Exhibit 10.4

 


 



 

CUSIP Number: [            ]

 

$350,000,000

 

CREDIT AGREEMENT

 

Dated as of [        ], 2012

 

among

 

EQT MIDSTREAM PARTNERS, LP,
  as the Borrower,

 

CERTAIN SUBSIDIARIES OF THE BORROWER,

as Guarantors

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
  as Administrative Agent, Swing Line Lender and L/C Issuer,

 

The Other L/C Issuers Named Herein

and

The Other Lenders Party Hereto

 




 

PNC BANK, NATIONAL ASSOCIATION and
 SUNTRUST BANK
  Co-Syndication Agents

 

WELLS FARGO SECURITIES, LLC,
 PNC CAPITAL MARKETS, LLC
  and

SUNTRUST ROBINSON HUMPHREY, INC.

as

Joint Lead Arrangers and Book Runners

 











 

Table of Contents

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    
	
ARTICLE I DEFINITIONS   AND ACCOUNTING TERMS
    	
1
    
	
 
    	
 
    	
 
    
	
 
    	
1.01.
    	
Defined Terms
    	
1
    
	
 
    	
1.02.
    	
Other   Interpretive Provisions
    	
27
    
	
 
    	
1.03.
    	
Accounting   Terms
    	
28
    
	
 
    	
1.04.
    	
Rounding
    	
28
    
	
 
    	
1.05.
    	
References   to Agreements and Laws
    	
29
    
	
 
    	
1.06.
    	
Times   of Day
    	
29
    
	
 
    	
1.07.
    	
Letter   of Credit Amounts
    	
29
    
	
 
    	
 
    	
 
    
	
ARTICLE II THE   COMMITMENTS AND BORROWINGS
    	
29
    
	
 
    	
 
    	
 
    
	
 
    	
2.01.
    	
The Loans
    	
29
    
	
 
    	
2.02.
    	
Borrowings,   Conversions and Continuations of Loans
    	
30
    
	
 
    	
2.03.
    	
Letters   of Credit
    	
31
    
	
 
    	
2.04.
    	
Swing   Line Loans
    	
38
    
	
 
    	
2.05.
    	
Prepayments
    	
41
    
	
 
    	
2.06.
    	
Termination   or Reduction of Commitments
    	
42
    
	
 
    	
2.07.
    	
Repayment   of Loans
    	
43
    
	
 
    	
2.08.
    	
Interest
    	
43
    
	
 
    	
2.09.
    	
Fees
    	
43
    
	
 
    	
2.10.
    	
Computation   of Interest and Fees; Retroactive Adjustments of Applicable Rate
    	
44
    
	
 
    	
2.11.
    	
Evidence   of Debt
    	
45
    
	
 
    	
2.12.
    	
Payments   Generally
    	
45
    
	
 
    	
2.13.
    	
Sharing   of Payments
    	
47
    
	
 
    	
2.14.
    	
Cash   Collateral
    	
48
    
	
 
    	
2.15.
    	
Increase   in Aggregate Revolving Commitments
    	
49
    
	
 
    	
2.16.
    	
Defaulting   Lenders
    	
50
    
	
 
    	
2.17.
    	
Incremental   Term Loans
    	
53
    
	
 
    	
 
    	
 
    
	
ARTICLE III TAXES,   YIELD PROTECTION AND ILLEGALITY
    	
54
    
	
 
    	
 
    	
 
    
	
 
    	
3.01.
    	
Taxes
    	
54
    
	
 
    	
3.02.
    	
Illegality
    	
58
    
	
 
    	
3.03.
    	
Inability   to Determine Rates
    	
58
    
	
 
    	
3.04.
    	
Increased   Cost and Reduced Return; Capital Adequacy
    	
58
    
	
 
    	
3.05.
    	
Funding   Losses
    	
59
    
	
 
    	
3.06.
    	
Mitigation   Obligations; Designation of a Different Lending Office
    	
60
    
	
 
    	
3.07.
    	
Matters   Applicable to all Requests for Compensation
    	
60
    
	
 
    	
3.08.
    	
Survival
    	
60
    
	
 
    	
 
    
	
ARTICLE IV CONDITIONS   PRECEDENT TO CLOSING DATE AND TO CREDIT EXTENSIONS
    	
61
    
	
 
    	
 
    
	
 
    	
4.01.
    	
Conditions of Closing Date and Initial Credit Extension
    	
61
    
	
 
    	
4.02.
    	
Conditions   to all Credit Extensions
    	
63
    
	
 
    	
 
    	
 
    
	
ARTICLE V REPRESENTATIONS   AND WARRANTIES
    	
63
    
	
 
    	
 
    	
 
    
	
 
    	
5.01.
    	
Corporate Existence and Power
    	
63
    
	
 
    	
5.02.
    	
Corporate   and Governmental Authorization; No Contravention
    	
63
    
	
 
    	
5.03.
    	
Binding   Effect
    	
64
    
	
 
    	
5.04.
    	
Financial   Information
    	
64
    
	
 
    	
5.05.
    	
Litigation
    	
64
    
	
 
    	
5.06.
    	
No   Default
    	
64
    


 

i











 

	
Table of Contents (continued)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
5.07.
    	
Compliance   with ERISA
    	
65
    
	
 
    	
5.08.
    	
Environmental   Matters
    	
65
    
	
 
    	
5.09.
    	
Taxes
    	
65
    
	
 
    	
5.10.
    	
Subsidiaries
    	
65
    
	
 
    	
5.11.
    	
Regulatory   Restrictions on Borrowing; Margin Regulations
    	
65
    
	
 
    	
5.12.
    	
Full   Disclosure
    	
66
    
	
 
    	
5.13.
    	
Compliance   with Laws
    	
66
    
	
 
    	
5.14.
    	
Material   Contracts
    	
66
    
	
 
    	
5.15.
    	
Anti-Terrorism   Laws
    	
66
    
	
 
    	
5.16.
    	
Compliance   with OFAC Rules and Regulations
    	
66
    
	
 
    	
5.17.
    	
Compliance   with FCPA
    	
66
    
	
 
    	
5.18.
    	
Perfection   of Security Interests in Incremental Term Loan Cash Collateral
    	
67
    
	
 
    	
5.19.
    	
Solvency
    	
67
    
	
 
    	
 
    	
 
    
	
ARTICLE VI AFFIRMATIVE   COVENANTS
    	
67
    
	
 
    	
 
    	
 
    
	
 
    	
6.01.
    	
Information
    	
67
    
	
 
    	
6.02.
    	
Payment   of Taxes
    	
69
    
	
 
    	
6.03.
    	
Maintenance   of Property; Insurance
    	
69
    
	
 
    	
6.04.
    	
Conduct   of Business and Maintenance of Existence
    	
70
    
	
 
    	
6.05.
    	
Compliance   with Laws
    	
70
    
	
 
    	
6.06.
    	
Inspection   of Property, Books and Records
    	
70
    
	
 
    	
6.07.
    	
Use   of Proceeds
    	
70
    
	
 
    	
6.08.
    	
Governmental   Approvals and Filings
    	
70
    
	
 
    	
6.09.
    	
Material   Contracts
    	
71
    
	
 
    	
6.10.
    	
Incremental   Term Loan Cash Collateral
    	
71
    
	
 
    	
6.11.
    	
Additional   Subsidiaries
    	
72
    
	
 
    	
 
    	
 
    
	
ARTICLE VII NEGATIVE   COVENANTS
    	
72
    
	
 
    	
 
    	
 
    
	
 
    	
7.01.
    	
Liens
    	
72
    
	
 
    	
7.02.
    	
Financial   Covenants
    	
74
    
	
 
    	
7.03.
    	
Transactions   with Affiliates
    	
74
    
	
 
    	
7.04.
    	
Restricted   Payments
    	
75
    
	
 
    	
7.05.
    	
Mergers   and Fundamental Changes
    	
75
    
	
 
    	
7.06.
    	
Change   in Nature of Business
    	
75
    
	
 
    	
7.07.
    	
Use   of Proceeds
    	
75
    
	
 
    	
7.08.
    	
Dispositions
    	
75
    
	
 
    	
7.09.
    	
Debt
    	
76
    
	
 
    	
7.10.
    	
Investments
    	
77
    
	
 
    	
7.11.
    	
Changes   in Fiscal Year; Organization Documents
    	
78
    
	
 
    	
 
    	
 
    
	
ARTICLE VIII EVENTS   OF DEFAULT AND REMEDIES
    	
78
    
	
 
    	
 
    	
 
    
	
 
    	
8.01.
    	
Events of Default
    	
78
    
	
 
    	
8.02.
    	
Remedies   Upon Event of Default
    	
80
    
	
 
    	
8.03.
    	
Application   of Funds
    	
81
    
	
 
    	
 
    	
 
    
	
ARTICLE IX ADMINISTRATIVE   AGENT
    	
82
    
	
 
    	
 
    	
 
    
	
 
    	
9.01.
    	
Appointment and Authorization of Administrative Agent
    	
82
    
	
 
    	
9.02.
    	
Rights   as a Lender
    	
82
    
	
 
    	
9.03.
    	
Exculpatory   Provisions
    	
82
    
	
 
    	
9.04.
    	
Reliance   by Administrative Agent
    	
83
    


 

ii











 

	
Table of Contents (continued)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
 
    	
9.05.
    	
Indemnification   of Administrative Agent
    	
83
    
	
 
    	
9.06.
    	
Delegation   of Duties
    	
84
    
	
 
    	
9.07.
    	
Resignation   of Administrative Agent
    	
84
    
	
 
    	
9.08.
    	
Non-Reliance   on Administrative Agent and Other Lenders
    	
85
    
	
 
    	
9.09.
    	
No   Other Duties, Etc.
    	
85
    
	
 
    	
9.10.
    	
Administrative   Agent May File Proofs of Claim
    	
85
    
	
 
    	
 
    	
 
    
	
ARTICLE X MISCELLANEOUS
    	
86
    
	
 
    	
 
    	
 
    
	
 
    	
10.01.
    	
Amendments, Etc.
    	
86
    
	
 
    	
10.02.
    	
Notices;   Effectiveness; Electronic Communication
    	
88
    
	
 
    	
10.03.
    	
No   Waiver; Cumulative Remedies
    	
90
    
	
 
    	
10.04.
    	
Attorney   Costs, Expenses and Taxes
    	
90
    
	
 
    	
10.05.
    	
Indemnification;   Damage Waiver
    	
91
    
	
 
    	
10.06.
    	
Payments   Set Aside
    	
92
    
	
 
    	
10.07.
    	
Successors   and Assigns
    	
92
    
	
 
    	
10.08.
    	
Confidentiality
    	
97
    
	
 
    	
10.09.
    	
Set-off
    	
97
    
	
 
    	
10.10.
    	
Interest   Rate Limitation
    	
98
    
	
 
    	
10.11.
    	
Counterparts
    	
98
    
	
 
    	
10.12.
    	
Integration
    	
98
    
	
 
    	
10.13.
    	
Survival   of Representations and Warranties
    	
98
    
	
 
    	
10.14.
    	
Severability
    	
98
    
	
 
    	
10.15.
    	
Reserved
    	
99
    
	
 
    	
10.16.
    	
Replacement   of Lenders
    	
99
    
	
 
    	
10.17.
    	
Governing   Law
    	
99
    
	
 
    	
10.18.
    	
No   Advisory or Fiduciary Responsibility
    	
100
    
	
 
    	
10.19.
    	
Waiver   of Right to Trial by Jury
    	
100
    
	
 
    	
10.20.
    	
USA   PATRIOT Act Notice
    	
101
    
	
 
    	
10.21.
    	
Entire   Agreement
    	
101
    
	
 
    	
10.22.
    	
No   General Partner’s Liability for Revolving Facility
    	
101
    
	
 
    	
 
    	
 
    
	
ARTICLE XI GUARANTY
    	
101
    
	
 
    	
 
    	
 
    
	
 
    	
11.01.
    	
The Guaranty
    	
101
    
	
 
    	
11.02.
    	
Obligations   Unconditional
    	
102
    
	
 
    	
11.03.
    	
Reinstatement
    	
103
    
	
 
    	
11.04.
    	
Certain   Additional Waivers
    	
103
    
	
 
    	
11.05.
    	
Remedies
    	
103
    
	
 
    	
11.06.
    	
Rights   of Contribution
    	
103
    
	
 
    	
11.07.
    	
Guarantee   of Payment; Continuing Guarantee
    	
103
    
	
 
    	
11.08.
    	
Termination   or Release
    	
103
    
	
 
    	
11.09.
    	
No   General Partner’s Liability for Revolving Facility
    	
104
    


 

iii











 

	
SCHEDULES
    	
 
    
	
 
    	
2.01(a)
    	
Revolving   Commitments and Pro Rata Shares
    	
 
    
	
 
    	
5.10
    	
Subsidiaries
    	
 
    
	
 
    	
7.10
    	
Investments   as of the Closing Date
    	
 
    
	
 
    	
10.02
    	
Administrative   Agent’s Office, Certain Addresses for Notices
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
EXHIBITS
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Form of
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
A-1
    	
Loan Notice
    	
 
    
	
 
    	
A-2
    	
Swing Line   Loan Notice
    	
 
    
	
 
    	
B-1
    	
Revolving   Note
    	
 
    
	
 
    	
B-2
    	
Incremental   Term Note
    	
 
    
	
 
    	
B-3
    	
Swing Line   Note
    	
 
    
	
 
    	
C
    	
Compliance   Certificate
    	
 
    
	
 
    	
D
    	
Assignment   and Assumption
    	
 
    
	
 
    	
E
    	
Form of   Guarantor Joinder
    	
 
    
	
 
    	
F
    	
Form of   Incremental Term Loan Agreement
    	
 
    
	
 
    	
G-1
    	
U.S. Tax   Compliance Certificate (Form 1)
    	
 
    
	
 
    	
G-2
    	
U.S. Tax   Compliance Certificate (Form 2)
    	
 
    
	
 
    	
G-3
    	
U.S. Tax   Compliance Certificate (Form 3)
    	
 
    
	
 
    	
G-4
    	
U.S. Tax   Compliance Certificate (Form 4)
    	
 
    


 

i











 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT (“Agreement”) is entered into as of [      ], 2012, among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party hereto, each lender from time to time party hereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and an L/C Issuer, and the other L/C Issuers named herein.

 

The Borrower has requested that the Lenders provide a credit facility and the Lenders are willing to do so on the terms and conditions set forth herein.

 

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

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

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

 

“Account Control Agreement” means any securities account control agreement, deposit account control agreement or similar agreement entered into in connection with the borrowing of, and as security for, any Incremental Term Loans, among the Borrower (as debtor), the Intermediary (as securities intermediary or deposit bank, as applicable) and the Administrative Agent (as secured party), pursuant to which the Administrative Agent, on behalf of the applicable Class of Incremental Term Lenders, obtains “control” (as defined in Section 8-106 or 9-104 of the Uniform Commercial Code, as applicable) of any Incremental Term Loan Cash Collateral held in an Incremental Term Loan Cash Collateral Account.

 

“Acquisition” by any Person, means (a) the acquisition by such Person, in a single transaction or in a series of related transactions, of property or assets (other than capital expenditures or acquisitions of inventory or supplies in the ordinary course of business) constituting a business unit or division of another Person or at least a majority of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Debt, securities or otherwise and (b) any Drop-Down Acquisition.

 

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

 

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

 

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

 

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

 











 

“Agent-Related Persons” means each of the Administrative Agent and each L/C Issuer, together with its respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

 

“Aggregate Commitments” means the Aggregate Revolving Commitments and the Aggregate Incremental Term Commitments.

 

“Aggregate Incremental Term Commitments” means the Incremental Term Commitments, if any, of all the Incremental Term Lenders, of each applicable Series.

 

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

 

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

 

“Applicable Rate” means, (a) until the Borrower has obtained an Investment Grade Rating from either S&P or Moody’s, the percentages per annum set forth in the Leverage Based Pricing Grid below, based upon the Consolidated Leverage Ratio of the Borrower:

 

LEVERAGE BASED PRICING GRID

 

	
 
    	
Pricing
   Level
    	
 
    	
Consolidated Leverage
   Ratio
    	
 
    	
Commitment
   Fee
    	
 
    	
Eurodollar
   Rate
    	
 
    	
Letters
   of Credit
    	
 
    	
Base
   Rate
    	
 
    	
 
    
	
 
    	
1
    	
 
    	
Less   than 3.00 to 1.00
    	
 
    	
0.250
    	
%
    	
1.625
    	
%
    	
1.625
    	
%
    	
0.625
    	
%
    	
 
    
	
 
    	
2
    	
 
    	
Greater   than or equal to 3.00 to 1.00 but less than 3.75 to 1.00
    	
 
    	
0.275
    	
%
    	
1.750
    	
%
    	
1.750
    	
%
    	
0.750
    	
%
    	
 
    
	
 
    	
3
    	
 
    	
Greater   than or equal to 3.75 to 1.00
    	
 
    	
0.350
    	
%
    	
2.125
    	
%
    	
2.125
    	
%
    	
1.125
    	
%
    	
 
    


 

and (b) on the date and at all times after the Borrower obtains an Investment Grade Rating from either S&P or Moody’s, the percentages per annum set forth in the Ratings Based Pricing Grid below, based upon the Public Debt Ratings of the Borrower:

 

2











 

RATINGS BASED PRICING GRID

 

	
 
    	
Pricing
   Level
    	
 
    	
Public Debt Ratings
   S&P/Moody’s/Fitch
    	
 
    	
Commitment
   Fee
    	
 
    	
Eurodollar
   Rate
    	
 
    	
Letters 
   of Credit
    	
 
    	
Base
   Rate
    	
 
    	
 
    
	
 
    	
1
    	
 
    	
BBB+/Baa1/BBB+   or higher
    	
 
    	
0.150
    	
%
    	
1.250
    	
%
    	
1.250
    	
%
    	
0.250
    	
%
    	
 
    
	
 
    	
2
    	
 
    	
BBB/Baa2/BBB
    	
 
    	
0.200
    	
%
    	
1.375
    	
%
    	
1.375
    	
%
    	
0.375
    	
%
    	
 
    
	
 
    	
3
    	
 
    	
BBB-/Baa3/BBB-
    	
 
    	
0.250
    	
%
    	
1.625
    	
%
    	
1.625
    	
%
    	
0.625
    	
%
    	
 
    
	
 
    	
4
    	
 
    	
BB+/Ba1/BB+
    	
 
    	
0.300
    	
%
    	
1.875
    	
%
    	
1.875
    	
%
    	
0.875
    	
%
    	
 
    
	
 
    	
5
    	
 
    	
BB/Ba2/BB   or lower or unrated by S&P and Moody’s
    	
 
    	
0.350
    	
%
    	
2.125
    	
%
    	
2.125
    	
%
    	
1.125
    	
%
    	
 
    


 

“Public Debt Ratings” means a rating to be based on the Borrower’s long-term senior unsecured non-credit enhanced debt ratings established by S&P, Moody’s, and/or Fitch.  If at any time there is a Public Debt Rating issued by each Designated Rating Agency and such Public Debt Ratings differ, and (a) two Public Debt Ratings are equal to one another, then the pricing shall be based on such Public Debt Ratings that are equal or (b) no Public Debt Ratings are equal, the intermediate Public Debt Rating will apply.  In the event that the Borrower shall maintain Public Debt Ratings from only two of S&P, Moody’s, or Fitch, and there is a split in such Public Debt Ratings, (i) in the event of a single level split, the higher Public Debt Rating (i.e. the lower pricing) will apply and (ii) in the event of a multiple level split, the pricing will be based on the rating one level lower than the higher of the two.  If only one Public Debt Rating is available, it must be from S&P or Moody’s and such Public Debt Rating shall apply.  In the event that the Borrower does not have a Public Debt Rating from at least one of S&P or Moody’s, then the Applicable Rate shall be calculated at Pricing Level 5. Each change in the Applicable Rate resulting from a publicly announced change in the Public Debt Ratings shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.

 

The Applicable Rate in effect from the Closing Date until the date the Compliance Certificate is delivered pursuant to Section 6.01(c) for the quarter ending June 30, 2012 shall be determined based upon Pricing Level 1 of the Leverage Based Pricing Grid.  Thereafter, the Applicable Rate shall be determined based upon the Compliance Certificate to be delivered pursuant to Section 6.01(c), until the date that the Borrower shall have obtained an Investment Grade Rating from either S&P or Moody’s, on which date the Applicable Rate shall be determined as set forth above.  Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date that the Compliance Certificate is required to be delivered pursuant to Section 6.01(c); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then the Applicable Rate shall remain at the level determined by the most recently delivered Compliance Certificate and shall continue to apply until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 6.01(c), whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such Compliance Certificate, and if the Applicable Rate would have been set at a higher level during the period of non-delivery of the Compliance Certificate, the Borrower shall pay to the Administrative Agent, for the benefit of the applicable Lenders, on demand all amounts which would have accrued hereunder had the Compliance Certificate been delivered when due.

 

“Approved Fund” has the meaning specified in Section 10.07(h).

 

3











 

“Arranger” means each of Wells Fargo Securities, LLC, PNC Capital Markets LLC and SunTrust Robinson Humphrey, Inc. in their capacity as joint lead arrangers and book runners.

 

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

 

“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D.

 

“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel and, without duplication, the allocated cost of internal legal services and all expenses and disbursements of internal counsel.

 

“Authorizations” means all filings, recordings, and registrations with, and all validations or exemptions, approvals, orders, authorizations, consents, franchises, licenses, certificates, and permits from, any Governmental Authority.

 

“Availability Period” means the period from and including the Closing Date to the Maturity Date.

 

“Base Rate” means, for any day, a fluctuating per annum rate of interest equal to the highest of (a) the Federal Funds Rate plus 0.5%, (b) the prime commercial lending rate of the Administrative Agent, as established from time to time at its principal U.S. office (which such rate is an index or base rate and will not necessarily be its lowest or best rate charged to its customers or other banks), and (c) the Fixed Period Eurodollar Rate plus 1.0%.  Any change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the prime rate, the Federal Funds Rate or the Fixed Period Eurodollar Rate.

 

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

 

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.  All Base Rate Loans shall be denominated in Dollars.

 

“Benefit Arrangement” means, at any time, an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.

 

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

 

“Borrower Materials” has the meaning specified in Section 6.01.

 

“Borrowing” means a Committed Borrowing, an Incremental Term Borrowing or a Swing Line Borrowing, as the context may require.

 

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

 

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“Capital Lease” means any lease of any property by the Borrower or any of its Subsidiaries, as lessee, that should, in accordance with GAAP (subject to Section 1.03(b)), be classified and accounted for as a capital lease on a consolidated balance sheet of the Borrower and its Subsidiaries.

 

“Capital Stock” means shares of capital stock in a corporation, partnership interests in a partnership, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest (other than any debt security which by its terms is convertible at the option of the holder into Capital Stock, to the extent such holder has not so converted such debt security).

 

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or the Revolving Lenders, as collateral for L/C Obligations or obligations of the Revolving Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the applicable L/C Issuer shall agree, in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer. “Cash Collateral”, in such context, shall have a meaning correlative to the foregoing and shall include the proceeds of such Cash Collateral and other credit support.

 

“Cash Equivalents” means, collectively, (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within twelve (12) months from the date of acquisition thereof, (b) commercial paper maturing no more than one hundred eighty (180) days from the date of creation thereof and currently having the highest rating obtainable from either S&P or Moody’s, (c) certificates of deposit maturing no more than one hundred eighty (180) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “A” or better by a nationally recognized rating agency; provided that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, (d) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder and (e) money market investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940 which are administered by reputable financial institutions having capital of at least $500,000,000 or having portfolio assets of at least $5,000,000,000 and the portfolios of which are limited to investments of the character described in the foregoing subdivisions (a) through (d).

 

“Change in Law” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) 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 or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

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“Change of Control” means the failure of (a) the Borrower to own, directly or indirectly, 100% of the Capital Stock of Equitrans, L.P., (b) EQT Corporation to own, directly or indirectly, a majority of the Capital Stock of the General Partner or (c) the General Partner to be the general partner of, and to Control, the Borrower.

 

“Class” (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Lenders or Incremental Term Lenders having Incremental Term Loans of the applicable Series, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Commitments or Incremental Term Commitments of the applicable Series and (c) when used with respect to Loans, refers to whether such Loans are Revolving Loans or Incremental Term Loans of the applicable Series.

 

“Closing Date” means [     ], 2012, which is the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the case of Section 4.01(f), waived by the Person entitled to receive the applicable payment).

 

“Code” means the Internal Revenue Code of 1986.

 

“Collateral Documents” means (a) each Account Control Agreement and (b) each other document executed and delivered in connection with the granting, attachment and perfection of the Administrative Agent’s security interest in the Incremental Term Loan Cash Collateral, including, without limitation, Uniform Commercial Code financing statements.

 

“Commercial Operation Date” means the date on which a Qualified Project is substantially complete and commercially operable.

 

“Commitment” means, as to each Lender, its Revolving Commitment or Incremental Term Commitment, as applicable.

 

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

 

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

 

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

 

“Consolidated Debt” means, as of any date of determination, the Debt of the Borrower and its Subsidiaries (other than Debt in respect of the Sunrise Pipeline Lease) on a consolidated basis minus the amount of Incremental Term Loan Cash Collateral that secures Incremental Term Loans (in an amount not to exceed the outstanding principal amount of such Incremental Term Loans).

 

“Consolidated EBITDA” means, for any period, other than those described in the last sentence of this definition, subject to Section 1.03(c), an amount equal to (a) Consolidated Net Income for such period plus  (b) to the extent deducted in determining Consolidated Net Income for such period, the aggregate amount of (i) taxes based on or measured by income, (ii) Consolidated Interest Charges, (iii) transaction expenses related to the IPO and the execution and delivery of this Agreement (including, without limitation, financing fees and expenses) in an aggregate amount not to exceed $1 million and (iv) depreciation and amortization expense plus (c) the amount of cash dividends actually received during such period by the Borrower and its Subsidiaries on a consolidated basis from unconsolidated subsidiaries of the Borrower or other Persons plus (d) the amount collected during the period from capital lease arrangements with affiliates to the extent not already recognized in Consolidated Net Income plus (e)

 

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non-cash long term compensation expenses minus (f) to the extent included in determining Consolidated Net Income for such period, other income and equity in earnings from unconsolidated subsidiaries of the Borrower minus (g) the amount paid during the period as lease payments pursuant to the Sunrise Pipeline Lease minus (h) any amounts previously added to Consolidated EBITDA pursuant to clause (e) above during a prior period to the extent they are paid in cash during the current period.  For purposes of calculating the Consolidated Leverage Ratio, the Consolidated Interest Coverage Ratio and compliance with Section 7.09(d), Consolidated EBITDA shall be deemed to be:  $16.6 million  for the fiscal quarter ending September 30, 2011, $16.6 million for the fiscal quarter ending December 31, 2011 and  $20.1 million  for the fiscal quarter ending March 31, 2012.

 

“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters ending on such date to (b) Consolidated Interest Charges for the period of four consecutive fiscal quarters ending on such date minus the amount of any interest income earned on the Incremental Term Loan Cash Collateral during such period.

 

“Consolidated Interest Charges” means, for any period, other than those described in the last sentence of this definition, determined on a consolidated basis for the Borrower and its Subsidiaries, all interest expense (including, without limitation, interest expense attributable to Capital Leases (other than the Sunrise Pipeline Lease) and all net payment obligations pursuant to interest rate Swap Contracts) for such period, in accordance with GAAP. For purposes of calculating the Consolidated Interest Coverage Ratio, Consolidated Interest Charges shall be deemed to be: $1.25 million  for the fiscal quarter ending September 30, 2011, $1.25 million  for the fiscal quarter ending December 31, 2011, $1.5 million  for the fiscal quarter ending March 31, 2012.

 

“Consolidated Leverage Ratio” means, as of the last day of each fiscal quarter of the Borrower, the ratio of (a) Consolidated Debt on such day to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ending on such day.

 

“Consolidated Net Income” means, for any period, the net income of the Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided  that Consolidated Net Income shall not include (a) extraordinary gains or extraordinary losses, (b) net gains and losses in respect of dispositions of assets other than in the ordinary course of business, (c) gains or losses attributable to write-ups or write-downs of assets, including hedging and derivative activities in the ordinary course of business and (d) the cumulative effect of a change in accounting principles, all as reported in the Borrower’s consolidated statement(s) of income for the relevant period(s) prepared in accordance with GAAP.

 

“Consolidated Net Tangible Assets” means, at any date of determination, the total amount of consolidated assets of the Borrower and its Subsidiaries minus the value (net of any applicable reserves) of all goodwill, trade names, trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis would be set forth, on the consolidated balance sheet of the Borrower and its Subsidiaries for the most recently completed fiscal quarter, in accordance with GAAP.

 

“Consolidated Subsidiaries” means, at any date, any Subsidiary or other entity, the accounts of which would be consolidated with those of the Borrower in its consolidated financial statements if such statements were prepared as of such date.

 

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

 

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“Control” has the meaning specified in the definition of “Affiliate.”

 

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

 

“Credit Party” means any of the Administrative Agent, the L/C Issuers, the Swing Line Lender and the other Lenders.

 

“Daily Floating Eurodollar Rate” means, for any day, the 30-day rate of interest per annum appearing on Reuters Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) on such day, or if such day is not a London business day, then the immediately preceding London business day (or if not so reported, then as determined by the Administrative Agent from another recognized source or interbank quotation), or another rate as agreed to by the Administrative Agent and the Borrower.

 

“Daily Floating Eurodollar Rate Loan” means a Swing Line Loan that bears interest at a rate based upon the Daily Floating Eurodollar Rate.

 

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

 

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

 

(b)           the amount available to be drawn under all letters of credit (including standby and commercial) (other than letter of credit obligations relating to indebtedness included in Debt pursuant to another clause of this definition) and, without duplication, the unreimbursed amount of all drafts drawn thereunder;

 

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

 

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

 

(e)           Capital Leases;

 

(f)            to the extent required to be included on the Borrower’s consolidated balance sheet as debt or liabilities in accordance with GAAP, Synthetic Lease Obligations; and

 

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

 

For all purposes hereof, the Debt of the Borrower shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or any Subsidiary of the Borrower is a general partner or a joint venturer (provided, however, for the avoidance of doubt, as used in this sentence “joint venturer” shall not include a limited partner in a limited partnership), unless such Debt is expressly made non-recourse to the Borrower or Subsidiary, as applicable.

 

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

 

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

 

“Default Rate” means an interest rate equal to (a) the Fixed Period Eurodollar Rate for a one-month Interest Period plus (b) 2% per annum; provided, however, that with respect to any Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.

 

“Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of the Loans required to be funded by it hereunder within two Business Days following the date such Loans were required to be funded hereunder 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, or (ii) pay to the Administrative Agent, the applicable L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in L/C Obligations or Swing Line Loans) within two Business Days following the date when due, (b) has notified the Borrower, the Administrative Agent, the applicable L/C Issuer, the Swing Line Lender or any other Lender in writing or has made a public statement to the effect, that it does not intend to comply with its funding obligations hereunder, (unless such writing or public statement relates to such Lender’s 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) or generally under other agreements in which it has committed to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) 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; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrower, the L/C Issuers, the Swing Line Lender and each Lender.

 

“Designated Rating Agency” means S&P, Moody’s and/or Fitch.

 

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“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by a Loan Party (including the Capital Stock of any Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

 

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

 

“Domestic” means organized under the laws of any state of the United States.

 

“Drop-Down Acquisition” means the acquisition by the Borrower or one or more of its Subsidiaries, in a single transaction or in a series of related transactions, of property or assets from another Person (other than the Borrower or any of its Subsidiaries), so long as the property or assets being acquired is engaged or used (or intended to be used), as applicable, primarily in the midstream energy business.

 

“Eligible Assignee” has the meaning specified in Section 10.07(h).

 

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

 

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

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.

 

“ERISA Group” means the Borrower, any Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any Subsidiary, are treated as a single employer under Section 414 of the Internal Revenue Code.

 

“Eurodollar Rate” means the Fixed Period Eurodollar Rate or the Daily Floating Eurodollar Rate.

 

“Eurodollar Rate Loan” means a Fixed Period Eurodollar Rate Loan or a Daily Floating Eurodollar Rate Loan.  Each reference to Eurodollar Rate Loan when used in connection with Committed Loans shall mean a Fixed Period Eurodollar Rate Loan.  Each reference to Eurodollar Rate Loan when used in connection with Swing Line Loans shall mean a Daily Floating Eurodollar Rate Loan.

 

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

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes (including, for the avoidance of doubt, the

 

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Pennsylvania capital stock and foreign franchise tax) and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Revolving Commitment or otherwise under a Loan Document pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Revolving Commitment or becomes a Lender hereunder (other than pursuant to an assignment request by the Borrower under Section 10.16) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01(b), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f), (d) any U.S. federal withholding Taxes imposed under FATCA and (e) any interest, fines, or penalties applicable to Taxes, and any additions to Tax, in each case that are owing by any Recipient as a result of such Recipient’s gross negligence or willful misconduct.

 

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (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 Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day (or, if such day is not a Business Day, for the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the average of the quotation for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.

 

“Fee Letters” means, collectively, (i) the letter agreement, dated May 3, 2012 among the Borrower, Wells Fargo Securities, LLC and Wells Fargo, (ii) the letter agreement, dated May 3, 2012 among the Borrower, PNC Capital Markets LLC and PNC Bank and (iii) the letter agreement, dated May 3, 2012 among the Borrower, SunTrust Robinson Humphrey, Inc. and SunTrust Bank.

 

“Fitch” means Fitch Ratings Inc. and any successor thereto.

 

“Fixed Period Eurodollar Rate” means:

 

(a)           with respect to any Fixed Period Eurodollar Rate Loan for the Interest Period applicable to such Fixed Period Eurodollar Rate Loan, the rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate for deposits in Dollars for a period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period (rounded upward, if necessary, to the nearest 1/100th of 1%), or, if for any reason such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then a rate as shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars in minimum amounts of at least $5,000,000 would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period, by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage.  The Fixed Period Eurodollar Rate

 

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applicable to Fixed Period Eurodollar Rate Loans may also be expressed by the following formula:

 

	
LIBOR   Rate =  
    	
London interbank offered rate quoted by Reuters
   or appropriate successor as shown on Reuters Screen LIBOR01
    
	
1.00 - LIBOR Reserve Percentage
    


 

(b)           with respect to any Base Rate Loan, the rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a period equal to one month (commencing on the date of determination of such interest rate) which appears on the Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day (rounded upward, if necessary, to the nearest 1/100th of 1%), or, if for any reason such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then a rate as shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars in minimum amounts of at least $5,000,000 would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) on such date of determination for a period equal to one month commencing on such date of determination, by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage. The Fixed Period Eurodollar Rate applicable to Base Rate Loans may also be expressed by the following formula:

 

	
LIBOR   Rate =  
    	
London interbank offered rate quoted by Reuters
   or appropriate successor as shown on Reuters Screen LIBOR01
    
	
1.00 - LIBOR Reserve Percentage
    


 

The Fixed Period Eurodollar Rate shall be adjusted with respect to any Fixed Period Eurodollar Rate Loan that is outstanding on the effective date of any change in the LIBOR Reserve Percentage as of such effective date.  The Administrative Agent shall give prompt notice to the Borrower of the Fixed Period Eurodollar Rate as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest error.

 

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

 

“Foreign Lender” means a Lender that is not a U.S. Person.

 

“Form S-1” means the Registration Statement on Form S-1 of the Borrower filed with the SEC on February 13, 2012, as amended by Amendment No. 1 filed on April 4, 2012 and by Amendment No. 2 filed on May 10, 2012, and as may be further amended on or prior to the Closing Date.

 

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

 

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to an L/C Issuer, such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans other

 

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than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders.

 

“Fund” has the meaning specified in Section 10.07(h).

 

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

 

“General Partner” means EQT Midstream Services, LLC, a Delaware limited liability company (including any permitted successors and assigns under the Partnership Agreement).

 

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

 

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

 

“Guarantors” means, collectively, Equitrans, L.P., each other entity appearing as a Guarantor on the signature pages hereto, and any direct or indirect Material Subsidiary of the Borrower that becomes a Guarantor hereunder pursuant to Section 6.11.

 

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

 

“Increase Effective Date” has the meaning set forth in Section 2.15(b).

 

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

 

“Incremental Term Commitments” means, for any Incremental Term Lender, the commitment of such Incremental Term Lender to make Incremental Term Loans pursuant to Section 2.01(b), as such commitment (i) is set forth in the applicable Incremental Term Loan Agreement delivered pursuant to Section 2.17 and (ii) may be reduced or terminated in accordance with this Agreement.

 

“Incremental Term Lender” has the meaning specified in Section 2.17(b).  For the avoidance of doubt, any Person that (i) has no Incremental Term Loan owed to it and (ii) whose Incremental Term Commitment was terminated prior to funding will not be an “Incremental Term Lender”.

 

“Incremental Term Loan Agreement” means, with respect to any borrowing of Incremental Term Loans pursuant to Section 2.17, (a) an amendment to this Agreement substantially in the form of Exhibit F hereto, executed by the Borrower and the applicable Incremental Term Lenders for a Series of Incremental Term Loans, and acknowledged by the Administrative Agent, or (b) an amendment to, or restatement, amendment and restatement or modification of, this Agreement, executed by the Borrower, the applicable Incremental Term Lenders for a Series of Incremental Term Loans and the Administrative Agent in accordance with Section 10.01 hereof, in each case evidencing the applicable Incremental Term Lender’s agreement to provide Incremental Term Loans, the Borrower’s obligation to repay such Incremental Term Loans and provide Incremental Term Loan Cash Collateral therefor, and effecting such other amendments hereto as are contemplated by Section 10.01.

 

“Incremental Term Loan Cash Collateral” means, with respect to any Series of Incremental Term Loans, each of the following instruments and securities to the extent having maturities (for purposes of this definition, “maturities” shall mean (i) weighted average life for asset-backed securities, mortgage-backed securities, commercial mortgage-backed securities and collateralized mortgage obligations, and the next reset date for auction rate securities and (ii) with respect to mutual funds, the weighted average maturity of the investments it owns) not greater than 180 days from the date of acquisition thereof:

 

(a)           cash;

 

(b)           investments in money market mutual funds that are registered with the SEC and subject to Rule 2a-7 of the Investment Company Act of 1940, as amended, and have a net asset value of 1.0, provided, that in the event due to a Change in Law with respect to Rule 2a-7 such Rule 2a-7 ceases to require such funds to have a net asset value of 1.0, such funds shall comply with such alternate requirements as such Rule 2a-7 as revised may require;

 

(c)           U.S. Treasury Notes;

 

(d)           direct obligations of the United States and other obligations whose principal and interest is fully guaranteed by the United States;

 

(e)           money market instruments (including, but not limited to, commercial paper, banker’s acceptances, time deposits and certificates of deposits), other than instruments issued by Affiliates of Lenders, rated A-1 by S&P, P-1 by Moody’s or F-1 by Fitch at the time of purchase;

 

(f)            obligations of corporations or other business entities (excluding structured obligations and obligations of any Affiliates of Lenders, or any obligations convertible into equity) rated AAA by S&P, Aaa by Moody’s or AAA by Fitch at the time of purchase;

 

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(g)           repurchase obligations that are collateralized no less than 100% (and, to the extent commercially available, not less than 102%) of market value (including accrued interest) by obligations of the United States government or one of its sponsored enterprises or agencies;

 

(h)           municipal obligations issued by any state of the United States of America or any municipality or other political subdivision of any such state rated AAA by S&P, Aaa by Moody’s or AAA by Fitch at the time of purchase; and

 

(i)            shares in bond mutual funds that are registered under the Investment Company Act of 1940, as amended, that invest solely in the items set forth in (a)-(h) above and rated AAA by S&P, Aaa by Moody’s or AAA by Fitch at the time of purchase,

 

in each case above which is held in any Incremental Term Loan Cash Collateral Account and is subject to an Account Control Agreement and in which the Administrative Agent has, on behalf of the applicable Class of Incremental Term Lenders, a perfected security interest prior to all other Liens (other than inchoate Liens permitted under Section 7.01).

 

Notwithstanding the above, at the time of purchase, no one issuer will be more than $30,000,000 of the value of the Incremental Term Loan Cash Collateral. This rule excludes (i) direct obligations of the United States, (ii) U.S. Treasury Notes, (iii) obligations of United States sponsored agencies and enterprises, (iv) money market funds, (v) repurchase agreements and (vi) securities that have an effective maturity no longer than the next Business Day.  Obligations of United States sponsored agencies and enterprises are limited to the greater of $100,000,000 or 40% of the value of the Incremental Term Loan Cash Collateral at time of purchase, per issuer. For purposes of calculating the amount of Incremental Term Loan Cash Collateral on deposit in any Incremental Term Loan Cash Collateral Account hereunder, Incremental Term Loan Cash Collateral of an issuer that exceeds the $30,000,000 or the greater of $100,000,000 or 40% thresholds set forth above shall be excluded from such calculation.

 

“Incremental Term Loan Cash Collateral Account” means any securities account or deposit account of the Borrower established and maintained with an Intermediary in connection with the borrowing of, and as security for, any Incremental Term Loans.

 

“Incremental Term Loans” has the meaning specified in Section 2.17(a) and, for the avoidance of doubt, includes each Series of Incremental Term Loans.

 

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

 

“Indemnified Liabilities” has the meaning set forth in Section 10.05(a).

 

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

“Indemnitees” has the meaning set forth in Section 10.05(a).

 

“Information” has the meaning set forth in Section 10.08.

 

“Initial Asset Acquisition” has the meaning set forth in Section 4.01(e).

 

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

 

“Interest Period” means, (a) with respect to any Fixed Period Eurodollar Rate Loan, the period commencing on the date such Fixed Period Eurodollar Rate Loan is disbursed or converted to or continued as a Fixed Period Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, or, if agreed by all of the relevant Lenders, nine or twelve months, as selected by the Borrower in its Loan Notice, or (b) with respect to any Daily Floating Eurodollar Rate Loan, the period commencing on the date such Daily Floating Eurodollar Rate Loan commences and ending one Business Day thereafter; provided that:

 

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

 

(ii)                                  any Interest Period applicable to any Daily Floating Eurodollar Rate Loan that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day;

 

(iii)                               any Interest Period applicable to any Fixed Period Eurodollar Rate Loan 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, subject to the provisions of clause (i) above, end on the last Business Day of the calendar month at the end of such Interest Period; and

 

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

 

“Intermediary” means, with respect to any Series of Incremental Term Loans, any deposit bank or securities intermediary, as applicable, that holds Incremental Term Loan Cash Collateral, specified as such in the applicable Incremental Term Loan Agreement.

 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of the Capital Stock of another Person, (b) an Acquisition or (c) a loan, advance or capital contribution to, guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guarantees Debt of such other Person.

 

“Investment Grade Rating” means (a) a BBB- rating or higher from S&P, (b) a Baa3 rating or higher from Moody’s or (c) a BBB- rating or higher from Fitch.

 

“IPO” means the initial public offering of common units of the Borrower, as described in the Form S-1.

 

“IRS” means the United States Internal Revenue Service.

 

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“ISP” has the meaning set forth in Section 2.03(g).

 

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

 

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

 

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

 

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

 

“L/C Issuance Limit” means, (a) with respect to Wells Fargo, as L/C Issuer, FIFTY MILLION DOLLARS ($50,000,000), (b) with respect to PNC Bank, as L/C Issuer, FIFTY MILLION DOLLARS ($50,000,000), and (c) with respect to SunTrust Bank, as L/C Issuer, FIFTY MILLION DOLLARS ($50,000,000).

 

“L/C Issuer” means each of Wells Fargo, PNC Bank or SunTrust Bank in its capacity as an issuer of Letters of Credit hereunder, and any successor issuer of Letters of Credit hereunder.  As used herein, the term “the L/C Issuer” shall mean “each L/C Issuer” or  “the applicable L/C Issuer,” or, collectively, “the L/C Issuers”, as the context may require.

 

“L/C Obligations” means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts (including all L/C Borrowings).  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

“Lenders” means the Revolving Lenders and the Incremental Term Lenders, if any, and as the context requires, the Swing Line Lender.

 

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

 

“Letter of Credit” means any standby letter of credit issued on or after the Closing Date hereunder.

 

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

 

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

 

“Letter of Credit Sublimit” means an amount equal to $150,000,000, as such amount may be reduced pursuant to Section 2.06.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

“LIBOR Reserve Percentage” means, for any day, the percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for such day as prescribed by the FRB (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.

 

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

 

“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan, a Swing Line Loan or an Incremental Term Loan.

 

“Loan Documents” means this Agreement, each Note, and the Fee Letters.

 

“Loan Notice” means a notice of (a) a Borrowing of Committed Loans or Incremental Term Loans, (b) a conversion of Committed Loans or Incremental Term Loans from one Type to the other or (c) a continuation of Fixed Period Eurodollar Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A-1.

 

“Loan Parties” means, collectively, the Borrower and the Guarantors.

 

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

 

“Material Debt” means Debt (other than the Loans) of the Borrower and one or more Subsidiaries, arising in one or more related or unrelated transactions, in an aggregate principal or face amount exceeding $15,000,000.

 

“Material Disposition” means the Disposition by any Person, in a single transaction or in a series of related transactions, of either (a) property or assets constituting a business unit or division of such Person to another Person or (b) a majority or greater of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent of a Subsidiary of such Person to another Person, in each case whether or not involving a merger or consolidation with such other Person.

 

“Material Plan” means, at any time, a Plan or Plans having aggregate Unfunded Liabilities in excess of $15,000,000.

 

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“Material Subsidiary” means any Domestic Subsidiary of Borrower for which (i) its assets and the assets of its consolidated Subsidiaries comprise more than 5% of the assets of the Borrower and its consolidated Subsidiaries, or (ii) its revenue and the revenue of its consolidated Subsidiaries comprise more than 5% of the revenue of the Borrower and its consolidated Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP as of the end of the most recent fiscal year.

 

“Maturity Date” means the earlier of (a) the Stated Maturity Date and (b) the effective date of any other termination, cancellation, or acceleration of all Commitments under this Agreement.

 

“Minimum Collateral Amount” means, at any time, an amount equal to 102% of the Fronting Exposure applicable to any Defaulting Lender with respect to Letters of Credit issued and outstanding at such time.

 

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

 

“Multiemployer Plan” means, at any time, an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions, or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period.

 

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any member of the ERISA Group) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

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

 

“Note” means a Revolving Note, Swing Line Note or an Incremental Term Note.

 

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

 

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

 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient (or an agent or affiliate thereof) and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a

 

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security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document except (i) any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 10.16) and (ii) any interest, fines, or penalties applicable to Taxes, and any additions to Tax, in each case that are owing by any Recipient as a result of such Recipient’s gross negligence or willful misconduct.

 

“Outstanding Amount” means (i) with respect to Committed Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Committed Loans occurring on such date; (ii) with respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on such date; and (iii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

 

“Participant” has the meaning specified in Section 10.07(d).

 

“Participant Register” has the meaning specified in Section 10.07(d).

 

“Partnership Agreement” means the First Amended and Restated Agreement of Limited Partnership of EQT Midstream Partners, LP dated as of [                 ], 2012 among the General Partner and EQT Midstream Investments, LLC, a Delaware limited liability company, as modified from time to time in a manner not prohibited by this Agreement.

 

“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

 

“Pension Act” means the Pension Protection Act of 2006.

 

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

 

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any member of the ERISA Group and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

 

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

 

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“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue code and either (i) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group.

 

“Platform” has the meaning set forth in Section 6.01.

 

“PNC Bank” means PNC Bank, National Association and its successors.

 

“Pro Rata Share” means, with respect to (a) each Revolving Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Commitment of such Revolving Lender at such time and the denominator of which is the amount of the Aggregate Revolving Commitments at such time; provided that, if the commitment of each Revolving Lender to make Revolving Loans has been terminated pursuant to Section 8.02, then the Pro Rata Share of each Revolving Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof and (b) each Incremental Term Lender under a given Class at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the aggregate outstanding principal amount of the Incremental Term Loans of such Incremental Term Lender with respect to such Class at such time (or, if the full amount of Incremental Term Loans under the applicable Incremental Term Commitment shall not yet have been made, the aggregate amount of the Incremental Term Commitments of such Incremental Term Lender with respect to such Class at such time) and the denominator of which is the aggregate outstanding principal amount of the Incremental Term Loans with respect to such Class at such time (or, the full amount of Incremental Term Loans under the applicable Incremental Term Commitment shall not yet have been made, the amount of the Aggregate Incremental Term Commitments with respect to such Class at such time).  When a Defaulting Lender shall exist, “Pro Rata Share” shall be calculated without including any Defaulting Lender’s Revolving Commitment or Incremental Term Loans (or Incremental Term Commitments, as applicable).  The initial Pro Rata Shares of each Revolving Lender are set forth opposite the name of such Revolving Lender on Schedule 2.01(a) or, if such Revolving Lender becomes a Revolving Lender pursuant to Section 2.15, then in the applicable amendment to this Agreement giving effect to the applicable Increase Effective Date, or in the Assignment and Assumption pursuant to which such Revolving Lender becomes a party hereto, as applicable.  The initial Pro Rata Shares of each Incremental Term Lender will be set forth in the applicable Incremental Term Loan Agreement or in the Assignment and Assumption pursuant to which such Incremental Term Lender becomes a party hereto, as applicable.

 

“Public Debt Ratings” has the meaning set forth in the definition of “Applicable Rate.”

 

“PUC” means any state or local regulatory agency or governmental authority that exercises jurisdiction over the rates, services, ownership, capital structure, authority to borrow, operation or production of electricity, oil, gas or hydrocarbons, or over Persons who own, construct, or operate facilities or systems that produce, transport, process, or market electricity, oil, gas, or hydrocarbons.

 

“Qualified Acquisition” means an Acquisition by any Loan Party, the aggregate purchase price for which, when combined with the aggregate purchase price for all other Acquisitions by any Loan Party in any rolling 12-month period, is greater than or equal to $25,000,000.

 

“Qualified Project” means the construction or expansion of any capital project of the Borrower or any of its Subsidiaries, the aggregate capital cost of which exceeds $10,000,000.

 

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“Qualified Project EBITDA Adjustments” shall mean, with respect to each Qualified Project:

 

(a)                                 prior to the Commercial Operation Date of a Qualified Project (but including the fiscal quarter in which such Commercial Operation Date occurs), a percentage (based on the then-current completion percentage of such Qualified Project) of an amount to be approved by the Administrative Agent as the projected Consolidated EBITDA of the Borrower and its Subsidiaries attributable to such Qualified Project for the first 12-month period following the scheduled Commercial Operation Date of such Qualified Project (such amount to be determined based on customer commitments and related contracts in connection with such Qualified Project, the creditworthiness of the other parties to such contracts, and projected revenues from such contracts, capital costs and expenses, scheduled Commercial Operation Date and other reasonable factors deemed appropriate by the Administrative Agent), which may, at the Borrower’s option, be added to actual Consolidated EBITDA for the Borrower and its Subsidiaries for the fiscal quarter in which construction of such Qualified Project commences and for each fiscal quarter thereafter until the Commercial Operation Date of such Qualified Project (including the fiscal quarter in which such Commercial Operation Date occurs, but net of any actual Consolidated EBITDA of the Borrower and its Subsidiaries attributable to such Qualified Project following such Commercial Operation Date); provided that if the actual Commercial Operation Date does not occur by the scheduled Commercial Operation Date, then the foregoing amount shall be reduced, for quarters ending after the scheduled Commercial Operation Date to (but excluding) the first full quarter after its actual Commercial Operation Date, by the following percentage amounts depending on the period of delay (based on the period of actual delay or then-estimated delay, whichever is longer): (i) 90 days or less, 0%, (ii) longer than 90 days, but not more than 180 days, 25%, (iii) longer than 180 days but not more than 270 days, 50%, and (iv) longer than 270 days, 100%; and

 

(b)                                 thereafter, actual Consolidated EBITDA of the Borrower and its Subsidiaries attributable to such Qualified Project for each full fiscal quarter after the Commercial Operation Date, plus the amount approved by Administrative Agent pursuant to Part (a) above as the projected Consolidated EBITDA of Borrower and its Subsidiaries attributable to such Qualified Project for the fiscal quarters constituting the balance of the full four fiscal quarter period following such Commercial Operation Date; provided, in the event the actual Consolidated EBITDA of the Borrower and its Subsidiaries attributable to such Qualified Project for any full fiscal quarter after the Commercial Operation Date shall materially differ from the projected Consolidated EBITDA approved by Administrative Agent pursuant to Part (a) above for such fiscal quarter, the projected Consolidated EBITDA of Borrower and its Subsidiaries attributable to such Qualified Project for any remaining fiscal quarters included in the foregoing calculation shall be redetermined in the same manner as set forth in Part (a) above, such amount to be approved by the Administrative Agent, which may, at the Borrower’s option, be added to actual Consolidated EBITDA for the Borrower and its Subsidiaries for such fiscal quarters.

 

Notwithstanding the foregoing:

 

(A)                               no such additions shall be allowed with respect to any Qualified Project unless:

 

(1)                                 not later than 30 days prior to the delivery of any certificate required by the terms and provisions of Section 6.01(c) to the extent Qualified Project EBITDA Adjustments will be made to Consolidated EBITDA in determining compliance with Section 7.02, the Borrower shall have delivered to the Administrative Agent written pro forma projections of Consolidated EBITDA of the Borrower and its Subsidiaries attributable to such Qualified Project; and

 

(2)                                 prior to the date such certificate is required to be delivered, the Administrative Agent shall have approved (such approval not to be unreasonably

 

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withheld) such projections and shall have received such other information and documentation as the Administrative Agent may reasonably request, all in form and substance satisfactory to the Administrative Agent, and

 

(B)                               the aggregate amount of all Qualified Project EBITDA Adjustments during any period shall be limited to 20% of the total actual Consolidated EBITDA of the Borrower and its Subsidiaries for such period (which total actual Consolidated EBITDA shall be determined without including any Qualified Project EBITDA Adjustments).

 

“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any L/C Issuer, as applicable.

 

“Register” has the meaning set forth in Section 10.07(c).

 

“Reimbursement Date” has the meaning set forth in Section 2.03(c)(i).

 

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

 

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

 

“Required Collateral Amount” has the meaning specified in Section 6.10(b).

 

“Required Incremental Term Lenders” means, as of any date of determination, Incremental Term Lenders having greater than 50% of the aggregate outstanding principal amount of the applicable Series of Incremental Term Loans at such time (or, if the full amount of the applicable Series of Incremental Term Loans shall not yet have been made, the aggregate amount of the applicable Series of the Incremental Term Commitments); provided that the Incremental Term Loans (or Incremental Term Commitments, as applicable) of any Defaulting Lender shall be excluded for purposes of making a determination of Required Incremental Term Lenders.

 

“Required Lenders” means, as of any date of determination, Lenders having greater than 50% of the sum of (i) the Aggregate Revolving Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, Lenders holding in the aggregate greater than 50% of the Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Lender for purposes of this definition) plus (ii) the aggregate outstanding principal amount of any Incremental Term Loans at such time (or, if the full amount of any Series of Incremental Term Loans shall not yet have been made, the Aggregate Incremental Term Commitments of each such Series); provided that the Revolving Commitment of, and the portion of the Total Revolving Outstandings held or deemed held by any Defaulting Lender, and the Incremental Term Loans or Incremental Term Commitment, of any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

“Required Revolving Lenders” means, as of any date of determination, Revolving Lenders having greater than 50% of the Aggregate Revolving Commitments or, if the commitment of each Revolving Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been

 

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terminated pursuant to Section 8.02, Revolving Lenders holding in the aggregate greater than 50% of the Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Lender for purposes of this definition); provided that the Revolving Commitment of, and the portion of the Total Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

 

“Responsible Officer” means, with respect to any Person, the chief executive officer, president, executive vice president, senior vice president, chief financial officer, principal accounting officer, treasurer or assistant treasurer of such Person.  Any document delivered hereunder that is signed by a Responsible Officer of the General Partner, on behalf of the Borrower, shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.

 

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to Capital Stock of a Loan Party or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock or on account of any return of capital to a Loan Party’s stockholders, partners or members (or the equivalent Person thereof), or any setting apart of funds or assets for any of the foregoing.

 

“Revolving Commitment” means,  (i) with respect to each Lender listed on Schedule 2.01(a), the amount set forth opposite such Lender’s name on such Schedule, (ii) with respect to any financial institution which becomes a Lender pursuant to Section 2.15, the amount of the Revolving Commitment extended by it as of the applicable Increase Effective Date and (iii) with respect to any assignee which becomes a Lender pursuant to Section 10.07(b), the amount of the transferor Lender’s Revolving Commitment assigned to it pursuant to Section 10.07 (b), in each case as such amount may be adjusted from time to time pursuant to this Agreement; provided that, if the context so requires, the term “Revolving Commitment” means the obligation of a Lender to extend credit up to such amount to the Borrower hereunder.

 

“Revolving Lenders” means those Lenders with a Revolving Commitment, or if the Revolving Commitments have been terminated pursuant to Section 8.02, Lenders holding the outstanding Revolving Loans.

 

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

 

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

 

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

 

“Sanctioned Country” means a country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx, or as otherwise published from time to time.

 

“Sanctioned Person” means (a) a Person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at http://www.treasury.gov/resource-

 

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center/sanctions/SDN-List/Pages/default.aspx, or as otherwise published from time to time, or (b) (i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country, or (iii) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control. “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“Series” means any series of Incremental Term Loans designated in and made pursuant to any applicable Incremental Term Loan Agreement.

 

“Solvent” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured.  In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed as the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“Stated Maturity Date” means [       ], 2017.

 

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

 

“Sunrise Pipeline Lease” means that certain Sunrise Facilities Lease Agreement to be entered into by and between Equitrans, L.P. and Sunrise Pipeline, L.L.C. substantially in the form attached to the Form S-1.

 

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

 

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

 

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

 

“Swing Line” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04.

 

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

 

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

 

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

 

“Swing Line Loan Notice” means a notice of (a) a Borrowing of Swing Line Loans, or (b) a conversion of Swing Line Loans from one Type to the other, pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit A-2.

 

“Swing Line Note” means a promissory note made by the Borrower in favor of the Swing Line Lender evidencing Swing Line Loans made by the Swing Line Lender, substantially in the form of Exhibit B-3.

 

“Swing Line Sublimit” means an amount equal to the lesser of (a) $35,000,000 and (b) the Aggregate Revolving Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

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

 

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

 

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

 

“Type” means, (a) with respect to a Committed Loan or Incremental Term Loan, its character as a Base Rate Loan or a Fixed Period Eurodollar Rate Loan, and (b) with respect to a Swing Line Loan, its character as a Base Rate Loan or a Daily Floating Eurodollar Rate Loan.

 

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“Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by which (i) the value of all benefit liabilities under such Plan, determined on a plan termination basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions), all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.

 

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

 

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

 

“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.01(f).

 

“Wells Fargo” means Wells Fargo Bank, National Association, and its successors.

 

“Withholding Agent” means any Loan Party and the Administrative Agent.

 

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

 

(a)                                 The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)                                 (i)                                     The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

(ii)                                  Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

(iii)                               The term “including” is by way of example and not limitation.

 

(iv)                              The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(v)                                 The word “will” shall be construed to have the same meaning and effect as the word “shall.”

 

(vi)                              Unless the context requires otherwise, any reference herein to any Person shall be construed to include such Person’s successors and assigns.

 

(vii)                           The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

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

 

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

 

1.03.                     Accounting Terms.

 

(a)                                 All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time.

 

(b)                                 If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.  Notwithstanding anything to the contrary in this Agreement or any other Loan Document, for purposes of calculations made pursuant to the terms of this Agreement or any other Loan Document, GAAP will be deemed to treat leases that would have been classified as operating leases in accordance with generally accepted accounting principles in the United States as in effect on December 31, 2011 in a manner consistent with the treatment of such leases under generally accepted accounting principles in the United States as in effect on December 31, 2011, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.

 

(c)                                  Calculations.  Notwithstanding anything in this Agreement to the contrary:

 

(i)                                     For purposes of calculating compliance with the financial covenants set forth in Section 7.02, with respect to all Acquisitions and Material Dispositions subsequent to the Closing Date, Consolidated EBITDA, Consolidated Interest Charges and Consolidated Debt with respect to such newly acquired assets shall be calculated on a pro forma basis as if such Acquisition or Material Disposition had occurred at the beginning of the applicable twelve month period of determination.

 

(ii)                                  Upon the Borrower obtaining an Investment Grade Rating from two of S&P, Moody’s and/or Fitch, for purposes of calculating compliance with the financial covenants set forth in Section 7.02, Consolidated EBITDA may include, at Borrower’s option, any Qualified Project EBITDA Adjustments as provided in the definition thereof.

 

1.04.                     Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein

 

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and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

1.05.                     References to Agreements and Laws.  Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

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

 

1.07.                     Letter of Credit Amounts.  Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application therefor, whether or not such maximum face amount is in effect at such time.

 

ARTICLE II

 

THE COMMITMENTS AND BORROWINGS

 

2.01.                     The Loans.

 

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

 

(b)                                 Incremental Term Loans.  Subject to Section 2.17, the other terms and conditions set forth herein and the relevant Incremental Term Loan Agreement, each Incremental Term Lender severally agrees to make an Incremental Term Loan to the Borrower, at any time and from time to time during the period from the effective date of the applicable Incremental Term Loan Agreement to sixty (60) days following such date, which Incremental Term Loans: (i) may only be incurred on the date or dates set forth in the relevant Incremental Term Loan Agreement; (ii) may be made in the form of a new Series of Incremental Term Loans or additional Incremental Term Loans under an existing Series of Incremental Term Loans, in each case to the extent provided for in the relevant Incremental Term Loan Agreement; and (iii) shall be made by each such Incremental Term Lender in an aggregate principal amount which does not exceed the Incremental Term Commitment of such Incremental Term Lender (as set forth in the relevant

 

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Incremental Term Loan Agreement); provided, however, that the Borrower may not request more than two (2) draws with respect to each Series of Incremental Term Loans, one of which must be on the effective date of the applicable Incremental Term Loan Agreement.  Once repaid or prepaid, Incremental Term Loans may not be reborrowed; provided that this Section 2.01(b) shall not limit the Borrower’s right to request additional Incremental Term Loans pursuant to Section 2.17 hereof.

 

2.02.                     Borrowings, Conversions and Continuations of Loans.

 

(a)                                 Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s delivery to the Administrative Agent of an irrevocable written Loan Notice, appropriately completed and signed by a Responsible Officer of the General Partner, on behalf of the Borrower, which may be delivered via facsimile.  Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans.  Each Borrowing of, conversion or continuation of (i) Committed Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof and (ii) Incremental Term Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 (or as may otherwise be provided in the applicable Incremental Term Loan Agreement).  Each Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) whether such Borrowing will consist of Committed Loans or Incremental Term Loans, and if such Borrowing will consist of Incremental Term Loans, the applicable Series of Incremental Term Loans.  If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

 

(b)                                 Following receipt of a Loan Notice, (i) in the case of Committed Loans, the Administrative Agent shall promptly notify, each Revolving Lender of the amount of its Pro Rata Share of the applicable Committed Loans and (ii) in the case of Incremental Term Loans, each Incremental Term Lender of the amount of its Pro Rata Share of the applicable Series of Incremental Term Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subSection.  Each Lender shall make the amount of the applicable Committed Loan or Incremental Term Loan, as the case may be, available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Wells

 

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Fargo with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date the Loan Notice with respect a Committed Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Committed Borrowing shall be applied, first, to the payment in full of any such L/C Borrowings and second, to the Borrower as provided above.

 

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

 

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

 

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

 

2.03.                     Letters of Credit.

 

(a)                                 The Letter of Credit Commitment.

 

(i)                                     Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.03, from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subSection (b) below; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension that would result in the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by such L/C Issuer to exceed such L/C Issuer’s L/C Issuance Limit; and provided further that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Revolving Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Revolving Lender’s Revolving Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

 

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(ii)                                  The L/C Issuer shall be under no obligation to issue any Letter of Credit and, in the case of clauses (B) and (C) below shall not issue any Letter of Credit, if:

 

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

 

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

 

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

 

(D)                               the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer; or

 

(E)                                such Letter of Credit is (1) in an initial amount less than $100,000, (2) is to be denominated in a currency other than Dollars, or (3) is to be issued for a purpose other than to support surety bonds (including appeal bonds), worker’s compensation requirements and other general corporate purposes.

 

(iii)                               The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under any of Sections 2.03(a)(ii)(B), (C) or (E)(2) or (3).

 

(iv)                              The L/C Issuer shall be under no obligation to amend any Letter of Credit if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

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

 

(i)                                     Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the General Partner, on behalf of the Borrower.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later

 

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date and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require.

 

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

 

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

 

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(which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Revolving Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied and in each such case directing the L/C Issuer not to permit such extension.

 

(iv)                              Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment or a report containing information with respect thereto including the face amount of such Letter of Credit, the date of issuance or amendment and such other information as may be required by the Administrative Agent.  The Administrative Agent shall give the Revolving Lenders notice of the issuance of any Letter of Credit and any amendment thereto.

 

(c)                                  Drawings and Reimbursements; Funding of Participations.

 

(i)                                     Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  The Borrower shall reimburse the L/C Issuer through the Administrative Agent by paying an amount equal to the amount of any drawing under a Letter of Credit not later than (i) if the Borrower shall have received notice of such drawing prior to 10:00 a.m. on any Business Day, then 2:00 p.m. on such Business Day or (ii) otherwise, 11:00 a.m. on the Business Day immediately following the day that the Borrower receives such notice (each such date for reimbursement, a “Reimbursement Date”).  If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Reimbursement Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Lender’s Pro Rata Share thereof.  In such event, the Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Reimbursement Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

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

 

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

 

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

 

(v)                                 Each Revolving Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; (C) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto; (D) the existence of any claim, counterclaim, set-off, defense or other right that such Revolving Lender may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (E) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (F) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or (G) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

(vi)                              If any Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such

 

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

 

(d)           Repayment of Participations.

 

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

 

(ii)           If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is paid by such Revolving Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.

 

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

 

(i)            any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;

 

(ii)           the existence of any claim, counterclaim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this

 

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Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

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

 

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

 

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

 

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

 

(f)            Role of L/C Issuer.  Each Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application.  The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, any Agent-Related Person, any Revolving Lender, nor any of the respective correspondents, participants or assignees of the L/C Issuer, shall be liable or responsible to the Borrower for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which damages have been determined by a final non-appealable judgment of a court of competent jurisdiction to have been caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under

 

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any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

 

(g)           Applicability of ISP.  Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) (the “ISP”) shall apply to each standby Letter of Credit.

 

(h)           Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Pro Rata Share a Letter of Credit fee for each Letter of Credit equal to the Applicable Rate times the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit).  Such Letter of Credit fees shall be computed on a quarterly basis in arrears.  Such Letter of Credit fees shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

(i)            Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit in the amounts and at the times specified in the Fee Letters.  In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to Letters of Credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

(j)            Conflict with Letter of Credit Application.  In the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.

 

2.04.       Swing Line Loans.

 

(a)           The Swing Line.  Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Committed Loans and L/C Obligations of the Revolving Lender acting as Swing Line Lender, may exceed the amount of such Revolving Lender’s Revolving Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding

 

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Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment, and provided, further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.  The Borrower will have the option to choose whether the Swing Line Loan is a (1) Base Rate Loan, or a (2) Daily Floating Eurodollar Rate Loan.  Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving Lender’s Pro Rata Share times the amount of such Swing Line Loan.

 

(b)           Borrowing Procedures; Conversion to Base Rate.  Each Swing Line Borrowing, and each conversion of Swing Line Borrowings from one Type to the other shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, (ii) the requested borrowing or conversion date, which shall be a Business Day, and (iii) whether the loan is a Base Rate Loan or a Daily Floating Eurodollar Rate Loan.  Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the General Partner, on behalf of the Borrower.  Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 4:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.

 

(c)           Refinancing of Swing Line Loans.

 

(i)            The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Committed Loan in an amount equal to such Revolving Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for a Committed Loan for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice

 

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to the Administrative Agent.  Each Revolving Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.

 

(ii)           If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

 

(iii)          If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation.  A certificate of the Swing Line Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

(iv)          Each Revolving Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

 

(d)           Repayment of Participations.

 

(i)            At any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Lender its Pro Rata Share thereof in the same funds as those received by the Swing Line Lender.

 

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(ii)           If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)           Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Revolving Lender funds its Committed Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender.

 

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

 

2.05.       Prepayments.

 

(a)           The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans or Incremental Term Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Fixed Period Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof, and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding (or in the case of each of clauses (ii) and (iii), such other amount as may be provided in the applicable Incremental Term Loan Agreement).  Each such notice shall specify (x) the date and amount of such prepayment, (y) whether such Loans are Committed Loans or Incremental Term Loans, and, if Incremental Term Loans, the applicable Series and (z) the Type(s) of Loans to be prepaid.  The Administrative Agent will promptly notify each Revolving Lender or Incremental Term Lender, as the case may be, of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that, a notice of prepayment of all outstanding Loans may state that such notice is conditioned upon the effectiveness of other credit facilities or any incurrence or issuance of debt or equity or the occurrence of any other transaction, in which case such notice may be revoked, subject to Section 3.05, by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  Any prepayment of Fixed Period Eurodollar Rate Loans shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05.  Each such prepayment (1) of Committed Loans shall be applied to the Committed Loans of the Revolving Lenders in accordance with their respective Pro Rata Shares and (2) of Incremental Term Loans shall be applied to Incremental Term Loans in such Series in accordance with their respective Pro Rata Shares.

 

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(b)           The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

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

 

2.06.       Termination or Reduction of Commitments.

 

(a)           The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Commitments, such Letter of Credit Sublimit or such Swing Line Sublimit shall be automatically reduced by the amount of such excess; provided further that, a notice of termination of the Aggregate Revolving Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities or any incurrence or issuance of debt or equity or the occurrence of any other transaction, in which case such notice may be revoked, subject to Section 3.05, by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  The Administrative Agent will promptly notify the Revolving Lenders of any such notice of termination or reduction of the Aggregate Revolving Commitments.  Any reduction of the Aggregate Revolving Commitments shall be applied to the Revolving Commitment of each Revolving Lender according to its Pro Rata Share.  All commitment fees accrued until the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.

 

(b)           The Borrower may (unless otherwise provided in the applicable Incremental Term Loan Agreement), upon notice to the Administrative Agent, terminate any unused Incremental Term Commitments provided pursuant to the applicable Incremental Term Loan Agreement, or from time to time permanently reduce any unused Incremental Term Commitments provided pursuant to the applicable Incremental Term Loan Agreement in an integral multiple of $1,000,000 (or as may otherwise be provided in the respective Incremental Term Loan Agreement); provided, that each such reduction shall apply proportionately to permanently reduce the unused Incremental Term Commitments of the applicable Incremental Term Lenders provided pursuant to the applicable Incremental Term Loan Agreement; provided

 

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further that, a notice of termination of any unused Incremental Term Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities or any incurrence or issuance of debt or equity or the occurrence of any other transaction, in which case such notice may be revoked, subject to Section 3.05, by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  The Administrative Agent will promptly notify the applicable Incremental Term Lenders of any such notice of termination or reduction of the unused Incremental Term Commitments.

 

2.07.       Repayment of Loans.

 

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

 

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

 

(c)           The Borrower shall repay to the applicable Incremental Term Lenders on the Maturity Date the aggregate principal amount of all Incremental Term Loans outstanding on such date.

 

2.08.       Interest.

 

(a)           Subject to the provisions of subSection (b) below, (i) each Fixed Period Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Fixed Period Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan (other than Swing Line Loans) shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the (1) Base Rate plus the Applicable Rate, or (2) Daily Floating Eurodollar Rate plus the Applicable Rate.

 

(b)           While any Event of Default exists, the Borrower shall (i) automatically, in the case of an Event of Default under any of Sections 8.01(a), (f) or (g) or (ii) upon the request of the Required Lenders, in the case of any other Event of Default, pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.  Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

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

 

2.09.       Fees.

 

(a)           Commitment Fee.  The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Pro Rata Share, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Aggregate Revolving

 

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Commitments exceed the sum of (y) the Outstanding Amount of Committed Loans and (z) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.16.  For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the Aggregate Revolving Commitments for purposes of determining the commitment fee.  The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Section 4.02 is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date (and, if applicable, thereafter on demand). The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately (but not invoiced separately) for each period during such quarter that such Applicable Rate was in effect.

 

(b)           Other Fees.

 

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

 

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

 

2.10.       Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.

 

(a)           All computations of interest for Base Rate Loans based on the prime commercial lending rate of the Administrative Agent shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.

 

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

 

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termination of the Aggregate Revolving Commitments and the repayment of all other Obligations hereunder.

 

2.11.       Evidence of Debt.

 

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

 

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

 

2.12.       Payments Generally.

 

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

 

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(b)           If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

(c)           (i)            Unless the Borrower has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent or the L/C Issuer hereunder, that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then each of the Lenders or the L/C Issuer, as the case may be, shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender or the L/C Issuer in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender or the L/C Issuer to the date such amount is repaid to the Administrative Agent in immediately available funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

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

 

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

 

(d)           If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the

 

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applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(e)           The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 9.05 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or make its payment under Section 9.05.

 

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

 

2.13.       Sharing of Payments.

 

(a)           If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders of the applicable Class such participations in the Loans of the applicable Class made by them, and/or such subparticipations in the participations in L/C Obligations and Swing Line Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other applicable Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon.  The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.  The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section and will in each case notify the Lenders of the applicable Class following any such purchases or repayments.  Each Lender that purchases a participation pursuant to this Section shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

 

(b)           If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.03(c), 2.04, or 9.05, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the

 

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Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swing Line Lender or the L/C Issuers to satisfy such Lender’s obligations to any of them under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.  For the avoidance of doubt, notwithstanding the application or holding pursuant to this subSection of all or a part of a payment made by the Borrower for the account of a Lender, as between the Borrower and such Lender the Borrower shall be discharged from the obligation with respect to which such payment was made as if and to the extent such application or holding had not occurred.

 

2.14.       Cash Collateral.  At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent, any L/C Issuer or the Swing Line Lender (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the Fronting Exposure of such L/C Issuer and/or the Swing Line Lender, as applicable, with respect to such Defaulting Lender (determined after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.

 

(a)           Grant of Security Interest.  The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of each applicable L/C Issuer and the Swing Line Lender, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of the applicable L/C Obligations and Swing Line Loans, to be applied pursuant to subSection (b) below.  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent, any L/C Issuer and the Swing Line Lender as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, deliver to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

 

(b)           Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.14 or Section 2.16 in respect of Letters of Credit and Swing Line Loans shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations and Swing Line Loans (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

 

(c)           Termination of Requirement.  Cash Collateral (or the appropriate portion thereof) provided to reduce the Fronting Exposure of an L/C Issuer and/or the Swing Line Lender, as applicable, shall no longer be required to be held as Cash Collateral pursuant to this Section 2.14 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the good faith determination by the Administrative Agent, the applicable L/C Issuer and the Swing Line Lender that there exists excess Cash Collateral; provided that, subject to Section 2.16, the Person providing Cash Collateral, such L/C Issuer and the Swing Line Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations; and provided further that to the extent such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

 

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2.15.       Increase in Aggregate Revolving Commitments.

 

(a)           Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Revolving Lenders), the Borrower may from time to time during the term of this Agreement request an increase in the Aggregate Revolving Commitments to an amount not exceeding $500,000,000 at any time; provided that any such request for an increase shall be in a minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Revolving Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Revolving Lenders).  Each Revolving Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase.  Any Revolving Lender not responding within such time period shall be deemed to have declined to increase its Revolving Commitment.  The Administrative Agent shall notify the Borrower and each Revolving Lender of the Revolving Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase, the Borrower may also invite additional Eligible Assignees to become Revolving Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.

 

(b)           If the Aggregate Revolving Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Borrower and the Revolving Lenders of the final allocation of such increase and the Increase Effective Date.  As a condition precedent to such increase, the Borrower shall have provided to the Administrative Agent the following, in form and substance reasonably satisfactory to the Administrative Agent:

 

(i)            copies of corporate resolutions certified by the Secretary or Assistant Secretary of the General Partner, or such other evidence as may be satisfactory to the Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in the amount of the Aggregate Revolving Commitments as increased pursuant to this Section 2.15 and with a maturity date of the Stated Maturity Date, has been duly authorized by all necessary corporate action, together with an opinion of counsel to the Borrower (which, as to certain matters as agreed by the Administrative Agent, may be internal counsel) to such effect,

 

(ii)           a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the General Partner, on behalf of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V (including without limitation the representation and warranties set forth in Sections 5.04(d), 5.05 and 5.06) and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date, (or, if such representation speaks as of an earlier date, as of such earlier date), (B) no Default exists and (C) the Borrower is in compliance, on a pro forma basis, with the financial covenants set forth in Section 7.02 hereof, and

 

(iii)          an opinion of counsel to the Borrower (which, as to certain matters as agreed by the Administrative Agent, may be internal counsel) in form and substance reasonably satisfactory to the Administrative Agent stating that all Authorizations of

 

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federal regulators and of state regulators in Pennsylvania and West Virginia (and in any other state, if any, where the Borrower or any of its Subsidiaries is subject to the PUC regulation) required in order to permit the Borrower to incur indebtedness hereunder in the amount of the Aggregate Revolving Commitments as increased pursuant to this Section 2.15 and with a maturity date of the Stated Maturity Date then in effect have been obtained and listing any such Authorizations obtained, or stating that no such Authorizations are required.

 

(c)           The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Revolving Commitments under this Section.

 

(d)           This Section shall supersede any provisions in Sections 2.12 or 10.01 to the contrary.

 

2.16.       Defaulting Lenders.

 

(a)           Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender:

 

(i)            Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of Required Lenders, Required Revolving Lenders and Required Incremental Term Lenders.

 

(ii)           Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.09 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or the Swing Line Lender hereunder; third, to Cash Collateralize the Fronting Exposure of any L/C Issuer and the Swing Line Lender with respect to such Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize the L/C Issuers’ and the Swing Line Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit and Swing Line Loans issued under this Agreement, in accordance with Section 2.14; sixth, to the payment of any amounts owing to the Lenders, any L/C Issuer or the Swing Line Lender as a result of any final and non-appealable judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under

 

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this Agreement; seventh, 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 final and non-appealable judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swing Line Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swing Line Loans were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and funded participations in Letters of Credit or Swing Line Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Letters of Credit or Swing Line Loans owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Revolving Commitments without giving effect to Section 2.16(a)(iv). 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 this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)          Certain Fees.

 

(A)          No Defaulting Lender shall be entitled to receive any commitment fee payable under Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender except as set forth in clause (C) below).

 

(B)          Each Defaulting Lender shall be entitled to receive Letter of Credit fees pursuant to Section 2.03(h) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.14.

 

(C)          With respect to any fee payable under Section 2.09 or Letter of Credit fee that would otherwise have been paid to any Defaulting Lender if it were not a Defaulting Lender, the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to each L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent that the Defaulting Lender’s Fronting Exposure has been reallocated to such L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.

 

(iv)          Reallocation of Participations to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans

 

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shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans to exceed such Non-Defaulting Lender’s Revolving Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of the Borrower or a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(v)           Cash Collateral, Repayment of Swing Line Loans.  If the reallocation described in clause (v) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under Law, within one Business Day following the Borrower’s receipt of notice from the Administrative Agent, (x) as to Swing Line Loans, repay Swing Line Loans in an amount equal to the Fronting Exposure applicable to the Defaulting Lender or, if such Swing Line Loans cannot be repaid, Cash Collateralize the Borrower’s obligations corresponding to the Fronting Exposure applicable to the Defaulting Lender in accordance with the procedures set forth in Section 2.14 and (y) as to Letters of Credit, Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to the Defaulting Lender in accordance with the procedures set forth in Section 2.14.

 

(b)           Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the L/C Issuers and the Swing Line Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held by the Lenders in accordance with their Pro Rata Shares of their respective Commitments (without giving effect to Section 2.16(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

(c)           New Swing Line Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loans and no L/C Issuer shall be required to issue, extend, renew or increase any Letter of Credit, unless the Swing Line Lender or such L/C Issuer, as applicable, is satisfied that the related Fronting Exposure and the then outstanding Fronting Exposure applicable to the Defaulting Lender (x) will be 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or (y) Cash Collateral will be provided by the Borrower in accordance with Section 2.14, and participating

 

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interests in any newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.16(a)(iv) (and such Defaulting Lender shall not participate therein).

 

2.17.       Incremental Term Loans.

 

(a)           The Borrower shall have the right from time to time during the term of this Agreement, and subject to the terms and conditions set forth in this Section 2.17, to request in writing incremental term loans (the “Incremental Term Loans”) be made under this Agreement by Incremental Term Lenders pursuant to one or more Incremental Term Loan Agreements.  Such notice to the Administrative Agent shall set forth the date on which such Incremental Term Loans are requested to be made (which shall not be less than three (3) Business Days nor more than 60 days after the date of such notice (which time periods may be modified or waived at the discretion of the Administrative Agent)) and include the applicable completed Incremental Term Loan Agreement for such Incremental Term Loans as an attachment thereto; provided that, notwithstanding anything to the contrary contained herein or in any Incremental Term Loan Agreement, such Incremental Term Loans shall mature on the Maturity Date, shall not require any mandatory prepayments thereof and shall not amortize.  In connection with any such request, the consent of the Administrative Agent shall be required (such consent not to be unreasonably withheld, conditioned or delayed), but no consent of any Lender (other than any Lender providing an Incremental Term Loan pursuant to such request) is required to be obtained.

 

(b)           Any such Incremental Term Loans shall be made, at the option of the Borrower, by (x) one or more existing Lenders and/or (y) one or more financial institutions that is not an existing Lender (any such Lender or financial institution referred to in this Section 2.17(b) being called an “Incremental Term Lender”); provided that any such non-existing Lender or financial institution (A) must be an Eligible Assignee, (B) must have an Incremental Term Loan of at least $5,000,000 unless otherwise agreed to by the Administrative Agent and the Borrower and (C) must become an Incremental Term Lender under this Agreement by execution and delivery of an Incremental Term Loan Agreement; provided, further, that no Lender shall be required to become an Incremental Term Lender and any Lender or financial institution approached to provide an Incremental Term Loan may elect or decline, in its sole discretion, to provide such Incremental Term Loan.

 

(c)           The Borrower and each Incremental Term Lender that has agreed to provide an Incremental Term Loan pursuant to such request shall execute and deliver to the Administrative Agent an Incremental Term Loan Agreement and such other documentation as the Administrative Agent shall reasonably specify to provide for the requested Incremental Term Loans.

 

(d)           Notwithstanding the foregoing, no Incremental Term Loan Agreement shall become effective and no Incremental Term Loans shall be provided under this Section 2.17 unless:

 

(i)            no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Incremental Term Loans;

 

(ii)           all conditions precedent for a Borrowing set forth in Section 4.02 have been satisfied;

 

(iii)          the Borrower shall have provided Incremental Term Loan Cash Collateral as required pursuant to Section 6.10 hereof and the Administrative Agent shall

 

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have received copies of the Collateral Documents or any amendments thereto that the Administrative Agent shall deem reasonably necessary, signed, to the extent applicable, by each of the parties thereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart thereof by such party), in each case in form and substance reasonably satisfactory to the Administrative Agent;

 

(iv)          the Administrative Agent shall have received customary legal opinions, resolutions and closing certificates and other documentation as it shall reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and

 

(v)           to the extent requested by any Incremental Term Lender making an Incremental Term Loan, the Borrower shall have executed and delivered Incremental Term Notes in favor of such Incremental Term Lenders evidencing such Incremental Term Loans.

 

ARTICLE III

 

TAXES, YIELD PROTECTION AND ILLEGALITY

 

3.01.       Taxes.

 

(a)           L/C Issuer.  For purposes of this Section 3.01, the term “Lender” includes any L/C Issuer.

 

(b)           Payments Free of Taxes. Any and all payments by or on account of any obligation of a Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Law.  If any Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01(b)), the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding for Indemnified Tax been made.

 

(c)           Payment of Other Taxes by the Borrower.  The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(d)           Indemnification by the Borrower.  The Borrower shall indemnify each Recipient, within twenty (20) days after receipt by the Borrower of demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient and required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that the Borrower

 

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shall not be required to indemnify a Recipient pursuant to this Section 3.01(d) for any Indemnified Taxes unless such Recipient notifies the Borrower of the indemnification claim for such Indemnified Taxes no later than 365 days after the earlier of (i) the date on which the relevant Governmental Authority makes written demand upon the Recipient for payment of such Indemnified Taxes and (ii) the date on which such Recipient has made payment of such Indemnified Taxes.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, accompanied by the calculations by which such determination was made by such Lender, shall be conclusive absent manifest error.

 

(e)           Evidence of Payments.  As soon as practicable after any payment of Indemnified Taxes by the Borrower to a Governmental Authority pursuant to this Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(f)            Status of Lenders.  Any Lender (which solely for purposes of this Section 3.01(f) shall include the Administrative Agent) that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 3.01(f)(A), (B) and (D) below) otherwise required as a result of a Change in Law, shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

Without limiting the generality of the foregoing,

 

(A)          any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)          any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

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(i)                                     in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, properly completed and executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, properly completed and executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(ii)                                  properly completed and executed originals of IRS Form W-8ECI;

 

(iii)                               in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is neither a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, nor a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) properly completed and executed originals of IRS Form W-8BEN;

 

(iv)                              properly completed and executed originals of IRS Form W-8EXP claiming an exemption from withholding Tax; or

 

(v)                                 to the extent a Foreign Lender is not the beneficial owner, properly completed and executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;

 

(C)          any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the

 

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

 

(D)          if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the 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 the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and 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.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(g)           Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes (including any application thereof to another amount owed to the refunding Governmental Authority) as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such party will make such payment to the relevant indemnifying party within ten (10) days after the party has determined that it owes amounts to the indemnifying party pursuant to the first sentence of this subSection (g).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subSection (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subSection (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subSection (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This subSection (g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(h)           Indemnification of the Administrative Agent.  Each Lender and the L/C Issuer shall severally indemnify the Administrative Agent within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s

 

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failure to comply with the provisions of Section 10.07(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this subSection (h). The agreements in this subSection (h) shall survive the resignation and/or replacement of the Administrative Agent.

 

(i)            Survival.  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Revolving Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

3.02.       Illegality.  If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.  Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

 

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

 

3.04.       Increased Cost and Reduced Return; Capital Adequacy.

 

(a)           If any Change in Law shall:

 

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

 

(ii)           subject any Recipient to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

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

 

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

 

(b)           If any Lender determines that any Change in Law regarding capital adequacy or liquidity, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy or liquidity and such Lender’s desired return on capital), then from time to time upon demand of such Lender (with a copy of such demand to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction.

 

(c)           Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 3.04 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).

 

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

 

(a)           any continuation, conversion, payment of principal or prepayment of any Loan other than a Base Rate Loan or Daily Floating Eurodollar Rate Loan on a day other than the last

 

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day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

 

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

 

(c)           any assignment of a Fixed Period Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.16;

 

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

 

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

 

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

 

3.07.       Matters Applicable to all Requests for Compensation.  A certificate of the Administrative Agent or any Lender claiming compensation under this Article III and setting forth the additional amount or amounts to be paid to it hereunder (including, if requested by the Borrower, an explanation in reasonable detail of the manner in which such amount or amounts was determined) shall be conclusive in the absence of manifest error.  In determining such amount, the Administrative Agent or such Lender may use any reasonable averaging and attribution methods.

 

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

 

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ARTICLE IV

 

CONDITIONS PRECEDENT TO CLOSING DATE AND TO CREDIT EXTENSIONS

 

4.01.       Conditions of Closing Date and Initial Credit Extension.  The obligation of each Lender to enter into this Agreement and make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:

 

(a)           The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or other electronic transmission (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the applicable Loan Party (or of the general partner, board of directors or other governing body, as applicable, of each Loan Party), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:

 

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

 

(ii)           (A) a Revolving Note executed by the Borrower in favor of each Lender and (B) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;

 

(iii)          a certificate of a Secretary or an Assistant Secretary of each Loan Party (or of the general partner, board of directors or other governing body, as applicable, of each Loan Party) certifying as to the incumbency and genuineness of the signature of each officer of such Loan Party executing Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the certificate or articles of limited partnership, formation or incorporation, as applicable, of such Loan Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of organization, (B) the limited partnership agreement, operating agreement, bylaws or other governing document, as applicable, of such Loan Party as in effect on the Closing Date and (C) resolutions duly adopted by the general partner, board of directors, or other governing body, as applicable, of such Loan Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party;

 

(iv)          certificates as of a recent date of the good standing of each Loan Party under the laws of its jurisdiction of organization and, to the extent reasonably requested by the Administrative Agent, each other jurisdiction where such Loan Party is qualified to do business;

 

(v)           (A) an opinion of Baker Botts L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each Lender and (B) subject to agreement by the Administrative Agent as to the matters to be addressed, an opinion of internal counsel of the Borrower, addressed to the Administrative Agent and each Lender, in each case as to such customary matters regarding the transactions contemplated herein as the Administrative Agent may reasonably request;

 

(vi)          a certificate signed by a Responsible Officer of the General Partner, on behalf of the Borrower, certifying (A) that the representations and warranties of the

 

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Borrower contained in Article V are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date hereof, (B) that no Default exists or would result from the execution of this Agreement, (C) since December 31, 2011, there has not occurred any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect and (D) as of the date hereof and immediately after giving effect to the transactions contemplated herein, the Borrower and its Subsidiaries are Solvent on a consolidated basis;

 

(vii)         the financial statements set forth in the Form S-1 or a link thereto on the website of the SEC;

 

(viii)        a certification by a Responsible Officer of the General Partner, on behalf of the Borrower, that the Form S-1, including all amendments thereto, available at the link on the website to the SEC provided in such certificate are true and correct as of the Closing Date; and

 

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

 

(b)           The Borrower shall have provided to the Administrative Agent and the Lenders, to the extent requested at least two Business Days prior to the Closing Date, (A) the documentation and other information requested by the Administrative Agent and any Lender in order to comply with the requirements of the PATRIOT Act, (B) the documentation and other information requested by the Administrative Agent in order to comply with all “know your customer” requirements and (C) all anti-money laundering documentation reasonably requested by the Administrative Agent.

 

(c)           The Borrower shall have received all material governmental, partner and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Administrative Agent) in connection with the transactions contemplated by this Agreement, including the IPO, and the other Loan Documents and the other transactions contemplated hereby.

 

(d)           No action, suit, investigation or other proceeding is pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect.

 

(e)           Concurrently with the Closing Date, (i) the Borrower shall consummate the IPO on substantially the terms set forth in the Form S-1 and such IPO shall have generated gross cash proceeds in an amount not less than $200 million and (ii) all of the partnership interests of Equitrans, L.P. shall have been contributed, directly or indirectly, to the Borrower by EQT Corporation (the “Initial Asset Acquisition”).

 

(f)            Any fees required to be paid in connection with the Loan Documents on or before the Closing Date and for which invoices have been presented at least one Business Day prior to the Closing Date shall have been paid.

 

Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to the Closing Date.

 

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

 

(a)           The representations and warranties of the Borrower contained in Article V (except, from and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s or Fitch, the representations and warranties in Sections 5.04(d), 5.05 and 5.06,  as to any matter which has theretofore been disclosed in writing by the Borrower to the Lenders by written notice given to the Administrative Agent) or in any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of such Credit Extension (or, if such representation speaks as of an earlier date, as of such earlier date).

 

(b)           No Default shall exist, or would result from such proposed Credit Extension.

 

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

 

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

 

ARTICLE V

 

REPRESENTATIONS AND WARRANTIES

 

The Loan Parties represent and warrant to the Lenders, as of the Closing Date and thereafter as of each date required by Section 4.02 and as of any other date as agreed by a Loan Party, that:

 

5.01.       Corporate Existence and Power.  Each Loan Party is a corporation, partnership or limited liability company duly incorporated or formed, as applicable, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, and has all organizational powers and all material Authorizations required to carry on its business as now conducted.

 

5.02.       Corporate and Governmental Authorization; No Contravention.  The Borrower’s incurrence of Debt hereunder, and the execution, delivery and performance by the Loan Parties of each Loan Document to which such Person is a party, (a) are within the corporate or other organizational powers of such Person, (b) have been duly authorized by all necessary corporate or other organizational action, (c) require no action by or in respect of, or filing with, any Governmental Authority (except such as has been obtained and any reports required to be filed by such Person with the SEC), (d) do not contravene, or constitute a default under, (i) any provision of applicable law or regulation or of any Organization Documents of such Person or (ii) any material agreement, judgment, injunction, order, decree or other instrument binding upon the such Person, or result in the creation or imposition of any Lien on any asset of such Person or any of its Subsidiaries that is not permitted hereunder.

 

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5.03.       Binding Effect.  Each Loan Document constitutes a valid and binding agreement of each Loan Party that is party thereto, and each Note, when executed and delivered in accordance with this Agreement, will constitute a valid and binding obligation of the Borrower, in each case enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors’ rights.

 

5.04.       Financial Information.

 

(a)           The balance sheets of EQT Midstream Partners Predecessor (as such term is described in the Form S-1) as of December 31, 2011 and 2010 and the related statements of operations, partners’ capital and cash flows of EQT Midstream Partners Predecessor for each of the three years in the period ended December 31, 2011 contained in the Form S-1 have been audited by Ernst & Young LLP.  Such financial statements (i) present fairly, in all material respects, the financial position and results of operations and cash flows of EQT Midstream Partners Predecessor as of such dates and for such periods in conformity with GAAP and (ii) show, to the extent required by GAAP and together with all footnotes to such financial statements, all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Debt.

 

(b)           The unaudited pro forma balance sheet as of March 31, 2012 and the related statements of operations for the Borrower for the year ended December 31, 2011 and the quarter ended March 31, 2012 contained in the Form S-1 were prepared in good faith based on the assumptions that were believed to be reasonable in light of then-existing conditions (subject to the proviso that it is understood that such pro forma financial statements are based upon professional opinions, estimates and adjustments and that the Borrower does not warrant that such opinions, estimates and adjustments will ultimately prove to have been accurate).

 

(c)           Beginning with the initial delivery of the financial information required under Sections 6.01(a) and (b), the financial information delivered to the Lenders pursuant to such sections (i) fairly presents, in all material respects, in conformity with GAAP, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows as of such date (subject, in the case of interim statements, to normal year-end adjustments and the absence of footnotes), and (ii) show, to the extent required by GAAP and together with all footnotes to such financial statements, all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Debt.

 

(d)           Since December 31, 2011 there has been no material adverse change in the business, financial position or results of operations of the Borrower and its Consolidated Subsidiaries, considered as a whole.

 

5.05.       Litigation.  There is no action, suit, proceeding or investigation pending against, or, to the knowledge of the Borrower, threatened against or affecting, any Loan Party or any of their Subsidiaries before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect.

 

5.06.       No Default.  Neither any Loan Party nor any of their Subsidiaries is in default under or with respect to any Contractual Obligation which could be reasonably expected to have a Material Adverse Effect.

 

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5.07.       Compliance with ERISA.  Each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan.  No member of the ERISA Group has (i) sought a waiver of the minimum funding standards under the Pension Funding Rules, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue Code, or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA.

 

5.08.       Environmental Matters.  In the ordinary course of its business, the Borrower conducts an ongoing review of the effect of Environmental Laws on the business, operations and properties of the Loan Parties and their Subsidiaries, in the course of which it identifies and evaluates associated liabilities and costs (including, without limitation, any capital or operating expenditures required for clean-up or closure of properties presently or previously owned, any capital or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by law or as a condition of any license, permit or contract, any related constraints on operating activities, including any periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat, any costs or liabilities in connection with off-site disposal of wastes or Hazardous Substances, and any actual or potential liabilities to third parties, including employees, and any related costs and expenses).  On the basis of this review, the Borrower has concluded that such associated liabilities and costs, including the costs of compliance with Environmental Laws, could not reasonably be expected to have a Material Adverse Effect.

 

5.09.       Taxes.  The Loan Parties and their Subsidiaries have filed all United States Federal income tax returns and all other material tax returns which are required to have been filed by them, and have paid all taxes due and payable by them pursuant to such returns or pursuant to any material assessment received by the Loan Parties or any of their Subsidiaries (other than those not yet delinquent and payable without premium or penalty, and except for those being diligently contested in good faith by appropriate proceedings, and in each case, for which adequate reserves and provisions for taxes have been made on the books of the Borrower and each Subsidiary).  The charges, accruals and reserves on the books of the Loan Parties and their Subsidiaries in respect of taxes or other governmental charges are, in the opinion of the Borrower, adequate.

 

5.10.       Subsidiaries.  Set forth on Schedule 5.10 is a complete and accurate list as of the Closing Date of each of the Borrower’s Subsidiaries, together with its jurisdiction of formation, the Borrower’s direct or indirect percentage ownership therein and whether it is a Material Subsidiary.  Each Subsidiary is duly incorporated or formed, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and has all corporate or other organizational powers and all material governmental authorizations required to carry on its business as now conducted, except where the absence of any of the foregoing could not reasonably be expected to have a Material Adverse Effect.

 

5.11.       Regulatory Restrictions on Borrowing; Margin Regulations.

 

(a)           None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

(b)           The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning

 

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of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.  Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Debt and within the scope of Section 8.01(e) will be margin stock.

 

5.12.                     Full Disclosure.  No statement, information, report, representation, or warranty (collectively, the “Information”) made by any Loan Party in any Loan Document or furnished to the Administrative Agent or any Lender in writing by or on behalf of any Loan Party in connection with any Loan Document (as modified or supplemented by other Information so furnished), taken as a whole, contains, as of the date such Information was furnished (or, if such Information expressly relates to a specific date, as of such specific date) any untrue statement of a material fact or omits, as of the date such Information was furnished (or, if such Information expressly related to a specific date, as of such specific date), any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, that with respect to projected financial information, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed by it to be reasonable at the time.

 

5.13.                     Compliance with Laws. Each Loan Party and each of its respective Subsidiaries is in compliance with all laws, rules, regulations, orders, decrees and requirements of Governmental Authorities applicable to it or to its properties (including, without limitation, the Code), except where the necessity or fact of compliance therewith is being contested in good faith by appropriate proceedings or such failure to comply could not have or be reasonably expected to have a Material Adverse Effect.

 

5.14.                     Material Contracts.  Each Loan Party and each of its respective Subsidiaries is in compliance with all material contracts with EQT Corporation necessary for the ongoing operation and business of such Loan Party or such Subsidiary in the ordinary course except where the failure to comply would not reasonably be expected to have a Material Adverse Effect.

 

5.15.                     Anti-Terrorism Laws.  Neither the Borrower nor any of its Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended.  Neither the Borrower nor any of its Subsidiaries is in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c) the Act (as defined in Section 10.20).  The Borrower (i) is not a blocked person described in section 1 of the Anti-Terrorism Order and (ii) to the best of its knowledge, does not engage in any dealings or transactions, and is not otherwise associated, with any such blocked person.

 

5.16.                     Compliance with OFAC Rules and Regulations.  No Loan Party nor any of its respective Subsidiaries (i) is a Sanctioned Person, (ii) has more than 10% of its assets in Sanctioned Countries, or (iii) derives more than 10% of its operating income from investments in, or transactions with Sanctioned Persons or Sanctioned Countries.  No part of the proceeds of any Loan hereunder will be used directly or indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country.

 

5.17.                     Compliance with FCPA.  Each Loan Party and each of its respective Subsidiaries is in compliance with the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign counterpart thereto.  Neither the Borrower nor any of its Subsidiaries has made a payment, offering, or

 

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promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate for foreign political office, (b) to a foreign official, foreign political party or party official or any candidate for foreign political office, and (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to the Borrower or such Subsidiary or to any other Person, in violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq.

 

5.18.                     Perfection of Security Interests in Incremental Term Loan Cash Collateral.  So long as any Incremental Term Loan is outstanding hereunder, the Incremental Term Loan Agreements and/or the Account Control Agreements create valid security interests in, and Liens on, the Incremental Term Loan Cash Collateral purported to be covered thereby, which security interests and Liens are, if applicable, perfected security interests and Liens, prior to all other Liens (other than inchoate Liens permitted under Section 7.01).

 

5.19.                     Solvency.  The Borrower and its Subsidiaries are and, after the consummation of the transactions contemplated by this Agreement, will be Solvent on a consolidated basis.

 

ARTICLE VI

 

AFFIRMATIVE COVENANTS

 

The Borrower agrees that, so long as any Lender has any Commitment hereunder, any Letter of Credit remains outstanding (unless such Letter of Credit has been cash collateralized in a manner acceptable to the Administrative Agent and the applicable L/C Issuer or other arrangements with respect thereto have been made that are satisfactory to the Administrative Agent and the applicable L/C Issuer) or any Obligation payable hereunder remains unpaid:

 

6.01.                     Information.  The Borrower will deliver to the Administrative Agent and each Lender:

 

(a)                                 as soon as available, and in any event within the earlier of (i) ninety (90) days after the end of each fiscal year of the Borrower and (ii) five (5) days after such information is required to be filed with the SEC, a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, cash flows and changes in stockholders’ equity for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing selected by the Borrower, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;

 

(b)                                 as soon as available, and in any event within the earlier of (i) forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Borrower beginning with the fiscal quarter ended June 30, 2012 and (ii) five (5) days after such information is required to be filed with the SEC, a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and the related consolidated statements of income and cash flows for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, setting forth in the case of such statements of income and cash flows, in comparative form the figures for the corresponding quarter and the corresponding portion of the Borrower’s previous fiscal year, all certified (subject to normal year-end adjustments and the absence of footnotes) as to fairness of presentation, conformity to GAAP and consistency by the

 

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chief financial officer or the chief accounting officer of the General Partner, on behalf of the Borrower;

 

(c)                                  simultaneously with the delivery of each set of financial statements referred to in clauses (a) and (b) above, a certificate of a Responsible Officer of the General Partner, on behalf of the Borrower, substantially in the form of the Compliance Certificate attached hereto, including a complete and accurate list, as of the last day of the period covered by such financial statements, of each of the Borrower’s Subsidiaries, together with its jurisdiction of formation, the Borrower’s direct or indirect percentage ownership therein and whether it is a Material Subsidiary;

 

(d)                                 within five days after any officer of the Borrower obtains actual knowledge of any Default, if such Default is then continuing, a certificate of a Responsible Officer of the General Partner, on behalf of the Borrower, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;

 

(e)                                  promptly upon the mailing thereof to the unitholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed;

 

(f)                                   promptly upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents) which the Borrower shall have filed with the SEC;

 

(g)                                  if and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under the Pension Funding Rules, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement which has resulted or could result in the imposition of a Lien or the posting of a bond or other security, a certificate of the chief financial officer or the chief accounting officer of the Borrower setting forth details as to such occurrence and action, if any, which the Borrower or applicable member of the ERISA Group is required or proposes to take; or (viii) determines that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, a certification of funding status from the enrolled actuary for the Pension Plan, which in the case of each of clauses (i), (ii), (iii) and (viii) above, could cause one or more members of the ERISA Group to incur liability;

 

(h)                                 promptly upon any announcement by S&P, Moody’s or Fitch of any issuance of or change in a Public Debt Rating notice of such issuance or change; and

 

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(i)                                     from time to time, such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Administrative Agent, at the request of any Lender, may reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a), (b), (e) or (f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) (A) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (B) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), and (ii) on which the Borrower notifies (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents; provided that the Borrower shall deliver paper copies or soft copies (by electronic mail) of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies or soft copies.  Information required to be delivered pursuant to this Section 6.01 may also be delivered by facsimile or electronic mail pursuant to procedures approved by the Administrative Agent.  Except for Compliance Certificates required by Section 6.01(c), the Administrative Agent shall have no obligation to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any request for delivery of such documents, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.08); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”

 

6.02.                     Payment of Taxes.  Each Loan Party will, and will cause each of its respective Subsidiaries to, pay or discharge its material tax liabilities before the same shall become delinquent except where the validity or amount thereof is being contested in good faith by appropriate proceedings, and such Loan Party or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP.

 

6.03.                     Maintenance of Property; Insurance.

 

(a)                                 Each Loan Party will keep, and will cause each of its respective Subsidiaries to keep, all material property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.

 

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(b)                                 Each Loan Party will, and will cause each of its respective Subsidiaries to, maintain (either in the name of such Loan Party or in such Subsidiary’s own name), or will cause to be maintained on its behalf through the insurance program of EQT Corporation and its Subsidiaries with financially sound and responsible insurance companies, insurance with respect to their respective properties and business in at least such amounts, against at least such risks and with such risk retention as are customarily maintained, insured against or retained, as the case may be, by companies of established repute engaged in the same or a similar business, to the extent available at the time in question on commercially reasonable terms; and will furnish to the Lenders, upon request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried.

 

6.04.                     Conduct of Business and Maintenance of Existence.  Each Loan Party will preserve, renew and keep in full force and effect, and will cause each of its respective Subsidiaries to preserve, renew and keep in full force and effect their respective legal existence and good standing under the Laws of the jurisdiction of its organization and their respective rights, privileges and franchises necessary or desirable in the normal conduct of business; provided that nothing in this Section 6.04 shall prohibit (i) the merger of a Subsidiary into the Borrower or the merger or consolidation of a Subsidiary with or into another Person if (A) in the case of a Domestic Subsidiary, the entity surviving such consolidation or merger is a Domestic Subsidiary and (B) in the case of a foreign Subsidiary, the entity surviving such consolidation or merger is a Subsidiary, if, in each case covered by this clause (i), after giving effect thereto, no Default shall have occurred and be continuing, or (ii) the termination of the legal existence of any Subsidiary which is not a Loan Party if the Borrower in good faith determines that such termination is in the best interest of the Borrower and is not materially disadvantageous to the Lenders.

 

6.05.                     Compliance with Laws.  Each of the Loan Parties will comply, and cause each of its respective Subsidiaries to comply, in all material respects with all applicable material Laws and requirements of Governmental Authorities (including, without limitation, Environmental Laws, the Act (as defined in Section 10.20) and ERISA and the rules and regulations thereunder) except where the necessity or fact of compliance therewith is contested in good faith by appropriate proceedings.

 

6.06.                     Inspection of Property, Books and Records.  Each Loan Party will keep, and will cause its respective Subsidiaries to keep, proper books of record and account in which full, true and correct, in all material respects, entries shall be made of all dealings and transactions in relation to its business and activities to the extent required by GAAP or applicable Law; and will permit, and will cause each of its respective Subsidiaries to permit, representatives of any Lender at such Lender’s expense to visit and inspect any of their respective properties, to examine and make abstracts from any of their respective books and records, and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants, all at such reasonable times and as often as may reasonably be desired; provided, however, that if an Event of Default has occurred and is continuing, any visit and inspection by a Lender shall be at the sole expense of the Borrower.

 

6.07.                     Use of Proceeds.  The proceeds of the Loans made under this Agreement will be used by the Loan Parties (i) to pay fees and expenses in connection with the IPO and related formation transactions, (ii) for working capital, capital expenditures, dividends, unit repurchases, and other lawful corporate purposes, and (iii) to purchase assets from EQT Corporation and its Subsidiaries, and other future sellers, or to make dividends or other distributions to EQT Corporation and its Subsidiaries in connection with asset contributions from EQT Corporation and its Subsidiaries.

 

6.08.                     Governmental Approvals and Filings.  Each Loan Party will, and will cause each of its respective Subsidiaries to, keep and maintain in full force and effect all action by or in respect of, or filing with, any Governmental Authority necessary in connection with (a) the execution and delivery of this

 

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Agreement, or any Note issued hereunder by the Borrower, (b) the consummation by the Borrower of the transactions herein or therein contemplated, (c) the performance of or compliance with the terms and conditions hereof or thereof by the Loan Parties, or (d) any other actions required to ensure the legality, validity, binding effect, enforceability or admissibility in evidence hereof or thereof.

 

6.09.                     Material Contracts.

 

The Borrower will comply, and will cause its Subsidiaries to comply, with all material contracts with EQT Corporation necessary for the ongoing operation and business of the Borrower or such Subsidiary in the ordinary course, except where the failure to comply has not had, or would not reasonably be expected to have, a Material Adverse Effect.

 

6.10.                     Incremental Term Loan Cash Collateral.

 

(a)                                 The Borrower shall, prior to the initial borrowing of any Incremental Term Loans, establish one or more Incremental Term Loan Cash Collateral Accounts and enter into one or more Account Control Agreements and shall thereafter maintain such Incremental Term Loan Cash Collateral Accounts and keep the Account Control Agreements in full force and effect at all times that any portion of the Incremental Term Loans shall remain outstanding.

 

(b)                                 The Borrower shall, at all times when any Incremental Term Loans are outstanding, maintain Incremental Term Loan Cash Collateral in the Incremental Term Loan Cash Collateral Accounts with a value greater than or equal to the following (the “Required Collateral Amount”): the greater of (i) the aggregate outstanding principal amount of all Incremental Term Loans made under this Agreement pursuant to Section 2.17 and (ii) such other amount agreed to by the Incremental Term Lenders and the Borrower in any Incremental Term Loan Agreement.

 

(c)                                  If, at any time, the Required Collateral Amount for any Series of Incremental Term Loans exceeds the value of the Incremental Term Loan Cash Collateral for such Series of Incremental Term Loans, the Borrower shall immediately deposit additional Incremental Term Loan Cash Collateral into the appropriate Incremental Term Loan Cash Collateral Account to eliminate such excess.  In accordance with the terms of the applicable Account Control Agreements, the Borrower shall direct the investment of items deposited into the applicable Incremental Term Loan Cash Collateral Account.  The Borrower shall treat all income, gains or losses from the investment of items in the Incremental Term Loan Cash Collateral Accounts as its own income or loss, and the Administrative Agent and the Lenders shall have no liability for any such gain or loss.

 

(d)                                 If, at the end of any fiscal quarter of the Borrower, the value of the Incremental Term Loan Cash Collateral exceeds the Required Collateral Amount, then, upon the request of the Borrower, provided no Default or Event of Default has occurred and is continuing, the Administrative Agent shall direct the applicable Intermediary to pay and transfer to the Borrower cash, to the extent available, from the appropriate Incremental Term Loan Cash Collateral Account in an amount equal to such excess.

 

(e)                                  To secure the prompt payment in full when due, whether by lapse of time, acceleration or otherwise, of the Incremental Term Loans made under this Agreement pursuant to Section 2.01(b) and Section 2.17, the Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Incremental Term Lenders providing such Incremental Term Loans, a continuing security interest in, and a right to set off against, any and all right, title and interest of

 

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the Borrower in and to the Incremental Term Loan Cash Collateral Accounts and the Incremental Term Loan Cash Collateral and all other amounts maintained in the Incremental Term Loan Cash Collateral Accounts.

 

6.11.                     Additional Subsidiaries.

 

Within thirty (30) days after the acquisition or formation of any Material Subsidiary (or such longer period as the Administrative Agent may agree in writing), the Borrower shall cause such Person to (i) become a Guarantor by executing and delivering to the Administrative Agent a joinder agreement substantially in the form of Exhibit E and (ii) deliver to the Administrative Agent (A) documents of the types referred to in Sections 4.01(a)(iii) and (iv) and (B) favorable opinions of counsel to such Person (which, as to certain matters as agreed to by the Administrative Agent, may be internal counsel and which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (i)), all in form, content and scope reasonably satisfactory to the Administrative Agent.

 

ARTICLE VII

 

NEGATIVE COVENANTS

 

The Borrower agrees that so long as any Lender has any Commitment hereunder, any Letter of Credit remains outstanding (unless such Letter of Credit has been cash collateralized in a manner acceptable to the Administrative Agent and the applicable L/C Issuer or other arrangements with respect thereto have been made that are satisfactory to the Administrative Agent and the applicable L/C Issuer) or any Obligation payable hereunder remains unpaid:

 

7.01.                     Liens.  Neither the Borrower nor any Subsidiary shall, directly or indirectly, create, incur, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:

 

(a)                                 Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental charges or levies not past due for more than 60 days or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

 

(b)                                 Liens of landlords (other than to secure Debt) and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not past due for more than 60 days or, if delinquent, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;

 

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

 

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

 

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(e)                                  easements, rights-of-way, restrictions and other similar encumbrances affecting real property which do not materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

 

(f)                                   Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h);

 

(g)                                  leases or subleases granted to others not interfering in any material respect with the business of any Loan Party or any of its Subsidiaries;

 

(h)                                 any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;

 

(i)                                     normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;

 

(j)                                    Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection;

 

(k)                                 Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;

 

(l)                                     Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered pursuant to Section 2.14(a);

 

(m)                             Liens, if any, in connection with the Sunrise Pipeline Lease;

 

(n)                                 Liens on Incremental Term Loan Cash Collateral securing only Incremental Term Loans;

 

(o)                                 Liens created pursuant to construction, operating and maintenance agreements, transportation agreements and other similar agreements and related documents entered into in the ordinary course of business;

 

(p)                                 rights of first refusal entered into in the ordinary course of business;

 

(q)                                 Liens consisting of any (i) rights reserved to or vested in any municipality or governmental, statutory or public authority to control or regulate any property of the Borrower or any Subsidiary or to use such property, (ii) obligations or duties to any municipality or public authority with respect to any franchise, grant, license, lease or permit and the rights reserved or vested in any Governmental Authority or public utility to terminate any such franchise, grant, license, lease or permit or to condemn or expropriate any property, or (iii) zoning laws, ordinances or municipal regulations;

 

(r)                                    Liens on deposits required by any Person with whom the Borrower or any of its Subsidiaries enters into a Swap Contract, to the extent such Swap Contracts are entered into in the ordinary course of business;

 

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(s)                                   any Lien in favor of a Loan Party;

 

(t)                                    Liens imposed by ERISA which do not constitute an Event of Default and which are being contested in good faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefor; and

 

(u)                                 Liens not otherwise permitted by the foregoing clauses of this Section securing Debt in an aggregate principal or face amount at any date not to exceed 5% of Consolidated Net Tangible Assets; provided, however, that upon termination of the Sunrise Pipeline Lease, the Borrower shall be permitted to incur Liens under this clause (u) in an aggregate principal or face amount at any date not to exceed 10% of Consolidated Net Tangible Assets.

 

7.02.                     Financial Covenants.

 

(a)                                 Consolidated Leverage Ratio. The Consolidated Leverage Ratio, as at the end of each fiscal quarter of the Borrower (beginning with the fiscal quarter ending June 30, 2012), shall be less than or equal to 5.00 to 1.0; provided, that, from and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s and Fitch, subsequent to the consummation of a Qualified Acquisition, the Consolidated Leverage Ratio, as at the end of the three consecutive fiscal quarters following such Qualified Acquisition, shall be less than or equal to 5.50 to 1.0.

 

(b)                                 Consolidated Interest Coverage Ratio. The Consolidated Interest Coverage Ratio, as at the end of each fiscal quarter of the Borrower (beginning with the fiscal quarter ending June 30, 2012), shall be greater than or equal to 3.00 to 1.0; provided, that, from and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s and Fitch, the Borrower will have no further obligation to comply with the Consolidated Interest Coverage Ratio set forth in this Section 7.02(b).

 

7.03.                     Transactions with Affiliates.  A Loan Party will not, and will not permit any Subsidiary to, directly or indirectly, pay any funds to or for the account of, make any investment in, lease, sell, transfer or otherwise dispose of any assets, tangible or intangible, to, or participate in, or effect, any transaction with, any officer, director, employee or Affiliate (other than another Loan Party) unless any such transactions between a Loan Party and its Subsidiaries on the one hand and any officer, director, employee or Affiliate (other than another Loan Party or Subsidiary) on the other hand, shall be on an arms length basis and on terms no less favorable to such Loan Party or such Subsidiary than could have been obtained from a third party who was not an officer, director, employee or Affiliate (other than another Loan Party or Subsidiary); provided, that the foregoing provisions of this Section shall not (a) prohibit a Loan Party and each Subsidiary from declaring or paying any lawful dividend or distribution otherwise permitted hereunder, (b) prohibit a Loan Party or a Subsidiary from providing credit support for its Subsidiaries as it deems appropriate in the ordinary course of business, (c) prohibit a Loan Party or a Subsidiary from engaging in a transaction or transactions that are not on an arms length basis or are not on terms as favorable as could have been obtained from a third party, provided that such transaction or transactions occurs within a related series of transactions, which, in the aggregate, are on an arms length basis and are on terms as favorable as could have been obtained from a third party, (d) prohibit a Loan Party or a Subsidiary from engaging in non-material transactions with any officer, director, employee or Affiliate that are not on an arms length basis or are not on terms as favorable as could have been obtained from a third party but are in the ordinary course of such Loan Party’s or such Subsidiary’s business, so long as, in each case, after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (e) prohibit a Loan Party and its Subsidiaries from entering into any of the agreements to be entered into by various Loan Parties and their Subsidiaries in connection with the Initial Asset

 

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Acquisition, the IPO or any Drop-Down Acquisition with EQT Corporation or its Affiliates and the transactions related thereto, and shall not prohibit the performance by any Person party thereto of their obligations thereunder,  (f) prohibit any corporate sharing agreements with respect to tax sharing and general overhead and administrative matters, (g) prohibit a Loan Party from engaging in a transaction with an Affiliate if such transaction has been approved by the conflicts committee of the General Partner, (h) prohibit transactions among or between non-Loan Party Subsidiaries,  (i) prohibit transactions involving any employee benefit plans or related trusts and (j) prohibit the payment of reasonable compensation, fees and expenses (as determined by the applicable Loan Party) to, and indemnity provided on behalf of, the General Partner and directors, employees and officers of the General Partner, the Borrower or any Subsidiary.

 

7.04.                     Restricted Payments.  No Loan Party will, nor will it permit its Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, during the occurrence and continuance of an Event of Default, or if a Default or Event of Default would be caused by the making of such Restricted Payment.

 

7.05.                     Mergers and Fundamental Changes.  A Loan Party will not, nor will it permit any of its Subsidiaries to, (a) enter into any transaction of merger or (b) consolidate, liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution); provided, that:  (i) a Person (including a Subsidiary of the Borrower but not the Borrower) may be merged or consolidated with or into the Borrower so long as (A) the Borrower shall be the continuing or surviving entity, (B) no Default or Event of Default shall exist or be caused thereby, (C) the Borrower remains liable for its obligations under this Agreement and all the rights and remedies hereunder remain in full force and effect, (ii) a Subsidiary of the Borrower may merge with or into another Subsidiary of the Borrower or any other Person; provided that if one of such Subsidiaries is a Guarantor, the surviving entity must be a Guarantor and (iii) any Subsidiary of the Borrower that is not a Loan Party may liquidate, wind up or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.

 

7.06.                     Change in Nature of Business.  The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly, engage in any material line of business other than the midstream oil and gas business or any business substantially related or incidental thereto.

 

7.07.                     Use of Proceeds.  The Borrower shall not use the proceeds of any Credit Extension, whether directly or indirectly, for a purpose that entails a violation of Regulation U of the FRB.

 

7.08.                     Dispositions.

 

(a)                                 Prior to the time the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s and Fitch, a Loan Party will not make, nor permit its Subsidiaries to make any Disposition except:

 

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

 

(ii)                                  Dispositions of machinery and equipment no longer used or useful in the conduct of business of a Loan Party and its Subsidiaries that are Disposed of in the ordinary course of business;

 

(iii)                               Dispositions of assets to a Subsidiary, provided that if the transferor of such assets is a Loan Party, the transferee thereof must be a Loan Party;

 

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(iv)                              Dispositions of accounts receivable in connection with the collection or compromise thereof;

 

(v)                                 Dispositions of licenses, sublicenses, leases or subleases not interfering in any material respect with the business of a Loan Party and its Subsidiaries;

 

(vi)                              Dispositions of cash or Cash Equivalents in the ordinary course of business;

 

(vii)                           Dispositions in which: (i) the assets being disposed of are exchanged, within 180 days of such Disposition, for replacement assets or (ii) the net proceeds thereof are either (A) reinvested within 180 days from such Disposition in assets to be used in the ordinary course of the business of the Borrower and its Subsidiaries and/or (B) used to permanently reduce the Aggregate Revolving Commitments on a dollar for dollar basis;

 

(viii)                        asset swaps with EQT Corporation or any of its Subsidiaries;

 

(ix)                              Dispositions permitted by Sections 7.04, 7.05, and 7.10;

 

(x)                                 Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of a Loan Party or any Subsidiary;

 

(xi)                              Dispositions of Incremental Term Loan Cash Collateral for fair market value and in accordance with the applicable Incremental Term Loan Agreement; and

 

(xii)                           other Dispositions not exceeding in the aggregate for all Loan Parties and their Subsidiaries (i) 10% of Consolidated Net Tangible Assets in any fiscal year, measured as of the date of determination or (ii) 20% of Consolidated Net Tangible Assets over the term of this Agreement, measured as of the date of determination.

 

(b)                                 From and after the time the Borrower receives an Investment Grade Rating from two of S&P, Moody’s and Fitch, a Loan Party will not make, nor permit its Subsidiaries to make, any Disposition (whether in one transaction or a series of transactions) that constitutes all or substantially all of the assets of the Loan Parties and their Subsidiaries, taken as a whole.

 

7.09.                     Debt.  No Loan Party will, nor will it permit its Subsidiaries to, create, incur, assume or suffer to exist any Debt except:

 

(a)                                 Debt pursuant to this Agreement or an Incremental Term Loan Agreement;

 

(b)                                 Investments permitted under Section 7.10 that would constitute Debt;

 

(c)                                  current liabilities of the Loan Parties or their respective Subsidiaries incurred in the ordinary course of business that is extended in connection with the normal purchases of goods and services;

 

(d)                                 Debt of any Person that becomes a Subsidiary of the Borrower, to the extent such Debt is outstanding at the time such Person becomes a Subsidiary of the Borrower and was not

 

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incurred in contemplation thereof, and Debt assumed by the Borrower or any Subsidiary in connection with its acquisition (whether by merger, consolidation, acquisition of all or substantially all of the assets or acquisition that results in the ownership of greater than fifty percent (50%) of the Capital Stock of a Person) of another Person and, in each case, Debt refinancing, extending, renewing or refunding such Debt; provided that (i) the principal amount of such Debt is not increased (other than to provide for the payment of any underwriting discounts and fees related to any refinancing Debt as well as any premiums owed on and accrued and unpaid interest related to the original Debt); and (ii) at the time of and immediately after giving effect to the incurrence or assumption of such Debt or refinancing Debt and the application of the proceeds thereof, as the case may be, the aggregate principal amount of all such Debt, and of all Debt previously incurred or assumed pursuant to this Section 7.09(d), and then outstanding, shall not exceed 50% of Consolidated EBITDA for the period of four full consecutive fiscal quarters of the Borrower and its Subsidiaries (and such Person on a pro forma basis) then most recently ended;

 

(e)                                  Debt in the form of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not be past due;

 

(f)                                   Debt pursuant to the Sunrise Pipeline Lease;

 

(g)                                  all obligations of such Person arising under letters of credit (including standby and commercial); and

 

(h)                                 other Debt in an aggregate amount not to exceed 15% of Consolidated Net Tangible Assets.

 

7.10.                     Investments.  No Loan Party will, nor will it permit its Subsidiaries to, make any Investments, except:

 

(a)                                 Investments held by a Loan Party or such Subsidiary in the form of cash, Cash Equivalents or Incremental Term Loan Cash Collateral;

 

(b)                                 Investments existing as of the Closing Date and set forth on Schedule 7.10;

 

(c)                                  Investments in any Person that is a Loan Party prior to or contemporaneously with giving effect to such Investment;

 

(d)                                 Investments by any Subsidiary of the Borrower that is not a Loan Party in any other Subsidiary of the Borrower that is not a Loan Party;

 

(e)                                  Acquisitions made in accordance with the Borrower’s Organization Documents;

 

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

 

(g)                                  Investments by the Borrower in any Subsidiary that is not a Loan Party not exceeding $20,000,000 in the aggregate at any one time outstanding;

 

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(h)                                 other Investments in an aggregate amount not to exceed, at any one time outstanding, $15,000,000.

 

Notwithstanding the foregoing, upon receiving an Investment Grade Rating from two of S&P, Moody’s and Fitch, the Borrower shall not be required to comply with the restrictions set forth in this Section 7.10.

 

7.11.                     Changes in Fiscal Year; Organization Documents.  No Loan Party shall make changes to its (i) fiscal year or (ii) Organization Documents, which, in either case, would reasonably be expected to have a Material Adverse Effect.

 

ARTICLE VIII

 

EVENTS OF DEFAULT AND REMEDIES

 

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

 

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

 

(b)                                 Specific Covenants.  Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01(d), 6.04 (with respect to the Borrower’s existence), 6.07 or 6.08 or Article VII; or

 

(c)                                  Other Defaults.  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subSection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or

 

(d)                                 Representations and Warranties.  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party, in this Agreement or in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; provided that (except in the case of any representation, warranty or certification made with respect to any financial statement of the Borrower) if such lack of correctness is capable of being remedied or cured within a 30-day period, Borrower or such Loan Party shall have a period of 30 days after the earlier of (i) written notice thereof has been given to Borrower by Administrative Agent (acting on the request of one or more Lenders) or (ii) a Responsible Officer of the General Partner or of such Loan Party (or the general partner, board of directors or other governing body, as applicable, of such Loan Party) has obtained knowledge thereof, within which to remedy or cure such lack of correctness; or

 

(e)                                  Cross-Payment Default.  (i) Any Loan Party (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Debt, or (B) fails to observe or perform any other agreement or condition relating to any Material Debt or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Material Debt to cause, with the giving of notice if required, the maturity of such Material Debt to be accelerated or to cause such Material Debt to

 

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be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Debt to be made, prior to its stated maturity or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than $15,000,000; or

 

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

 

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

 

(h)                                 Judgments.  There is entered against any Loan Party or any Subsidiary final judgments or orders for the payment of money in an aggregate amount exceeding $15,000,000 (to the extent not (i) covered by independent third-party insurance as to which the insurer does not dispute coverage and/or (ii) fully indemnified by(x) EQT Corporation or (y) a third party who has acknowledged liability for such judgment and has either provided credit support for such indemnity obligations that is reasonably acceptable to the Administrative Agent or otherwise has an Investment Grade corporate family rating from a Designated Rating Agency), and (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

 

(i)                                     ERISA.  (i) Any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $15,000,000 which it shall have become liable to pay under Title IV of ERISA; or (ii) notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer, any Material Plan; or (iv) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or (v) there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans, which, in the case of each of clauses (ii) — (v) above, could cause one or more members of the ERISA Group to incur a current payment obligation in excess of $15,000,000 in the aggregate; or

 

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(j)                                    Invalidity of Loan Documents or Account Control Agreements.  (i) Any Loan Document at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or (ii) any Account Control Agreement at any time after its execution and delivery, and for any reason other than as expressly permitted hereunder or thereunder, or satisfaction in full of all the Obligations in respect of Incremental Term Loans, ceases to be in full force and effect; or the Borrower contests in any manner the validity or enforceability of any Account Control Agreement; or the Borrower purports to revoke, terminate or rescind any Account Control Agreement, in each case under this clause (ii), if the Required Incremental Term Lenders provide written notice that such event constitutes an “Event of Default”; or

 

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

 

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

 

(a)                                 the Required Revolving Lenders, take any or all of the following actions:

 

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

 

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

 

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

 

(iv)                              exercise on behalf of itself and the Revolving Lenders all rights and remedies available to it and the Revolving Lenders under the Loan Documents or applicable law; and

 

(b)                                 the Required Incremental Term Lenders, take any or all of the following actions:

 

(i)                                     declare the commitment, if any, of each Incremental Term Lender to make Incremental Term Loans to be terminated, whereupon such commitments shall be terminated;

 

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

 

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(iii)                               exercise on behalf of itself and the Incremental Term Lenders all rights and remedies available to it and the Incremental Term Lenders under the Loan Documents or applicable law, including, without limitation, its rights with respect to any Incremental Term Loan Cash Collateral;

 

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

 

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

 

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

 

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders and the L/C Issuers (including Attorney Costs and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them;

 

Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees pursuant to Section 2.03(h) and interest on the Committed Loans, Swing Line Loans and the L/C Borrowings, ratably among the Revolving Lenders in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Committed Loans, Swing Line Loans and L/C Borrowings, ratably among the Revolving Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them;

 

Fifth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Incremental Term Loans, ratably among the Incremental Term Lenders in proportion to the respective amounts described in this clause Fifth payable to them;

 

Sixth, to payment of that portion of the Obligations constituting unpaid principal of the Incremental Term Loans, ratably among the Incremental Term Lenders in proportion to the respective amounts described in this clause Sixth held by them;

 

Seventh, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not Cash Collateralized by the Borrower pursuant to Section 2.16; and

 

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

 

provided, that all amounts collected from the proceeds of Incremental Term Loan Cash Collateral shall be used to repay the Incremental Term Loans.

 

Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Seventh 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.

 

ARTICLE IX

 

ADMINISTRATIVE AGENT

 

9.01.                     Appointment and Authorization of Administrative Agent.  Each of the Lenders and the L/C Issuers hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and the Borrower shall not have rights as a third party beneficiary of any of such provisions.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

9.05.                     Indemnification of Administrative Agent.  Whether or not the transactions contemplated hereby are consummated, (a) the Lenders shall indemnify upon demand the Administrative Agent and each Agent-Related Person related to the Administrative Agent and (b) the Revolving Lenders shall indemnify upon demand each L/C Issuer and each Agent-Related Person related to such L/C Issuer (in each case, to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the Borrower to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it, provided that such unreimbursed Indemnified Liabilities were incurred by or asserted against the Administrative Agent or an L/C Issuer in each case in its capacity as such or against any Agent-Related Persons acting for the Administrative Agent or an L/C Issuer in connection with such capacity; provided, however, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Agent-Related Person’s own gross negligence or willful misconduct; and provided, further, that no action taken

 

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in accordance with the directions of the Required Lenders, Required Revolving Lenders or Required Incremental Term Lenders, as applicable, shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section.  Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower.  The obligations of the Lenders in this Section are subject to the provisions of Section 2.12(e) and shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent.

 

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

 

9.07.                     Resignation of Administrative Agent.  The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower (so long as no Event of Default exists), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

 

Any resignation by Wells Fargo as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s

 

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appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.

 

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

 

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

 

9.10.                     Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

 

(a)                                 to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(h) and (i), 2.09, 10.04 and 10.05) 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 the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09, 10.04 and 10.05.

 

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

 

ARTICLE X

 

MISCELLANEOUS

 

10.01.              Amendments, Etc.

 

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

 

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

 

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

 

(iii)                               reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (E) of the second proviso to this Section 10.01(a)) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;

 

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

 

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

 

(vi)                              release the Borrower or, except in connection with a merger or consolidation permitted under Section 7.05 or a Disposition permitted under Section 7.08, all or substantially all of the Guarantors without the written consent of each Lender directly affected thereby;

 

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(vii)                           amend or modify Section 4.02 without the consent of the Required Revolving Lenders and to the extent any Series of an Incremental Term Loan Commitment is outstanding, the Required Incremental Term Lenders applicable to such Series; or

 

(viii)                        release any of the Incremental Term Loan Cash Collateral without the written consent of each Incremental Term Lender, except as permitted hereunder.

 

and, provided  further, that (A) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuers in addition to the Lenders required above, affect the rights or duties of the L/C Issuers under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (C) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (D) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; and (E) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

 

(b)                                 Notwithstanding the provisions of Section 10.01(a), this Agreement may be amended, restated, amended and restated or otherwise modified pursuant to any Incremental Term Loan Agreement with the written consent of the Administrative Agent (provided that only the acknowledgment of the Administrative Agent (and not the consent of the Administrative Agent) shall be required with respect to any Incremental Term Loan Agreement that is substantially in the form of Exhibit F attached hereto and makes no modifications to this Agreement except for the matters specified in the form of Exhibit F attached hereto), the Borrower and the Incremental Term Lenders providing the Incremental Term Loans made under this Agreement pursuant to Section 2.17, but without the consent of any other Lender; provided that such amendment, restatement, amendment and restatement or other modification is not directly adverse to any other Lender and shall not result in any change to the obligations of the Revolving Lenders under Section 2.03(c) to reimburse their Pro Rata Share of Unreimbursed Amounts or to the obligations of the Revolving Lenders under Section 2.04(c) to fund their participations in respect of Swing Line Loans, in each case to the extent necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby and to effect such other changes (including, without limitation, changes to the provisions of Article II, Section 10.01(a) and the definition of “Required Lenders” to include appropriately the Incremental Term Lenders providing such Incremental Term Loans and any other definitions or provisions of this Agreement specifying the number or percentage of Lenders required to waive, amend or modify any rights under this Agreement or make any determination or grant any consent under this Agreement) as the Borrower and the Incremental Term Lenders providing such Incremental Term Loans (and to the extent there are modifications to this Agreement beyond the scope of the form of Incremental Term Loan Agreement as set forth in Exhibit F attached hereto, the Administrative Agent) shall deem reasonably necessary in connection with any such Incremental Term Loan Agreement; provided, further, that no Incremental Term Loan Agreement shall:

 

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

 

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

 

(iii)                               reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (E) of the second proviso to Section 10.01(a)) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;

 

(iv)                              change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments or order of payments required thereby without the written consent of each Lender directly affected thereby, except to clarify that, except to the extent paid from Incremental Term Loan Cash Collateral, Incremental Term Loans shall be paid after all Revolving Loans have been paid in full and the aggregate L/C Obligations have been paid or Cash Collateralized in full;

 

(v)                                 release the Borrower or, except in connection with a merger or consolidation permitted under Section 7.05 or a Disposition permitted under Section 7.08, all or substantially all of the Guarantors without the written consent of each Lender directly affected thereby;

 

(vi)                              amend or modify Section 4.02 without the consent of the Required Revolving Lenders and to the extent any Series of an Incremental Term Loan Commitment is outstanding, the Required Incremental Term Lenders applicable to such Series; or

 

(vii)                           release any of the Incremental Term Loan Cash Collateral without the written consent of each Incremental Term Lender, except as permitted hereunder.

 

10.02.              Notices; Effectiveness; Electronic Communication.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

 

(d)                                 Change of Address, Etc.  Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

 

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

 

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

 

10.04.              Attorney Costs, Expenses and Taxes.  The Borrower agrees (a) to pay or reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation, negotiation and execution of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated hereby or thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or reimburse the Administrative Agent and each Lender for all reasonable out-of-pocket costs and expenses incurred in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any “workout” or restructuring in respect of the Obligations and during any legal proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs.  The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and Other Taxes related thereto, and other reasonable out-of-pocket expenses incurred by the Administrative Agent and the cost of independent public accountants and other outside experts retained by the Administrative Agent or any Lender.  All amounts due under this Section 10.04 shall be payable within ten Business Days after demand therefor.  The agreements in this Section shall survive the termination of the Aggregate Commitments and repayment of all other Obligations.

 

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10.05.              Indemnification; Damage Waiver.

 

(a)                                 Indemnification by the Loan Parties.  Whether or not the transactions contemplated hereby are consummated, the Loan Parties shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (c) any actual or alleged presence or release of Hazardous Substances on or from any property currently or formerly owned or operated by a Loan Party or any Subsidiary of a Loan Party, or any Environmental Liability related in any way to a Loan Party or any Subsidiary of a Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (x) the gross negligence or willful misconduct of such Indemnitee, (y) a claim brought by any Loan Party against an Indemnitee for material breach in bad faith of such Indemnitee’s obligations under the Loan Documents or (z) a claim brought by one Lender against another Lender so long as such claim does not involve, or result from, an action or inaction by any Loan Party or any Affiliate of a Loan Party.  No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement.  All amounts due under this Section 10.05 shall be payable within ten Business Days after demand therefore.  The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.  Without limiting the provisions of Section 3.01, this Section 10.05(a) shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

 

(b)                                 Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, no Loan Party shall assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument entered into or delivered pursuant hereto, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subSection (a) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through

 

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telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

 

10.06.              Payments Set Aside.  To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.

 

10.07.              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, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subSection (b) of this Section, (ii) by way of participation in accordance with the provisions of subSection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subSection (f) or (j) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subSection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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

 

(i)                                     Minimum Amounts.

 

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

 

(B)                               in any case not described in subSection (b)(i)(A) of this Section, the aggregate amount of (x) the Revolving Commitment (which for this purpose

 

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

 

(ii)                                  Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to rights in respect of Swing Line Loans.

 

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

 

(A)                               the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is (x) in the case of an assignment of Revolving Loans or a Revolving Commitment, to a Person that is not a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to such Revolving Lender or (y) in the case of an assignment of Incremental Term Loans or an Incremental Term Commitment, to a Person that is not an Incremental Term Lender, an Affiliate of such Incremental Term Lender or an Approved Fund with respect to such Incremental Term Lender; provided, that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;

 

(B)                               the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is (x) in the case of an assignment of Revolving Loans or a Revolving Commitment, to a Person that is not a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to such Revolving Lender or (y) in the case of an assignment of Incremental Term Loans or an Incremental Term Commitment, to a Person that is not an Incremental Term Lender, an Affiliate of such Incremental Term Lender or an Approved Fund with respect to such Incremental Term Lender;

 

(C)                               the consent of each L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that

 

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increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and

 

(D)                               the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of Revolving Loans or a Revolving Commitment.

 

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

 

(v)                                 No Assignment to Certain Persons.  No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause B, or (C) to a natural person.

 

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subSection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, except to the extent otherwise specifically provided hereunder, and only to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subSection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subSection (d) of this Section.

 

(c)                                  The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent 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 and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

(d)                                 Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the

 

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Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including for purposes of this subSection (d), participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent 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 pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01(a) that directly affects such Participant.  Subject to subSection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subSection (b) of this Section.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 0.09  as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the 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 (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) to any Person 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.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

(e)                                  A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04  than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.  A Participant shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01 (including subSection 3.01(f)), and be subject to Sections 3.06 and 10.16 as though it were a Lender.

 

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

 

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

 

(h)                                 As used herein, the following terms have the following meanings:

 

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.07(b)(iii) and (b)(v) (subject to such consents, if any, as may be required under Section 10.07(b)(iii)).

 

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

 

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

 

(i)                                     Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities, provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.

 

(j)                                    Notwithstanding anything to the contrary contained herein, if at any time Wells Fargo or another L/C Issuer assigns all of its Commitment and Loans pursuant to subSection (b) above, (i) Wells Fargo or such L/C Issuer may, upon 30 days’ notice to the Borrower and the Lenders, resign as an L/C Issuer and/or (ii) Wells Fargo may, upon 30 days’ notice to the Company, resign as Swing Line Lender.  In the event of any such resignation as an L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders (only if such Lender accepts such appointment) a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of (x) Wells Fargo or such L/C Issuer as an L/C Issuer or (y) Wells Fargo as Swing Line Lender, as the case may be.  If Wells Fargo or another L/C Issuer resigns as an L/C Issuer, it shall retain all the rights and obligations of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Wells Fargo resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to

 

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Section 2.04(c).  Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the resigning L/C Issuer to effectively assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit.

 

10.08.              Confidentiality.  Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it; (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative transaction relating to obligations of the Borrower; (g) with the consent of the Borrower; (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than the Borrower; or (i) to the National Association of Insurance Commissioners or any other similar organization.  In addition, the Administrative Agent and the Lenders may disclose, after the Closing Date, the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions.  For purposes of this Section, “Information” means all information received from any Loan Party or any Subsidiary relating to such Loan Party or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by a Loan Party or any Subsidiary.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

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

 

10.09.              Set-off.  In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of any Event of Default, each Lender is authorized at any time and from time to time, without prior notice to the Borrower, any such notice being waived by the Borrower 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 by, and other indebtedness at any time owing by, such Lender to or for the credit or the account of the Borrower against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether

 

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or not the Administrative Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness.  Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.

 

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

 

10.11.              Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery of an executed signature page of this Agreement by facsimile or electronic mail shall be effective as delivery of manually executed counterpart hereof and shall constitute an agreement to deliver an original executed counterpart if requested.

 

10.12.              Integration.  This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter.  In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement.  Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.

 

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

 

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

 

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10.15.              Reserved.

 

10.16.              Replacement of Lenders.  If any Lender requests compensation under Section 3.04, if the Borrower is or will be required to pay any additional amount or Indemnified Tax to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, if any Lender suspends its obligations to make, maintain or continue Eurodollar Rate Loans pursuant to Section 3.02, if any Lender refuses to consent to any proposed amendment, modification, waiver or consent with respect to any provision hereof that requires the unanimous approval of all Lenders, or the approval of each of the Lenders affected thereby (in each case in accordance with Section 10.01), and the consent of the Required Lenders shall have been obtained with respect to such amendment, modification, waiver or consent, if any Lender is a Defaulting Lender, or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.07), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that:

 

(a)                                 the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.07(b);

 

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

 

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

 

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

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.  Solely for purposes of effecting any assignment involving a Defaulting Lender under this Section 10.16 and to the extent permitted under applicable Laws, each Lender hereby agrees that any Assignment and Acceptance done in accordance with this Section 10.16 shall be effective against a Defaulting Lender five (5) Business Days after it has been given notice of the same, whether or not such Defaulting Lender has executed such Assignment and Acceptance, and such Defaulting Lender shall be bound thereby as fully and effectively as if such Defaulting Lender had personally executed, acknowledged and delivered the same.

 

10.17.              Governing Law.

 

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

 

(b)                                 ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN

 

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OR OF THE COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.  EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.

 

10.18.              No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby, the Loan Parties acknowledge and agree that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Loan Parties and their Affiliates, on the one hand, and the Administrative Agent, the Lenders and the Arrangers, on the other hand, and the Loan Parties are capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent, the Lenders and the Arrangers, each is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for any Loan Party or any of their Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the Administrative Agent, any Lender or any Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Loan Parties with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent or any Lender or Arranger has advised or is currently advising any Loan Party or any of their Affiliates on other matters) and none of the Administrative Agent, any Lender or any Arranger has any obligation to any Loan Party or any of their Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent, the Lenders, the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their Affiliates, and none of the Administrative Agent, any Lender or any Arranger has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent, the Lenders and the Arranger(s) have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate.  The Loan Parties hereby waive and release, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent, the Lenders and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty.

 

10.19.              Waiver of Right to Trial by Jury.  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES

 

100











 

HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

10.20.              USA PATRIOT Act Notice.  Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Act.

 

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

 

10.22.              No General Partner’s Liability for Revolving Facility.  It is hereby understood and agreed that the General Partner shall have no personal liability, as general partner or otherwise, for the payment of any amount owing or to be owing hereunder or under any other Loan Document with respect to the Revolving Commitments, Revolving Loans or Letters of Credit.  In furtherance of the foregoing, the Administrative Agent and the Revolving Lenders agree for themselves and their respective successors and assigns that no claim arising against the Borrower or any of its Subsidiaries under any Loan Document with respect to the Revolving Commitments, Revolving Loans or Letters of Credit shall be asserted against the General Partner (in its individual capacity), any claim arising against the Borrower or any of its Subsidiaries under any Loan Document with respect to the Revolving Commitments, Revolving Loans or Letters of Credit shall be made only against and shall be limited to the assets of the Borrower and its Subsidiaries, and no judgment, order or execution entered in any suit, action or proceeding, whether legal or equitable, on this Agreement or any of the other Loan Documents with respect to the Revolving Commitments, Revolving Loans or Letters of Credit shall be obtained or enforced against the General Partner (in its individual capacity) or its assets for the purpose of obtaining satisfaction and payment of the Obligations with respect to the Revolving Commitments, Revolving Loans or Letters of Credit or any claims arising under this Agreement or any other Loan Document with respect to the Revolving Commitments, Revolving Loans or Letters of Credit, any right to proceed against the General Partner individually or its respective assets being hereby expressly waived by the Revolving Lenders for themselves and their respective successors and assigns.  Notwithstanding the foregoing, if any Incremental Term Loans are refinanced with the proceeds of Committed Loans, this Section 10.22 shall not apply to the extent of the principal amount of those Committed Loans used for such refinancing.

 

ARTICLE XI

 

GUARANTY

 

11.01.              The Guaranty.  Each of the Guarantors hereby jointly and severally guarantees to each Lender and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the

 

101











 

prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.

 

Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under Debtor Relief Laws or any comparable provisions of any applicable state law.

 

11.02.              Obligations Unconditional.  Except as provided under Section 11.08, the obligations of the Guarantors under Section 11.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 11.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances.  Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against either the Borrower or any other Guarantor for amounts paid under this Article 11 until such time as the Obligations have been paid in full, the Letters of Credit have been terminated or expired (other than Letters of Credit as to which other arrangements reasonably satisfactory to the applicable L/C Issuer have been made) and the Commitments have expired or terminated.  Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:

 

(a)                                 at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;

 

(b)                                 any of the acts mentioned in any of the provisions of any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents, shall be done or omitted;

 

(c)                                  the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents, or any other agreement or instrument referred to in the Loan Documents, shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;

 

(d)                                 any Lien granted to, or in favor of, the Administrative Agent or any Lender or Lenders as security for any of the Obligations shall fail to attach or be perfected; or

 

102











 

(e)                                  any of the Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor).

 

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or any other agreement or instrument referred to in Loan Documents, or against any other Person under any other guarantee of, or security for, any of the Obligations.

 

11.03.              Reinstatement.  The obligations of the Guarantors under this Article 11 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses (including, without limitation, the reasonable fees, charges and disbursements of counsel) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.

 

11.04.              Certain Additional Waivers.  Each Guarantor further agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 11.02 and through the exercise of rights of contribution pursuant to Section 11.06.

 

11.05.              Remedies.  The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Administrative Agent and the Revolving Lenders or the Incremental Term Lenders, as applicable, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 8.02) for purposes of Section 11.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 11.01.

 

11.06.              Rights of Contribution.  The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law.  Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until all Obligations have been paid in full, the Letters of Credit have been terminated or expired (other than Letters of Credit as to which other arrangements reasonably satisfactory to the applicable L/C Issuer have been made) and the Commitments have terminated.

 

11.07.              Guarantee of Payment; Continuing Guarantee.  The guarantee in this Article 11 is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.

 

11.08.              Termination or Release. The guarantees in this Article 11 shall terminate when the Obligations have been paid in full, the Letters of Credit have been terminated or expired (other than

 

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Letters of Credit as to which other arrangements reasonably satisfactory to the applicable L/C Issuer have been made) and the Commitments have expired or terminated. Furthermore, upon the consummation of a merger or consolidation permitted under Section 7.05 or a Disposition permitted under Section 7.08, a Guarantor shall be automatically released from its guarantee in this Article 11; provided that the Borrower shall promptly provide notice to the Administrative Agent of such release.  Upon written request, the Administrative Agent shall execute and deliver to the Borrower or any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such release or termination.

 

11.09.              No General Partner’s Liability for Revolving Facility. For the avoidance of doubt, the guarantee in this Article 11 with respect to the Revolving Commitments, Revolving Loans or Letters of Credit is subject to Section 10.22 of this Agreement.

 

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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.

 

	
BORROWER:
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited partnership
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By: EQT   Midstream Services, LLC, its general partner, a Delaware limited liability   company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
GUARANTORS:
    	
EQUITRANS,   L.P., a Pennsylvania limited partnership
    
	
 
    	
 
    
	
 
    	
By:   Equitrans Services, LLC, its general partner, a Delaware limited liability   company
    
	
 
    	
 
    
	
 
    	
By:   Equitrans Investments, LLC, its sole member, a Delaware limited liability   company
    
	
 
    	
 
    
	
 
    	
By: EQT Midstream Partners, LP, its sole member,   a Delaware limited partnership
    
	
 
    	
 
    
	
 
    	
By:  EQT Midstream Services, LLC, its   general partner, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
				


 

CREDIT AGREEMENT

EQT MIDSTREAM PARTNERS, LP

 











 

	
 
    	
EQUITRANS   SERVICES, LLC
    
	
 
    	
 
    
	
 
    	
By: Equitrans Investments, LLC, its sole member,   a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
By: EQT Midstream Partners, LP, its sole member,   a Delaware limited partnership
    
	
 
    	
 
    
	
 
    	
By: EQT Midstream Services, LLC, its general   partner, a Delaware limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
EQUITRANS   INVESTMENTS, LLC
    
	
 
    	
 
    
	
 
    	
By: EQT Midstream Partners, LP, its sole member,   a Delaware limited partnership
    
	
 
    	
 
    	
 
    
	
 
    	
By: EQT Midstream Services, LLC, its general   partner, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
					


 

CREDIT AGREEMENT

EQT MIDSTREAM PARTNERS, LP

 











 

	
 
    	
WELLS   FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

CREDIT AGREEMENT

EQT MIDSTREAM PARTNERS, LP

 











 

	
 
    	
PNC   BANK, NATIONAL ASSOCIATION, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

CREDIT AGREEMENT

EQT MIDSTREAM PARTNERS, LP

 











 

	
 
    	
SUNTRUST   BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

CREDIT AGREEMENT

EQT MIDSTREAM PARTNERS, LP

 









 

SCHEDULE 2.01(a)

 

COMMITMENTS AND PRO RATA SHARES

 

	
Lender
    	
 
    	
Commitment
    	
 
    	
Applicable
   Percentage
    	
 
    
	
Wells Fargo Bank, National Association
    	
 
    	
$
    	
29,090,909.10
    	
 
    	
8.311688314
    	
%
    
	
PNC Bank, National Association
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
SunTrust Bank
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
Bank of America, N.A.
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
Barclays Bank PLC
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
Citibank, N.A.
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
Credit Suisse AG, Cayman Islands Branch
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
Deutsche Bank AG New York Branch
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
Goldman Sachs Bank USA
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
JPMorgan Chase Bank, N.A.
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
Royal Bank of Canada
    	
 
    	
29,090,909.09
    	
 
    	
8.311688311
    	
%
    
	
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
    	
 
    	
15,000,000.00
    	
 
    	
4.285714286
    	
%
    
	
The Huntington National Bank
    	
 
    	
15,000,000.00
    	
 
    	
4.285714286
    	
%
    
	
TOTAL
    	
 
    	
$
    	
350,000,000.00
    	
 
    	
100.00
    	
%
    


 











 

SCHEDULE 5.10

 

SUBSIDIARIES

 

	
Name of Subsidiary
    	
 
    	
Jurisdiction of
   Organization
    	
 
    	
Direct/Indirect
   Ownership Percentage
    	
 
    	
Material Subsidiary
   (Yes or No)
    	
 
    
	
Equitrans, L.P.
    	
 
    	
Pennsylvania
    	
 
    	
100
    	
%
    	
Yes
    	
 
    
	
Equitrans Services, LLC
    	
 
    	
Delaware
    	
 
    	
100
    	
%
    	
No
    	
 
    
	
Equitrans Investments, LLC
    	
 
    	
Delaware
    	
 
    	
100
    	
%
    	
No
    	
 
    


 











 

SCHEDULE 7.10

 

INVESTMENTS AS OF THE CLOSING DATE

 

None.

 











 

SCHEDULE 10.02

 

ADMINISTRATIVE AGENT’S OFFICE,
 CERTAIN ADDRESSES FOR NOTICES

 

LOAN PARTIES:

 

c/o EQT Midstream Partners, LP

625 Liberty Avenue

Suite 1700

Pittsburg, PA 15222

Attention: Assistant Treasurer

Telephone: (412) 553-7869

Facsimile: (412) 553-7781

Electronic Mail: treasury@eqt.com

Website: www.eqtmidstreampartners.com

 

ADMINISTRATIVE AGENT:

 

Administrative Agent’s Office:

 

Wells Fargo Bank, National Association

1525 W WT Harris Boulevard

Mail Code : D1109-019

Charlotte, NC 28262

Attention: Syndication Agency Services

Telephone: (704) 590-2706

Facsimile: (704) 590-2790

Electronic Mail : Agencyservices.requests@wellsfargo.com

 

L/C ISSUER (Wells Fargo Bank, N.A.):

 

1525 W WT Harris Boulevard

Charlotte, NC 28262

Mail Code: NC0680

Telephone: (704) 590-2706

Facsimile: (704) 590-2790

 











 

L/C ISSUER (PNC Bank, National Association):

 

PNC Bank, National Association

249 Fifth Avenue

One PNC Plaza

Pittsburgh, PA 15222

Attn: Milan Vrzic

Loan Support Analyst

Telephone: 440-546-7365

Facsimile: 877-718-7595

Electronic Mail: Milan.Vrzic@pnc.com

 

L/C ISSUER (SunTrust Bank):

 

SunTrust Bank

International Operations/Standby LC Dept.

GA-ATL-3707

245 Peachtree Center Avenue

Atlanta, GA 30303

Electronic Mail: international.operations@suntrust.com

Telephone: 1-800-951-7847

Facsimile: 404-588-8129

 











 

EXHIBIT A-1

 

FORM OF LOAN NOTICE

 

Date:                        ,     

 

To:          Wells Fargo Bank, National Association, as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of [       ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.

 

The undersigned hereby requests (select one):

 

A.            o  A Borrowing of Committed Loans comprised of (select one):

 

o  Base Rate Loans

o  Eurodollar Rate Loans

 

B.            o  A Borrowing of Incremental Term Loans comprised of (select one):

 

o  Base Rate Loans

o  Eurodollar Rate Loans

 

C.            o  A conversion of Base Rate Loans to Eurodollar Rate Loans

 

D.            o  A conversion of Eurodollar Rate Loans, with a current Interest Period ending on                           ,               , to Base Rate Loans

 

E.            o  A continuation of Eurodollar Rate Loans, with a current Interest Period ending on                          ,

 

1.             On                                                                                  (a Business Day) (the “Credit Extension Date”).(1)

 

2.                                      In the amount of $                                                            .(2)

 




(1)  If requesting (i) a new Fixed Period Eurodollar Rate Loan, (ii) converting a Loan or (iii) continuing a Fixed Period Eurodollar Rate Loan, must be at least 3 Business Days after the date of this Loan Notice. If requesting a new Base Rate Loan, may be same day as date of this Loan Notice.

 

(2)  Each borrowing/conversion/continuation must be at least $2,000,000 (or in integral multiples of $500,000 in excess thereof) or, in the case of an Incremental Term Loan, as otherwise provided by the applicable Incremental Term Loan Agreement.

 











 

and, if applicable:

 

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

 

4.             For Incremental Term Loans:                                          .

[applicable Series]

 

If and only if either ‘A’ or ‘B’ is selected above (and not ‘C’, ‘D’ or ‘E’), the undersigned hereby certifies:

 

(a)           the representations and warranties of the Borrower contained in Article V of the Agreement (except, from and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s or Fitch, the representations and warranties in Sections 5.04(d), 5.05 and 5.06 of the Agreement, as to any matter which has heretofore been disclosed in writing by the Borrower to the Lenders by written notice given to the Administrative Agent, which such prior disclosure, if any, is summarized on Schedule 1 attached hereto) or in any other Loan Document, or which are contained in any document furnished at any time under or in connection therewith, are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of the Credit Extension contemplated herein (or, if such representation speaks as of an earlier date, as of such earlier date); and

 

(b)           no Default exists, or would result immediately after giving effect to the Credit Extension contemplated herein.

 

	
 
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited   partnership
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   EQT Midstream Services, LLC, its general partner, a Delaware limited   liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

Schedule 1 to Loan Notice

 

[N/A][Describe any exceptions to the representations and warranties in Sections 5.04(d), 5.05 and 5.06 that have been previously disclosed to the Administrative Agent and identify when such disclosure was made and in what document].

 









 

EXHIBIT A-2

 

FORM OF SWING LINE LOAN NOTICE

 

Date:                        ,            

 

To:                             Wells Fargo Bank, National Association, as Swing Line Lender

Wells Fargo Bank, National Association, as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of [         ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.

 

The undersigned hereby requests (select one):

 

o    A Borrowing of Swing Line Loans comprised of (select one):

 

o   Base Rate Loans

o   Eurodollar Rate Loans

 

o    A conversion of Swing Line Loans, as follows (select one):

 

o   Base Rate Loans to Eurodollar Rate Loans

o   Eurodollar Loans Rate to Base Rate Loans

 

1.                                      On                                                                                  (a Business Day).(3)

 

2.                                      In the amount of $                                                            .(4)

 

	
 
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited   partnership
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   EQT Midstream Services, LLC, its general partner, a Delaware limited   liability company
    


 




(3)  May be same day as date of this Swing Line Notice, if received by 1:00 p.m. on such date.

 

(4)  Each new borrowing of a Swing Line Loan must be at least $100,000.

 











 

	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    


 











 

EXHIBIT B-1

 

FORM OF REVOLVING NOTE

 

                                 [Date]

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to                                            or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Committed Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of [        ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.

 

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

 

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

 

This Revolving Note is a Loan Document and is subject to Section 10.10 of the Agreement, which is incorporated herein by reference the same as if set forth herein verbatim.

 

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

 

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

 











 

	
 
    	
 
    
	
 
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited   partnership
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   EQT Midstream Services, LLC, its general partner, a Delaware limited   liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
Title:
    
					


 











 

Committed Loans and Payments with Respect Thereto

 

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


 











 

EXHIBIT B-2

 

FORM OF INCREMENTAL TERM NOTE

 

                      [Date]

 

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to                                            or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of $[AMOUNT OF THE LENDER’S SERIES [    ] INCREMENTAL TERM LOAN IN FIGURES]  or, if less, the aggregate unpaid principal amount of the Series [    ] Incremental Term Loan made by the Lender to the Borrower under that certain Credit Agreement, dated as of [        ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, including by each Incremental Term Loan Agreement to which the Borrower and the Lender (as an Incremental Term Lender) are party, the “Agreement”; the terms defined therein being used herein as therein defined), among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.

 

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

 

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

 

This Incremental Term Note is a Loan Document and is subject to Section 10.10 of the Agreement, which is incorporated herein by reference the same as if set forth herein verbatim.

 

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

 

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

 











 

	
 
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited   partnership
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
By:   EQT Midstream Services, LLC, its general partner, a Delaware limited   liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
					


 











 

Series [    ] Incremental Term Loans and Payments with Respect Thereto

 

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


 









 

EXHIBIT B-3

 

FORM OF SWING LINE NOTE

 

                                   [Date]

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to                                            or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Swing Line Loan from time to time made by the Swing Line Lender to the Borrower under that certain Credit Agreement, dated as of [        ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.

 

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

 

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

 

This Swing Line Note is a Loan Document and is subject to Section 10.10 of the Agreement, which is incorporated herein by reference the same as if set forth herein verbatim.

 

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

 

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

 











 

	
 
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited   partnership
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   EQT Midstream Services, LLC, its general partner, a Delaware limited   liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    


 











 

Swing Line Loans and Payments with Respect Thereto

 

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


 











 

EXHIBIT C

 

FORM OF COMPLIANCE CERTIFICATE

 

Financial Statement Date:                               ,       

 

 

To:                             Wells Fargo Bank, National Association, as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Credit Agreement, dated as of [       ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.

 

The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                                                                         (5) of the General Partner, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the General Partner, acting on behalf of the Borrower, and that:

 

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

 

1.                                      The year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section, are:

 

[select one]:

 

[attached hereto as Schedule 1]

 

— or —

 

[available in electronic format and have been delivered pursuant to Section 6.01 of the Agreement].

 

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

 

1.                                      The unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date , are:

 

[select one]:

 

[attached hereto as Schedule 1]

 




(5)  If this is a quarterly compliance certificate, it must be signed by the chief financial officer or the chief accounting officer.

 











 

 

— or —

 

[available in electronic format and have been delivered pursuant to Section 6.01 of the Agreement].

 

Such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Borrower and its Consolidated Subsidiaries in accordance with GAAP consistently applied as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.

 

2.                                      The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by the financial statements referenced in paragraph 1 above.

 

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

 

[select one]:

 

[to the best knowledge of the undersigned during such fiscal period, (a) the Borrower performed and observed each covenant and condition of the Loan Documents applicable to it, and (b) no Default exists.]

 

—or—

 

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

 

4.                                      The representations and warranties of the Borrower contained in Article V of the Agreement (except, from and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s or Fitch, the representations and warranties in Sections 5.04(d), 5.05 and 5.06 of the Agreement to the extent disclosed herein) or in any other Loan Document, or which are contained in any document furnished at any time under or in connection therewith, are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date hereof (or, if such representation speaks as of an earlier date, as of such earlier date).

 

[The following is a description of the nature and status of each event or circumstance which causes the representations and warranties in Section[s] [5.04(d)][5.05][ and] [5.06], to be untrue on the date hereof:                                                       .]

 

5.                                      The financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate on and as of the date of this Certificate.

 

6.                                      Attached hereto as Schedule 3 is a complete and accurate list as of the last day of the fiscal period referenced above of each of the Borrower’s Subsidiaries, together with its jurisdiction of formation, the Borrower’s direct or indirect percentage ownership therein and whether it is a Material Subsidiary. As of the date hereof, each such Subsidiary is duly incorporated or formed, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and has all corporate or other organizational powers and all material governmental authorizations required to carry on its

 











 

business as now conducted, except where the absence of any of the foregoing would not reasonably be expected to have a Material Adverse Effect.

 











 

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

 

	
 
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited   partnership
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   EQT Midstream Services, LLC, its general partner, a Delaware limited   liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    


 









 

Schedule 1

to the Compliance Certificate

 

Financial Statements

 

[select one]:

 

[See attached]

 

— or —

 

[Available in electronic format and have been delivered pursuant to Section 6.01 of the Agreement]

 











 

Schedule 2

to the Compliance Certificate
 ($ in 000’s)

 

For the Quarter/Year ended

 

                           (“Statement Date”)

 

Section 7.02(a) — Consolidated Leverage Ratio.

 

	
I.
    	
Consolidated   Debt for fiscal quarter ended the Statement Date
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
A.   
    	
Debt   of the Borrower and its Subsidiaries (other than Debt in respect of the   Sunrise Pipeline Lease) on a consolidated basis at Statement Date:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
B.   
    	
Incremental   Term Loan Cash Collateral that secures Incremental Term Loans at Statement   Date (in an amount not to exceed the outstanding principal amount of such   Incremental Term Loans):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
C.   
    	
Consolidated   Debt on the Statement Date (Lines 1.A. - 1.B.):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    
	
II.
    	
Consolidated   EBITDA for the period of four consecutive fiscal quarters ended on the   Statement Date
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
A.   
    	
Consolidated   Net Income for such period:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
B.   
    	
to   the extent included in determining Consolidated Net Income for such period,   taxes based on or measured by income:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
C.   
    	
to   the extent included in determining Consolidated Net Income for such period,   Consolidated Interest Charges:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
D.   
    	
to   the extent included in determining Consolidated Net Income for such period,   transaction expenses related to the IPO and execution and delivery of the   Agreement (including, without limitation, financing fees and expenses) in an   aggregate amount not to exceed $1 million:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
E.   
    	
to   the extent included in determining Consolidated Net Income for such period,   depreciation and amortization expense:
    	
 
    	
$
    


 











 

	
 
    	
F.   
    	
the   amount of cash dividends actually received during such period by the Borrower   and its Subsidiaries on a consolidated basis from unconsolidated subsidiaries   of the Borrower or other Persons:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
G.   
    	
the   amount collected during the period from capital lease arrangements with   affiliates to the extent not already recognized in Consolidated Net Income:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
H.   
    	
non-cash   long term compensation expenses:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
I.   
    	
to   the extent included in determining Consolidated Net Income for such period,   other income and equity in earnings from unconsolidated subsidiaries of the   Borrower:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
J.   
    	
the   amount paid during the period as lease payments pursuant to the Sunrise   Pipeline Lease:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
K.   
    	
any   amounts previously added to Consolidated EBITDA pursuant to   clause (H) above during a prior period to the extent they are paid   in cash during the current period:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
L.   
    	
Consolidated   EBITDA at Statement Date (Lines II.A. + II.B. + II.C. + II.D. + II. E. + II.F   + II.G + II.H - II.I — II.J.- II.K.)(6):
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    
	
III.
    	
Consolidated   Debt to Consolidated EBITDA for fiscal quarter ended the Statement Date:   (Line I.C.  ̧ Line II.L.) (cannot exceed 5.00 to 1.00)(7)
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Section 7.02(b) —   Consolidated Interest Coverage Ratio.(8)
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
I.
    	
Consolidated   EBITDA for the period of four consecutive fiscal quarters ended on the   Statement Date:

(Line   II.L. above)
    	
 
    	
$
    


 




(6) For purposes of calculating the Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio, Consolidated EBITDA shall be deemed to be:  $16.6 million  for the fiscal quarter ending September 30, 2011,  $16.6 million for the fiscal quarter ending December 31, 2011 and  $20.1 million  for the fiscal quarter ending March 31, 2012.  

 

(7) From and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s and Fitch, subsequent to the consummation of a Qualified Acquisition, the Consolidated Leverage Ratio, as at the end of the three consecutive fiscal quarters following such Qualified Acquisition, this line III cannot exceed 5.50 to1.00.

 

(8) From and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s and Fitch, the Borrower will have no further obligation to comply with the Consolidated Interest Coverage Ratio set forth in Section 7.02(b) of the Credit Agreement.

 











 

	
II.
    	
Consolidated   Interest Charges(9) for period of four consecutive fiscal quarters ended   on the Statement Date:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    
	
III.
    	
the   amount of any interest income earned on the Incremental Term Loan Cash   Collateral during the four consecutive fiscal quarter period ended on the   Statement Date:
    	
 
    	
$
    
	
 
    	
 
    	
 
    	
 
    
	
IV.
    	
Consolidated   EBITDA to Consolidated Interest Charges at Statement Date:
   (Line I.  ̧ (Line II. -   Line III)) (cannot be less than 3.00 to 1.00)
    	
 
    	
 
    


 




(9) For purposes of calculating the Consolidated Interest Coverage Ratio, Consolidated Interest Charges shall be deemed to be:  $1.25 million  for the fiscal quarter ending September 30, 2011,  $1.25 million  for the fiscal quarter ending December 31, 2011 and  $1.5 million  for the fiscal quarter ending March 31, 2012.

 











 

Schedule 3

 

	
Name of Subsidiary
    	
 
    	
Jurisdiction of
   Organization
    	
 
    	
Direct/Indirect
   Ownership Percentage
    	
 
    	
Material Subsidiary
   (Yes or No)
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 











 

EXHIBIT D

 

FORM OF ASSIGNMENT AND ASSUMPTION

 

This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the] [each](10) Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each](11) Assignee identified in item 2 below ([the][each], an] “Assignee”).  [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees](12) hereunder are several and not joint.](13) Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

 

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

 

1.                                      Assignor[s]:                                                                 

 

2.                                      Assignee[s]:                                                                 [for each Assignee, indicate [Revolving Lender and/or Incremental Term Lender, as applicable] or [Affiliate] [Approved Fund] of [identify Revolving Lender and/or Incremental Term Lender, as applicable]]

 




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

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

(12)                          Select as appropriate.

(13)                          Include bracketed language if there are either multiple Assignors or multiple Assignees.

 











 

	
3.
    	
Borrower:
    	
 
    	
EQT   Midstream Partners, LP
    
	
 
    	
 
    	
 
    	
 
    
	
4.
    	
Administrative   Agent:
    	
 
    	
Wells   Fargo Bank, National Association, as the administrative agent under the   Credit Agreement
    
	
 
    	
 
    	
 
    	
 
    
	
5.
    	
Credit   Agreement:
    	
 
    	
The   Credit Agreement, dated as of [ ], 2012, among EQT Midstream Partners, LP,   the Guarantors party thereto, the Lenders party thereto, Wells Fargo Bank,   National Association, as Administrative Agent, Swing Line Lender and an L/C   Issuer, and the other L/C Issuers therein named, as amended, restated,   extended, supplemented or otherwise modified in writing from time to time
    
	
 
    	
 
    	
 
    	
 
    
	
6.
    	
Assigned   Interest:  
    


 

Revolving Facility

 

	
Assignor[s]
    	
 
    	
Assignee[s]
    	
 
    	
Aggregate
   Amount of
   Revolving
   Commitment/
   Revolving Loans
   for all Lenders
    	
 
    	
Amount of
   Revolving
   Commitment/
   Revolving Loans
   Assigned
    	
 
    	
Percentage
   Assigned of
   Revolving
   Commitment/
   Revolving Loans(14)
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    
												


 

Series [    ] Incremental Term Loan Facility

 

	
Assignor[s]
    	
 
    	
Assignee[s]
    	
 
    	
Aggregate
   Amount of
   Incremental Term
   Commitment/
   Incremental Term
   Loans of the
   Applicable Series
   for all Lenders
    	
 
    	
Amount of
   Incremental Term
   Commitment/
   Incremental Term
   Loans of the
   Applicable Series
   Assigned
    	
 
    	
Percentage
   Assigned of
   Incremental Term
   Commitment/
   Incremental Term
   Loans of the
   Applicable Series (15)
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    
												


 

[7.               Trade Date:                    ](16)

 

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

 




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

(15)                          Set forth, to at least 9 decimals, as a percentage of the Incremental Term Commitment of all Incremental Term Lenders thereunder.

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

 











 

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

 

	
 
    	
ASSIGNOR
    
	
 
    	
 
    
	
 
    	
[NAME   OF ASSIGNOR]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ASSIGNEE
    
	
 
    	
 
    
	
 
    	
[NAME   OF ASSIGNEE]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    


 











 

	
[Consented   to and](17) Accepted:
    	
 
    
	
 
    	
 
    
	
[NAME   OF ADMINISTRATIVE AGENT],
    	
 
    
	
as   Administrative Agent
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    
	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
[Consented   to:](18)
    	
 
    
	
 
    	
 
    
	
[                                                        ],
    	
 
    
	
as   [                                            ]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    
	
Title:
    	
 
    


 




(17) To be included if required pursuant to Section 10.07(b)(iii) of the Credit Agreement.

(18) To be included if required pursuant to Section 10.07(b)(iii) of the Credit Agreement.

 









 

Annex 1
 to Assignment and Assumption

 

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION

 

1.             Representations and Warranties.

 

1.1.         Assignor.  [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the [relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

 

1.2.         Assignee.  [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 10.07(b)(iiii) and (v) of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such]  Assigned Interest, and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

 

2.             Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and 

 











 

other amounts) to the [relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to the [relevant] Assignee for amounts which have accrued from and after the Effective Date.

 

3.             General Provisions.  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 











 

EXHIBIT E

 

FORM OF GUARANTOR JOINDER

 

THIS GUARANTOR JOINDER AGREEMENT (this “Agreement”) dated as of                     , 201_ is by and between                     , a                      (the “New Subsidiary”), and Wells Fargo Bank, National Association, in its capacity as Administrative Agent under that certain Credit Agreement dated as of [         ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.  Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.

 

The Borrower is required by Section 6.11 of the Credit Agreement to cause the New Subsidiary to become a “Guarantor” thereunder.  Accordingly, the New Subsidiary hereby agrees as follows with the Administrative Agent, for the benefit of each Lender and the Administrative Agent:

 

1.             The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a “Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a Guarantor thereunder as if it had executed the Credit Agreement.  The New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Guarantors contained in the Credit Agreement.  Without limiting the generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby jointly and severally together with the other Guarantors, guarantees to each Lender and the Administrative Agent, as provided in Article XI of the Credit Agreement, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof.

 

2.             The New Subsidiary hereby represents and warrants to the Administrative Agent that the New Subsidiary’s exact legal name and jurisdiction of formation are as set forth on the signature pages hereto.

 

3.             The address of the New Subsidiary for purposes of all notices and other communications is the address designated for all Loan Parties on Schedule 10.02 to the Credit Agreement or such other address as the New Subsidiary may from time to time notify the Administrative Agent in writing.

 

4.             The New Subsidiary hereby waives acceptance by each Lender and the Administrative Agent of the guaranty by the New Subsidiary under Article XI of the Credit Agreement upon the execution of this Agreement by the New Subsidiary.

 

5.             This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery of an executed signature page of this Agreement by facsimile or electronic mail shall be effective as delivery of manually executed counterpart hereof.

 

6.             THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 











 

IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the benefit of each Lender and the Administrative Agent, has caused the same to be accepted by its authorized officer, as of the day and year first above written.

 

	
 
    	
 
    	
[NEW   SUBSIDIARY]
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    
	
Acknowledged   and accepted:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
WELLS   FARGO BANK, NATIONAL ASSOCIATION,
    	
 
    	
 
    
	
as   Administrative Agent
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
					


 











 

EXHIBIT F

 

FORM OF

 

SERIES [    ] INCREMENTAL TERM LOAN AGREEMENT

 

Dated as of [    ], 201[  ]

 

Reference is made to the Credit Agreement, dated as of [            ], 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers therein named.

 

Section 1               Amendments to Credit Agreement.

 

The Borrower and the Incremental Term Lenders party hereto are willing to amend the Credit Agreement, in accordance with Sections 2.17 and 10.01(b) thereof, to evidence the agreement of each Incremental Term Lender party hereto to provide Series [    ] Incremental Term Loans, the Borrower’s obligation to repay such Series [    ] Incremental Term Loans and provide Incremental Term Loan Cash Collateral therefor, on the following terms and subject to the following conditions:

 

	
I. Incremental Term Loan Commitments:
    	
 
    	
Each Incremental Term Lender party hereto   severally agrees, on the terms and conditions set forth herein and in the   Credit Agreement, to make Series [    ]   Incremental Term Loans to the Borrower, at any time and from time to time   during the period from [                  ](19) to sixty (60) days following such date,  in  the aggregate principal amount set forth opposite such   Incremental Term Lender’s name on the signature pages hereof under the   caption “Series [    ]   Incremental Term Commitment”, which amount shall be such Incremental Term   Lender’s Incremental Term Commitment with respect to the Series [    ] Incremental Term Loans; provided,   however, that the Borrower may not request more than two   (2) draws with respect to the Series [    ]   Incremental Term Loans, one of which must be on the Series [    ] Incremental Term Loan Effective   Date (as defined in Section 3 below).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Each Incremental Term Lender party hereto   agrees that it is an Incremental Term Lender with respect to the Series [    ] Incremental Term Loans for all   purposes under the Credit Agreement.
    
	
 
    	
 
    	
 
    
	
II. Prepayment:
    	
 
    	
Once repaid or prepaid, the Series [    ] Incremental Term Loans may not   be reborrowed; provided that this Part II of Section 1   shall not limit the Borrower’s right to request additional Incremental Term   Loans pursuant to Section 2.17 of the Credit Agreement.
    


 




(19) Insert effective date of Incremental Term Loan Agreement.

 











 

	
III. Termination or Reduction of Commitments and   Mandatory Payments:
    	
 
    	
The unutilized Series [    ] Incremental Term Commitments   shall terminate on [                  ].(20)  The Borrower may, from time to time, permanently reduce the   Series [    ]   Incremental Term Commitments in an integral multiple of $[                    ];   provided that each such reduction shall apply proportionately to   permanently reduce the Series [    ]   Incremental Term Commitments of the Series [    ]   Incremental Term Lenders.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
On the Maturity Date, the Borrower shall   repay to the Series [    ]   Incremental Term Lenders the aggregate outstanding principal amount of all   Series [    ]   Incremental Term Loans, together will accrued interest thereon to the date of   payment.
    
	
 
    	
 
    	
 
    
	
IV. Applicable Margin:
    	
 
    	
The Applicable Margin is as set forth in the   Credit Agreement.] [As of any   date, the “Applicable Margin” with respect to (i) any Fixed   Period Eurodollar Rate Series [    ] Incremental Term Loa, shall be [    ]% per annum, and (ii) any Base Rate Series [    ]   Incremental Term Loans shall be [    ]% per annum.](21)
    
	
 
    	
 
    	
 
    
	
V. Cash Collateral:
    	
 
    	
The Incremental Term Loan Cash Collateral   Account[s] that serve as collateral for the   Series [    ]   Incremental Term Loans [is/are]  [                                                 ].
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The “Intermediar[y/ies]”   with respect to such Incremental Term Loan Cash Collateral Account[s]  [is/are]   [                                                                            ].
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
[For purposes of the Series [    ] Incremental   Term Loans, the Required Collateral Amount shall be [                                  ].]

 

[For purposes of the Series [    ] Incremental   Term Loans:  

 

“Tier 1 Cash Collateral” means   Incremental Term Loan Cash Collateral with maturities of not more than [    ] days from the   date of acquisition with the exception of auction rate securities which may   have a re-set date of [    ]   days or less. 

 

“Tier 2 Cash Collateral” means   Incremental Term Loan Cash Collateral with maturities more than [    ] days from the   date of acquisition but not more than [    ]   days from the date of acquisition. 

 

“Tier 3 Cash Collateral” means   Incremental Term Loan Cash Collateral with maturities more than [    ] days from the   date of acquisition but not more than [    ]   days from the date of acquisition.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The Borrower   shall, at all times, maintain Incremental Term Loan Cash   Collateral in the Incremental Term Loan Cash Collateral Accounts set
    


 




(20) Insert effective date of Incremental Term Loan Agreement or other date within 40 days following such date.

 

(21)  To be included if the Applicable Margin for the applicable Series of Incremental Term Loans is different than the “Applicable Margin” set forth in the Credit Agreement.

 











 

	
 
    	
 
    	
forth above with a   value greater than or equal to the following: (i) if all Incremental Term Loan Cash   Collateral is comprised entirely of Tier 1 Cash Collateral, [        ]%   of the principal amount of all outstanding Series [    ] Incremental   Term Loans, (ii) if Incremental Term Loan Cash Collateral is not comprised entirely of Tier 1 Cash Collateral but   is not composed of any Tier 3 Cash Collateral, [        ]% of the   principal amount of all outstanding Series [    ] Incremental Term Loans or   (iii) if any Incremental Term Loan Cash Collateral is comprised of any Tier 3 Cash Collateral, [        ]%   of the principal amount of all outstanding Series [    ] Incremental   Term Loans.](22)
    


 

Section 2               Representations and Warranties.

 

The Borrower represents and warrants to the Incremental Term Lenders that: (a) the representations and warranties of the Borrower contained in Article V of the Credit Agreement (except, from and after the time that the Borrower obtains an Investment Grade Rating from two of S&P, Moody’s or Fitch,  the representations and warranties in Sections 5.04(d), 5.05 and 5.06 of the Credit Agreement, as to any matter which has theretofore been disclosed in writing by the Borrower to the Lenders by written notice given to the Administrative Agent) or in any other Loan Document, are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date hereof (or, if such representation speaks as of an earlier date, as of such earlier date), both before and immediately after giving effect to the amendments to the Credit Agreement effected by this Series [    ] Incremental Term Loan Agreement (this “Agreement”), as though made on and as of the date hereof, and as if each reference therein to “this Agreement” or “the Credit Agreement” therein (or words of similar import) included reference to this Agreement; and (b) no Default or Event of Default shall exist at the time of the request or at the time of the making of the proposed Series [    ] Incremental Term Loans.

 

Section 3               Conditions Precedent.

 

This Agreement shall become effective on and as of the first date (the “Series [    ] Incremental Term Loan Effective Date”) on which the conditions precedent set forth in Section 2.17(d) of the Credit Agreement, as well as the following conditions precedent have been satisfied:

 

(a)           The Administrative Agent shall have received, on or before the Series [    ] Incremental Term Loan Effective Date, dated such day, counterparts hereof signed by each of the parties hereto and the Administrative Agent (or, in the case of any such Person as to which an executed counterpart shall not have been received, receipt by the Administrative Agent of telegraphic, telecopy, electronic communication or other written confirmation from such party of execution of a counterpart hereof by such Person).

 

(b)           The Series [    ] Incremental Term Lenders shall have received, to the extent requested, all documentation and other information reasonably requested by the Series [    ] Incremental Term Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

 




(22)  To be included, if applicable, with the brackets in this Part V of Section 1 to be filled in as agreed upon by the Borrower and the applicable Series of Incremental Term Lenders.

 











 

The Administrative Agent shall notify the Borrower and the Lenders of the Series [    ] Incremental Term Loan Effective Date, and such notice shall be conclusive and binding.  On the Series [    ] Incremental Term Loan Effective Date, the Credit Agreement shall be deemed amended to reflect the existence and terms of the Series [    ] Incremental Term Loans evidenced hereby, as set forth herein.

 

Section 4               Ratification.

 

Except as provided in Section 1 of this Agreement, the Credit Agreement shall remain unchanged and in full force and effect, and the Borrower (a) ratifies and confirms all provisions of the Credit Agreement as amended by this Agreement, (b) ratifies and confirms that all obligations of the Borrower under the Notes and the Credit Agreement as amended by this Agreement are not released, reduced, or otherwise adversely affected by this Agreement, and (c) agrees to perform such acts and duly authorize, execute, acknowledge and deliver such additional documents and certificates as the Administrative Agent may reasonably request in connection with this Agreement.

 

Section 5               Expenses.

 

The Borrower agrees to pay on demand all reasonable and invoiced out-of-pocket fees, charges and expenses of a single counsel for the Administrative Agent in connection with this Agreement, the Series [    ] Incremental Term Notes and the other documents to be delivered hereunder.

 

Section 6               Governing Law; Submission to Jurisdiction.

 

THIS AGREEMENT AND EACH SERIES [    ] INCREMENTAL TERM NOTE (IF ANY) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND EACH SERIES [    ] INCREMENTAL TERM NOTE (IF ANY) MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT AND EACH SERIES [    ] INCREMENTAL TERM NOTE (IF ANY) OR OTHER DOCUMENT RELATED THERETO.  EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.

 

Section 7               Execution in Counterparts; Integration.

 

This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement by telecopier or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.  This Agreement, together with the Credit Agreement, the Series [    ] Incremental Term Notes and any fee letter executed by any Incremental Term Lender and the Borrower in connection herewith, together constitute the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.

 











 

Section 8               WAIVER OF JURY TRIAL.

 

EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, THE CREDIT AGREEMENT OR THE SERIES [    ] INCREMENTAL TERM NOTES OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY OF THIS AGREEMENT, THE CREDIT AGREEMENT OR THE SERIES [    ] INCREMENTAL TERM NOTES OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

[Remainder of page intentionally left blank; signature pages follow.]

 









 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

 

	
 
    	
EQT   MIDSTREAM PARTNERS, LP, a Delaware limited   partnership, as Borrower
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   EQT Midstream Services, LLC, its general partner, a Delaware limited   liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    


 











 

Series [    ] Incremental

Term Commitment:

 

 

	
$
    	
                                                                                          ,
    
	
 
    	
as an Incremental Term Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Title:
    


 











 

	
 
    	
[Consented to and](23) Acknowledged:
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK, NATIONAL ASSOCIATION, as   the Administrative Agent
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    


 




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

 











 

EXHIBIT G-1

 

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

 

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement dated as of June [  ], 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and an L/C Issuer, and the other L/C Issuers therein named.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS 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 either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF LENDER]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
 Name:
    	
 
    
	
 
    	
 Title:
    	
 
    


 

Date:                      , 20[  ]

 











 

EXHIBIT G-2

 

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

 

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement dated as of June [  ], 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and an L/C Issuer, and the other L/C Issuers therein named.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS 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 such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender 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 either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF PARTICIPANT]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
 Name:
    	
 
    
	
 
    	
 Title:
    	
 
    


 

Date:                      , 20[  ]

 











 

EXHIBIT G-3

 

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

 

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement dated as of June [  ], 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and an L/C Issuer, and the other L/C Issuers therein named.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender 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 either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF PARTICIPANT]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
 Name:
    	
 
    
	
 
    	
 Title:
    	
 
    


 

Date:                      , 20[  ]

 











 

EXHIBIT G-4

 

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

 

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement dated as of June [  ], 2012 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among EQT Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Guarantors party thereto, the Lenders party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and an L/C Issuer, and the other L/C Issuers therein named.

 

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  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 either of the two calendar years preceding such payments.

 

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

 

	
[NAME OF LENDER]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
 Name:
    	
 
    
	
 
    	
 Title:
    	
 
    


 

Date:                   , 20[  ]