interest, the Agents and the Joint Lead Arrangers shall not be entitled to indemnification for the fees, charges or disbursements of more than one counsel in each jurisdiction.

 

(b)                                 The Borrower agrees to indemnify the Agents, the Joint Lead Arrangers, each Issuing Bank, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of the Engagement Letter, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit, as further described in Section 2.05(f), the use of the proceeds of the Loans or the use of any Letter of Credit or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not the Borrower, its Subsidiaries, the Sponsor, DFW Management, any Indemnitee or any other Person initiated or is a party thereto; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, nonappealable judgment rendered by a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee (or any of such Indemnitee’s Related Parties).  Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel or consultant fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any Environmental Event or Environmental Claim related in any way to the Borrower or any of its Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Real Property currently or formerly owned, leased or operated by the Borrower or any

 

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of its Subsidiaries or by any predecessor of the Borrower or any of its Subsidiaries, or any property at which the Borrower or any of its Subsidiaries has sent Hazardous Materials for treatment, storage or disposal; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, as determined by a final and nonappealable judgment in a court of competent jurisdiction.  In the event of any of the foregoing, each Indemnitee shall be indemnified whether or not such amounts are caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of any Indemnitee (except to the extent of gross negligence as specified above).  In no event shall any Indemnitee be liable to the Borrower, any Subsidiary Loan Party, or any other Restricted Subsidiary for any consequential, indirect, special or punitive damages.  No Indemnitee 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, bad faith, or willful misconduct of such Indemnitee as determined by a court of competent jurisdiction.  The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of the Engagement Letter, this Agreement or any other Loan Document, or any investigation made by or on behalf of any Agent, any Issuing Bank, any Joint Lead Arranger or any Lender.  All amounts due under this Section 9.05 shall be payable on written demand accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.

 

(c)                                  This Section 9.05 shall not apply to Taxes.

 

Section 9.06                             Right of Set-off.  If an Event of Default shall have occurred and be continuing, each Lender and any Issuing Bank and any Affiliate of a Lender or Issuing Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Issuing Bank or such Affiliate of a Lender or Issuing Bank to or for the credit or the account of any Loan Party or any other Subsidiary that is not a Foreign Subsidiary, against any and all obligations of the Loan Parties, now or hereafter existing under this Agreement or any other Loan Document held by such Lender or such Issuing Bank or such Affiliate of a Lender or Issuing Bank, irrespective of whether or not such Lender or such Issuing Bank or such Affiliate of a Lender or Issuing Bank shall have made any demand under this Agreement or such other Loan Document and although the obligations may be unmatured.  The rights of each Lender and each Issuing Bank and each Affiliate of a Lender or Issuing Bank under this Section 9.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender or such Issuing Bank or such Affiliate of a Lender or Issuing Bank may have.

 

Section 9.07                             Applicable Law.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN

 

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

 

Section 9.08                             Waivers; Amendment.  (a) No failure or delay of the Agents, any Issuing Bank or any Lender in exercising any right, power or remedy hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right, power or remedy.  The rights, powers and remedies of the Agents, each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower or any Subsidiary Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  No notice or demand on the Borrower or any Subsidiary Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.

 

(b)                                 Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each Loan Party party thereto and the Collateral Agent and consented to by the Required Lenders; provided, that no such agreement shall

 

(i)                                     decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any Revolving L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i) and provided, further, that, any waiver of all or a portion of any post-default increase in interest rates shall be effective upon the consent of the Required Lenders,

 

(ii)                                  increase or extend the Commitment of any Lender or decrease the Commitment Fees, Revolving L/C Participation Fees, the other Fees or any other fees payable to any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default shall not constitute an increase in the Commitments of any Lender),

 

(iii)                               extend any date on which payment of interest on any Loan, Revolving L/C Disbursement or any Fees or any other payment hereunder is due, without the prior written consent of each Lender adversely affected thereby,

 

(iv)                              change the order of application of any amounts from the application thereof set forth in the applicable provisions of Section 2.18(b), Section 2.18(c) or

 

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Section 9.23 or change any provision hereof that establishes the pro rata treatment among the Lenders in a manner that would by such change alter the pro rata sharing or other pro rata treatment of the Lenders, without the prior written consent of each Lender adversely affected thereby; provided, that a change in any Lender’s Revolving Facility Percentage resulting from an increase in the Revolving Facility Commitments pursuant to Section 2.20 shall be permitted pursuant to the procedures set forth in such Section 2.20,

 

(v)                                 extend the stated expiration date of any Letter of Credit beyond the Revolving Maturity Date, without the prior written consent of each Lender directly affected thereby,

 

(vi)                              amend or modify the provisions of this Section 9.08 or any requirement of Article IV or the definition of the terms “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender, and

 

(vii)                           release all or substantially all the Collateral or release all or substantially all of the value of the Guarantees of the Subsidiary Loan Parties without the prior written consent of each Lender and Issuing Bank (except to the extent of a release in connection with a transaction expressly permitted in Sections 6.02, or 6.05);

 

provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent, an Issuing Bank or a Swingline Lender hereunder or under the other Loan Documents, without the prior written consent of such Administrative Agent, Collateral Agent, Issuing Bank or Swingline Lender, as applicable.  Notwithstanding anything to the contrary herein, the aggregate principal amount of Loans, Revolving L/C Exposures, Swingline Exposures and Available Unused Commitment of a Defaulting Lender shall not be included in determining whether all Lenders, Required Lenders or affected Lenders have taken or may take any action hereunder; provided, that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender, which affects such Defaulting Lender differently than other affected Lenders, shall require the consent of such Defaulting Lender, (ii) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, rate of interest on or extends the final maturity of any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender.  Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.

 

(c)                                  Without the consent of any Lender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as

 

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required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.

 

(d)                                 Notwithstanding the foregoing, (i) technical and conforming modifications to the Loan Documents may be made with the consent of the Borrower and the Administrative Agent to the extent necessary to integrate any Incremental Commitments on the terms and conditions provided for in Section 2.20, and (ii) any Loan Document may be amended, modified, supplemented or waived with the written consent of the Administrative Agent and the Borrower without the need to obtain the consent of any Lender if such amendment, modification, supplement or waiver is executed and delivered in order to cure an ambiguity, omission, mistake or defect in such Loan Document; provided, that in connection with this clause (ii), in no event will the Administrative Agent be required to substitute its judgment for the judgment of the Lenders or the Required Lenders, and the Administrative Agent may in all circumstances seek the approval of the Required Lenders, the affected Lenders or all Lenders in connection with any such amendment, modification, supplement or waiver.

 

Section 9.09                             Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “Charges”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges payable to such Lender or such Issuing Bank, shall be limited to the Maximum Rate, provided, that such excess amount shall be paid to such Lender or such Issuing Bank on subsequent payment dates to the extent not exceeding the legal limitation.

 

Section 9.10                             Entire Agreement.  This Agreement, the other Loan Documents and the agreements regarding certain Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof.  Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents.  Notwithstanding the foregoing, the Engagement Letter shall survive the execution and delivery of this Agreement and remain in full force and effect.  Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.

 

Section 9.11                             Waiver of Jury Trial.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.  EACH PARTY HERETO (i) 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 (ii) ACKNOWLEDGES THAT IT AND THE OTHER

 

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PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

 

Section 9.12                             Severability.  In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

Section 9.13                             Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 9.03.  Delivery of an executed counterpart to this Agreement by facsimile transmission or an electronic transmission of a PDF copy thereof shall be as effective as delivery of a manually signed original.  Any such delivery shall be followed promptly by delivery of the manually signed original.

 

Section 9.14                             Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

 

Section 9.15                             Jurisdiction; Consent to Service of Process.  (a) Each of the Borrower, the Agents, each Issuing Bank and the Lenders hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, 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 permitted by law, in such federal court.  The Borrower further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to the Borrower at the address specified for the Loan Parties in Section 9.01.  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 (other than Section 8.09) shall affect any right that any Lender or any Issuing Bank may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrower or any Loan Party or their properties in the courts of any jurisdiction.

 

(b)                                 Each of the Borrower, the Agents, each Issuing Bank and the Lenders 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 Agreement or the other Loan Documents in any New York State or federal court sitting in New York County.  Each of the parties hereto hereby

 

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irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

Section 9.16                             Confidentiality.  Each of the Lenders, each of the Issuing Banks and each of the Agents agrees that it shall maintain in confidence any information relating to the Borrower and its Subsidiaries and their respective Affiliates furnished to it by or on behalf of the Borrower or the other Loan Parties or such Subsidiary or Affiliate (other than information that (x) has become generally available to the public other than as a result of a disclosure by such party in breach of this Agreement, (y) has been independently developed by such Lender, such Issuing Bank or such Agent without violating this Section 9.16 or (z) was available to such Lender, such Issuing Bank or such Agent from a third party having, to such Person’s actual knowledge, no obligations of confidentiality to the Borrower or any of its Subsidiaries or any such Affiliate) and shall not reveal the same other than to its directors, trustees, officers, employees, agents and advisors with a need to know or to any Person that approves or administers the Loans on behalf of such Lender or Issuing Bank (so long as each such Person shall have been instructed to keep the same confidential in accordance with this Section 9.16), except: (i) to the extent necessary to comply with law or any legal process or the regulatory (including self-regulatory) or supervisory requirements of any Governmental Authority (including bank examiners), the National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded, (ii) as part of reporting or review procedures to Governmental Authorities (including bank examiners) or the National Association of Insurance Commissioners, (iii) to its parent companies, Affiliates, counsel or auditors (so long as each such Person shall have been instructed to keep the same confidential in accordance with this Section 9.16), (iv) to any Issuing Bank, any Joint Lead Arranger, any Agent, any other Lender or any other party of any Loan Document and the Affiliates of each, (v) in connection with the exercise of any remedies under any Loan Document or in order to enforce its rights under any Loan Document in a legal proceeding, (vi) to any prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such Person shall have been instructed to keep the same confidential in accordance with this Section 9.16 or on terms at least as restrictive as those set forth in this Section 9.16), (vii) to any direct or indirect contractual counterparty in Swap Agreements or such contractual counterparty’s professional advisor (so long as each such contractual counterparty agrees to be bound by the provisions of this Section 9.16 or on terms at least as restrictive as those set forth in Section 9.16 and each such professional advisor shall have been instructed to keep the same confidential in accordance with this Section 9.16), (viii) with the consent of the Borrower and (ix) on a confidential basis to (x) any rating agency in connection with rating the Borrower or its Subsidiaries or this Agreement or (y) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to this Agreement.  If a Lender, an Issuing Bank or an Agent is requested or required to disclose any such information (other than to its bank examiners and similar regulators, or to internal or external auditors) pursuant to or as required by law or legal process or subpoena, then, to the extent reasonably practicable, it shall give prompt notice thereof to the Borrower so that the Borrower may seek an appropriate protective order and such Lender, Issuing Bank or Agent will cooperate with the Borrower (or the applicable Subsidiary or Affiliate) in seeking such protective order.

 

Section 9.17                             Communications.  (a) Delivery.  (i) Each Loan Party hereby agrees that it will use all reasonable efforts to provide to the Administrative Agent all information, documents

 

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and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (A) relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (B) relates to the payment of any principal or other amount due under this Agreement prior to 5:00 p.m., New York City time on the scheduled date therefor, (C) provides notice of any Default or Event of Default under this Agreement or (D) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder (all such non-excluded communications collectively, the “Communications”), by transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent at the address referenced in Section 9.01(a)(ii).  Nothing in this Section 9.17 shall prejudice the right of the Agents, the Joint Lead Arrangers, the Lenders, each Issuing Bank or any Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document.

 

(ii)                                  Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform (as defined below) shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents.  Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address.

 

(b)                                 Posting.  Each Loan Party further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar electronic transmission system (the “Platform”).  The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (ii) 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 it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, each Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its Affiliates or their respective securities for purposes of United States federal and state securities laws; (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

 

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Joint Lead Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”  Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Borrower Materials “PUBLIC” to the extent the Borrower determines that such Borrower Materials contain material non-public information with respect to the Borrower or its Affiliates or their respective securities for purposes of United States federal and state securities laws.

 

(c)                                  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 Communications, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications.  No warranty of any kind, express, implied or statutory, including, without limitation, 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 Communications or the Platform.  In no event shall the Administrative Agent, the Collateral Agent or any of its or their affiliates or any of their respective officers, directors, employees, agents advisors or representatives (collectively, “Agent Parties”) have any liability to the Loan Parties, any Lender or Issuing Bank or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s or the Collateral Agent’s transmission of communications through the internet, except to the extent the liability of any Agent Party is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Agent Party’s gross negligence or willful misconduct.

 

Section 9.18                             Release of Liens and Guarantees.  (a) In the event that (i) any Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of its assets (including the Equity Interests of any of its Subsidiaries) to a Person that is not (and is not required to become) a Loan Party in a transaction not prohibited by the Loan Documents, or (ii) any Subsidiary ceases to be a Benefited Subsidiary in accordance with this Agreement, then, in either of such cases, the Administrative Agent and the Collateral Agent shall promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Borrower and at the Borrower’s sole cost and expense to release any Liens created by any Loan Document in respect of such Equity Interests or assets that are the subject of such disposition and to release any Guarantees of the Obligations, and any Liens granted to secure the Obligations, in each case by a Person that ceases to be a Subsidiary of the Borrower as a result of a transaction described above.  Any representation, warranty or covenant contained in any Loan Document relating to any such Equity Interests or assets shall no longer be deemed to be made once such Equity Interests or assets are so conveyed, sold, leased, assigned, transferred or disposed of.

 

(b)                                 When all the Obligations are paid in full in cash and Commitments are terminated (other than (i) contingent indemnification obligations, (ii) obligations and liabilities under Secured Cash Management Agreements and Secured Swap Agreements and (iii) obligations and liabilities under Letters of Credit, which shall be cash collateralized in full or as to which arrangements otherwise satisfactory to the applicable Issuing Bank shall have been made), the Collateral Documents, the Guarantees made therein, the Security Interest (as defined

 

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therein) and all other security interests granted thereby shall terminate, and each Loan Party shall automatically be released from its obligations thereunder and the security interests in the Collateral granted by any Loan Party shall automatically be released.  At such time, the Administrative Agent and the Collateral Agent agree to take such actions as are reasonably requested by the Borrower at the Borrower’s expense to evidence and effectuate such termination and release of the Guarantees, Liens and security interests created by the Loan Documents.

 

(c)                                  Authorizations for each release and termination specified in this Section 9.18 shall be required only to the extent required by Section 8.10.

 

Section 9.19                             U.S.A. PATRIOT Act and Similar Legislation.  Each Lender and Issuing Bank hereby notifies each Loan Party that pursuant to the requirements of the U.S.A. PATRIOT Act and similar legislation, as applicable, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of each Loan Party and other information that will allow the Lenders to identify such Loan Party in accordance with such legislation.  Each Loan Party agrees to furnish such information promptly upon request of a Lender.  Each Lender shall be responsible for satisfying its own requirements in respect of obtaining all such information.

 

Section 9.20                             Judgment.  If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first mentioned currency with such other currency at the Administrative Agent’s office on the Business Day preceding that on which final judgment is given.

 

Section 9.21                             Pledge and Guarantee Restrictions.  Notwithstanding any provision of this Agreement or any other Loan Document to the contrary (including any provision that would otherwise apply notwithstanding other provisions or that is the beneficiary of other overriding language):

 

(a)                                 no more than 65% of the issued and outstanding voting Equity Interests of (x) any Foreign Subsidiary of the Borrower or (y) any Subsidiary of the Borrower, substantially all of which Subsidiary’s assets consist of the Equity Interests in “controlled foreign corporations” under Section 957 of the Code,  shall be pledged or similarly hypothecated to guarantee, secure or support any Obligation of any Loan Party;

 

(b)                                 no Foreign Subsidiary shall guarantee or support any Obligation of the Borrower;

 

(c)                                  (i) no Excluded Assets shall be Collateral and (ii) any guarantee provided by any Domestic Subsidiary of the Borrower, substantially all of whose assets consist of the Equity Interests in “controlled foreign corporations” under Section 957 of the Code shall be without recourse to the 35% of the issued and outstanding voting Equity Interests held by such Domestic Subsidiary in Foreign Subsidiaries which, pursuant to clause (a) above, are not required to be pledged by such Domestic Subsidiary; and

 

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(d)                                 no Subsidiary shall guarantee or support any Obligation of any Loan Party if and to the extent that such guarantee or support would contravene the Agreed Security Principles.

 

The parties hereto agree that any pledge, guaranty or security or similar interest made or granted in contravention of this Section 9.21 shall be void ab initio, but only to the extent of such contravention.

 

Section 9.22                             No Fiduciary Duty.  Each Agent, each Lender, each Issuing Bank and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Borrower and the Restricted Subsidiaries.  The Borrower hereby agrees that subject to applicable law, nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Lenders and the Loan Parties, their equity holders or their Affiliates.  The Borrower hereby acknowledges and agrees that (i) the transactions contemplated by the Loan Documents are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, (ii) in connection therewith and with the process leading to such transaction none of the Lenders is acting as the agent or fiduciary of any Loan Party, its management, equity holders, creditors or any other person, (iii) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether any Lender or any of its Affiliates has advised or is currently advising such Loan Party on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents, (iv) the Borrower and each other Loan Party has consulted its own legal and financial advisors to the extent it has deemed appropriate and (v) the Lenders may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates and no Lender has an obligation to disclose any such interests to the Borrower or its Affiliates.  The Borrower further acknowledges and agrees that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.

 

Section 9.23                             Application of Funds.  After the exercise of remedies provided for in Section 7.01 (or after the Loans have automatically become immediately due and payable), any amounts received by the Administrative Agent from the Collateral Agent pursuant to any Collateral Document and any other amounts received by the Administrative Agent on account of the Loan Document Obligations shall be applied by the Administrative Agent in the following order:

 

(a)                                 First, to payment of that portion of the Loan Document Obligations constituting Fees, indemnities, expenses and other amounts (other than principal, interest and Revolving L/C Participation Fees but including Fees, charges and disbursements of counsel to the Joint Lead Arrangers, the Administrative Agent and the Collateral Agent) payable to the Joint Lead Arrangers, the Administrative Agent and the Collateral Agent in their respective capacities as such;

 

(b)                                 Second, to payment of that portion of the Loan Document Obligations constituting Fees, indemnities and other amounts (other than principal, interest and Revolving

 

147











 

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

 

(c)                                  Third, to payment of that portion of the Loan Document Obligations constituting accrued and unpaid Revolving L/C Participation Fees and interest on the Loans, Revolving L/C Exposure and other Obligations arising under the Loan Documents, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause Third payable to them;

 

(d)                                 Fourth, to payment of that portion of the Loan Document Obligations constituting unpaid principal of the Loans, Revolving L/C Reimbursement Obligations, payments for early termination (and any other unpaid amount then due and owing under any Secured Swap Agreement) owed to a Person that is a Specified Swap Counterparty at the time such Person entered into such Secured Swap Agreement and amounts owed pursuant to any Secured Cash Management Agreement to a Cash Management Bank, ratably among the Lenders, the Issuing Banks, Specified Swap Counterparties and Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;

 

(e)                                  Fifth, to the Administrative Agent for the account of the Issuing Banks, to cash collateralize that portion of Revolving L/C Exposure comprised of the aggregate undrawn amount of Letters of Credit; and

 

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

 

Subject to Section 2.05(j), 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 Obligations, if any, in the order set forth above.

 

Section 9.24                             Transactions on the Restatement Date.  The parties hereto agree that on the Restatement Date, as agreed pursuant to the terms of the Amendment and Restatement Agreement, the following transactions shall be deemed to occur automatically, without further action by any party hereto:

 

(a)                                 the Existing Credit Agreement shall be deemed to be amended and restated in its entirety in the form of this Agreement;

 

(b)                                 all Existing Obligations (including any Existing Obligations that have accrued, but are not payable, as of the Restatement Date) shall, to the extent not paid on the Restatement Date, be deemed to be Obligations outstanding (and in the case of any accrued Existing Obligations that have accrued, but are not payable, as of the Restatement Date, such accrued Existing Obligations shall be paid on the date or dates that such Existing Obligations were due under the Existing Credit Agreement);

 

148











 

(c)                                  the Liens in favor of Collateral Agent securing payment of the Existing Obligations shall remain in full force and effect with respect to the Obligations and are hereby reaffirmed in accordance with the Collateral Documents; and

 

(d)                                 the parties acknowledge and agree that this Agreement and the other Loan Documents do not constitute a novation, payment and reborrowing or termination of the Existing Obligations and that all such Existing Obligations are in all respects continued and outstanding as Obligations under this Agreement with only the terms being modified from and after the effective date of this Agreement as provided in this Agreement and the other Loan Documents.

 

[SIGNATURE PAGES FOLLOW]

 

149











 

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

 

	
 
    	
SUMMIT   MIDSTREAM HOLDINGS, LLC,
    
	
 
    	
 
    	
as   Borrower
    
	
 
    	
 
    
	
 
    	
By:
    	
Summit   Midstream Partners, LLC, its sole member
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
					


 

Signature Pages — Credit Agreement

 

S-1











 

	
 
    	
THE   ROYAL BANK OF SCOTLAND PLC,
    
	
 
    	
 
    	
as   Administrative Agent, Collateral Agent, an Issuing Bank and a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
					


 

Signature Pages — Credit Agreement

 

S-2









 

EXECUTION VERSION

 

EXHIBIT A

 

FORM OF
 ASSIGNMENT AND ACCEPTANCE

 

This Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert names of Assignee(s)] (the “Assignee[s]”).  Capitalized terms used but not defined herein shall have the meanings given to such terms in the Credit Agreement identified below (as may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the] [each] 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 Acceptance as if set forth herein in full.

 

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to [the] [each] Assignee, and [the] [each] Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement (and each other Loan Document) to the extent of the percentage interest identified below of all of such outstanding rights and obligations of the Assignor (including any Revolving Letters of Credit and Swingline Loans) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.

 

1.                                      Assignor:                                                                                            

 

2.                                      Assignee[s]:                                                                                      

[and is an Affiliate/Approved Fund of [Identify Lender]]

 

3.                                      Administrative Agent:  The Royal Bank of Scotland plc.

 

4.                                      Credit Agreement:  The Amended and Restated Credit Agreement dated as of May 7, 2012, among SUMMIT MIDSTREAM HOLDINGS, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b) of the Credit Agreement, the “Borrower”), the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”),

 

Exhibit A-1











 

as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto.

 

5.                                      Total Commitments/Loans of all Lenders under the Credit Agreement:                          

 

6.                                      Assigned Interest:

 

	
Assignee
    	
 
    	
Amount of Commitment/
   Loans Assigned
    	
 
    	
Percentage Assigned of
   Commitment/ Loans, after
   giving effect to assignment
   hereunder(1)
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
%
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
%
    


 

Effective Date:                            ,     , 20    .(2)

 

[Remainder of page intentionally blank]

 




(1)  Calculate to 9 decimal places and show as a percentage of aggregate Commitments of all Lenders.

 

(2)  TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.

 

Exhibit A-2











 

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

 

	
 
    	
ASSIGNOR [NAME OF ASSIGNOR]
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:   
    
	
 
    	
 
    	
Title:   
    


 

	
 
    	
ASSIGNEE   [NAME OF ASSIGNEE](3)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

	
Consented(4)   and accepted:
    
	
 
    
	
THE   ROYAL BANK OF SCOTLAND plc, as
    
	
Administrative Agent
    
	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

 

[Consented(5) to:]

 

[Issuing Bank]

 

 

	
By 
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 




(3)  Add additional signature blocks if there is more than one Assignee.

 

(4)  Consent of Administrative Agent to be included to the extent required by Section 9.04(b)(i)(B) of the Credit Agreement.

 

(5)  Consents of Issuing Bank, Swingline Lender and Borrower to be included to the extent required by Section 9.04(b)(i)(C), 9.04(b)(i)(D) or 9.04(b)(i)(A), respectively, of the Credit Agreement.

 

Exhibit A-3











 

 

[Consented to:]

 

[Swingline Lender]

 

 

	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

[Consented to:]

 

SUMMIT MIDSTREAM HOLDINGS, LLC

 

 

	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

Exhibit A-4











 

ANNEX 1 to Exhibit A
 of the Credit Agreement

 

STANDARD TERMS AND CONDITIONS FOR
 ASSIGNMENT AND ACCEPTANCE

 

1.                                      Representations and Warranties.

 

1.1                               Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any Lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance 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 Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.04 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (vi) attached to this Assignment and Acceptance 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 on the Administrative Agent, any other Agent, the Assignor or any other Lender and, based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

 

Exhibit A-5











 

2.                                      Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to [the] [the relevant] Assignee for amounts which have accrued from and after the Effective Date.

 

3.                                      General Provisions.  This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Acceptance 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 Acceptance by facsimile, telecopy or other electronic means (including a PDF sent by e-mail) shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance; provided, however, that it shall be promptly followed by an original.  This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.

 

[End of document]

 

Exhibit A-6









 

EXHIBIT B

 

FORM OF PREPAYMENT NOTICE

 

The Royal Bank of Scotland plc
                 as Administrative Agent
                 for the Lenders referred to below
                 [600 Washington Blvd, 
                 Stamford, CT 06901
                 (203) 873-5300]

 

Attention:  [Yolette Salnave/ Summit Midstream Holdings, LLC]

 

[Date]

 

Ladies and Gentlemen:

 

Reference is made to the Amended and Restated Credit Agreement (the “Credit Agreement”) dated as of May 7, 2012, among SUMMIT MIDSTREAM HOLDINGS, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b) of the Credit Agreement, the “Borrower”), the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”), as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto. Terms defined in the Credit Agreement are used herein with the same meanings.

 

The undersigned, SUMMIT MIDSTREAM HOLDINGS, LLC, refers to the Credit Agreement, and hereby gives you notice that, pursuant to Section 2.11 of the Credit Agreement, the undersigned intends to make a prepayment of a Revolving Facility Borrowing consisting of [ABR Loans or Eurodollar Loans], in the amount of $                        (1). [The proceeds of this Borrowing were used to make the Reimbursement Revolving Loans and, to the extent such proceeds would otherwise have had the same rate of interest as any other Borrowing hereunder, had an Alternate Base Rate or Eurodollar Rate, as applicable, one basis point higher than otherwise would have applied to such proceeds.](2)

 

Very truly yours,

 




(1)  Please provide reasonably detailed calculation of the amount of prepayment.  The amount should be an integral multiple of the Borrowing Multiple (as defined in the Credit Agreement) and not less than the Borrowing Minimum (as defined in the Credit Agreement).

 

(2)   Delete unless the proceeds of the Borrowing were used to make Reimbursement Revolving Loans.

 

Exhibit B-1











 

	
 
    	
SUMMIT   MIDSTREAM HOLDINGS, LLC
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

Exhibit B-2











 

EXHIBIT C-1

 

FORM OF
 BORROWING REQUEST

 

The Royal Bank of Scotland plc
                 as Administrative Agent
                 for the Lenders referred to below
                 [600 Washington Blvd, 
                 Stamford, CT 06901
                 (203) 873-5300]

 

Attention:  [Yolette Salnave/ Summit Midstream Holdings, LLC]

 

[Date]

 

Ladies and Gentlemen:

 

Reference is made to the Amended and Restated Credit Agreement (the “Credit Agreement”) dated as of May 7, 2012, among SUMMIT MIDSTREAM HOLDINGS, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b) of the Credit Agreement, the “Borrower”), the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”), as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto. Terms defined in the Credit Agreement are used herein with the same meanings.

 

This notice constitutes a Borrowing Request of the Borrower and the Borrower hereby requests Borrowings under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowings requested hereby:

 

For a Revolving Facility Borrowing or issuance of Revolving Letter of Credit,

 

(A)                               Borrower (and Name of Account Party)(1):                   

 

(B)                               Aggregate or Face Amount of Borrowing:(2)  US$                  

 

(C)                               Date of Borrowing (which shall be a Business Day):                    

 




(1)  If Borrower requests that a letter of credit be issued on behalf of another Loan Party.

 

(2)  Which must be an integral multiple of the Borrowing Multiple (as defined in the Credit Agreement) and not less than the Borrowing Minimum (as defined in the Credit Agreement).

 

Exhibit C-1-1











 

(D)                               Type of Borrowing (ABR, Eurodollar, or Revolving Letter of Credit):              

 

(E)                                Interest Period (if a Eurodollar Borrowing):(3)

 

(F)                                 [Location and number of the Borrower’s account or any other account agreed upon by the Administrative Agent] [Beneficiary (if a Revolving Letter of Credit)(4)]:

 

(G)                               Expiry date (if a Revolving Letter of Credit)(5):

 

(H)                              [The proceeds of this Borrowing will be used to make the Reimbursement Revolving Loans and, to the extent such proceeds would otherwise have had the same rate of interest as any other Borrowing hereunder, will have an Alternate Base Rate or Eurodollar Rate, as applicable, one basis point higher than otherwise would have applied to such proceeds.](6)

 

[Remainder of page intentionally blank]

 




(3)  Which must comply with the definition of “Interest Period” and end not later than the Stated Maturity Date.

 

(4)  Please specify name and address.

 

(5)  This date must be (A) unless the applicable Issuing Bank agrees to a later expiration date, the date one year after the date of issuance (or in the case of any renewal or extension thereof, one year after such renewal or extension) and (B) the date that is five Business Days prior to the Stated Maturity Date.

 

(6)   Delete unless the proceeds of the Borrowing will be used to make Reimbursement Revolving Loans.

 

Exhibit C-1-2











 

The undersigned hereby certifies that, on and as of the date hereof, (i) no Default or Event of Default has occurred and is continuing and (ii) the representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects on and as of the date of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).(7)

 

	
 
    	
Very   truly yours,
    
	
 
    	
 
    
	
 
    	
SUMMIT   MIDSTREAM HOLDINGS, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 




(7)  Bring down certifications to be included in Borrowing Requests after the Closing Date.

 

Exhibit C-1-3











 

EXHIBIT C-2

 

FORM OF
 SWINGLINE BORROWING REQUEST

 

[The Royal Bank of Scotland plc]
                 as Swingline Lender
                 [600 Washington Blvd, 
                 Stamford, CT 06901
                 (203) 873-5300]

 

Attention:  [Yolette Salnave/ Summit Midstream Holdings, LLC]

 

[Date]

 

Ladies and Gentlemen:

 

Reference is made to the Amended and Restated Credit Agreement (the “Credit Agreement”) dated as of May 7, 2012, among SUMMIT MIDSTREAM HOLDINGS, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b) of the Credit Agreement, the “Borrower”), the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”), as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto. Terms defined in the Credit Agreement are used herein with the same meanings.

 

This notice constitutes a Swingline Borrowing Request and the Borrower hereby requests Borrowings under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowings requested hereby:

 

Aggregate Amount of Borrowing:(1)   US$            

 

Term of Swingline Borrowing:               

 

All Swingline Borrowings shall be ABR Loans.

 

Date of Borrowing (which shall be a Business Day):                    

 

Location and number of the Borrower’s account or any other account agreed upon by the Swingline Lender:                 

 




(1)  Which must be an integral multiple of the Borrowing Multiple (as defined in the Credit Agreement) and not less than the Borrowing Minimum (as defined in the Credit Agreement).

 

Exhibit C-2-1











 

The undersigned hereby certifies that, on and as of the date hereof, (i) no Default or Event of Default has occurred and is continuing and (ii) the representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects on and as of the date of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).

 

	
 
    	
Very   truly yours,
    
	
 
    	
 
    
	
 
    	
SUMMIT   MIDSTREAM HOLDINGS, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

 

Exhibit C-2-2









 

EXECUTION VERSION

 

EXHIBIT D

 

FORM OF

INTEREST ELECTION REQUEST

 

The Royal Bank of Scotland plc
                 as Administrative Agent [and Issuing Bank]
                 for the Lenders referred to below
                 [600 Washington Blvd, 
                 Stamford, CT 06901
                 (203) 873-5300]

 

Attention:  [Yolette Salnave/ Summit Midstream Holdings, LLC]

 

[Date]

 

Ladies and Gentlemen:

 

Reference is made to the Amended and Restated Credit Agreement (the “Credit Agreement”) dated as of May 7, 2012, among SUMMIT MIDSTREAM HOLDINGS, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b) of the Credit Agreement, the “Borrower”), the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”), as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto. Terms defined in the Credit Agreement are used herein with the same meanings.

 

This notice constitutes an Interest Election Request by the Borrower and the Borrower hereby requests a [conversion] [continuation] of [IDENTIFY BORROWING] pursuant to Section 2.07 of the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such conversion or continuation:

 

For a Revolving Facility Borrowing,

 

(A)                               Amount of initial Borrowing being converted(1):  US$                 

 

(B)                               Effective Date (which shall be a Business Day):                       

 

(C)                               Type of Borrowing (ABR or Eurodollar)(2):                        

 




(1)  For conversions only.  Please complete a separate form for each portion of the initial Borrowing being converted.

 

(2)  For conversions only.

 

Exhibit D-1











 

(D)                               Interest Period (if a Eurodollar Borrowing)(3):                 

 

(E)                                [The proceeds of this Borrowing were used to make the Reimbursement Revolving Loans and, to the extent such proceeds would otherwise have had the same rate of interest as any other Borrowing hereunder, had an Alternate Base Rate or Eurodollar Rate, as applicable, one basis point higher than otherwise would have applied to such proceeds.](4)

 

Subject to the terms of the Credit Agreement, if the Borrowing described above comprises a Eurodollar Loan, and if the Borrower fails to deliver a timely Interest Election Request with respect to such Eurodollar Loan prior to the end of the Interest Period applicable thereto, then, unless such Eurodollar Loan is repaid as provided under the Credit Agreement, at the end of such Interest Period, such Eurodollar Loan shall be continued as a Eurodollar Loan with the same Interest Period as previously was applicable thereto.

 




(3)  For conversions and continuations of Eurodollar Borrowings.  If the Borrower requests a Eurodollar Borrowing but does not specify an Interest Period, then the Interest Period shall be deemed to be of one month’s duration.

 

(4)   Delete unless the proceeds of the Borrowing were used to make Reimbursement Revolving Loans.

 

Exhibit D-2











 

	
 
    	
Very   truly yours,
    
	
 
    	
 
    
	
 
    	
SUMMIT   MIDSTREAM HOLDINGS, LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

Exhibit D-3











 

EXHIBIT E

 

FORM OF

GUARANTEE AND COLLATERAL AGREEMENT

 

[ATTACHED HERETO]

 

Exhibit E











 

EXECUTION VERSION

 

EXHIBIT F

 

[Intentionally Omitted]

 

Exhibit F-1











 

EXHIBIT G

 

FORM OF REVOLVING NOTE

 

	
$                      
    	
Dated:                       ,   2012
    


 

FOR VALUE RECEIVED, the undersigned, SUMMIT MIDSTREAM HOLDINGS, LLC (the “Borrower”), HEREBY PROMISES TO PAY to [NAME OF LENDER] (the “Lender”) or its registered assigns for the account of its applicable lending office the principal amount of the Revolving Facility Loans (as defined below) owing to the Lender by the Borrower pursuant to the Amended and Restated Credit Agreement (the “Credit Agreement”) dated as of May 7, 2012, among the Borrower, the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”), as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto.

 

The Borrower promises to pay to the Lender or its registered assigns interest on the unpaid principal amount of each Revolving Facility Loan advanced to the Borrower from the date of such Revolving Facility Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.

 

Both principal and interest are payable in U.S. dollars to The Royal Bank of Scotland plc, as Administrative Agent, at 600 Washington Blvd., Stamford, CT 06901, Attention: John Ferrante, Telephone: (203) 897-7623, Fax: (203) 873-5300, in immediately available funds.  Each Revolving Facility Loan advanced to the Borrower and the maturity thereof, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto, which is part of this promissory note (the “Promissory Note”); provided, however, that the failure of the Lender to make any such recordation or endorsement shall not affect the Obligations of the Borrower under this Promissory Note.

 

This Promissory Note is one of the promissory notes referred to in Section 2.09(e) of the Credit Agreement and is entitled to the benefits of the Credit Agreement.  The Credit Agreement, among other things, (i) provides for the making of loans (the “Revolving Facility Loans”) by the Revolving Facility Lenders to or for the benefit of the Borrower from time to time in an aggregate amount not to exceed at any time outstanding U.S.$550,000,000(1), the indebtedness of the Borrower resulting from each such Revolving Facility Loan being, on request of a Revolving Facility Lender, evidenced by such promissory notes, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified.  The obligations of the Borrower under this Promissory Note and

 




(1)  In the event of any Incremental Commitments under Section 2.20 of the Credit Agreement, an Amended and Restated Note should be issued to reflect the increased amount.

 

Exhibit G-1











 

the other Loan Documents, and the obligations of the other Loan Parties under the Loan Documents, are secured by the Collateral as provided in the Loan Documents.

 

The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Promissory Note or the other Loan Documents, or for recognition or enforcement of any judgment, and 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 permitted by law, in such federal court.  The Borrower further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to the Borrower at the address specified for the Loan Parties in Schedule 9.01 attached to the Credit Agreement.  The Borrower 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 Promissory Note shall affect any right that the Lender may otherwise have to bring any action or proceeding relating to this Promissory Note or the other Loan Documents against the Borrower or any Loan Party or their properties in the courts of any jurisdiction.

 

The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Promissory Note or the other Loan Documents in any New York State or federal court sitting in New York County.  The Borrower hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

[Signature page follows]

 

Exhibit G-2











 

This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York and is entered into as of the date first written above.

 

	
 
    	
SUMMIT   MIDSTREAM HOLDINGS, LLC, as Borrower
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

Exhibit G-3











 

LOANS AND PAYMENTS OF PRINCIPAL

 

	
Date
    	
 
    	
Amount of
   Loans
    	
 
    	
Amount of
   Principal Paid
   or Prepaid
    	
 
    	
Unpaid
   Principal
   Balance
    	
 
    	
Notation Made
   By
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

Exhibit G-4









 

EXECUTION VERSION

 

EXHIBIT H
 FORM OF NON-U.S. LENDER TAX CERTIFICATE

 

NON-U.S. LENDER TAX CERTIFICATE(1)

 

[date]

 

Reference is made to the Amended and Restated Credit Agreement (the “Credit Agreement”) dated as of May 7, 2012, among SUMMIT MIDSTREAM HOLDINGS, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b) of the Credit Agreement, the “Borrower”), the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”), as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto. Capitalized terms used herein that are not defined herein shall have the meanings ascribed to them in the Credit Agreement.

 

[Insert name of institution] (the “Non-U.S. Lender”) is providing this certificate pursuant to subsection 2.17(e) of the Credit Agreement.  The Non-U.S. Lender hereby represents and warrants that:

 

A.                                    It is the sole beneficial owner of the Loan (as well as any Notes evidencing such Loan) in respect of which it is providing this certificate;

 

B.                                    The Non-U.S. Lender is not a “bank” that entered into the Credit Agreement in the “ordinary course of its trade or business” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”).  In this regard, the Non-U.S. Lender further represents and warrants that:

 

(i)                                     the Non-U.S. Lender is not subject to regulatory or other legal requirements as a bank in any jurisdiction; and

 




(1)  Note: If the undersigned is an intermediary, a foreign partnership or other flow-through entity, the following adjustments shall be made.

 

A.                                    The following representations shall be provided as applied to the partners, members or other persons claiming the portfolio interest exemption:

 

·                                          beneficial ownership under Paragraph A;

 

·                                          the status in Paragraph C;

 

·                                          the status in Paragraph D.

 

B.                                    The following representation shall be provided as applied to the undersigned as well as the partners,  members or other persons claiming the portfolio interest exemption:

 

·                                          the status in Paragraph B;

 

·                                          the status in Paragraph E.

 

C.                                    The undersigned shall provide an Internal Revenue Service Form W-8IMY (with underlying W-8BENs, W-9s or other applicable forms from each of its partners, members or other persons).

 

D.                                    Appropriate adjustments shall be made in the case of tiered intermediaries or tiered partnerships or flow-through entities.

 

Exhibit H-1











 

(ii)                                  the Non-U.S. Lender has not been treated as a bank for purposes of any tax, securities law or other filing or submission made to any Governmental Authority, any application made to a rating agency or qualification for any exemption from tax, securities law or other legal requirements.

 

C.                                    The Non-U.S. Lender is not a “10-percent shareholder” of the U.S. Borrower within the meaning of Section 871(h)(3)(B) of the Code.

 

D.                                    The Non-U.S. Lender is not a “controlled foreign corporation” receiving interest from a related person within the meaning of Section 881(c)(3)(C) of the Code.

 

E.                                     The interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.

 

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in any of the three calendar years preceding such payments.

 

[Signature page follows]

 

Exhibit H-2











 

IN WITNESS WHEREOF, the undersigned has duly executed this certificate as of the date first written above.

 

	
 
    	
[NAME   OF NON-U.S. LENDER]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

Exhibit H-3











 

EXHIBIT I
 FORM OF ADMINISTRATIVE QUESTIONNAIRE

 

Lender Details Form

 

*** PLEASE SUBMIT ALONG WITH COMMITMENT LETTER TO: Edward Brown, FAX#: (203) 873-4413 or via email to edward.a.brown@rbs.com***

 



 

ADMINISTRATIVE QUESTIONNAIRE
 BORROWER: Summit Midstream Holdings, LLC

 

	
Agent Address:
    	
 
    	
 
    	
Return form to:
    	
 
    
	
 
    	
 
    	
 
    	
Telephone:
    	
 
    
	
 
    	
 
    	
 
    	
Facsimile:
    	
 
    
	
 
    	
 
    	
 
    	
E-mail:
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

It is very important that all of the requested information be completed accurately and that this questionnaire be returned promptly. If your institution is sub-allocating its allocation, please fill out an administrative questionnaire for each legal entity.

 

	
Legal Name of   Lender to appear in Documentation:
    	
 
    
	
 
    	
 
    
	
Signature Block Information:
    	
 
    
	
 
    	
 
    
	
Signing Credit   Agreement
    	
o
    	
Yes 
    	
o
    	
No
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Coming in Via   Assignment
    	
o
    	
Yes 
    	
o
    	
No
    
	
 
    
	
Type of Lender:
    	
 
    
	
 
    	
 
    
	
(Bank, Asset   Manager, Broker/Dealer, CLO/CDO; Finance Company, Hedge Fund, Insurance,   Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose   Vehicle, Other-please specify)
    
	
 
    
	
Lender Parent:
    	
 
    
								


 

	
Domestic Address
    	
 
    	
Eurodollar   Address
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    


 

Exhibit I-1











 

Contacts/Notification Methods:  Borrowings, Paydowns, Interest, Fees, etc.

 

	
 
    	
 
    	
Primary   Credit Contact
    	
 
    	
Secondary   Credit Contact
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Company:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Address:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Facsimile:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
E-Mail:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Primary   Operations Contact
    	
 
    	
Secondary   Operations Contact
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Company:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Address:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Facsimile:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
E-Mail:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Bid   Contact
    	
 
    	
L/C   Contact
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Company:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Address:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Telephone:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Facsimile:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
E-Mail:
    	
 
    	
 
    	
 
    	
 
    


 

Exhibit I-2











 

Lender’s Domestic Wire Instructions

 

	
Bank Name:
    	
 
    
	
 
    	
 
    
	
ABA/Routing No.:
    	
 
    
	
 
    	
 
    
	
Account Name:
    	
 
    
	
 
    	
 
    
	
Account No.:
    	
 
    
	
 
    	
 
    
	
FFC Account   Name:
    	
 
    
	
 
    	
 
    
	
FFC Account No.:
    	
 
    
	
 
    	
 
    
	
Attention:
    	
 
    
	
 
    	
 
    
	
Reference:
    	
 
    


 

 

Lender’s Foreign Wire Instructions

 

	
Currency:
    	
 
    
	
 
    	
 
    
	
Bank Name:
    	
 
    
	
 
    	
 
    
	
Swift/Routing   No.:
    	
 
    
	
 
    	
 
    
	
Account Name:
    	
 
    
	
 
    	
 
    
	
Account No.:
    	
 
    
	
 
    	
 
    
	
FFC Account   Name:
    	
 
    
	
 
    	
 
    
	
FFC Account No.:
    	
 
    
	
 
    	
 
    
	
Attention:
    	
 
    
	
 
    	
 
    
	
Reference:
    	
 
    


 

 

Agent’s Wire Instructions

 

	
Bank Name:
    	
 
    
	
 
    	
 
    
	
ABA/Routing No.:
    	
 
    
	
 
    	
 
    
	
Account Name:
    	
 
    
	
 
    	
 
    
	
Account No.:
    	
 
    
	
 
    	
 
    
	
FFC Account   Name:
    	
 
    
	
 
    	
 
    
	
FFC Account No.:
    	
 
    
	
 
    	
 
    
	
Attention:
    	
 
    
	
 
    	
 
    
	
Reference:
    	
 
    


 

Exhibit I-3











 

EXHIBIT J

 

FORM OF
 INTERCREDITOR AGREEMENT

 

[ATTACHED HERETO]

 

Exhibit J-1









 

ANNEX A

 

MLP CONVERSION

 

An “MLP Conversion” shall mean the conversion of the Borrower to a publicly traded partnership subject to Section 7704 of the Code (a “master limited partnership”) or the transfer of all or any material portion of the equity or assets of the Borrower into a master limited partnership, which transactions may be effected without the consent of the Lenders, provided that such transactions are effected pursuant to documentation (including a master limited partnership agreement) and an organizational structure that is reasonably acceptable to the Administrative Agent and otherwise in accordance with and subject to the further requirements of this Annex A:

 

(a)  both immediately prior to and after the consummation of any MLP Conversion, the Borrower would be in compliance on a Pro Forma Basis with the Financial Performance Covenants as of the most recently completed quarter for which financial statements are available;

 

(b)  the consummation of the MLP Conversion does not cause a Change of Control;

 

(c)  the MLP Conversion does not and could not reasonably be expected to have a material adverse effect on the business, operations, properties, assets or financial condition of the Loan Parties and Benefited Subsidiaries, taken as a whole;

 

(d)  the MLP Conversion does not and could not reasonably be expected to have a material adverse effect on (i) the creation, attachment, perfection or priority of any Lien granted in favor of the Secured Parties pursuant to the Loan Documents as in effect immediately prior to the MLP Conversion, or (ii) any other right, remedy or benefit available to the Collateral Agent or other Secured Parties under the Loan Documents as in effect immediately prior to the MLP Conversion, and the Agents shall have received all documents, financing statements, agreements, instruments and opinions of counsel necessary or reasonably requested by the Administrative Agent in connection with maintaining its Liens in the Property that comprises the Collateral (consistent, in each case, with the extent of, and any limitations on, such Liens pursuant to the Loan Documents as in effect immediately prior to the MLP Conversion), in each case reasonably satisfactory to the Administrative Agent;

 

(e) on or prior to the date of the MLP Conversion, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower certifying compliance with the requirements of this Annex A, including a computation of compliance with the Financial Performance Covenants; and

 

(f) from and after the MLP Conversion, the master limited partnership, if other than the Borrower, shall be a Loan Party and the Administrative Agent shall have received any documentation necessary to provide for the joinder of the master limited partnership under the Loan Documents, or that is required or requested pursuant to Section 5.10 of the Credit Agreement.

 

Annex A-2











 

ANNEX B

 

PERFECTION CERTIFICATE

 

Reference is made to that certain Amended and Restated Credit Agreement, dated as of  May 7, 2012, by and among SUMMIT MIDSTREAM HOLDINGS, LLC, a limited liability company organized under the laws of Delaware (together with any permitted successors or assigns pursuant to the provisions of Section 6.05(b) of the Credit Agreement, the “Borrower”), the LENDERS party thereto from time to time, THE ROYAL BANK OF SCOTLAND plc (“RBS”), as Administrative Agent, RBS, as Collateral Agent, RBS SECURITIES INC. (“RBSSI”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (“MERRILL”), BMO CAPITAL MARKETS and REGIONS BANK, as Joint Lead Arrangers, RBSSI AND MERRILL, as Joint Lead Bookrunners, and the other Persons from time to time party thereto (the “Credit Agreement”). All capitalized terms used herein and not defined herein are used with the meaning set forth in the Credit Agreement, and this Perfection Certificate is otherwise subject to the terms and conditions of the Credit Agreement. This Perfection Certificate, dated as of [                ], 2012, is delivered pursuant to Section 4.02(d) of the Credit Agreement by Borrower, Sponsor, as a Pledgor (as defined in Collateral Agreement), DFW Management, as a Pledgor, DFW and GRG.

 

Each Obligor hereby certifies as to itself, as follows:

 

I.                                        CURRENT INFORMATION

 

A.            Legal Names, Organizations, Jurisdictions of Organization and Organizational Identification Numbers.  The full and exact legal name(1) (as it appears in each respective certificate or articles of incorporation, limited liability membership agreement or similar organizational documents, in each case as amended to date), the type of organization (or if the Debtor or a particular Obligor is an individual, please indicate so), the jurisdiction of organization (or formation, as applicable), and the organizational identification number(2) (not tax i.d. number) of the Debtor and each other Obligor are as follows:

 

	
Name of Debtor/ Obligor
    	
 
    	
Type of Organization (e.g.
   corporation, limited
   liability company, limited
   partnership)
    	
 
    	
Jurisdiction of
   Organization/
   Formation
    	
 
    	
Organizational
   Identification
   Number(3)
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

Annex B - 1











 

B.            Chief Executive Offices and Mailing Addresses.  The chief executive office address (or the principal residence if the Debtor or a particular Obligor is a natural person) and the preferred mailing address (if different than chief executive office or residence) of the Debtor and each other Obligor are as follows:

 

	
Name of Debtor/ Obligor
    	
 
    	
Address of Chief Executive Office
   (or for natural persons, residence)
    	
 
    	
Mailing Address (if different than
   CEO or residence)
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

C.            Special Debtors.  Except as specifically identified below none of the Obligors is a: (i) a trust, (ii) a foreign air carrier within the meaning of the federal aviation act of 1958, as amended, or (iii) a branch or agency of a bank which bank is not organized under the law of the United States or any state thereof.

 

	
Name of Debtor/ Obligor
    	
 
    	
Type of Special Obligor
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    


 

D.            Trade Names/Assumed Names.  Current Trade Names.  Set forth below is each trade name or assumed name currently used by the Debtor or any other Obligor or by which the Debtor or any Obligor is known or is transacting any business:

 

	
Debtor/Obligor
    	
 
    	
Trade/Assumed Name
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    


 

E.            Changes in Names, Jurisdiction of Organization or Corporate Structure.  Except as set forth below, neither the Debtor nor any other Obligor has changed its name, jurisdiction of organization or its corporate structure in any way (e.g. by merger, consolidation, change in corporate form, change in jurisdiction of organization or otherwise) within the past five (5) years:

 

	
Debtor/ Obligor
    	
 
    	
Date of Change
    	
 
    	
Description of Change
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

Annex B - 2











 

F.            Prior Addresses.  Except as set forth below, neither the Debtor nor any other Obligor has changed its chief executive office, or principal residence if the Debtor or a particular Obligor is a natural person, within the past five (5) years:

 

	
Debtor/ Obligor
    	
 
    	
Prior Address/City/State/Zip Code
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    


 

G.            Acquisitions of Equity Interests or Assets.  Except as set forth below, neither the Debtor nor any Obligor has acquired all or substantially all of the equity interests of another entity or substantially all the assets of another entity within the past five (5) years:

 

	
Debtor/ Obligor
    	
 
    	
Date of Acquisition
    	
 
    	
Description of Acquisition
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

H.            Corporate Ownership and Organizational Structure.  Attached as Exhibit A hereto is a true and correct chart showing the ownership relationship of the Debtor and all of its Subsidiaries.

 

II.                                   INFORMATION REGARDING CERTAIN COLLATERAL

 

A.            Investment Related Property

 

1.             Equity Interests.  Set forth below is a list of all equity interests owned by the Debtor and each Obligor together with the type of organization which issued such equity interests (e.g. corporation, limited liability company, partnership or trust):

 

	
Debtor/ Obligor
    	
 
    	
Issuer
    	
 
    	
Type of
   Organization
    	
 
    	
# of
   Shares
   Owned
    	
 
    	
Total Shares
   Outstanding
    	
 
    	
% of
   Interest
   Pledged
    	
 
    	
Certificate No.
   (if uncertificated,
   please indicate so)
    	
 
    	
Par Value
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

2.             Debt Securities & Instruments.  Set forth below is a list of all debt securities and instruments owed to the Debtor or any other Obligor in the principal amount of greater than $500,000:

 

	
Debtor/ Obligor
    	
 
    	
Issuer of Instrument
    	
 
    	
Principal Amount of Instrument
    	
 
    	
Maturity Date
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

Annex B - 3











 

B.            Intellectual Property.  Set forth below is a list of all copyrights, patents, and trademarks and all applications thereof and other intellectual property owned by the Debtor and each other Obligor:

 

1.             Copyrights and Copyright Applications

 

	
Debtor/ Obligor
    	
 
    	
Title
    	
 
    	
Filing Date/Issued Date
    	
 
    	
Status
    	
 
    	
Application/
   Registration No.
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

2.             Patents and Patent Applications

 

	
Debtor/ Obligor
    	
 
    	
Title
    	
 
    	
Filing Date/Issued Date
    	
 
    	
Status
    	
 
    	
Application/
   Registration No.
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

3.             Trademarks and Trademark Applications

 

	
Debtor/ Obligor
    	
 
    	
Title
    	
 
    	
Filing Date/Issued Date
    	
 
    	
Status
    	
 
    	
Application/
   Registration No.
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

C.            Tangible Personal Property in Possession of Warehousemen, Bailees and Other Third Parties.  Except as set forth below, no persons (including, without limitation, warehousemen and bailees) other than the Debtor or any other Obligor have possession of any material amount (fair market value, individually or in the aggregate, of $5 million or more) of tangible personal property of the Debtor and any other Obligor:

 

	
Debtor/ Obligor
    	
 
    	
Address/City/State/Zip Code
    	
 
    	
County
    	
 
    	
Description of
   Assets and Value
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

Annex B - 4











 

D.            Real Estate Related UCC Collateral

 

1.             Fixtures.  Set forth below are all the locations where the Debtor or any other Obligor owns or leases any real property:

 

	
Debtor/ Obligor
    	
 
    	
Address/City/State/Zip Code
    	
 
    	
County
    	
 
    	
Owned or
   Leased
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

2.             “As Extracted” Collateral.  Set forth below are all the locations where the Debtor or any other Obligor owns, leases or has an interest in any wellhead or minehead:

 

	
Debtor/ Obligor
    	
 
    	
Address/City/State/Zip Code
    	
 
    	
County
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

3.             Timber to be Cut.  Set forth below are all locations where the Debtor or any other Obligor owns goods that are timber to be cut:

 

	
Debtor/ Obligor
    	
 
    	
Address/City/State/Zip Code
    	
 
    	
County
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

 [Remainder of page intentionally blank]

 

Annex B - 5











 

Endnotes

 

1.             It is crucial that the full and exact name of each Obligor is given.  Even seemingly minor errors such as substituting “n.a.” for “national association” or “inc.” for “incorporated” may be seriously misleading in some states.

 

2.             Please note that the organizational identification number is not the same as the federal employer’s tax identification number.  The organizational identification number is customarily issued by the Secretary of State or State Corporations Department in the State under which the particular entity had been organized or formed and may be found on its organizational documents.

 

3.             If an Obligor does not have an organizational identification number, please indicate “none.” Additionally, organizational identification numbers are not required for entities organized under the laws of New York, Delaware, Connecticut, Georgia or Ohio for financing statements filed in such states.  Such organizational identification numbers nevertheless may be required for financing statements filed in respect of entities organized under the foregoing states but filed in other states, e.g. in respect of fixtures.

 

[Remainder of page intentionally blank]

 

Annex B - 6











 

IN WITNESS WHEREOF, the undersigned certify that information above is true, accurate and complete as of the date first above written.

 

	
 
    	
SUMMIT   MIDSTREAM HOLDINGS, LLC
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
SUMMIT   MIDSTREAM PARTNERS LLC, as a Pledgor
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
DFW   MIDSTREAM MANAGEMENT, LLC, as a Pledgor
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
DFW   MIDSTREAM SERVICES LLC
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
GRAND   RIVER GATHERING, LLC, as a Pledgor
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
Title:
    	
 
    


 

- Signature Page to 
 Perfection Certificate -

 

Annex B - 7











 

EXECUTION VERSION

 

Schedule 1.01

Exception to Collateral and Guarantee Requirement

 

The Orchard Compressor Station, located in the SW1/4 of Section 27, T7S, R96W, 6th P.M., Garfield County, Colorado.

 









 

Schedule 2.01

 

Existing Credit Agreement Commitments

 

	
Lender
    	
 
    	
Revolving
   Facility
   Commitment
    	
 
    	
Revolving L/C
   Commitment
    	
 
    	
Swingline
   Commitment
    	
 
    
	
The Royal Bank of Scotland plc
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
30,000,000
    	
 
    	
$
    	
10,000,000
    	
 
    
	
Bank of Montreal
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Regions Bank
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
ING Capital LLC
    	
 
    	
$
    	
40,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Barclays Bank PLC
    	
 
    	
$
    	
35,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Credit Agricole Corporate and Investment Bank
    	
 
    	
$
    	
35,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Sumitomo Mitsui Banking Corporation
    	
 
    	
$
    	
25,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Total
    	
 
    	
$
    	
285,000 000
    	
 
    	
$
    	
30,000,000
    	
 
    	
$
    	
10,000,000
    	
 
    


 

Restatement Date Commitments

 

	
Lender
    	
 
    	
Revolving
   Facility
   Commitment
    	
 
    	
Revolving L/C
   Commitment
    	
 
    	
Swingline
   Commitment
    	
 
    
	
The Royal Bank of Scotland plc
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
20,000,000
    	
 
    	
$
    	
20,000,000
    	
 
    
	
Bank of America, N.A.
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
20,000,000
    	
 
    	
$
    	
0
    	
 
    
	
BMO Harris Financing, Inc.
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Regions Bank
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
ING Capital LLC
    	
 
    	
$
    	
50,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Barclays Bank PLC
    	
 
    	
$
    	
35,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Credit Agricole Corporate and Investment Bank 
    	
 
    	
$
    	
35,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Sumitomo Mitsui Banking Corporation
    	
 
    	
$
    	
30,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Morgan Stanley Bank, N.A.
    	
 
    	
$
    	
30,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Deutsche Bank Trust Company Americas
    	
 
    	
$
    	
25,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Royal Bank of Canada 
    	
 
    	
$
    	
25,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Comerica Bank
    	
 
    	
$
    	
25,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Capital One, N.A.
    	
 
    	
$
    	
25,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Compass Bank
    	
 
    	
$
    	
20,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Amegy Bank National Association
    	
 
    	
$
    	
20,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
Goldman Sachs Bank USA
    	
 
    	
$
    	
15,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
MidFirst Bank
    	
 
    	
$
    	
15,000,000
    	
 
    	
$
    	
0
    	
 
    	
$
    	
0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Total
    	
 
    	
$
    	
550,000,000
    	
 
    	
$
    	
40,000,000
    	
 
    	
$
    	
20,000,000
    	
 
    


 











 

Schedule 3.04

Government Approvals

 

None.

 











 

Schedule 3.07(d)

Subsidiaries

 

Name:

DFW Midstream Services LLC (“DFW”)

 

Jurisdiction and form of organization:

Delaware limited liability company

 

Ownership of Equity Interests by Borrower or any Subsidiary of Borrower:

Borrower owns 100% of the Class A Units of DFW.

 

Designation:

DFW is a Subsidiary Loan Party.

 

Name:

Grand River Gathering, LLC (“GRG”)

 

Jurisdiction and form of organization:

Delaware limited liability company

 

Ownership of Equity Interests by Borrower or any Subsidiary of Borrower:

Borrower owns 100% of GRG.

 

Designation:

GRG is a Subsidiary Loan Party.

 











 

Schedule 3.07(e)

Subscriptions

 

The Class B Units of DFW Midstream Services LLC (“DFW”) are profits interests.  100% of such Class B Units are owned by DFW Midstream Management, LLC, a Delaware limited liability company.

 











 

Schedule 3.08

Litigation

 

None.

 











 

Schedule 3.12

Taxes

 

None.

 











 

Schedule 3.15

Environmental Matters

 

None.

 











 

Schedule 3.17(a)

Real Property

 

1.  The Arlington Gathering Station No. 1, located at 1015 West Harris Road in Arlington, Texas.

 

2.  The Dalworthington Gathering Station No. 1, located at 3018 W. Pioneer Parkway in Dalworthington Gardens, Texas.

 

3.  The East Mamm Compressor Station, located in the N1/2N1/2 of Section 36, T6S, R93W, 6th PM, Garfield County, Colorado.

 

4.  The Hunter Mesa Compressor Station, located in the SE1/4 SE1/4 of Section 1, T7S, R93W, 6th PM, Garfield County, Colorado.

 

5.  The Pumba Compressor Station, located in the NE1/4 of Section 10, T7S, R93W, 6th P.M., Garfield County, Colorado.

 

6.  The Rifle Booster Compressor Station, located in the NE1/4 of Section 13, T6S, R94W, 6th P.M., Garfield County, Colorado.

 

7.  K-28E Field Compressor Station, located in the W1/2 of Section 28, T7S, R92W, 6th P.M., Garfield County, Colorado.

 

8.  The High Mesa Compressor Station, located in the SE1/4 NW1/4 and the SW1/4 NE1/4 of Section 36, T7S, R96W, 6th P.M., Garfield County.

 

9.  The Orchard Compressor Station, located in the SW1/4 of Section 27, T7S, R96W, 6th P.M., Garfield County, Colorado.

 











 

Schedule 3.17(b)

Gathering System Liens

 

None.

 











 

Schedule 3.17(d)

Deeds

 

The Pumba Compressor Station, located in the NE1/4 of Section 10, T7S, R93W, 6th P.M., Garfield County, Colorado.

 











 

Schedule 3.20

Insurance

 

Attached hereto

 













	
  

  	
  DATE
  (MM/DD/YYYY) CERTIFICATE OF PROPERTY INSURANCE THIS CERTIFICATE IS ISSUED AS
  A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
  HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND
  OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF
  INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),
  AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. If this
  certificate is being prepared for a party who has an insurable interest in
  the property, do not use this form. Use ACORD 27 or ACORD 28. CONTACT
  PRODUCER NAME: FAX PHONE (A/C, No): (A/C, No, Ext): E-MAIL ADDRESS: PRODUCER
  CUSTOMER ID: INSURER(S) AFFORDING COVERAGE NAIC # INSURED INSURER A : INSURER
  B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE
  NUMBER: REVISION NUMBER: LOCATION OF PREMISES / DESCRIPTION OF PROPERTY
  (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
  THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN
  ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
  NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER
  DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,
  THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
  TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN
  REDUCED BY PAID CLAIMS. POLICY EFFECTIVE INSR POLICY EXPIRATION TYPE OF
  INSURANCE POLICY NUMBER COVERED PROPERTY LIMITS DATE (MM/DD/YYYY) LTR DATE
  (MM/DD/YYYY) PROPERTY BUILDING $ CAUSES OF LOSS DEDUCTIBLES PERSONAL PROPERTY
  $ BUILDING BASIC BUSINESS INCOME $ BROAD EXTRA EXPENSE $ CONTENTS SPECIAL
  RENTAL VALUE $ EARTHQUAKE BLANKET BUILDING $ WIND BLANKET PERS PROP $ FLOOD
  BLANKET BLDG & PP $ $ $ INLAND MARINE TYPE OF POLICY $ CAUSES OF LOSS $ NAMED PERILS POLICY NUMBER $ $ CRIME $ TYPE OF POLICY $ $ BOILER &
  MACHINERY / $ EQUIPMENT BREAKDOWN $ $ $ SPECIAL CONDITIONS / OTHER COVERAGES
  (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
  CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE
  CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
  ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1995-2009
  ACORD CORPORATION. All rights reserved. The ACORD name and logo are
  registered marks of ACORD ACORD 24 (2009/09) MAPASCARELLA 5/7/2012 Cyndy
  Kleindienst Arthur J. Gallagher Risk Management Services, Inc. 1230 North
  Robinson Avenue Oklahoma City, OK 73103-4820 (918) 764-1685 (405) 235-6634
  cyndy_kleindienst@ajg.com SUMMMID-01 DFW Midstream Services, LLC Grand River
  Gathering, LLC 2300 Windy Ridge Parkway, Suite 240S Atlanta, GA 75201
  National Union Fire Ins Co Pittsburgh PA 19445 Lloyd's of London ACE American
  Insurance Company 22667 1 0 0 See Attached Acord 101 X A 63803752 9/3/2011
  9/3/2012 X X X X X 200,000,000 X 50% Lead Carrie X Busi Income Included B
  Property P11HR01130 9/3/2011 9/3/2012 X 20% Participation 200,000,000 C
  Property EPRN05107295 9/3/2011 9/3/2012 X 30% Participation 200,000,000 See
  Attached Summary for Sublimits and Deductibles The Royal Bank of Scotland
  plc, as administrative agent and collateral agent is the loss payee and
  mortgagee for all of the above policies. *Certificate Holder is afforded 30
  Days Notice of Cancellation except for 10 Days Notice of Cancellation for
  Non-Payment of premium The Royal Bank of Scotland plc, as Administrative
  Agent and Collateral Agent Attn: John Ferrante 600 Washington Boulevard
  Stamford, CT 06901 

  






 















	
  

  	
  AGENCY CUSTOMER
  ID: LOC #: Page of ADDITIONAL REMARKS SCHEDULE AGENCY NAMED INSURED POLICY
  NUMBER CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL
  REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE: ACORD 101
  (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and
  logo are registered marks of ACORD SUMMMID-01 MAPASCARELLA 1 1 DFW Midstream
  Services, LLC Grand River Gathering, LLC 2300 Windy Ridge Parkway, Suite 240S
  Atlanta, GA 75201 Arthur J. Gallagher Risk Management Services, Inc. SEE PAGE
  1 SEE P 1 SEE PAGE 1 ACORD 24 Certificate of Property Insurance Remarks:
  Description of Property: 1 1 1015 West Harris Arlington #1 Arlington, TX
  76001 2 1 2203 Michigan Ave Dalworthington Dalworthington, TX 76013 3 1 96.5
  Miles of operational gathering system , TX 4 1 30 approx miles of gathering
  system to be constructed , TX 5 1 Mamm Creek Gathering System 5555 County
  Road Rifle, CO 5 2 Mamm Creek Gathering System 5555 County Road Rifle, CO 5 3
  Mamm Creek Gathering System 5555 County Road Rifle, CO 5 4 Mamm Creek
  Gathering System 5555 County Road Rifle, CO 5 5 Mamm Creek Gathering System
  5555 County Road Rifle, CO 6 1 Orchard Gathering System 50 Miles Parachute,
  CO 6 2 Orchard Gathering System 50 Miles Parachute, CO 7 1 South Parachute
  Gathering System 35 Miles Parachute, CO 

  






 















	
  

  	
  SECTION II LIMITS OF LIABILITY AND DEDUCTIBLES 1. 100% LIMITS OF LIABILITY The Insurers
  will pay up to the following Limits of Liability for it's proportional share
  of the below limit(s) in any one occurrence:
  $200,000,000 per any one •occurrence
  2. SUBLIMITS OF LIABILITY The
  Insurers shall pay up to the following sub-limits of liability per any one •occurrence: The following
  sub-limits are part of, and do not serve to increase the limits of liability
  specified in Clause 1 above: a. Accounts Receivable $1,000,000 b. Debris
  Removal $5,000,000 or 25% of the loss for real and personal property,
  whichever is greater c. Demolition and Increased Cost of Construction
  $5,000,000 d. *Expediting Expense $5,000,000
  e. *Time Element Included in
  Blanket Limits f. Fire Brigade and Extinguishing Expenses $1,000,000 g.
  Construction - Unscheduled Construction - Scheduled $10,000,000 As Declared
  h. Inland Transit $5,000,000 i. Miscellaneous Unnamed Locations (no coverage for *Time Element, *Flood, *Earth Movement and
  *Named Windstorm) $5,000,000
  j. Newly Acquired Locations (90 Days) Except: No coverage for California
  Earthquake Flood Zones A & V, *Named
  Windstorm $10,000,000 $2,500,000 $5,000,000 k. Pollutant Clean-Up and
  Removal and Decontamination Costs (annual aggregate) $250,000

  






 















	
  

  	
  I. 'Professional Fees $1,000,000 m. Public Authorities $10,000,000 n. Temporary
  Removal of Property $2,500,000 o. Valuable Papers and Records $1,000,000 p. Service Interruption $5,000,000 q. Interruption by
  Civil or Military Authority 30 Days r. Ingress/Egress 30 Days s. 'Earth Movement in the annual
  aggregate combined for Material Damage and *Time Element $25,000,000 except; No Coverage inCA, AK, HI t. the annual aggregate
  combined for Material and *Time
  Element $20,000,000 except $2,500,000 Zones A & V and associated
  subzones u. *Flood in Damage
  Pipelines Only) & Gathering Lines (sublimit applies to PD $10,000,000 v.
  Personal Property of Others in the Insured's Care, Custody, & Control
  $10,000,000 w. Fine
  Arts (Unscheduled) $1,000,000 X. 'Land Improvements $2,500,000 y. Errors & Omissions $5,000,000 z. Electronic
  Data $5,000,000 aa. 'Inventory $1,000,000
  bb. Goods and Services Scheduled direct suppliers/receivers Unscheduled
  direct suppliers/receivers $10,000,000 $5,000,000 cc. Defense Costs $500,000
  dd. Extended Period of Indemnity 90 Days ee. Extra Expense $2,500,000 ff.
  Protection of Property $2,500,000

  






 















	
  

  	
  3. DEDUCTIBLES All losses arising out of any one •occurrence shall
  be adjusted as one loss and from the amount of such adjusted loss shall be
  deducted the sum set forth below: Material Damage and Time Element $100,000
  $10,000 any one •occurrence including,
  except Office Locations $250,000 applicable for *Flood $250,000
  applicable for *Earth
  Movement 21 days (504 Hours) 24 Hours
  qualification period for *Time Element Service
  Interruption $500,000 as respect to Pipeline; 5% ofTotallnsured Property
  Damage values at location(s) of loss subject to a minimum of $250,000. *Named Windstorm If two or more deductible amounts apply to a single •occurrence, the total amount to be deducted from the amount of the insured
  loss shall not exceed the largest deductible applicable. Material Damage and
  Time Element deductibles shall apply separately.

  






 















	
  

  	
  DATE
  (MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE THIS CERTIFICATE IS ISSUED AS
  A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
  HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND
  OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF
  INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),
  AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT:
  If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be
  endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of
  the policy, certain policies may require an endorsement. A statement on this
  certificate does not confer rights to the certificate holder in lieu of such
  endorsement(s). CONTACT PRODUCER NAME: FAX PHONE (A/C, No): (A/C, No, Ext):
  E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A : INSURED
  INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES
  CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF
  INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE
  POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION
  OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY
  BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED
  HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
  POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ADDL SUBR INSR
  POLICY EFF POLICY EXP TYPE OF INSURANCE LIMITS POLICY NUMBER LTR (MM/DD/YYYY)
  (MM/DD/YYYY) INSR WVD GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE TO RENTED
  COMMERCIAL GENERAL LIABILITY $ PREMISES (Ea occurrence) CLAIMS-MADE OCCUR MED
  EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L
  AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ PRO- $ POLICY LOC JECT
  COMBINED SINGLE LIMIT AUTOMOBILE LIABILITY (Ea accident) $ BODILY INJURY (Per
  person) $ ANY AUTO ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS
  AUTOS NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS (Per accident) AUTOS $ UMBRELLA
  LIAB EACH OCCURRENCE $ OCCUR EXCESS LIAB CLAIMS-MADE AGGREGATE $ $ DED
  RETENTION $ WC STATU- OTH- WORKERS COMPENSATION TORY LIMITS ER AND EMPLOYERS'
  LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ N / A
  OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ If
  yes, describe under E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS
  below DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101,
  Additional Remarks Schedule, if more space is required) CERTIFICATE HOLDER
  CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
  THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE
  POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2010 ACORD CORPORATION.
  All rights reserved. The ACORD name and logo are registered marks of ACORD
  ACORD 25 (2010/05) SUMMMID-01MAPASCARELLA 5/7/2012 Cyndy Kleindienst Arthur
  J. Gallagher Risk Management Services, Inc. 1230 North Robinson Avenue
  Oklahoma City, OK 73103-4820 (918) 764-1685 (405) 235-6634
  cyndy_kleindienst@ajg.com Ironshore Specialty Insurance Co 25445 Summit
  Midstream Holdings, LLC DFW Midstream Services, LLC Grand River Gathering, LLC
  2100 McKinney Ave, Suite 1250 Dallas, TX 75201 Philadelphia Indemnity
  Insurance Company 18058 Berkshire Hathaway Homestate Companies RSUI Indemnity
  Company 22314 1 1,000,000 A X X X 001144600 9/3/2011 9/3/2012 1,000,000 X
  Excluded 1,000,000 5,000,000 2,000,000 X 1,000,000 B X X X PHPK767940
  9/3/2011 9/3/2012 X X X X 25,000,000 A XX 001144700 9/3/2011 9/3/2012
  25,000,000 X 10,000 X C X GAW002327 9/3/2011 9/3/2012 1,000,000 1,000,000
  1,000,000 D Excess Liability X X NHA057600 9/3/2011 9/3/2012 Occurence/Aggregate
  25,000,000 *Certificate Holder is listed as Additional Insured on all
  policies (except Workers' Compensation) and is afforded 30 Days Notice of
  Cancellation except for 10 Days Notice of Cancellation for Non-Payment of
  premium. The Royal Bank of Scotland plc, as Administrative Agent and
  Collateral Agent Attn: John Ferrante 600 Washington Boulevard Stamford, CT
  06901 

  






 















	
  

  	
  DATE
  (MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE THIS CERTIFICATE IS ISSUED AS
  A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
  HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND
  OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF
  INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),
  AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT:
  If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be
  endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of
  the policy, certain policies may require an endorsement. A statement on this
  certificate does not confer rights to the certificate holder in lieu of such
  endorsement(s). CONTACT PRODUCER NAME: FAX PHONE (A/C, No): (A/C, No, Ext):
  E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A : INSURED
  INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES
  CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF
  INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE
  POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION
  OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY
  BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED
  HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
  POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ADDL SUBR INSR
  POLICY EFF POLICY EXP TYPE OF INSURANCE LIMITS POLICY NUMBER LTR (MM/DD/YYYY)
  (MM/DD/YYYY) INSR WVD GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE TO RENTED
  COMMERCIAL GENERAL LIABILITY $ PREMISES (Ea occurrence) CLAIMS-MADE OCCUR MED
  EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L
  AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ PRO- $ POLICY LOC JECT
  COMBINED SINGLE LIMIT AUTOMOBILE LIABILITY (Ea accident) $ BODILY INJURY (Per
  person) $ ANY AUTO ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS
  AUTOS NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS (Per accident) AUTOS $ UMBRELLA
  LIAB EACH OCCURRENCE $ OCCUR EXCESS LIAB CLAIMS-MADE AGGREGATE $ $ DED
  RETENTION $ WC STATU- OTH- WORKERS COMPENSATION TORY LIMITS ER AND EMPLOYERS'
  LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ N / A
  OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ If
  yes, describe under E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS
  below DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101,
  Additional Remarks Schedule, if more space is required) CERTIFICATE HOLDER
  CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
  THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE
  POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2010 ACORD CORPORATION.
  All rights reserved. The ACORD name and logo are registered marks of ACORD ACORD
  25 (2010/05) SUMMMID-01MAPASCARELLA 5/7/2012 Cyndy Kleindienst Arthur J.
  Gallagher Risk Management Services, Inc. 1230 North Robinson Avenue Oklahoma
  City, OK 73103-4820 (918) 764-1685 (405) 235-6634 cyndy_kleindienst@ajg.com
  Ironshore Specialty Insurance Co 25445 Grand River Gathering, LLC c/o Summit
  Midstream Holdings, LLC 2300 Windy Ridge Parkway, Suite 240S Atlanta, GA
  75201 A Pollution Liability X X 001211700 11/1/2011 11/1/2014 Policy
  Aggregate 5,000,000 Site Pollution Legal Liability for Grand River Gathering,
  LLC - See attached list of locations. *Certificate Holder is listed as
  Additional Insured and is afforded 30 Days Notice of Cancellation except for
  10 Days Notice of Cancellation for Non-Payment of premium. The Royal Bank of
  Scotland as Administrative Agent and Collateral Agent 600 Washington
  Boulevard Stamford, CT 06901 

  






 















	
  

  	
  AGENCY CUSTOMER
  ID: LOC #: Page of ADDITIONAL REMARKS SCHEDULE AGENCY NAMED INSURED POLICY
  NUMBER CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS
  FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE: ACORD 101
  (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and
  logo are registered marks of ACORD SUMMMID-01 MAPASCARELLA 1 1 Grand River
  Gathering, LLC c/o Summit Midstream Holdings, LLC 2300 Windy Ridge Parkway,
  Suite 240S Atlanta, GA 75201 Arthur J. Gallagher Risk Management Services,
  Inc. SEE PAGE 1 SEE P 1 SEE PAGE 1 ACORD 25 Certificate of Liability
  Insurance Remarks: Scheduled Covered Property(ies) 1. Rifle Booster Station
  107°49’58.608”W, 39°31’39.095”N 865 County Road 264 Rifle, CO 81650 2. Pumba
  Compressor Station 107°45’23.798”W, 39°27’53.371”N 6650 County Road 319
  Rifle, CO 81650 3. East Mamm Creek Compressor Station 107°49’58.608”W,
  39°29’20.907”N 5555 County Road 319, Rifle, CO 81650 4. Hunter Mesa
  Compressor Station 107°42’56.839”W, 39°27’53.371”N 7777 County Road 319
  Rifle, CO 81650 5. K28 Compressor Station 107°40’24.212”W, 39°25’2.002”N
  669.5 County Road 316 Rifle, CO 81650 6. High Mesa Compressor Station
  108°3’35.637”W, 39°23’45.676”N 490 High Mesa Road Parachute, CO 81635 7.
  Orchard Compressor Station 108°6’1.151”W, 39°24’7.806”N 112 County Road 300
  Parachute, CO 81635 8. OH14 Compressor Station 108°10'51.844"W,
  39°21'49.839"N 865 County Road 264 Parachute, CO 81635 9. Mamm
  Creek/Rifle Gathering System Approximately 180 miles of pipe ranging in size
  from 3 to 24" delivering gas, equity & third party, from wells in
  the field through East Mamm, Pumba, K-28E & Rifle Compression Stations,
  Garfield and Mesa Counties, CO. 10. Orchard Gathering System Approximately 50
  miles of pipe ranging in size from 3 to 24" delivering gas, equity and
  third party from wells in the field through the High Mesa Compression
  Station, Parachute, CO. 

  






 


 








 

Schedule 3.22

Material Contracts

 

1.  Amended and Restated Natural Gas Gathering Agreement, by and among DFW Midstream Services LLC (“DFW”), Chesapeake Energy Marketing, Inc. and Chesapeake Exploration, LLC (as production guarantor), dated August 1, 2010, together with that certain Amended and Restated Individual Transaction Sheet No. 1, originally dated September 3, 2009, amended and restated on August 1, 2010 and further amended and restated on April 1, 2011, as amended January 1, 2012.

 

2.  Natural Gas Gathering Agreement, by and among DFW, Total Gas and Power North America, Inc. and Total E&P USA, Inc. (as production guarantor), dated August 1, 2010, together with that certain Individual Transaction Sheet No. 1, originally dated August 1, 2010, as amended by that certain First Amendment to Individual Transaction Sheet No. 1 on August 20, 2010, as amended and restated on April 1, 2011, as amended January  1, 2012.

 

3.  Amended and Restated Natural Gas Gathering Agreement by and between DFW and Carrizo Oil & Gas, Inc., dated May 15, 2008, as amended by that certain Amendment to Natural Gas Gathering Agreement, dated April 1, 2010, as further amended by that certain Second Amendment to Base Agreement, dated December 1, 2010, as further amended by that certain Amendment to Base Agreement, dated December 1, 2011 together with that certain Amended and Restated Individual Transaction Sheet No. 1, dated as of April 1, 2010, as amended by that certain First Amendment to Individual Transaction Sheet No. 1, dated as of December 1, 2010, as amended by that certain Amendment to Individual Transaction Sheet No. 1, dated as of December 1, 2011.

 

4.  Natural Gas Gathering Agreement by and between DFW and XTO Energy, Inc, dated December 15, 2008, as amended by that certain Amendment to Natural Gas Gathering Agreement, dated as of April 1, 2010, together with that certain Individual Transaction Sheet No. 1, dated as of December 15, 2008, as amended and restated as of April 1, 2010, as amended by that certain First Amendment to the Amended and Restated Individual Transaction Sheet No. 1, dated as of May 1, 2011.

 

5.  Natural Gas Gathering Agreement by and between DFW and Vantage Energy, LLC, dated August 1, 2010, together with that certain Individual Transaction Sheet No. 1, dated as of August 1, 2010, as amended by that certain First Amendment to the Individual Transaction Sheet No. 1, dated as of April 1, 2012.

 

6.  Natural Gas Gathering Agreement by and between DFW and ETC Marketing, LTD dated April 1, 2011, as amended by that certain First Amendment to the Base Agreement, dated April 1, 2012, together with that certain Individual Transaction Sheet No. 1, dated as of April 1, 2011, as amended by that certain First Amendment to the Individual Transaction Sheet No. 1, dated as of April 1, 2012.

 











 

7.  Natural Gas Gathering Agreement by and between DFW and Enterprise Products Operating LLC dated December 1, 2011, together with that certain Individual Transaction Sheet No. 1, dated as of December 1, 2011.

 

8.  The South Parachute and Orchard Gas Gathering Agreement by and between Grand River Gathering, LLC (“GRG”) and Encana Oil & Gas (USA) Inc. (“Encana”) dated October 1, 2011 and any amendments, supplements and restatements or other modifications from time to time thereto.

 

9. The Mamm Creek Gas Gathering Agreement by and between GRG and Encana dated October 1, 2011 and any amendments, supplements and restatements or other modifications from time to time thereto.

 

10. The Future Development Gas Gathering Agreement by and between GRG and Encana dated October 1, 2011 and any amendments, supplements and restatements or other modifications from time to time thereto.

 

11. The Second Amended and Restated Gas Gathering Agreement by and between GRG and Williams Production RMT Company dated November 1, 2010 and any amendments, supplements and restatements or other modifications from time to time thereto.

 











 

Schedule 6.01

Indebtedness

 

None.

 











 

Schedule 6.02

Liens

 

None.

 











 

Schedule 6.04

Investments

 

None.

 











 

Schedule 6.07

Transactions with Affiliates

 

Equipower Resources Corp. (“Equipower”), an affiliate of Energy Capital Partners, assists DFW with managing its electricity price risk. The Sponsor entered into a consulting arrangement with Equipower to provide these services.

 











 

Schedule 9.01

Notice Addresses of Borrower, Administrative Agent, Issuing Banks and Lenders

 

	
If to:
    	
 
    	
Address
    
	
 
    	
 
    	
 
    
	
Summit   Midstream Holdings, LLC, in its capacity as the Borrower
    	
 
    	
2100   McKinney Street

Suite 1250

Dallas,   TX 75201

Telephone:   (214) 242-1957

Fax:   (214) 242-1972
    
	
 
    	
 
    	
 
    
	
The   Royal Bank of Scotland plc, in its capacity as the Administrative Agent,   Collateral Agent, Lender and Issuing Bank
    	
 
    	
RBS   Global Banking & Markets

RBS   Americas HQ, 
   600 Washington Boulevard, Stamford, CT 06901, USA

Mail   Code: CCS110

Attention:   John Ferrante

Telephone:   (203) 897-7623

Fax:   (203) 873-5300

gbmnaagency@rbs.com

 

with   copy to:

The   Royal Bank of Scotland plc

Attention:   Sanjay Remond

600   Travis St., Suite 6500

Houston,   TX 77002

 

with   second copy to: gbmnaagency@rbs.com
    
	
 
    	
 
    	
 
    
	
Bank   of America, N.A., in its capacity as Issuing Bank
    	
 
    	
Bank   of America, N.A.

101   N Tryon St

Charlotte,   NC 28255

Attention:   Basant Swain

Telephone:   (415) 426-3683 EXT 81385

Fax:  (312) 453-6040

basant.swain@bankofamerica.com

 

with   copy to:

Bank   of America, N.A.

540   W. Madison Street, IL4-540-23-09

Chicago, IL   60661

Attention:   Adam Fey

Telephone:   (312) 828-1462

adam.h.fey@baml.com
    


 











 

	
If to:
    	
 
    	
Address
    
	
Barclays   Bank PLC
    	
 
    	
Barclays   Capital

70   Hudson Street

Jersey   City, NJ  07302

Attention:  Tunde Malomo

Telephone:  (201) 499-9072

Fax:  (917) 522-0568

xrausloanops4@barclays.com

 

with   copy to:

Barclays   Capital

745   7th Avenue, 26th Floor

New   York, NY  10019

Attention:  Sreedhar Kona

Telephone:  (212) 526-7808

Fax:  (212) 526-5115

Sreedar.Kona@Barclays.com
    
	
 
    	
 
    	
 
    
	
Regions   Bank
    	
 
    	
Regions   Bank

201   Milan Parkway

Birmingham,   AL  35211

Attention:  Stephanie Reid

Telephone:  (205) 420-7736

Fax:  (205) 420-7069

sncservices@regions.com

 

with   copy to:

Regions   Bank

5005   Woodway Drive, Suite 110

Houston,   TX  77056

Attention:  David Valentine

Telephone:  (713) 426-7141

Fax:  (713) 426-7182

david.valentine@regions.com
    


 




 






 

	
If to:
    	
 
    	
Address
    
	
ING   Capital LLC
    	
 
    	
ING   Capital LLC

1325   Avenue of the Americas

New   York, NY 10019

Attention:   Frenklin Christian

Telephone:   (646) 424-8240

Fax:   (646) 424-8251

frenklin.christian@americas.ing.com

 

with   copy to:

ING   Capital LLC

1325   Avenue of the Americas

New   York, NY 10019

Attention:   Anthony Rivera

Telephone:   (646) 424-7638

Fax:   (646) 424-7484

anthony.rivera@americas.ing.com
    
	
 
    	
 
    	
 
    
	
BMO   Harris Financing, Inc.
    	
 
    	
BMO   Financial Group

115   S. LaSalle Street, 17th Floor West

Chicago, IL   60603

Attention:   Blanca Velez

Telephone:   (312) 461-3775

Fax:   (312) 293-5283

blanca.velez@harrisbank.com

 

with   copy to:

BMO   Harris Financing, Inc.

700   Louisiana, Suite 2100

Houston,   TX 77002

Telephone:   (713) 546-9720

Fax:   (713) 223-4007

kevin.utsey@bmo.com
    


 











 

	
If to:
    	
 
    	
Address
    
	
Credit   Agricole Corporate and Investment Bank
    	
 
    	
Credit   Agricole Corporate and Investment Bank

1301   Avenue of the Americas

New   York, NY 10019

Attention:   Dawn Evans

Telephone:   (732) 590-7718

Fax:   (917) 849-5464

dawn.evans@ca-cib.com

 

with   copy to:

Credit   Agricole CIB

1301   Avenue of the Americas

New   York, NY 10019

Attention:   Deborah Kross

Telephone:   (212) 261-7346

deborah.kross@ca-cib.com
    
	
 
    	
 
    	
 
    
	
Sumitomo   Mitsui Banking Corporation
    	
 
    	
Sumitomo   Mitsui Banking Corporation, New York

277   Park Avenue

New   York, NY 10172

Attention:   Scott Marzullo

Telephone:   (212) 224-4166

Fax:   (212) 224-5227

smarzullo@smbclf.com

 

with   copy to:

Sumitomo   Mitsui Banking Corporation, New York

277   Park Avenue

New   York, NY 10172

Attention:   Evan J. Sohayegh

Telephone:   (212) 224-4130

Fax:   (212) 224-5227

esohayegh@smbclf.com
    


 











 

	
If to:
    	
 
    	
Address
    
	
Royal   Bank of Canada
    	
 
    	
Royal   Bank of Canada — WFC Branch

Three   World Financial Center

200   Vesey Street

New   York, NY 10281-8098

Attention:   US Specialized Service Officer

Telephone:   (416) 955-6599

Fax:   (212) 428-2372

 

with   copy to:

Royal   Bank of Canada

3900   Williams Tower

2800   Post Oak Blvd.

Houston,   TX 77056

Attention:   Jason York

Telephone:   (713) 403-5679

Fax:   (713) 403-5624
    
	
 
    	
 
    	
 
    
	
Compass   Bank
    	
 
    	
Compass   Bank

24   Greenway Plaza, Suite 1400B

Houston,   TX 77046

Attention:   Stacey R. Box

Telephone:   (713) 993-8580

Fax:   (866) 327-4936

HoustonFundingEnergy@bbvacompass.com

 

with   copy to:

Compass   Bank

24   Greenway Plaza, Suite 1400A

Houston,   TX 77046

Attention:   Kathleen J. Bowen

Telephone:   (713) 993-8273

Fax:   (713) 499-8722

kathy.bowen@bbvacompass.com
    


 











 

	
If to:
    	
 
    	
Address
    
	
Amegy   Bank National Association
    	
 
    	
Amegy   Bank of Texas

1801   Main Street, 7th Floor

Houston,   TX 77002

Attention:   Cymbeline Forde

Telephone:   (713) 232-6402

Fax:   (713) 693-7467

Special.processing@amegybank.com

 

with   copy to:

Amegy   Bank of Texas

2501   North Harwood Street — 16th Floor

Dallas,   TX 75201

Attention:   Jill A. McSorley

Telephone:   (214) 754-9498

Fax:   (214) 754-6508

Jill.mcsorley@amegybank.com
    
	
 
    	
 
    	
 
    
	
Capital   One, National Association
    	
 
    	
Capital   One, N.A.

6200   Chevy Chase Dr.

Laurel,   MD 20707

Attention:   Joy Victorio

Telephone:   (301) 939-5952

Fax:   (301) 953-8692

clssyndicationmember@capitalone.com

 

with   copy to:

Capital   One, N.A.

20   Saint Charles Ave — 29th Floor

New   Orleans, LA 70170

Attention:   Nancy Moragas

Telephone:   (504) 533-2863

Fax:   (504) 533-5594

Nancy.moragas@capitalone.com
    


 











 

	
If to:
    	
 
    	
Address
    
	
Comerica   Bank
    	
 
    	
Comerica   Bank

39200   W. Six Mile Rd.

Livonia,   WI 48152

Attention:   Antoinette Frost

Telephone:   (734) 632-4711

Fax:   (734) 632-2928

afrost@comerica.com

 

with   copy to:

Comerica   Bank

1717   Main Street, 4th Floor

Comerica   Bank Tower

Dallas,   TX 75201

Attention:   John S. Lesikar

Telephone:   (214)462-4341

Fax:   (214) 462-4240

jlesikar@comerica.com
    
	
 
    	
 
    	
 
    
	
Deutsche   Bank Trust Company Americas
    	
 
    	
Deutsche   Bank

5022   Gate Parkway, Suite 200

Jacksonville,   FL 32256

Attention:   Santosh Vishwanath

Telephone:   (904) 520-5449

Fax:   (866) 240-3622

loan.admin-ny@db.com

 

with   copy to:

Deutsche   Bank

60   Wall Street, 43rd Floor

New   York, NY 10005

Attention:   Michael Getz

Telephone:   (212) 250-2640

Fax:   (212) 797-5692

michael.getz@db.com
    


 











 

	
If to:
    	
 
    	
Address
    
	
Morgan   Stanley Bank, N.A.
    	
 
    	
Morgan   Stanley Senior Funding, Inc.

1300   Thames Street Wharf, 4th Floor

Baltimore,   MD 21231

Attention:   Edward Henley

Telephone:   (443) 627-4326

Fax:   (212) 404-9645

docs4loans@ms.com

 

with   copy to:

Morgan   Stanley — Legal & Compliance Division — Corporate Loans Group

1221   Avenue of the Americas, 34th Floor

New   York, NY 10020

Fax:   (646) 202-9232
    
	
 
    	
 
    	
 
    
	
MidFirst   Bank
    	
 
    	
MidFirst   Bank

501   NW Grand Blvd., Suite 100

Oklahoma   City, OK 73118

Attention:   Leah Young

Telephone:   (405) 767-7163

Fax:   (405) 767-7120

leah.young@midfirst.com

 

with   copy to:

MidFirst   Bank

501   NW Grand Blvd., Suite 100

Oklahoma   City, OK 73118

Attention:   Chad Dayton

Telephone:   (405) 767-7558

Fax:   (405) 767-6059

chad.dayton@midfirst.com
    
	
 
    	
 
    	
 
    
	
Goldman   Sachs Bank USA
    	
 
    	
Goldman   Sachs Bank USA

200   West Street

New   York, NY 10282

Telephone:   (212) 902-1099

Fax:   (917) 977-3966

gs-sbd-admin-contacts@ny.email.gs.com