Exhibit 10.2


 


CUSIP NUMBER:                


 


FORM OF


 


CREDIT AGREEMENT


 


DATED AS OF JANUARY     , 2008


 


AMONG


 


ENOGEX LLC,


 


THE LENDERS,




WACHOVIA BANK, NATIONAL ASSOCIATION

AS ADMINISTRATIVE AGENT


 


AND


 


THE ROYAL BANK OF SCOTLAND PLC

AS SYNDICATION AGENT




AND


 


JP MORGAN CHASE BANK, N.A.,


MIZUHO CORPORATE BANK, LTD.,


AND


UNION BANK OF CALIFORNIA


 


AS CO-DOCUMENTATION AGENTS


 


 






 


WACHOVIA CAPITAL MARKETS LLC


AND


RBS SECURITIES CORPORATION
D/B/A RBS GREENWICH CAPITAL


 


AS JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS


 






 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
  1

  
	
  1.1

  	
  Certain Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE CREDITS

  	
  18

  
	
  2.1

  	
  Commitment; Conversion to Term Loan

  	
  18

  
	
  2.2

  	
  Required Payments; Termination

  	
  18

  
	
  2.3

  	
  Ratable Loans

  	
  18

  
	
  2.4

  	
  Types of Advances

  	
  18

  
	
  2.5

  	
  Facility Fee; Utilization Fee;
  Reductions in Aggregate Commitment

  	
  19

  
	
  2.6

  	
  Minimum Amount of Each Advance

  	
  19

  
	
  2.7

  	
  Optional Principal Payments

  	
  19

  
	
  2.9

  	
  Conversion and Continuation of
  Outstanding Advances

  	
  20

  
	
  2.10

  	
  Changes in Interest Rate, etc

  	
  21

  
	
  2.11

  	
  Rates Applicable After Default

  	
  21

  
	
  2.12

  	
  Method of Payment

  	
  21

  
	
  2.13

  	
  Noteless Agreement; Evidence of
  Indebtedness

  	
  22

  
	
  2.14

  	
  Telephonic Notices

  	
  22

  
	
  2.15

  	
  Interest Payment Dates; Interest
  and Fee Basis

  	
  22

  
	
  2.16

  	
  Notification of Advances, Interest
  Rates, Prepayments and Commitment Reductions; Availability of Loans

  	
  23

  
	
  2.17

  	
  Lending Installations

  	
  23

  
	
  2.18

  	
  Non-Receipt of Funds by the Agent

  	
  23

  
	
  2.20

  	
  Facility LCs

  	
  24

  
	
  2.21

  	
  Extension of Revolving Credit
  Termination Date

  	
  28

  
	
  2.22

  	
  Increase of Aggregate Commitment

  	
  28

  
	
  2.23

  	
  Swing Line Loans

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE III YIELD PROTECTION; TAXES

  	
  31

  
	
  3.1

  	
  Yield Protection

  	
  31

  
	
  3.2

  	
  Changes in Capital Adequacy
  Regulations

  	
  31

  
	
  3.3

  	
  Availability of Types of Advances

  	
  32

  
	
  3.4

  	
  Funding Indemnification

  	
  32

  
	
  3.5

  	
  Taxes

  	
  32

  
	
  3.6

  	
  Lender Statements; Survival of
  Indemnity

  	
  34

  
	
  3.7

  	
  Alternative Lending Installation

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV CONDITIONS PRECEDENT

  	
  35

  
	
  4.1

  	
  Initial Credit Extension

  	
  35

  
	
  4.2

  	
  Each Credit Extension

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE V REPRESENTATIONS AND
  WARRANTIES

  	
  37

  
	
  5.1

  	
  Existence and Standing

  	
  37

  
	
  5.2

  	
  Authorization and Validity

  	
  37

  
	
  5.3

  	
  No Conflict; Government Consent

  	
  37

  
	
  5.4

  	
  Financial Statements

  	
  38

  
	
  5.5

  	
  Taxes

  	
  38

  
	
  5.6

  	
  Subsidiaries

  	
  38

  
	
  5.7

  	
  Use of Proceeds; Margin Stock

  	
  38

  



 


i

















 


	
  5.8

  	
  Compliance With Laws

  	
  38

  
	
  5.9

  	
  Investment Company Act

  	
  38

  
	
  5.10

  	
  Compliance with OFAC Rules and
  Regulations

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI COVENANTS

  	
  39

  
	
  6.1

  	
  Financial Reporting

  	
  39

  
	
  6.2

  	
  Use of Proceeds

  	
  40

  
	
  6.3

  	
  Notice of Default

  	
  40

  
	
  6.4

  	
  Maintenance of Existence

  	
  40

  
	
  6.5

  	
  Taxes

  	
  41

  
	
  6.6

  	
  Insurance

  	
  41

  
	
  6.7

  	
  Compliance with Laws

  	
  41

  
	
  6.8

  	
  Maintenance of Properties

  	
  41

  
	
  6.9

  	
  Inspection; Keeping of Books and
  Records

  	
  41

  
	
  6.10

  	
  Fundamental Changes

  	
  41

  
	
  6.11

  	
  Indebtedness

  	
  42

  
	
  6.12

  	
  Liens

  	
  43

  
	
  6.15

  	
  Nature of Business

  	
  45

  
	
  6.16

  	
  Consolidated Leverage Ratio

  	
  46

  
	
  6.17

  	
  Material Subsidiaries

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII DEFAULTS

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII ACCELERATION, WAIVERS,
  AMENDMENTS AND REMEDIES

  	
  48

  
	
  8.1

  	
  Acceleration/Remedies

  	
  48

  
	
  8.2

  	
  Amendments

  	
  50

  
	
  8.3

  	
  Preservation of Rights

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX GENERAL PROVISIONS

  	
  51

  
	
  9.1

  	
  Survival of Representations

  	
  51

  
	
  9.2

  	
  Governmental Regulation

  	
  51

  
	
  9.3

  	
  Headings

  	
  51

  
	
  9.4

  	
  Entire Agreement

  	
  51

  
	
  9.5

  	
  Several Obligations; Benefits of
  this Agreement

  	
  51

  
	
  9.6

  	
  Expenses; Indemnification

  	
  51

  
	
  9.7

  	
  Numbers of Documents

  	
  52

  
	
  9.8

  	
  Accounting

  	
  52

  
	
  9.9

  	
  Severability of Provisions

  	
  52

  
	
  9.10

  	
  Nonliability of Lenders

  	
  53

  
	
  9.11

  	
  Confidentiality

  	
  53

  
	
  9.12

  	
  Lenders Not Utilizing Plan Assets

  	
  53

  
	
  9.13

  	
  Nonreliance

  	
  53

  
	
  9.14

  	
  Disclosure

  	
  53

  
	
  9.15

  	
  USA Patriot Act Notification

  	
  54

  
	
  9.16

  	
  Defaulting Lender

  	
  54

  
	
  9.17

  	
  Excluded Subsidiaries

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE X THE AGENT

  	
  54

  
	
  10.1

  	
  Appointment; Nature of Relationship

  	
  54

  
	
  10.2

  	
  Powers

  	
  54

  
	
  10.3

  	
  General Immunity

  	
  55

  



 


ii

















 


	
  10.4

  	
  No Responsibility for Loans,
  Recitals, etc

  	
  55

  
	
  10.5

  	
  Action on Instructions of Lenders

  	
  55

  
	
  10.6

  	
  Employment of Agents and Counsel

  	
  55

  
	
  10.7

  	
  Reliance on Documents; Counsel

  	
  55

  
	
  10.8

  	
  Agent’s Reimbursement and
  Indemnification

  	
  56

  
	
  10.9

  	
  Notice of Default

  	
  56

  
	
  10.10

  	
  Rights as a Lender

  	
  56

  
	
  10.11

  	
  Lender Credit Decision

  	
  56

  
	
  10.13

  	
  Agent and Arrangers’ Fees

  	
  57

  
	
  10.14

  	
  Delegation to Affiliates

  	
  57

  
	
  10.15

  	
  Syndication Agent and
  Co-Documentation Agents

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI SETOFF; RATABLE PAYMENTS

  	
  58

  
	
  11.1

  	
  Setoff

  	
  58

  
	
  11.2

  	
  Ratable Payments

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII BENEFIT OF AGREEMENT;
  ASSIGNMENTS; PARTICIPATIONS

  	
  58

  
	
  12.1

  	
  Successors and Assigns

  	
  58

  
	
  12.2

  	
  Participations

  	
  59

  
	
  12.3

  	
  Assignments

  	
  59

  
	
  12.4

  	
  Dissemination of Information

  	
  61

  
	
  12.5

  	
  Tax Certifications

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII NOTICES

  	
  61

  
	
  13.1

  	
  Notices

  	
  61

  
	
  13.2

  	
  Change of Address

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV COUNTERPARTS

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV CHOICE OF LAW; CONSENT
  TO JURISDICTION; WAIVER OF JURY TRIAL

  	
  62

  
	
  15.1

  	
  CHOICE OF LAW

  	
  62

  
	
  15.2

  	
  CONSENT TO JURISDICTION

  	
  62

  
	
  15.3

  	
  WAIVER OF JURY TRIAL; CONSEQUENTIAL
  DAMAGES

  	
  62

  



 


SCHEDULES


 


Commitment Schedule


 


Pricing
Schedule


 


	
  Schedule
  1

  	
  -

  	
  Subsidiaries

  
	
   

  	
   

  	
   

  
	
  Schedule
  2

  	
  -

  	
  Indebtedness

  
	
   

  	
   

  	
   

  
	
  Schedule
  3

  	
  -

  	
  Liens

  
	
   

  	
   

  	
   

  
	
  Schedule
  4

  	
  -

  	
  Affiliate
  Transactions

  



 


EXHIBITS


 


	
  Exhibit A

  	
  -

  	
  Form of
  Borrower’s Counsels’ Opinions

  



 


iii

















 


	
  Exhibit B

  	
  -

  	
  Form of
  Compliance Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  -

  	
  Form of
  Assignment and Assumption Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  -

  	
  Form of
  Loan/Credit Related Money Transfer Instruction

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  -

  	
  Form of
  Promissory Note (if requested)

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  -

  	
  Form of
  Joinder Agreement

  



 


iv

















 


CREDIT AGREEMENT


 


This
Credit Agreement, dated as of January     , 2008, is
among Enogex LLC, a Delaware limited liability company, the Lenders, Wachovia
Bank, National Association, a national banking association, as Administrative
Agent, and The Royal Bank of Scotland plc, as Syndication Agent.


 


PRELIMINARY
STATEMENTS


 


WHEREAS, the Borrower has requested that the Lenders
make available to it a revolving credit facility in the aggregate initial
amount of $250 million for the purposes set forth herein; and


 


WHEREAS, the
Lenders have agreed to provide the requested revolving credit facility to the
Borrower on the terms, and subject to the conditions, set forth herein.


 


NOW, THEREFORE, IN CONSIDERATION of the premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE
I




DEFINITIONS


 


1.1          Certain Defined Terms.  As
used in this Agreement:


 


“Accounting
Changes” is defined in Section 9.8 hereof.


 


“Advance”
means a borrowing hereunder, (i) made by some or all of the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the case of
Eurodollar Loans, for the same Interest Period. 
The term “Advance” shall include Swing Line Loans unless
otherwise expressly provided and shall include term loans outstanding on and
after the Loan Conversion Date (if any).


 


“Affiliate”
of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person.  A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or
otherwise.


 


“Agent”
means Wachovia in its capacity as contractual representative of the Lenders
pursuant to Article X, and not in its individual capacity as a Lender, and
any successor Agent appointed pursuant to Article X.


 


“Aggregate
Commitment” means the aggregate of the Commitments of all the Lenders, as
it may be increased or reduced from time to time pursuant to the terms
hereof.  The initial Aggregate Commitment
is Two Hundred Fifty Million and 00/100 Dollars ($250,000,000).


 


“Aggregate
Outstanding Credit Exposure” means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.


 

















 


“Agreement”
means this Credit Agreement, as it may be amended, restated, supplemented or
otherwise modified and as in effect from time to time.


 


“Agreement
Accounting Principles” means GAAP applied in a manner consistent with that
used in preparing the financial statements referred to in Section 5.4, as
modified in accordance with Section 9.8.


 


“Alternate
Base Rate” means, for any day, a fluctuating rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of the Federal Funds Effective Rate for such day and one half of one
percent (0.5%) per annum.


 


“Applicable
Fee Rate” means, with respect to the Facility Fee and the Utilization Fee
at any time, the percentage rate per annum which is applicable at such time
with respect to each such fee as set forth in the Pricing Schedule.


 


“Applicable
Margin” means, with respect to Advances of any Type at any time, the
percentage rate per annum which is applicable at such time with respect to
Advances of such Type as set forth in the Pricing Schedule.


 


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


 


“Arranger”
means each of (i) Wachovia Capital Markets LLC and (ii) RBS
Securities Corporation d/b/a RBS Greenwich Capital, and their respective
successors, in each case in its capacity as a Joint Lead Arranger and Joint
Book Runner.


 


“Article”
means an article of this Agreement unless another document is specifically
referenced.


 


“Assignment
and Assumption Agreement” means an assignment agreement in the form of Exhibit C
hereto.


 


“Authorized
Officer” means any of the president, chief financial officer, treasurer or
the controller of the Borrower or such other representative of the Borrower as
may be designated by any one of the foregoing with the consent of the Agent.


 


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


 


“Borrower”
means Enogex LLC, a Delaware limited liability company, and its permitted
successors and assigns (including, without limitation, a debtor in possession
on its behalf).


 


“Borrowing
Date” means a date on which an Advance is made hereunder.


 


“Borrowing
Notice” is defined in Section 2.8.


 


“Business
Day” means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which (a) banks generally are open in Charlotte, North Carolina and New
York, New York for the conduct of substantially all of their commercial lending
activities, (b) interbank wire transfers can be made on the Fedwire system
and (c) dealings in United States dollars are carried on in the London
interbank market and (ii) for all other purposes (including, without
limitation, any borrowing or payment of Floating Rate Advances), a day (other
than a Saturday or


 


2

















 


Sunday)
on which banks generally are open in Charlotte, North Carolina for the conduct
of substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.


 


“Capital Stock” means (a) in the
case of a corporation, all classes of capital stock of such corporation, (b) in
the case of a partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d) any
other interest or participation that confers on a Person similar rights with
respect to the issuing Person.


 


“Capitalized
Lease” of a Person means any lease of Property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.


 


“Capitalized
Lease Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a
balance sheet of such Person prepared in accordance with Agreement Accounting
Principles.


 


“Change in Control” means that, as of
any date, OGE Energy Corp and its Affiliates fail to (a) directly or
indirectly own greater than 50% of the Voting Stock of the Borrower in the
aggregate and (b) have the power to exercise a controlling influence over
the management and policies of the Borrower.


 


“Closing
Date” means the date hereof.


 


“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time, and any rule or regulation issued thereunder.


 


“Co-Documentation
Agent” means each of JP Morgan Chase Bank, N.A., Mizuho Corporate Bank,
Ltd., and Union Bank of California, in its capacity as Co-Documentation Agent
hereunder.


 


“Collateral
Shortfall Amount” is defined in Section 8.1.


 


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


 


“Commitment”
means, for each Lender, including, without limitation, the LC Issuer, such
Lender’s obligation prior to the Revolving Credit Termination Date to make
Revolving Loans to, and participate in Swing Line Loans and Facility LCs issued
upon the application of, the Borrower in an aggregate amount not exceeding the
amount set forth on the Commitment Schedule opposite such Lender’s name, as
such obligations may be modified as a result of any assignment that has become
effective pursuant to Section 12.3 or as otherwise modified from time to
time pursuant to the terms hereof; it being acknowledged that the Commitments
of the Lenders shall be deemed terminated on the earliest to occur of the
Revolving Credit Termination Date, the Facility Termination Date and the Loan
Conversion Date.


 


“Commitment
Schedule” means the Schedule attached hereto identifying each Lender’s
Commitment as such Commitments may be modified from time to time in accordance
with the terms hereof whether or not such Schedule is actually modified or
replaced from time to time to reflect such changes in Commitments.


 


“Consolidated EBITDA”
means, as of any date of determination for the four consecutive fiscal quarter
period ending on such date, without duplication, with respect to the Borrower
and its consolidated Subsidiaries (a) Consolidated Net Income for such
period plus (b) without duplication, the sum of the


 


3

















 


following to the extent deducted in calculating
Consolidated Net Income for such period: 
(i) Consolidated Interest Expense for such period, (ii) tax
expense (including, without limitation, any federal, state, local and foreign
income and similar taxes) of the Borrower and its Subsidiaries for such period,
(iii) depreciation and amortization expense of the Borrower and its
Subsidiaries for such period, (iv) amortization or write-off of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Indebtedness hereunder) of
the Borrower and its Subsidiaries for such period, (v) amortization of
intangibles and organization costs of the Borrower and its Subsidiaries for
such period, (vi) any non-recurring non-cash expenses or losses of the
Borrower and its Subsidiaries, including, in any event, non-cash asset
write-downs and unrealized losses in connection with Swap Agreements, for such
period, (vii) Transaction Costs incurred by the Borrower and its
Subsidiaries during such period in an aggregate amount not to exceed
$50,000,000 and (viii) any non-recurring cash losses during such period
minus (c) the sum of the following (i)  any non-recurring cash
or non-recurring non-cash gains during such period; and (ii) any
unrealized gains in connection with Swap Agreements for such period.  Additionally, for purposes of calculating
Consolidated EBITDA for any period, if during such period the Borrower or any
Subsidiary acquired (or sold) any Person (or any interest in any Person) or all
or substantially all of the assets of any Person or a division, line of
business or other business unit of another Person, the Consolidated EBITDA
attributable to such assets or an amount equal to the percentage of ownership
of the Borrower or such Subsidiary, as the case may be, in such Person times
the Consolidated EBITDA of such Person for such period determined on a pro
forma basis shall be included (or excluded, as applicable) as Consolidated
EBITDA for such period as if such acquisition (or sale) occurred on the first
day of such period.  Further, in
connection with any Qualified Project, Consolidated EBITDA, as used in
determining the Consolidated Leverage Ratio, may be modified so as to include
Qualified Material Project EBITDA Adjustments as provided in Section 6.16.2.  Notwithstanding the foregoing, it is agreed
that Consolidated EBITDA shall not include Excluded EBITDA.  For purposes of calculating Consolidated
EBITDA for periods ending prior to March 31, 2009, such calculation shall
be made by reference to the operations of Enogex Inc. for such periods prior to
the formation of the Borrower which are included in such calculation period, as
such calculations shall be adjusted to exclude the operations of OGE Energy
Resources Inc. on a pro forma basis consistent with the methodology set forth
in the form S-1 filed by OGE Energy Corp. on November 29, 2007 (as
amended).


 


“Consolidated Funded
Indebtedness” means, as of any date of determination, for the Borrower and
its Subsidiaries on a consolidated basis, the sum of the following (without
duplication): (a) all Indebtedness, including, without limitation,
Capitalized Lease Obligations and Off Balance Sheet Indebtedness which is
classified as “long-term indebtedness” on the consolidated balance sheet of the
Borrower and its Subsidiaries prepared as of such date in accordance with GAAP
and any current maturities and other principal amount in respect of such
Indebtedness due within one year but which was classified as “long-term
indebtedness” at the creation thereof, including, but not limited to, any
applicable Consolidated Hedging Exposure; it being understood that Consolidated
Hedging Exposure cannot be negative for the purposes of determining
Consolidated Funded Indebtedness, (b) Indebtedness for borrowed money of
the Borrower and its Subsidiaries outstanding under a revolving credit
(including this Agreement) or similar agreement, notwithstanding the fact that
any such borrowing is made within one year of the expiration of such agreement,
(c) all drawn and owing reimbursement obligations outstanding under
Letters of Credit, bankers’ acceptances, bank guaranties, surety bonds and
similar instruments, (d)  without duplication, all guarantees with respect
to outstanding Indebtedness of the types specified in clauses (a) through (c) above
of Persons other than the Borrower or any Subsidiary and (e) all
Indebtedness of the types referred to in clauses (a) through (c) above
of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which the Borrower or a
Subsidiary is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse


 


4

















 


to the Borrower or such
Subsidiary. Notwithstanding the foregoing, it is agreed that (i) “Consolidated
Funded Indebtedness” shall not include the obligations of the Borrower or its
Subsidiaries under any Hybrid Securities or Equity Preferred Securities but
only to the extent the aggregate amount of such Hybrid Securities and Equity
Preferred Securities are less than or equal to 20% of total consolidated
capitalization of the Borrower and its Subsidiaries, as determined in
accordance with GAAP, (ii) if requested by the Borrower, “Consolidated
Funded Indebtedness” may be reduced dollar for dollar by cash on the balance
sheet that was received from a permitted sale hereunder if the Borrower has
already identified a future permitted acquisition but such exclusion shall only
be effective for the fiscal quarter end in which such proceeds were received;
provided that the Borrower shall provide such information regarding the sales
proceeds and the future acquisition as reasonably requested by the Agent, (iii) for
the purpose of determining “Consolidated Funded Indebtedness,” any particular
Indebtedness will be excluded if and to the extent that the necessary funds for
the payment, redemption or satisfaction of that Indebtedness (including, to the
extent applicable, any associated prepayment penalties, fees or payments and
such other amounts required in connection therewith) have been deposited with
the proper depositary in trust and (iv) Consolidated Funded Indebtedness
shall not include Excluded Indebtedness.


 


“Consolidated Hedging
Exposure” means, at any time with respect to all applicable Swap Agreements
to which the Borrower and its Subsidiaries are counterparties, the aggregate
consolidated net exposure of the Borrower and the Subsidiaries under all such
agreements on a marked to market basis in accordance with GAAP.


 


“Consolidated
Interest Expense” means, for any period with respect to the Borrower and
its Subsidiaries on a consolidated basis, all interest (including the interest
component, if any, of any Capitalized Lease, the Facility Fee, the Utilization
Fee, the Term Loan Margin and the LC fronting fees) paid or accrued during such
period in accordance with GAAP.


 


“Consolidated
Leverage Ratio” shall mean, as of the last day of any fiscal quarter of the
Borrower, for the Borrower and its Subsidiaries on a consolidated basis, the
ratio of (a) Consolidated Funded
Indebtedness on such date to (b) Consolidated EBITDA for the four quarter
period ending on such date.


 


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


 


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


 


“Consolidated Tangible Net Assets” means, as of
any date of determination, the total amount of consolidated assets of the
Borrower and its Subsidiaries (other than Excluded Subsidiaries) minus: (a) all
current liabilities (excluding (i) any current liabilities that by their
terms are extendable or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed and (ii) current maturities of long-term debt) and (b) the
value (net of any applicable reserves and accumulated amortization) 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 (other than
Excluded Subsidiaries) for the most recently completed fiscal quarter or year,
as applicable, prepared in accordance with GAAP.


 


5

















 


“Controlled
Group” means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any of its Subsidiaries,
are treated as a single employer under Section 414 of the Code.


 


“Conversion/Continuation
Notice” is defined in Section 2.9.


 


“Credit
Extension” means the making of an Advance or the issuance of a Facility LC
hereunder.


 


“Credit
Extension Date” means the Borrowing Date for an Advance or the issuance
date for a Facility LC.


 


“Debt Rating” means the long-term
senior unsecured, non-credit enhanced debt rating of the Borrower by S&P,
Moody’s, and/or Fitch, as applicable.


 


“Default”
means an event described in Article VII.


 


“Defaulting Lender” means, at any
time, any Lender that, at such time (a) has failed to make a Loan required
pursuant to the term of this Agreement, (b) has failed to pay to the Agent
or any Lender an amount owed by such Lender pursuant to the terms of this
Agreement or (c) has been deemed insolvent by a court of competent
jurisdiction or has become subject to a bankruptcy or insolvency proceeding or
to a receiver, trustee or similar official.


 


“Designated Person” and “Designated
Persons” are defined in Section 4.1.3.


 


“Dollar”
and “$” means dollars in the lawful currency of the United States of America.


 


“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water
or land, or (iv) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or other
remediation thereof.


 


“Equity
Preferred Securities” means any securities, however denominated, (i) issued
by the Borrower or any Consolidated Subsidiary of the Borrower, (ii) that
are not, or the underlying securities, if any, of which are not, subject to
mandatory redemption or maturity prior to 91 days after the Specified Date, and
(iii) the terms of which permit the deferral of interest or distributions
thereon to a date occurring after the 91st day after the Specified
Date.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any rules or regulations issued thereunder.


 


“Eurodollar
Advance” means an Advance which, except as otherwise provided in Section 2.11,
bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Base Rate” means, with respect to a Eurodollar Advance for the relevant
Interest Period, (a) the rate per annum appearing on Reuters Screen
LIBOR01 Page (or on any successor or substitute page of such Service,
or any successor to or substitute for such Service, providing rate


 


6

















 


quotations
comparable to those currently provided on such page of such Service, as determined
by the Agent from time to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period; and (b) if the rate specified in clause (a) of this
definition does not so appear on Reuters Screen LIBOR01 Page (or any
successor or substitute page or any such successor to or substitute for
such Service), the applicable Eurodollar Base Rate for the relevant Interest
Period shall instead be the rate determined by the Agent to be the rate at
which Wachovia or one of its affiliate banks offers to place deposits in
Dollars with first class banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day
of such Interest Period, in the amount of 
$5,000,000, and having a maturity equal to such Interest Period.


 


“Eurodollar
Loan” means a Loan which, except as otherwise provided in Section 2.11,
bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Rate” means, with respect to a Eurodollar Advance for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus (ii) the
Applicable Margin, plus (iii) from and after the Loan Conversion Date, the
Term Loan Margin.


 


“Excluded
EBITDA” means any
portion of Consolidated EBITDA attributable to an Excluded Subsidiary.


 


“Excluded
Indebtedness” means Non-Recourse Indebtedness of any Excluded Subsidiary.


 


“Excluded
Subsidiary” means any future Subsidiary formed or acquired by the Borrower
that is designated by the Borrower as an “Excluded Subsidiary” in accordance
with Section 9.17 as long as (i) such Excluded Subsidiary has no
Indebtedness that is recourse to the Borrower or any Non-Excluded Subsidiary
and (ii) any Indebtedness for borrowed money incurred by such Excluded
Subsidiary is used solely to acquire, construct, develop or operate assets and
related businesses; provided that the
aggregate amount of assets owned by all Excluded Subsidiaries cannot exceed 15%
of the total consolidated assets of the Borrower and its Subsidiaries, as
determined by the most recent balance sheet delivered by the Borrower pursuant
to Section 6.1.


 


“Excluded
Taxes” means, in the case of each Lender or applicable Lending Installation
and the Agent, taxes imposed on its overall net income, franchise taxes
(imposed in lieu of net income taxes) and branch profits taxes imposed on it (i) by
the jurisdiction under the laws of which such Lender or the Agent is
incorporated or organized or any political combination or subdivision or taxing
authority thereof, (ii) by the jurisdiction in which the Agent’s or such
Lender’s principal executive office or such Lender’s applicable Lending
Installation is located or (iii) as a result of a present or former
connection between such Lender or the Agent and the jurisdiction of the
governmental body imposing such tax other than a connection arising in whole or
in part from such Lender or the Agent having executed, delivered or performed
its obligations or having received a payment or enforced its rights under this
Agreement or any other Loan Document in such jurisdiction.


 


“Exhibit”
refers to an exhibit to this Agreement, unless another document is specifically
referenced.


 


“Facility
LC” is defined in Section 2.20.1


 


“Facility
LC Application” is defined in Section 2.20.3


 


7

















 


“Facility
LC Collateral Account” is defined in Section 2.20.11


 


“Facility
Fee” is defined in Section 2.5.1.


 


“Facility
Termination Date” means the Revolving Credit Termination Date, provided
that if the Borrower has given notice to the Agent pursuant to Section 2.1
to convert the Loans to a term loan, the Facility Termination Date shall mean
the one-year anniversary of the Revolving Credit Termination Date.


 


“Federal
Funds Effective Rate” means, for any day, an interest rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published for such day (or, if such day is not a Business Day, for
the immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations at approximately 11:00 a.m. (Charlotte,
North Carolina time) on such day on such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by the Agent
in its sole discretion.


 


“Fee
Letters” is defined in Section 10.13 hereof.


 


“Fee
Payment Date” means the tenth (10th) day following the last day
of March, June, September and December and the Facility Termination
Date.


 


“Fitch”
means Fitch Ratings and any successor thereto.


 


“Floating
Rate” means, for any day, a rate per annum equal to (i) the Alternate
Base Rate for such day plus (ii) the Applicable Margin plus (iii) from
and after the Loan Conversion Date, the Term Loan Margin.


 


“Floating
Rate Advance” means an Advance which, except as otherwise provided in Section 2.11,
bears interest at the Floating Rate.


 


“Floating
Rate Loan” means a Loan which, except as otherwise provided in Section 2.11,
bears interest at the Floating Rate.


 


“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.


 


“GAAP”
means generally accepted accounting principles in effect from time to time.


 


“Hybrid
Equity Securities” means any securities issued by the Borrower, any
Subsidiary or a financing vehicle of the Borrower or any Subsidiary that (i) are
classified as possessing a minimum of “intermediate equity content” by S&P,
Basket C equity credit by Moody’s or 50% equity credit by Fitch at the time of
issuance thereof and (ii) require no repayments or prepayments and no
mandatory redemptions or repurchases, in each case, prior to the date that is
91 days after the Specified Date.


 


“Indebtedness”
of any Person means at any date, without duplication, (i) all obligations
of such Person for borrowed money, (ii) all indebtedness of such Person
for the deferred purchase price of property or services purchased (excluding
current accounts payable and trade payables incurred in the ordinary course of
business), (iii) all obligations created or arising under any conditional
sale or other title


 


8

















 


retention
agreement with respect to property acquired, (iv) all obligations under
Capitalized Leases in accordance with Agreement Accounting Principles, (v) all
drawn and owing reimbursement obligations outstanding under Letters of Credit,
bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (vi) unless
otherwise cash collateralized, Consolidated Hedging Exposure, (vii) indebtedness
of the type described in clauses (i) through (vi) above secured by
any Lien on property or assets of such Person, whether or not assumed (but in
any event not exceeding the fair market value of the property or asset), (vii) all
direct guarantees of Indebtedness referred to in clauses (i)-(vi) above of
another Person, (viii) all amounts payable in connection with mandatory
redemptions or repurchases of Capital Stock (other than Hybrid Securities and
Equity Preferred Securities) and (ix) all Off Balance Sheet Indebtedness
of such Person; provided that Indebtedness shall not include any indebtedness
arising from the application of either Financial Interpretation Nos. 45 and 46
of Financial Accounting Standards Board or Issue No. 01-08 of the Emerging
Issues Task Force. For the purpose of determining “Indebtedness,” any
particular Indebtedness will be excluded if and to the extent that the
necessary funds for the payment, redemption or satisfaction of that
Indebtedness (including, to the extent applicable, any associated prepayment
penalties, fees or payments and such other amounts required in connection
therewith) have been deposited with the proper depositary in trust.


 


“Interest
Period” means, with respect to a Eurodollar Advance, a period of one, two,
three or six months (or nine or twelve months if agreed to by each of the
Lenders and the Borrower), commencing on a Business Day selected by the
Borrower pursuant to this Agreement. 
Such Interest Period shall end on but exclude the day which corresponds
numerically to such date one, two, three or six months or nine or twelve
months, if agreed; provided,  however,
that if there is no such numerically corresponding day in such next, second,
third or sixth succeeding month (or ninth or twelfth month succeeding month, if
agreed), such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month (or ninth or twelfth month succeeding
month, if agreed).  If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day; provided,  however, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period shall
end on the immediately preceding Business Day.


 


“IPO”
has the meaning set forth in Section 4.1.13.


 


“LC
Fee” is defined in Section 2.20.4.


 


“LC
Issuers” means (i) Wachovia (or any subsidiary or affiliate of
Wachovia designated by Wachovia) in its separate capacity as an issuer of
Facility LCs pursuant to Section 2.20 hereunder with respect to each
Facility LC issued or deemed issued by Wachovia upon the Borrower’s request or (ii) any
Lender (other than Wachovia), or any Subsidiary or Affiliate of such Lender
designated by such Lender,  that is
requested by the Borrower and agrees to act in its separate capacity as an
issuer of Facility LCs pursuant to Section 2.20 with respect to any and
all Facility LCs issued by such Lender in its sole discretion upon the Borrower’s
request; provided that the Borrower and such LC Issuer shall immediately inform
the Agent of any such agreement.  All
references contained in this Agreement and the other Loan Documents to the “LC
Issuer” shall be deemed to apply equally to each of the institutions referred
to in clauses (i) and (ii) of this definition in their respective
capacities as issuers of any and all Facility LCs issued by each such
institution.


 


“LC
Obligations” means, at any time, the sum, without duplication, of (i) the
aggregate undrawn stated amount under all Facility LCs outstanding at such time
plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.


 


“LC
Payment Date” is defined in Section 2.20.5.


 


9

















 


“Lenders”
means the lending institutions listed on the signature pages of this
Agreement and their respective successors and assigns.  Unless otherwise specified, the term “Lenders”
includes the LC Issuer and the Swing Line Lender.


 


“Lending
Installation” means, with respect to a Lender or the Agent, the office,
branch, subsidiary or affiliate of such Lender or the Agent listed on the
signature pages hereof or on the administrative information sheets
provided to the Agent in connection herewith or on a Schedule or otherwise
selected by such Lender or the Agent pursuant to Section 2.17.


 


“Letter
of Credit” of a Person means a letter of credit or similar instrument which
is issued upon the application of such Person or upon which such Person is an
account party or for which such Person is in any way liable.


 


“LIBOR
Market Index Rate” means, for any day, the rate for 1 month U.S. dollar
deposits as reported by Reuters Screen LIBOR01 Page (or any successor
page) as of 11:00 a.m. (London time) for such day, provided, if such day
is not a London business day, the immediately preceding London business day (or
if not so reported, then as determined by Wachovia consistent with the
methodology for determining Eurodollar Base Rate under similar circumstances.


 


“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).


 


“Loan”
means, with respect to a Lender, such Lender’s loan made pursuant to Article II
(or any conversion or continuation thereof), including a Revolving Loan, a
Swing Line Loan and a term loan on and after the Loan Conversion Date (if any).


 


“Loan
Conversion Date” is defined in Section 2.1.


 


“Loan
Documents” means this Agreement, the Facility LC Applications and all other
documents, instruments, notes (including any Notes issued pursuant to Section 2.13
(if requested)) and agreements executed in connection therewith or contemplated
thereby, as the same may be amended, restated or otherwise modified and in
effect from time to time.


 


“Marketing and Administrative Services
Agreement” means that certain Marketing and Administrative Services
Agreement, effective as of January 1, 2008, between OGE Energy Resources, Inc.
and the Borrower.


 


“Material
Adverse Effect” means a material adverse effect on (i) the business,
Property, condition (financial or otherwise), operations or results of
operations of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Agent, the LC Issuer or the Lenders thereunder.


 


“Material
Indebtedness” means Indebtedness of the Borrower and/or its Subsidiaries
(other than (i) Indebtedness between the Borrower and its Subsidiaries and
(ii) Excluded Indebtedness) in an outstanding principal amount of
$40,000,000 or more in the aggregate (or the equivalent thereof in any currency
other than U.S. dollars).


 


10

















 


“Material Subsidiary” means any
Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, as promulgated under the Securities Act of
1933, as amended, as such regulation is in effect on the date of this
Agreement.


 


“MLP” means OGE Enogex Partners, L.P.,
a Delaware limited partnership.


 


“MLP Partnership Agreement”  means that certain First Amended and Restated Agreement of
Limited Partnership of OGE Enogex Partners L.P., dated as of January [    ],
2008, between OGE Enogex GP LLC, a Delaware limited liability company as the
general partner of the MLP, and OGE Enogex Holdings LLC, a Delaware limited
liability company, together with any other Person that becomes a partner in the
MLP.


 


“Modify” and “Modification” are defined in Section 2.20.1.


 


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


 


“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, which is covered by Title IV of ERISA and to which the Borrower or any
member of the Controlled Group is obligated to make contributions.


 


“Non-Extending Lender” is defined in Section 2.21.


 


“Non-Excluded Subsidiary” means any Subsidiary
that is not an Excluded Subsidiary.


 


“Non-Recourse
Indebtedness” means Indebtedness of any Excluded Subsidiary as to which (a) neither
the Borrower nor any Non-Excluded Subsidiary provides credit support of any
kind (including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) neither the Borrower nor any Non-Excluded Subsidiary is
directly or indirectly liable as a guarantor or otherwise or (c) the
relevant legal documents do not provide that the lenders or other type of
creditors with respect thereto will have any recourse to the stock or assets of
the Borrower or any Non-Excluded Subsidiary.


 


“Non-U.S.
Lender” is defined in Section 3.5(iv).


 


“Note”
is defined in Section 2.13.


 


“Obligations”
means all Loans, all Reimbursement Obligations, advances, debts, liabilities
and obligations owing by the Borrower to the Agent, any Lender, the LC Issuer,
the Swingline Lender, any Arranger, any affiliate of the Agent, any Lender, the
LC Issuer, the Swingline Lender or any Arranger, or any indemnitee under the
provisions of Section 9.6 or any other provisions of the Loan Documents,
in each case of any kind or nature, arising under this Agreement or any other
Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, indemnification, or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute
or contingent, due or to become due, now existing or hereafter arising and
however acquired.  The term includes,
without limitation, all interest, charges, expenses, fees, attorneys’ fees and
disbursements, and any other sum chargeable to the Borrower or any of its
Subsidiaries under this Agreement or any other Loan Document.


 


“OFAC” means the U.S. Department of
the Treasury’s Office of Foreign Assets Control.


 


“Off Balance Sheet Indebtedness”
means, with respect to any Person, (i) any repurchase obligation or
repurchase liability of such Person with respect to accounts or notes
receivable sold by such Person, 


 


11

















 


(ii) any liability of such
Person under any sale and leaseback transactions that do not create a liability
on the balance sheet of such Person, (iii) any obligations under Synthetic
Leases or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of borrowing but which does not
constitute a liability on the balance sheet of such Person.  As used herein, “Synthetic Lease” means a
lease transaction under which the parties intend that (a) the lease will
be treated as an “operating lease” by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as amended and (b) the lessee
will be entitled to various tax and other benefits ordinarily available to
owners (as opposed to lessees) of like property.


 


“Omnibus Agreement”
means that certain Omnibus Agreement entered into as of the closing date of the
IPO among OGE Energy Corp, OGE Enogex Holdings LLC, OGE Enogex GP LLC, OGE
Enogex Partners LP, Enogex Operating LLC and the Borrower.


 


“Other
Taxes” is defined in Section 3.5(ii).


 


“Outstanding
Credit Exposure” means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of its Revolving Loans outstanding at such time,
plus (ii) an amount equal to its ratable obligation to purchase
participations in the LC Obligations and Swing Line Loans at such time;
provided that, on and after the occurrence of either the Loan Conversion Date
or the Revolving Credit Termination Date, the “Outstanding Credit Exposure” as
to any Lender shall be equal to (i) the outstanding principal amount of
the Loans made by such Lender in accordance with the terms of Section 2.1
plus (ii) unless all LC Obligations have been fully cash collateralized,
an amount equal to its ratable obligation to purchase participations in LC
Obligations at such time.


 


“Participants”
is defined in Section 12.2.1.


 


“Patriot
Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)).


 


“Payment
Date” means the last day of March, June, September and December and
the Facility Termination Date.


 


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


 


“Person”
means any natural person, corporation, firm, joint venture, partnership,
limited liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.


 


“Plan”
means an employee pension benefit plan, excluding any Multiemployer Plan, which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code as to which the Borrower or any member of
the Controlled Group may have any liability.


 


“Pricing
Schedule” means the Schedule identifying the Applicable Margin and
Applicable Fee Rate attached hereto and identified as such.


 


“Prime
Rate” means a rate per annum equal to the prime rate of interest announced
from time to time by Wachovia or its parent (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate
changes.


 


“Property”
of a Person means any and all right, title and interest of such Person in or to
property, whether real, personal, tangible, intangible, or mixed.


 


12

















 


“Pro
Rata Share” means, with respect to a Lender, a portion equal to a fraction
the numerator of which is such Lender’s Commitment at such time (in each case,
as adjusted from time to time in accordance with the provisions of this
Agreement) and the denominator of which is the Aggregate Commitment at such
time; provided that following the Revolving Credit Termination Date
and/or the Loan Conversion Date, “Pro Rata Share” shall mean, with
respect to any Lender, a fraction the numerator of which is such Lender’s
Outstanding Credit Exposure at such time and the denominator of which is the
Aggregate Outstanding Credit Exposure at such time.


 


“Purchasers”
is defined in Section 12.3.1.


 


“Qualified Project” means the
construction or expansion of any capital project of the Borrower or any of its
Subsidiaries, the aggregate actual or budgeted capital cost of which (in each
case, including capital costs expended by the Borrower or any such Subsidiaries
prior to the acquisition or construction of such project) exceeds $20,000,000.


 


“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 Agent (such approval not to be unreasonably withheld or delayed) 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 contracts relating to 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, oil and gas reserve and production estimates, commodity price assumptions
and other reasonable factors deemed appropriate by the 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%, (iv) longer than 270 days but not more
than 365 days, 75% and (v) longer than 365 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 the 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 four full 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 the 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 clause (a) above, such amount to be approved
by the Agent (such approval not to be unreasonably withheld or


 


13

















 


delayed), 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 6.1.3 to the extent Qualified Project
EBITDA Adjustments are requested be made to Consolidated EBITDA in determining
compliance with Section 6.16, the Borrower shall have delivered to the
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 Agent shall have
approved (such approval not to be unreasonably withheld) such projections and
shall have received such other information and documentation as the Agent may
reasonably request, all in form and substance satisfactory to the 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).


 


“Regulation
D” means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.


 


“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or
official interpretation of said Board of Governors relating to the extension of
credit by banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.


 


“Regulation
X” means Regulation X of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or
official interpretation of said Board of Governors relating to the extension of
credit by foreign lenders for the purpose of purchasing or carrying margin
stock (as defined therein).


 


“Reimbursement
Obligations” means, at any time, the aggregate of all obligations of the
Borrower then outstanding under Section 2.20 to reimburse the LC Issuer
for amounts paid by the LC Issuer in respect of any one or more drawings under
Facility LCs.


 


“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA
and the regulations issued under such section, with respect to a Plan subject
to Title IV of ERISA, excluding, however, such events as to which the PBGC has
by regulation waived the requirement of Section 4043(a) of ERISA that
it be notified within thirty (30) days of the occurrence of such event; provided,  however, that a failure to meet
the minimum funding standard of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.


 


14

















 


“Required
Lenders” means Lenders in the aggregate having greater than fifty percent
(50%) of the Aggregate Commitment or, if either the Revolving Credit
Termination Date or the Loan Conversion Date has occurred, Lenders holding, in
the aggregate, greater than fifty percent (50%) of the Aggregate Outstanding
Credit Exposure.


 


“Reserve
Requirement” means, with respect to an Interest Period, the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.


 


“Restricted Payments” means, with respect to
any Person, (a) any dividend or other distribution, direct or indirect, on
account of any shares (or equivalent) of any class of Capital Stock of such
Person, now or hereafter outstanding, (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any shares (or equivalent) of any class of Capital Stock
of any such Person, now or hereafter outstanding, (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of such Person,
now or hereafter outstanding, and (d) the payment by such Person of any
management, advisory or consulting fee to any other Person who is directly or
indirectly a significant partner, shareholder, owner or executive officer of
such Person; provided that this clause (d) shall not include the payment,
in the ordinary course, of any brokers, finders or similar fees as determined
appropriate by their respective governing bodies in their reasonable
discretion.


 


“Revolving
Credit Termination Date” means the earlier of (a) January [  ], 2013, as it may
be extended pursuant to Section 2.21 and (b) the date of termination
in whole of the Aggregate Commitment pursuant to Section 2.5.3 hereof or
the Commitments pursuant to Section 8.1 hereof.


 


“Revolving
Loan” means, with respect to a Lender, such Lender’s loan made pursuant to
its commitment to lend set forth in Section 2.1 (or any conversion or
continuation thereof).


 


“S&P”
means Standard and Poor’s Ratings Services, a division 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.ustreas.gov/offices/enforcement/ofac/,
or as otherwise published from time to time.


 


“Sanctioned Person” means (i) a Person named on the list of
“Specially Designated Nationals and Blocked Persons” maintained by OFAC
available at http://www.ustreas.gov/offices/enforcement/ofac/, or as
otherwise published from time to time, or (ii) (A) an agency of the
government of a Sanctioned Country, (B) an organization controlled by a
Sanctioned Country, or (C) a person resident in a Sanctioned Country, to
the extent subject to a sanctions program administered by OFAC.


 


“Schedule”
refers to a specific schedule to this Agreement, unless another document is
specifically referenced.


 


“Section”
means a numbered section of this Agreement, unless another document is
specifically referenced.


 


“Significant
Acquisition” means, during any twelve-month period, one or more
acquisitions by the Borrower or any of its Subsidiaries (other than an Excluded
Subsidiary) of assets, equity interests, operating lines or divisions of any
other Person (whether by way of asset acquisition, equity purchase, tender
offer, merger, consolidation, amalgamation or otherwise) in which the total
consideration in


 


15

















 


connection
therewith, cash and non-cash (including assumption of debt and liabilities and
any deferred or contingent consideration, such as purchase price adjustments,
earnout payments and similar payments (in each case, as valued at the
reasonable estimated actual aggregate consideration)), exceeds $25,000,000.


 


“Single
Employer Plan” means a Plan maintained by the Borrower or any member of the
Controlled Group for employees of the Borrower or any member of the Controlled
Group.


 


“Specified
Date” means the date which is the later of the Facility Termination Date
and date of repayment in full of the Obligations (other than contingent
indemnity obligations not then due and payable).


 


“Subsidiary”
means, as to any Person, any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by such Person and which corporation or other
entity is consolidated on the books and records of such Person in accordance
with GAAP; unless otherwise specified, “Subsidiary” means a direct or indirect
Subsidiary of the Borrower.


 


“Substantial
Portion” means, with respect to the Property of the Borrower and its
Subsidiaries, Property which represents more than 25% of the consolidated
assets of the Borrower and its Subsidiaries or property which is responsible
for more than 25% of the consolidated net income of the Borrower and its
Subsidiaries, in each case, as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as at the end of the four
fiscal quarter period ending with the fiscal quarter immediately prior to the
fiscal quarter in which such determination is made (or if financial statements
have not been delivered hereunder for that fiscal quarter which ends such four
fiscal quarter period, then the financial statements delivered hereunder for
the quarter ending immediately prior to that quarter).


 


“Swap
Agreements” means any agreement with respect to any swap, forward, future
or other derivative transaction or option or similar agreement entered into by
the Borrower or any of its Subsidiaries in order to provide protection to the
Borrower and/or its Subsidiaries against fluctuations in future interest rates,
currency exchange rates or commodity prices.


 


“Swing
Line Borrowing Notice” is defined in Section 2.23.2.


 


“Swing
Line Lender” means Wachovia or such other Lender which may succeed to its
rights and obligations as Swing Line Lender pursuant to the terms of this
Agreement.


 


“Swing
Line Limit” means a maximum principal amount of $25,000,000 at any one time
outstanding.


 


“Swing
Line Loan” means a Loan made available to the Borrower by the Swing Line
Lender pursuant to Section 2.23.


 


“Swing
Line Rate” means, for any day as selected by the Borrower, either (a) the
sum of (i) the LIBOR Market Index Rate for such day plus (ii) the
Applicable Margin with respect to Eurodollar Advances or (b) the Floating
Rate.


 


“Syndication
Agent” means The Royal Bank of Scotland plc, in its capacity as Syndication
Agent hereunder.


 


16

















 


“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded
Taxes and Other Taxes.


 


“Term
Loan Margin” means, with respect to any term loans outstanding on and after
the Loan Conversion Date (if any), a percentage rate per annum equal to 0.125%.


 


“Transaction
Costs” means all fees, costs and expenses incurred or payable by the
Borrower or any Subsidiary in connection with (i) the negotiation,
execution and consummation of this Agreement (including, without limitation,
the commitment letters and all fees payable on the Closing Date pursuant to the
Fee Letters), (ii) the reorganization of Enogex Inc. into the Borrower and
the transfer of OGE Energy Resources Inc. from the Borrower to OGE Energy Corp.
(or an Affiliate thereof), (iii) the initial public offering of the
limited partnership units of the MLP, (iv) the defeasance and subsequent
redemption of the Borrower’s senior notes outstanding as of the Closing Date,
including the payment of any make-whole premium or payment in connection
therewith and (v) the issuance of senior notes in replacement of the
senior notes referred to in clause (iv), in each case, as contemplated in and as
set forth in, the form S-1 filed by OGE Energy Corp. on November 29, 2007,
as amended from time to time.


 


“Transferee”
is defined in Section 12.4.


 


“Type”
means, with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Loan.


 


“Unfunded
Liabilities” means the amount (if any) by which the present value of all
vested and unvested accrued benefits under each Single Employer Plan subject to
Title IV of ERISA exceeds the fair market value of all such Plan’s assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan for which a valuation report is available, using actuarial
assumptions for funding purposes as set forth in such report.


 


“Unmatured
Default” means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.


 


“Utilization
Fee” is defined in Section 2.5.2.


 


“Voting Stock” means all classes of
the Capital Stock (or other voting interests) of such Person then outstanding
and normally entitled to vote in the election of directors or other governing
body of such Person. For clarification, “Voting Stock,” as used with
respect to the Borrower, shall mean the Class A Membership Interests of
the Borrower and shall exclude the Class B Membership Interests of the
Borrower (as such terms are defined in the Borrower’s Amended and Restated
Limited Liability Company Agreement as in effect as of the date hereof).


 


“Wachovia”
means Wachovia Bank, National Association, a national banking association with
its principal office in Charlotte, North Carolina, in its individual capacity,
and its successors.


 


The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.


 


17

















 


ARTICLE II




THE CREDITS


 


2.1          Commitment; Conversion to Term Loan.  From
and including the date of this Agreement and prior to the Revolving Credit
Termination Date, upon the satisfaction of the conditions precedent set forth
in Section 4.1 and 4.2, as applicable, each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to (i) make
Revolving Loans to the Borrower from time to time and (ii) participate in
Facility LCs and Swing Line Loans issued or made upon the request of the
Borrower, in each case in an amount not to exceed in the aggregate at any one
time outstanding of its Commitment; provided that at no time shall the
Aggregate Outstanding Credit Exposure hereunder exceed the Aggregate
Commitment.  Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow at any time prior to the
Revolving Credit Termination Date.  The
commitment of each Lender to make any further Advances or further extensions of
credit hereunder shall expire on the Revolving Credit Termination Date
applicable to it.  The LC Issuer will
issue Facility LCs hereunder on the terms and conditions set forth in Section 2.20.  If the Borrower so elects by delivery of a
written notice to the Agent at least three (3), but not more than thirty (30),
Business Days prior to the date of the then current Revolving Credit
Termination Date, then on such Revolving Credit Termination Date (the “Loan
Conversion Date”), (i) the Borrower’s option to borrow additional
Loans and request additional Facility LCs shall terminate, (ii) the
Commitments shall be terminated and (iii) the then outstanding principal
amount of the Loans shall be converted to a term loan which shall, in the case
of each Lender, be in the amount of such Lender’s outstanding Loans on such
date, and which shall be due and payable in full, together with accrued
interest and all other Obligations, on the first anniversary of the Loan
Conversion Date, with any prepayment thereof to be made subject to Section 2.7
and Section 3.4; provided, that
no such conversion shall occur if a Default or Unmatured Default has occurred
and is continuing either on the date of delivery of such notice or on the Loan Conversion
Date.  Amounts repaid or prepaid on or
after the Loan Conversion Date may not be reborrowed.  If a term loan conversion has not previously
been elected or completed in accordance with the terms hereof, then on the
Revolving Credit Termination Date then in effect, the Commitments shall be
terminated and all of the Loans and other Obligations shall be due and payable
in full.  For the avoidance of doubt, it
is hereby agreed that the Borrower shall not have the option to convert the
Loans of any Non-Extending Lender to a term loan on the Revolving Commitment
Termination Date for such Non-Extending Lender (to the extent such Revolving
Commitment Termination Date has been extended for any other Lender) and shall
be required to repay such Loans in accordance with Section 2.2.


 


2.2          Required Payments; Termination.  Any
outstanding Advances and all other unpaid Obligations shall be paid in full by
the Borrower on the Facility Termination Date. 
Notwithstanding the termination of this Agreement on the Facility
Termination Date, until all of the Obligations (other than contingent indemnity
obligations) shall have been fully paid and satisfied and all financing
arrangements among the Borrower and the Lenders hereunder and under the other
Loan Documents shall have been terminated, all of the rights and remedies under
this Agreement and the other Loan Documents shall survive.  In addition, the Borrower shall make all
payments required under Section 2.21 to each Lender that does not consent
to the extension of the Revolving Credit Termination Date.


 


2.3          Ratable Loans.  Each
Advance hereunder (other than any Swing Line Loan) shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment.


 


2.4          Types of Advances.  The
Advances (other than any Swing Line Loan) may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9. 
The Borrower may request Swing Line Loans in accordance with Section 2.23.


 


18

















 


2.5          Facility Fee; Utilization Fee; Reductions in
Aggregate Commitment.


 


2.5.1        Facility Fee.  The Borrower agrees to pay to the Agent for
the account of each Lender a Facility Fee (the “Facility Fee”) at a per
annum rate equal to the Applicable Fee Rate on such Lender’s Commitment
(whether used or unused) from the date hereof to and including the Facility
Termination Date, payable quarterly in arrears on each Fee Payment Date and on
the Facility Termination Date (and, if applicable, the Specified Date); provided
that, if any Lender continues to have Loans outstanding hereunder after the
termination of its Commitment or the occurrence of the Revolving Credit Termination
Date (including, without limitation, during any period when Loans may be
outstanding but new Loans may not be borrowed hereunder), then the Facility Fee
shall continue to accrue on the aggregate principal amount of the Loans owed to
such Lender until the date on which such Loans are repaid in full.


 


2.5.2        Utilization Fee.  For any period (including after the Loan
Conversion Date) during which the Aggregate Outstanding Credit Exposure of all
the Lenders hereunder exceeds fifty percent (50%) of the Aggregate Commitment
hereunder (which, after the Commitments have been terminated, shall be based on
the Aggregate Commitment immediately prior to such termination) then in effect
on such date, the Borrower will pay to the Agent for the ratable benefit of the
Lenders a utilization fee (the “Utilization Fee”) at a per annum rate
equal to the Applicable Fee Rate on the average daily Aggregate Outstanding
Credit Exposure during such period.  The
Utilization Fee shall be payable quarterly in arrears on each Fee Payment Date
and on the Specified Date.


 


2.5.3        Reductions in Aggregate Commitment.  The Borrower may permanently
reduce the Aggregate Commitment in whole, or in part, ratably among the Lenders
in integral multiples of $5,000,000, upon at least two (2) Business Days’
written notice to the Agent, which notice shall specify the amount of any such
reduction; provided,  however,
that the amount of the Aggregate Commitment may not be reduced below the
aggregate principal amount of the outstanding Advances, after taking into
account any prepayments to be made on or before such date.  If the Aggregate Commitment is reduced to
zero, the Revolving Credit Termination Date shall have been deemed to occur.


 


2.6          Minimum Amount of Each Advance.  Each
Eurodollar Advance shall be in the minimum amount of $1,000,000 (and in
multiples of $1,000,000 if in excess thereof), and each Floating Rate Advance
(other than Swing Line Loans (which are subject to Section 2.23) or an
Advance to repay Swing Line Loans) shall be in the minimum amount of $1,000,000
(and in multiples of $1,000,000 if in excess thereof); provided,  however, that any Floating Rate
Advance may be in the amount of the unused Aggregate Commitment.


 


2.7          Optional Principal Payments.  The
Borrower may from time to time pay, without penalty or premium, all outstanding
Floating Rate Advances or any portion thereof in a minimum aggregate amount of
$1,000,000 or any integral multiple of $1,000,000 in excess thereof (other than
in the case of Swing Line Loans) on any Business Day upon notice to the Agent
by no later than 11:00 a.m. (Charlotte, North Carolina time) on the date
of such prepayment.  The Borrower may at
any time pay, without penalty or premium, all outstanding Swing Line Loans or
any portion thereof in a minimum amount of $100,000 and increments of $100,000
in excess thereof on any Business Day upon notice to the Agent and the Swing
Line Lender by 11:00 a.m. (Charlotte, North Carolina time) on the date of
such repayment.  The Borrower may from
time to time pay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or any portion thereof in a minimum aggregate amount of
$1,000,000 or any integral multiple of $1,000,000 in excess thereof upon three (3) Business
Days’ prior notice to the Agent.


 


19

















 


Revolving
Loans and Swing Line Loans which are prepaid may, subject to the other terms
and conditions of this Agreement, be reborrowed.


 


2.8          Method of Selecting
Types and Interest Periods for New Advances (other than Swing Line Loans).  The Borrower shall select the
Type of Advance (other than any Swing Line Loan which is subject to Section 2.23)
and, in the case of each Eurodollar Advance, the Interest Period applicable
thereto from time to time.  The Borrower
shall give the Agent irrevocable notice (a “Borrowing Notice”) not later
than 11:00 a.m. (Charlotte, North Carolina time) on the Borrowing Date of
each Floating Rate Advance and three (3) Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:


 


2.8.1        the Borrowing Date, which shall be a Business Day, of such Advance,


 


2.8.2        the aggregate amount of such Advance,


 


2.8.3        the Type of Advance selected, and


 


2.8.4        in the case of each Eurodollar Advance, the Interest Period applicable
thereto.


 


Not
later than noon (Charlotte, North Carolina time) on each Borrowing Date, each
Lender shall make available its Revolving Loan or Revolving Loans in funds
immediately available in Charlotte, North Carolina to the Agent at its address
specified pursuant to Article XIII. 
The Agent will promptly make the funds so received from the Lenders
available to the Borrower at the Agent’s aforesaid address.


 


2.9          Conversion and Continuation of Outstanding Advances. 
Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Eurodollar Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.7.  Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless (x) such Eurodollar Advance
is or was repaid in accordance with Section 2.7 or (y) the Borrower
shall have given the Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such Eurodollar Advance
continue as a Eurodollar Advance for the same or another Interest Period.  Subject to the terms of Section 2.6, the
Borrower may elect from time to time to convert all or any part of a Floating
Rate Advance into a Eurodollar Advance. 
The Borrower shall give the Agent irrevocable notice (a “Conversion/Continuation
Notice”) of each conversion of a Floating Rate Advance into a Eurodollar
Advance or continuation of a Eurodollar Advance not later than 11:00 a.m.
(Charlotte, North Carolina time) on the third Business Day prior to the date of
the requested conversion or continuation, specifying:


 


2.9.1        the requested date, which shall be a Business Day, of such conversion
or continuation,


 


2.9.2        the aggregate amount and Type of the Advance which is to be converted
or continued, and


 


2.9.3        the duration of the Interest Period applicable thereto.


 


Notwithstanding
anything to the contrary in this Agreement, no Swing Line Loan may be converted
from a Floating Rate Advance to a Eurodollar Advance.


 


20














 


2.10        Changes in Interest Rate, etc.  Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9,
to but excluding the date it is paid or is converted into a Eurodollar Advance
pursuant to Section 2.9 hereof, at a rate per annum equal to the Floating
Rate for such day.  Each Swing Line Loan
shall bear interest on the outstanding principal amount thereof, for each day
from and including the day such Swing Line Loan is made to but excluding the
date it is paid, at a rate per annum equal to the Swing Line Rate for such
day.  Changes in the rate of interest on
that portion of any Advance maintained as a Floating Rate Advance or on a Swing
Line Loan will take effect simultaneously with each change in the Alternate
Base Rate or LIBOR Market Index Rate, as applicable.  Each Eurodollar Advance shall bear interest
on the outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined by the Agent as applicable
to such Eurodollar Advance based upon the Borrower’s selections under Sections
2.8 and 2.9 and otherwise in accordance with the terms hereof.  No Interest Period may end after the Facility
Termination Date.  The Borrower shall select
Interest Periods so that it is not necessary to repay any portion of a
Eurodollar Advance prior to the last day of the applicable Interest Period in
order to make a mandatory prepayment required pursuant to Section 2.2.


 


2.11        Rates Applicable After Default. 
Notwithstanding anything to the contrary contained in Section 2.8,
2.9 or 2.10, during the continuance of a Default or Unmatured Default the
Required Lenders may, at their option, by notice to the Borrower, declare that
no Advance may be made as, converted into or continued as a Eurodollar Advance.  During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to
changes in interest rates), declare that (i) each Eurodollar Advance shall
bear interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum, (ii) each
Floating Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate in effect from time to time plus 2% per annum, (iii) each
Swing Line Loan shall bear interest at a rate per annum equal to the Swing Line
Rate in effect from time to time plus 2% per annum, (iv) the LC Fee shall
be increased by 2% per annum and (v) all outstanding and past due fees
hereunder which do not otherwise bear interest shall accrue interest at a rate
per annum equal to the Floating Rate in effect from time to time plus 2% per annum;
provided that, during the continuance of a Default under Section 7.6
or 7.7, the interest rates set forth in clauses (i), (ii) and (iii) above
and the increase in the LC Fee set forth in clause (iv) above shall be
applicable to all Advances without any election or action on the part of the
Agent or any Lender.


 


2.12        Method of Payment.  All
payments of the Obligations hereunder shall be made, without setoff, deduction,
or counterclaim, in immediately available funds to the Agent at the Agent’s
address specified pursuant to Article XIII, or at any other Lending
Installation of the Agent specified in writing by the Agent to the Borrower, by
noon (Charlotte, North Carolina time) on the date when due and shall be applied
ratably (except in the case of (i) Reimbursement Obligations for which the
LC Issuer has not been fully indemnified by the Lenders, (ii) Swing Line
Loans or (iii) as otherwise specifically required hereunder) by the Agent
among the Lenders.  Each payment
delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds that the Agent
received at its address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent from such
Lender.  The Agent is hereby authorized
to charge the account of the Borrower maintained with Wachovia for each payment
of principal, interest and fees as it becomes due hereunder.  Each reference to the Agent in this Section 2.12
shall also be deemed to refer, and shall apply equally, to (x) the LC
Issuer in the case of payments required to be made by the Borrower to the LC
Issuer pursuant to Section 2.20.6 and (y) the Swing Line Lender in
the case of payments required to be made by the Borrower to the Swing Line
Lender pursuant to Section 2.23.4.


 


21

















 


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


 


(ii)           The
Agent shall also maintain accounts in which it will record (a) the amount
of each Loan made hereunder, the Type thereof and the Interest Period (in the
case of a Eurodollar Advance) with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (c) the original stated amount of each
Facility LC and the amount of LC Obligations outstanding at any time, and (d) the
amount of any sum received by the Agent hereunder from the Borrower and each Lender’s
share thereof.


 


(iii)          The
entries maintained in the accounts maintained pursuant to paragraphs (i) and
(ii) above shall be prima facie
evidence of the existence and amounts of the Obligations therein recorded
absent manifest error; provided,  however,
that the failure of the Agent or any Lender to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Obligations in accordance with their terms.


 


(iv)          Any
Lender may request that its Loans be evidenced by a promissory note, or in the
case of the Swing Line Lender, promissory notes representing its Revolving
Loans and Swing Line Loans, respectively, in substantially the form of Exhibit E
with applicable changes for notes evidencing Swing Line Loans (a “Note”).  In such event, the Borrower shall prepare,
execute and deliver to such Lender such Note payable to the order of such
Lender.  Thereafter, the Loans evidenced
by such Note and interest thereon shall at all times (prior to any assignment pursuant
to Section 12.3) be represented by one or more Notes payable to the order
of the payee named therein, except to the extent that any such Lender
subsequently returns any such Note for cancellation and requests that such
Loans once again be evidenced as described in paragraphs (i) and (ii) above.


 


2.14       Telephonic Notices.  The
Borrower hereby authorizes the Lenders and the Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to transfer funds
based on telephonic notices made by any person or persons the Agent or any
Lender in good faith believes to be acting on behalf of the Borrower, it being
understood that the foregoing authorization is specifically intended to allow
Borrowing Notices, Swing Line Borrowing Notices and Conversion/Continuation
Notices to be given telephonically.  The
Borrower agrees to deliver promptly to the Agent a written confirmation, if
such confirmation is requested by the Agent or any Lender, of each telephonic
notice, signed by a Designated Person. 
If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.


 


2.15       Interest Payment Dates; Interest and Fee
Basis.  Interest accrued on each Floating Rate
Advance and Swing Line Loan shall be payable in arrears on each Payment Date,
commencing with the first such date to occur after the date hereof, on any date
on which the Floating Rate Advance or Swing Line Loan is prepaid, whether due
to acceleration or otherwise, and at maturity. 
Interest accrued on that portion of the outstanding principal amount of
any Floating Rate Advance converted into a Eurodollar Advance on a day other than
a Payment Date shall be payable on the date of conversion.  Interest accrued on each Eurodollar Advance
shall be payable on the last day of its applicable Interest Period, on any date
on which the Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity.  Interest accrued
on each Eurodollar Advance having an Interest Period longer than three


 


22

















 


months shall also be payable on the last day of each three-month
interval during such Interest Period. 
Interest on Eurodollar Advances, Swing Line Loans (other than Swingline
Loans that are Floating Rate Advances), LC Fees and all other fees shall be
calculated for actual days elapsed on the basis of a 360-day year.  Interest on Floating Rate Advances shall be
calculated for actual days elapsed on the basis of a 365, or when appropriate
366, day year.  Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (Charlotte, North Carolina time) at
the place of payment.  If any payment of
principal of or interest on an Advance, any fees or any other amounts payable
to the Agent or any Lender hereunder shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest and fees in connection with such payment.


 


2.16        Notification
of Advances, Interest Rates, Prepayments and Commitment Reductions;
Availability of Loans.  Promptly after receipt
thereof, the Agent will notify each Lender of the contents of each Aggregate
Commitment reduction notice, Borrowing Notice, Swing Line Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it
hereunder.  The LC Issuer shall notify
the Agent promptly after the issuance of a Facility LC, and the Agent will
notify each Lender of such issuance.  The
Agent will notify the Borrower and each Lender of the interest rate applicable
to each Eurodollar Advance promptly upon determination of such interest rate
and will give the Borrower and each Lender prompt notice of each change in the
Alternate Base Rate.


 


2.17        Lending Installations. 
Subject to Section 3.7, each Lender may book its Loans and its
participation in any LC Obligations and Swing Line Loans and the LC Issuer may
book the Facility LCs at any Lending Installation selected by such Lender or
the LC Issuer, as applicable, and may change its Lending Installation from time
to time.  All terms of this Agreement
shall apply to any such Lending Installation and the Loans, Facility LCs,
participations in LC Obligations and Swing Line Loans and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as applicable,
for the benefit of any such Lending Installation.  Each Lender and the LC Issuer may, by written
notice to the Agent and the Borrower in accordance with Article XIII,
designate replacement or additional Lending Installations through which Loans
will be made by it or Facility LCs will be issued by it and for whose account
Loan payments or payments with respect to Facility LCs are to be made.


 


2.18        Non-Receipt of Funds by the Agent. 
Unless the Borrower or a Lender, as the case may be, notifies the Agent
prior to the date on which it is scheduled to make payment to the Agent of (i) in
the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Agent for the account
of the Lenders, that it does not intend to make such payment, the Agent may
assume that such payment has been made. 
The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such
assumption.  If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (x) in the case of payment by a Lender, the Federal Funds
Effective Rate for such day for the first three days and, thereafter, the
interest rate applicable to the relevant Loan or (y) in the case of
payment by the Borrower, the interest rate applicable to the relevant Loan.


 


2.19        Replacement of Lender.  If
the Borrower is required pursuant to Section 3.1, 3.2 or 3.5 to make any
additional payment to any Lender or if any Lender’s obligation to make or
continue, or to convert Floating Rate Advances into, Eurodollar Advances shall
be suspended pursuant to Section 3.3 or, if and for so long as (and solely
with respect to) any Lender is a Defaulting Lender (in each of the foregoing
cases, such affected Lender being an “Affected Lender”), the Borrower
may elect, if such


 


23

















 


amounts
continue to be charged, such suspension is still effective or such Lender
continues to be a Defaulting Lender, to replace such Affected Lender as a
Lender party to this Agreement; provided that no Default or Unmatured
Default shall have occurred and be continuing at the time of such replacement,
and provided  further that, concurrently with such replacement, (i) another
bank or other entity which is reasonably satisfactory to the Borrower and the
Agent shall agree, as of such date, to purchase for cash the Loans due to the
Affected Lender pursuant to an assignment substantially in the form of Exhibit C
and to become a Lender for all purposes under this Agreement and to assume all
obligations of the Affected Lender to be terminated as of such date and to
comply with the requirements of Section 12.3 applicable to assignments,
and (ii) the Borrower shall pay to such Affected Lender in same day funds
on the day of such replacement (A) all interest, fees and other amounts
then accrued but unpaid to such Affected Lender by the Borrower hereunder to
and including the date of termination, including without limitation payments
due to such Affected Lender under Sections 3.1, 3.2 and 3.5, and (B) other
than with respect to the replacement of a Defaulting Lender, an amount, if any,
equal to the payment which would have been due to such Lender on the day of
such replacement under Section 3.4 had the Loans of such Affected Lender
been prepaid on such date rather than sold to the replacement Lender, in each
case to the extent not paid by the purchasing lender.


 


2.20       Facility
LCs.


 


2.20.1      Issuance.  The LC Issuer hereby agrees, on the terms and
conditions set forth in this Agreement, to issue standby and commercial letters
of credit (each such letter of credit, a “Facility LC”) and to renew,
extend, increase, decrease or otherwise modify each Facility LC (“Modify,”
and each such action, a “Modification”), from time to time from and
including the date of this Agreement and prior to the Revolving Credit
Termination Date upon the request of the Borrower; provided  that immediately after each such Facility
LC is issued or Modified, the Aggregate Outstanding Credit Exposure shall not
exceed the Aggregate Commitment.  No
Facility LC shall have an expiry date later than the earlier of (x) one
year after the Revolving Credit Termination Date and (y) one year after
its issuance; provided that any Facility LC with a one-year tenor may provide
for the renewal thereof for additional one-year periods (which shall in no
event extend beyond the date referred to in the preceding clause (x)).  If one or more Facility LC’s are outstanding
on the Revolving Commitment Termination Date, the Borrower shall pay to the LC
Issuer cash, to be held by the LC Issuer, for the benefit of the Lenders, in
the Facility LC Collateral Account as security for the LC Obligations in
respect of subsequent drawings under all then outstanding Facility LC’s in an
amount equal to 100% of the maximum aggregate amount which may be drawn under
all Facility LC’s then outstanding (which cash will be invested pursuant to the
requirements of Section 2.20.11), pursuant to documentation in form and
substance reasonably satisfactory to the Agent.  If
any Facility LC contains a provision pursuant to which it is deemed to be
automatically renewed unless notice of termination is given by the LC Issuer
with respect to such Facility LC, the LC Issuer shall timely give notice of
termination if (i) as of the close of business on the seventeenth (17th)
day prior to the last day upon which the LC Issuer’s notice of termination may
be given to the beneficiaries of such Facility LC, the LC Issuer has received a
notice of termination from the Borrower or a notice from the Agent that the
conditions to issuance of such Facility LC have not been satisfied or (ii) the
renewed Facility LC would extend beyond the date referred to in clause (x) above.


 


2.20.2      Participations.  Upon (a) the issuance by the LC Issuer
of each other Facility LC in accordance with this Section 2.20 and (b) the
Modification of each Facility LC in accordance with this Section 2.20, the
LC Issuer shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to
its Pro Rata Share.


 


24

















 


2.20.3      Notice.  Subject to Section 2.20.1, the Borrower
shall give the LC Issuer notice prior to 11:00 a.m. (Charlotte, North
Carolina time) at least five (5) Business Days prior to the proposed date
of issuance or Modification of each Facility LC, specifying the beneficiary,
the proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and the
nature of the transactions proposed to be supported thereby.  The LC Issuer shall promptly notify the Agent
and shall provide the Agent with a copy of any letter of credit application or
modification or other written evidence of the Facility LC as requested, and,
upon issuance only, the Agent shall promptly notify each Lender, of the
contents thereof and of the amount of such Lender’s participation in such
Facility LC.  The issuance or
Modification by the LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article IV (the satisfaction of which
the LC Issuer shall have no duty to ascertain), be subject to the conditions
precedent that such Facility LC shall be satisfactory to the LC Issuer and that
the Borrower shall have executed and delivered such application agreement
and/or such other instruments and agreements relating to such Facility LC as
the LC Issuer shall have reasonably requested (each, a “Facility LC
Application”).  In the event of any
conflict between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.


 


2.20.4      LC Fees.  The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective Pro Rata
Shares, (i) with respect to each standby Facility LC, a letter of credit
fee at a per annum rate equal to the Applicable Margin for Eurodollar Loans in
effect from time to time on the average daily undrawn stated amount under such
standby Facility LC, such fee to be payable in arrears on each Fee Payment
Date, and (ii) with respect to each commercial Facility LC, a letter of
credit fee at a per annum rate equal to 0.20% on the average daily undrawn
stated amount under such commercial Facility LC (or, with respect to a
Modification of any such commercial Facility LC which increases the stated
amount thereof, such increase in the stated amount), such fee to be payable
upon demand on the date the LC Issuer shall make payment on such commercial
Facility LC.  The Borrower shall also pay
to the LC Issuer for its own account (x) a fronting fee at a per annum
rate equal to 0.125% on the average daily undrawn stated amount under each
standby Facility LC, such fee to be payable in arrears on each Fee Payment
Date, and (y) documentary and processing charges in connection with the
issuance or Modification of and draws under Facility LCs in accordance with the
LC Issuer’s standard schedule for such charges as in effect from time to
time.  Each fee described in this Section 2.20.4
shall constitute an “LC Fee”.


 


2.20.5      Administration; Reimbursement by Lenders.  Upon
receipt from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer shall notify the Agent and the Agent shall
promptly notify the Borrower and each other Lender as to the amount to be paid
by the LC Issuer as a result of such demand and the proposed payment date (the “LC
Payment Date”).  The responsibility
of the LC Issuer to the Borrower and each Lender shall be only to determine
that the documents (including each demand for payment) delivered under each
Facility LC in connection with such presentment shall be in conformity in all
material respects with such Facility LC. 
The LC Issuer shall endeavor to exercise the same care in the issuance
and administration of the Facility LCs as it does with respect to letters of
credit in which no participations are granted, it being understood that in the
absence of any gross negligence or willful misconduct by the LC Issuer, each
Lender shall be unconditionally and irrevocably liable without regard to the
occurrence of any Default or any condition precedent whatsoever, to reimburse
the LC Issuer on demand for (i) such Lender’s Pro Rata Share of the amount
of each payment made by the LC Issuer under each Facility LC to the extent such
amount is not reimbursed by the Borrower pursuant to Section 2.20.6 below,
plus (ii) interest on the foregoing amount to be reimbursed by such
Lender, for each day from the date of the LC Issuer’s demand for such
reimbursement (or, if such demand is made after 11:00 a.m. (Charlotte,
North Carolina time) on such date, from the next succeeding Business Day) to
the date on which such Lender pays the amount to be


 


25

















 


reimbursed
by it, at a rate of interest per annum equal to the Federal Funds Effective
Rate for the first three days and, thereafter, at a rate of interest equal to
the rate applicable to Floating Rate Advances.


 


2.20.6      Reimbursement by Borrower.  The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuer on or
before the applicable LC Payment Date for any amounts to be paid by the LC
Issuer upon any drawing under any Facility LC, without presentment, demand,
protest or other formalities of any kind; provided that neither the
Borrower nor any Lender shall hereby be precluded from asserting any claim for
direct (but not consequential) damages suffered by the Borrower or such Lender
to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC issued by it complied with the terms of
such Facility LC or (ii) the LC Issuer’s failure to pay under any Facility
LC issued by it after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC.  All such amounts paid by the LC Issuer and
remaining unpaid by the Borrower shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the rate applicable to
Floating Rate Advances, including any increase thereof pursuant to Section 2.11,
from and after the applicable LC Payment Date. 
The LC Issuer will pay to each Lender ratably in accordance with its Pro
Rata Share all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of any
Facility LC issued by the LC Issuer, but only to the extent such Lender has
made payment to the LC Issuer in respect of such Facility LC pursuant to Section 2.20.5.  Subject to the terms and conditions of this
Agreement (including, without limitation, the submission of a Borrowing Notice
in compliance with Section 2.8 and the satisfaction of the applicable
conditions precedent set forth in Article IV), the Borrower may request an
Advance hereunder for the purpose of satisfying any Reimbursement Obligation.


 


2.20.7      Obligations Absolute.  The Borrower’s obligations under this Section 2.20
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC.  The
Borrower further agrees with the LC Issuer and the Lenders that the LC Issuer
and the Lenders shall not be responsible for, and the Borrower’s Reimbursement
Obligation in respect of any Facility LC shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute between or among the
Borrower, any of its Affiliates, the beneficiary of any Facility LC or any
financing institution or other party to whom any Facility LC may be transferred
or any claims or defenses whatsoever of the Borrower or of any of its
Affiliates against the beneficiary of any Facility LC or any such
transferee.  The LC Issuer shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Facility LC.  The Borrower agrees
that any action taken or omitted by the LC Issuer or any Lender under or in
connection with each Facility LC and the related drafts and documents, if done
without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the LC Issuer or any Lender under any liability to
the Borrower.  Nothing in this Section 2.20.7
is intended to limit the right of the Borrower to make a claim against the LC Issuer
for damages as contemplated by the proviso to the first sentence of Section 2.20.6.


 


2.20.8      Actions of LC Issuer.  The LC Issuer shall be entitled to rely, and
shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document reasonably believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the LC Issuer.  In the absence of (x) willful
misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC complied with the terms of such
Facility LC or (y) the LC Issuer’s failure to pay under any Facility LC
after the presentation to it of a


 


26

















 


request
strictly complying with the terms and conditions of such Facility LC, the LC
Issuer shall be fully (i) justified in failing or refusing to take any
action under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action, and (ii) protected in
acting, or in refraining from acting, under this Agreement in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Lenders and any
future holders of a participation in any Facility LC.


 


2.20.9      Indemnification.  The Borrower hereby agrees to indemnify and
hold harmless each Lender, the LC Issuer and the Agent, and their respective
directors, officers, agents and employees from and against any and all claims
and damages, losses, liabilities, costs or expenses which such Lender, the LC
Issuer or the Agent may incur (or which may be claimed against such Lender, the
LC Issuer or the Agent by any Person whatsoever) by reason of or in connection
with the issuance, execution and delivery or transfer of or payment or failure
to pay under any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses, liabilities, costs
or expenses which the LC Issuer may incur by reason of or on account of the LC
Issuer issuing any Facility LC which specifies that the term “Beneficiary”
included therein includes any successor by operation of law of the named
Beneficiary, but which Facility LC does not require that any drawing by any
such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of such successor
Beneficiary; provided that the Borrower shall not be required to
indemnify any Lender, the LC Issuer or the Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (x) the willful misconduct or gross negligence of the LC Issuer
in determining whether a request presented under any Facility LC complied with
the terms of such Facility LC, (y) the LC Issuer’s failure to pay under
any Facility LC after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC, or (z) the failure of
any Lender to fulfill or comply with its obligations to the LC Issuer
hereunder.


 


2.20.10        Lenders’ Indemnification.  Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify the LC Issuer, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees’ gross negligence or willful
misconduct or the LC Issuer’s failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and
conditions of the Facility LC) that any such indemnitees may suffer or incur in
connection with this Section 2.20 or any action taken or omitted by such
indemnitees hereunder.


 


2.20.11        Facility LC Collateral Account.  The Borrower agrees that it
will, upon the request of the Agent or the Required Lenders and until the final
expiration date of any Facility LC and thereafter as long as any amount is
payable to the LC Issuer or the Lenders in respect of any Facility LC, maintain
a special collateral account pursuant to arrangements reasonably satisfactory
to the Agent (the “Facility LC Collateral Account”) at the Agent’s
office at the address specified pursuant to Article XIII, in the name of
such Borrower but under the sole dominion and control of the Agent, for the
benefit of the Lenders and in which such Borrower shall have no interest other
than as set forth in Section 2.20.1 and Section 8.1.  The Borrower hereby pledges, assigns and
grants to the Agent, on behalf of and for the ratable benefit of the Lenders
(including the LC Issuer), a security interest in all of the Borrower’s right,
title and interest in and to all funds which may from time to time be on
deposit in the Facility LC Collateral Account to secure the prompt and complete
payment and performance of the Obligations. 
The Agent will invest any funds on deposit from time to time in the
Facility LC Collateral Account in certificates of deposit of Wachovia, or of
any other Lender selected by the Agent, having a maturity not exceeding thirty
(30) days.  Nothing in this Section 2.20.11
shall either obligate the Agent to require the


 


27

















 


Borrower to deposit any funds in the Facility LC Collateral Account or
limit the right of the Agent to release any funds held in the Facility LC
Collateral Account in each case other than as required by Section 2.20.1
or Section 8.1.


 


2.20.12        Rights as a Lender.  In its capacity as a Lender, the LC Issuer
shall have the same rights and obligations as any other Lender.


 


2.21       Extension of Revolving Credit Termination
Date.  No earlier than sixty (60) days and no later
than thirty (30) days prior to each anniversary of the Closing Date, the
Borrower shall have the option to request an extension of the Revolving Credit
Termination Date for an additional one-year period.  Any election by a Lender to extend its
Commitment will be at such Lender’s sole discretion.  Each Lender shall, by notice to the Agent
given not later than the date (the “Notice
Date”) that is 15 days prior to the applicable anniversary of the Closing
Date, advise the Agent whether or not such Lender agrees to such extension (and
each Lender that determines not to so extend its Revolving Credit Termination
Date (a “Non-Extending Lender”) shall notify the Agent of such fact
promptly after such determination (but in any event no later than the Notice
Date) and any Lender that does not so advise the Agent on or before the Notice
Date shall be deemed to be a Non-Extending Lender.  Subject to the Agent’s receipt of
written consents to such extension from at least the Required Lenders on or
prior to the Notice Date, and so long as no Default or Unmatured Default has
occurred and is continuing, the Revolving Credit Termination Date shall be
extended for an additional one-year period for each consenting Lender; provided
that each Non-Extending Lender shall be required only to complete its
Commitment up to the previously effective Revolving Credit Termination Date
(without giving effect to such extension). 
All Obligations and other amounts payable hereunder to such
Non-Extending Lender shall become due and payable by the Borrower on the
previously effective Revolving Credit Termination Date (without giving effect
to such extension) and the Aggregate Commitment shall be reduced by the total
Commitments of all Non-Extending Lenders expiring on such previously effective
Revolving Credit Termination Date (without giving effect to such extension)
unless one or more lenders (including other Lenders) shall have agreed to
assume or increase a Commitment hereunder. 
Each Non-Extending Lender shall be required to maintain its original Commitment
up to the previously effective Revolving Credit Termination Date (without
giving effect to such extension) that such Non-Extending Lender had previously
agreed upon.


 


The
Borrower shall have the right on or before 45 days after the applicable anniversary of the Closing Date
to replace each Non-Extending Lender with one or more institutions (each, an “Additional
Commitment Lender”) (a) that are existing Lenders (and, if any such
Additional Commitment Lender is already a Lender, its Commitment shall be in
addition to such Lender’s Commitment hereunder on such date) or (b) that
are not existing Lenders; provided that any such institution (i) must
be acceptable to the Administrative Agent (which approval shall not be
unreasonably withheld or delayed), (ii) must meet the requirements set
forth in Section 12.3.1 and (iii) must become a Lender for all
purposes under this Agreement by execution and delivery of an appropriate
joinder agreement in a manner acceptable to the Borrower and the Administrative
Agent.


 


2.22       Increase
of Aggregate Commitment.


 


2.22.1          At any time prior to the Revolving Credit Termination Date, the
Borrower shall have the ability, in consultation with the Agent (and without
the consent of any non-increasing Lender), to request increases in the
Aggregate Commitment; provided that (A) no Lender shall have any
obligation to increase its Commitment, (B) the Borrower shall only be
permitted to request such an increase on five (5) separate occasions, (C) each
such requested increase shall be in a minimum principal amount of $50,000,000
or, if less, the remaining amount permitted pursuant to clause (D) below, (D) in
no event shall the aggregate amount of all such increases exceed $250,000,000, (E) no
Default or Unmatured Default shall have occurred and be continuing or would
result from the proposed increase and (F) the


 


28

















 


Borrower shall have obtained all necessary corporate authorizations and
governmental approvals in order to effect such increase.


 


2.22.2          The Agent shall promptly give notice of such requested increase to the
Lenders.  Each Lender shall notify the Agent within ten (10) Business
Days (or such longer period of time which may be agreed upon by the Agent and
the Borrower and communicated to the Lenders) from the date of delivery of such
notice to the Lenders whether or not it agrees to increase its Commitment and,
if so, by what amount.  Any Lender not responding within such time period
shall be deemed to have declined to increase its Commitment.  The Agent
shall notify the Borrower of the Lenders’ responses to each request made
hereunder.  The Borrower may also invite additional Purchasers which meet
the requirements set forth in Section 12.3.1 to become Lenders pursuant to
a joinder agreement in the form attached hereto as Exhibit F.


 


2.22.3          The Aggregate Outstanding Credit Exposure will be reallocated on the
effective date of such increase among the Lenders in accordance with their
revised Pro Rata Shares (and the Lenders agree to make all payments and
adjustments necessary to effect the reallocation and the Borrower shall pay any
and all costs required pursuant to Section 3.4 in connection with such
reallocation as if such reallocation were a repayment).


 


2.23       Swing
Line Loans.


 


2.23.1          Amount of Swing Line Loans.  Upon
the satisfaction of the conditions precedent set forth in Section 4.2 and,
if such Swing Line Loan is to be made on the date of the initial Advance
hereunder, the satisfaction of the conditions precedent set forth in Section 4.1
as well, from and including the date of this Agreement and prior to the
Revolving Credit Termination Date, the Swing Line Lender may, in its sole
discretion and on the terms and conditions set forth in this Agreement, make
Swing Line Loans to the Borrower from time to time in an aggregate principal
amount not to exceed the Swing Line Limit, provided
that Swing Line Loans may be made even if the aggregate principal amount of
Swing Line Loans outstanding at any time, when added to the aggregate principal
amount of Revolving Loans made by the Swing Line Lender in its capacity as a
Lender at such time and its LC Obligations at such time, would exceed the Swing
Line Lender’s own Commitment as a Lender at such time and provided further that at no time shall (a) the
Aggregate Outstanding Credit Exposure at any time exceed the Aggregate
Commitment or (b) the sum of (i) the Swing Line Lender’s Pro Rata
Share of the Swing Line Loans, plus
(ii) the outstanding Revolving Loans made by the Swing Line Lender
pursuant to Section 2.1, plus
(iii) an amount equal to the Swing Line Lender’s ratable obligation to
purchase participations in the LC Obligations at such time, exceed the Swing
Line Lender’s Commitment at such time. 
Subject to the terms of this Agreement, the Borrower may borrow, repay
and reborrow Swing Line Loans at any time prior to the Revolving Credit
Termination Date.  Subject to the terms
and conditions of this Agreement (including, without limitation, the submission
of a Borrowing Notice in compliance with Section 2.8 and the satisfaction
of the applicable conditions precedent set forth in Article IV), the
Borrower may request an Advance (other than a Swing Line Loan) hereunder for
the purpose of repaying any Swing Line Loan.


 


2.23.2          Borrowing Notice.  The
Borrower shall deliver to the Agent and the Swing Line Lender irrevocable
notice (a “Swing Line Borrowing Notice”) not later than noon (Charlotte,
North Carolina time) on the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which date shall be a Business Day), (ii) the
aggregate amount of the requested Swing Line Loan which shall be an amount not
less than $500,000 and in an integral multiple of $100,000 in excess thereof
and (iii) the desired Swing Line Rate for such Swing Line Loan.  The Swing Line Lender shall give prompt
notice, but in any event not later than 1:00 p.m. (Charlotte, North
Carolina time) to the Borrower and the Agent in the event that the Swing Line
Lender declines to make such Swing Line Loan (a


 


29

















 


“Decline Notice”);  it
being understood that the failure of the Swing Line Lender to provide a Decline
Notice in a timely manner shall be deemed the consent of the Swing Line Lender
to provide such Swing Line Loan in accordance with the terms of this
Agreement.  The Swing Line Loans shall
bear interest at the Swing Line Rate set forth in the Swing Line Borrowing
Notice.


 


2.23.3          Making of Swing Line Loans. 
Promptly after receipt of a Swing Line Borrowing Notice, provided that
the Agent has not received a Decline Notice from the Swing Line Lender in
respect thereof, the Agent shall notify each Lender by fax, or other similar
form of transmission, of the requested Swing Line Loan.  Not later than 2:00 p.m. (Charlotte,
North Carolina time) on the applicable Borrowing Date, the Swing Line Lender
shall make available the Swing Line Loan, in funds immediately available in
Charlotte, North Carolina, to the Agent at its address specified pursuant to Article XIII.  The Agent will promptly make the funds so received
from the Swing Line Lender available to the Borrower on the Borrowing Date at
the Agent’s aforesaid address.


 


2.23.4          Repayment of Swing Line Loans.  Each
Swing Line Loan shall be paid in full by the Borrower on or before the
fourteenth (14th) day after the Borrowing Date for such Swing Line Loan;
provided, that such payment shall not be made by the proceeds of any other
Swing Line Loans.  In addition, the Swing
Line Lender (i) may at any time in its sole discretion with respect to any
outstanding Swing Line Loan, or (ii) if not previously repaid by the
Borrower, shall on the fourteenth (14th) day after the Borrowing Date of any
Swing Line Loan, require each Lender (including the Swing Line Lender) to make
a Revolving Loan in the amount of such Lender’s Pro Rata Share of such Swing
Line Loan (including, without limitation and to the extent available, any
interest accrued and unpaid thereon), for the purpose of repaying such Swing
Line Loan.  Not later than noon (Charlotte,
North Carolina time) on the date of any notice received pursuant to this Section 2.23.4,
each Lender shall make available its required Revolving Loan, in funds
immediately available in Charlotte, North Carolina to the Agent at its address
specified pursuant to Article XIII. 
Revolving Loans made pursuant to this Section 2.23.4 shall
initially be Floating Rate Loans and thereafter may be continued as Floating
Rate Loans or converted into Eurodollar Loans in the manner provided in Section 2.9
and subject to the other conditions and limitations set forth in this Article II.  Unless a Lender shall have notified the Swing
Line Lender, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in Sections 4.1 or 4.2 had not then been
satisfied, such Lender’s obligation to make Revolving Loans pursuant to this Section 2.23.4
to repay Swing Line Loans shall be unconditional, continuing, irrevocable and
absolute and shall not be affected by any circumstances, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Agent, the Swing Line Lender or
any other Person, (b) the occurrence or continuance of a Default or
Unmatured Default, (c) any adverse change in the condition (financial or
otherwise) of the Borrower, or (d) any other circumstances, happening or
event whatsoever.  In the event that any
Lender fails to make payment to the Agent of any amount due under this Section 2.23.4,
the Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender
hereunder until the Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. 
In addition to the foregoing, if for any reason any Lender fails to make
payment to the Agent of any amount due under this Section 2.23.4, such
Lender shall be deemed, at the option of the Agent, to have unconditionally and
irrevocably purchased from the Swing Line Lender, without recourse or warranty,
an undivided interest and participation in the applicable Swing Line Loan in
the amount of such Revolving Loan, and such interest and participation may be
recovered from such Lender together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the date of demand
and ending on the date such amount is received. 
On the Revolving Credit Termination Date, the Borrower shall repay in
full the outstanding principal balance of the Swing Line Loans.


 


30

















 


ARTICLE
III


 


YIELD PROTECTION; TAXES


 


3.1          Yield Protection.  If,
on or after the date of this Agreement, the adoption of any law, rule or
regulation or any change in any such law, rule or regulation or in the
interpretation or administration thereof by any governmental, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender or applicable Lending Installation with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:


 


3.1.1            subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect of its Eurodollar
Loans, Facility LCs or participations therein, or


 


3.1.2            imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate applicable to
Eurodollar Advances), or


 


3.1.3            imposes any other condition the result of which
is to increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Commitment or Eurodollar Loans or Swing Line
Loans or of issuing or participating in Facility LCs or Swing Line Loans, or
reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its Commitment or Eurodollar Loans or Swing
Line Loans or Facility LCs (including participations therein), or requires any
Lender or any applicable Lending Installation to make any payment calculated by
reference to the amount of Commitment or Eurodollar Loans or Swing Line Loans
or Facility LCs (including participations therein) held or interest or LC Fees
received by it, by an amount deemed material by such Lender,


 


and
the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans,
Swing Line Loans or Commitment or of issuing or participating in Facility LCs
or Swing Line Loans, as applicable, or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Eurodollar
Loans, Swing Line Loans, Commitment or issuing or participating in Facility LCs
or Swing Line Loans, then, within fifteen (15) days of demand, accompanied by
the written statement required by Section 3.6, by such Lender, the
Borrower shall pay such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in amount received;
provided that no such amount shall be payable with respect to any period
commencing more than ninety (90) days prior to the date such Lender first
notifies the Borrower of its intention to demand compensation therefor under
this Section 3.1.


 


3.2          Changes in Capital Adequacy Regulations.  If a
Lender determines the amount of capital required or expected to be maintained
by such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a “Change” (as defined
below), then, within fifteen (15) days of demand, accompanied by the written
statement required by Section 3.6, by such Lender, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans or its Commitment to make Loans and
issue or participate in Facility LCs or Swing Line Loans, as applicable,
hereunder (after taking into account such Lender’s policies as to capital
adequacy); provided that no such amount shall be payable with respect to
any period commencing more


 


31

















 


than
thirty (30) days before the date such Lender first notifies the Borrower of its
intention to demand compensation under this Section 3.2.  “Change” means (i) any change after the
date of this Agreement in the Risk-Based Capital Guidelines or (ii) after
the date of this Agreement, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any such law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency given or made after the date of
this Agreement.  “Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee
on Banking Regulation and Supervisory Practices Entitled “International
Convergence of Capital Measurements and Capital Standards,” including
transition rules, and any amendments to such regulations adopted prior to the
date of this Agreement.


 


3.3          Availability of Types of Advances.  If
any Lender determines that maintenance of its Eurodollar Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, or if the Required Lenders
determine that (i) deposits of a type and maturity appropriate to match
fund Eurodollar Advances are not available or (ii) the interest rate
applicable to Eurodollar Advances does not accurately reflect the cost of
making or maintaining Eurodollar Advances, then the Agent shall suspend the
availability of Eurodollar Advances and require any affected Eurodollar
Advances to be repaid or converted to Floating Rate Advances on the respective
last days of the then current Interest Periods with respect to such Loans or
within such earlier period as required by law, subject to the payment of any
funding indemnification amounts required by Section 3.4.


 


3.4          Funding Indemnification.  If
any payment of a Eurodollar Advance occurs on a date which is not the last day
of the applicable Interest Period, whether because of acceleration, prepayment
or otherwise, or a Eurodollar Advance is not made on the date specified by the
Borrower in a Borrowing Notice or a Conversion/Continuation Notice for any
reason other than default by the Lenders, or a Eurodollar Advance is not
prepaid on the date specified by the Borrower pursuant to Section 2.7 for
any reason, the Borrower will indemnify each Lender for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance.


 


3.5          Taxes.  (i) All
payments by the Borrower to or for the account of any Lender or the Agent
hereunder or under any Note shall be made free and clear of and without
deduction for any and all Taxes.  If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender or the Agent, (a) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 3.5)
such Lender or the Agent (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (b) the Borrower
shall make such deductions, (c) the Borrower shall pay the full amount
deducted to the relevant authority in accordance with applicable law and (d) the
Borrower shall furnish to the Agent the original copy of a receipt evidencing
payment thereof or, if a receipt cannot be obtained with reasonable efforts,
such other evidence of payment as is reasonably acceptable to the Agent, in
each case within thirty (30) days after such payment is made.


 


(ii)           In
addition, the Borrower shall pay any present or future stamp or documentary
taxes and any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under any Note or Facility LC
Application or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note or Facility LC Application (“Other Taxes”).


 


32

















 


(iii)          The
Borrower shall indemnify the Agent and each Lender for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
on amounts payable under this Section 3.5) paid by the Agent or such
Lender as a result of its Commitment, any Loans made by it hereunder, any
Facility LC issued or participated in by it hereunder, or otherwise in
connection with its participation in this Agreement and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto.  Payments due under this
indemnification shall be made within thirty (30) days of the date the Agent or
such Lender makes demand therefor pursuant to Section 3.6.


 


(iv)          Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof (each a “Non-U.S. Lender”) agrees that it will, not
more than ten (10) Business Days after the date on which it becomes a
party to this Agreement (but in any event before a payment is due to it
hereunder), (i) deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, or (ii) in the case of a Non-U.S. Lender that
is fiscally transparent, deliver to the Agent a United States Internal Revenue Form W-8IMY
together with the applicable accompanying forms, W-8 or W-9, as the case may
be, and certify that it is entitled to an exemption from United States
withholding tax.  Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent (x) renewals
or additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence
of any event requiring a change in the most recent forms so delivered by it,
such additional forms or amendments thereto as may be reasonably requested by
the Borrower or the Agent.  All forms or
amendments described in the preceding sentence shall certify that such Lender
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises the Borrower and the Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax.


 


(v)           For
any period during which a Non-U.S. Lender has failed to provide the Borrower
with an appropriate form pursuant to clause (iv) above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to gross up or
indemnification under this Section 3.5 with respect to Taxes imposed by
the United States; provided that, should a Non-U.S. Lender which is otherwise
exempt from withholding tax become subject to Taxes because of its failure to
deliver a form required under clause (iv) above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.


 


(vi)          Any
Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement or any Note pursuant to the law
of any relevant jurisdiction or any treaty shall deliver to the Borrower (with
a copy to the Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.


 


33

















 


(vii)         If the
U.S. Internal Revenue Service or any other governmental authority of the United
States or any other country or any political subdivision thereof asserts a
claim that the Agent or the Borrower did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to notify the Agent
of a change in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the Agent
and the Borrower fully for all amounts paid, directly or indirectly, by the
Agent or the Borrower, as the case may be, as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Agent or the Borrower, as the case may
be, under this subsection, together with all costs and expenses related thereto
(including attorneys fees and time charges of attorneys for the Agent or the
Borrower, as the case may be, which attorneys may be employees of the Agent or
the Borrower, as the case may be).  The
obligations of the Lenders under this Section 3.5(vii) shall survive
the payment of the Obligations and termination of this Agreement.


 


(viii)        In the
event that the Borrower makes a payment for the account of any Lender and such
Lender, in its reasonable judgment, determines that it has finally and
irrevocably received or been granted a credit against or release or remission
for, or repayment of, any tax paid or payable by it in respect of or calculated
with reference to the deduction or withholding giving rise to such payment,
such Lender shall, to the extent that it determines that it can do so without prejudice
to the retention of the amount of such credit, relief, remission or repayment,
pay to the Borrower such amount as such Lender shall, in its reasonable
judgment, have determined to be attributable to such deduction or withholding
and which will leave such Lender (after such payment) in no worse position than
it would have been in if the Borrower had not been required to make such
deduction or withholding.  Nothing herein
contained shall interfere with the right of a Lender to arrange its tax affairs
in whatever manner it thinks fit or oblige any Lender to claim any tax credit
or to disclose any information in relation to its tax affairs or any
computations in respect thereof or require any Lender to do anything that would
prejudice its ability to benefit from any other credits, relief, remissions or
repayments to which it may be entitled.


 


3.6          Lender Statements; Survival of Indemnity.  Each
Lender shall deliver a written statement of such Lender to the Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5.  Such written statement shall
set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. 
Determination of amounts payable under such Sections in connection with
a Eurodollar Loan shall be calculated as though each Lender funded its
Eurodollar Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not.  Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable within
fifteen (15) days after demand and receipt by the Borrower of such written
statement.  The obligations of the
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the
Obligations and termination of this Agreement.


 


3.7          Alternative Lending Installation.  To
the extent reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Loans to reduce any
liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to
avoid the unavailability of Eurodollar Advances under Section 3.3, so long
as such designation is not, in the reasonable judgment of such Lender,
disadvantageous to such Lender.  A Lender’s
designation of an alternative Lending Installation shall not affect the
Borrower’s rights under Section 2.19 to replace a Lender.


 


34

















 


ARTICLE IV


 


CONDITIONS PRECEDENT


 


4.1          Initial Credit Extension.  The
effectiveness of this Agreement and the obligation of the Lenders to make the
initial Credit Extension hereunder shall be subject to the satisfaction of the
following conditions precedent and, if applicable, the delivery by the Borrower
to the Agent sufficient copies for the Lenders of:


 


4.1.1        (a) Copies of the certificate of formation of the Borrower,
together with all amendments, certified by the appropriate governmental officer
in the State of Delaware and certified by the secretary or assistant secretary
of the Borrower and (b) a certificate of good standing, certified by the
appropriate governmental officer in the State of Delaware.


 


4.1.2        Copies, certified by the secretary or assistant secretary of the
Borrower, of its limited liability company agreement and of its Board of
Directors’ resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the Borrower is a
party.


 


4.1.3        An incumbency certificate, certified by the secretary or assistant
secretary of the Borrower, which shall (i) identify by name and title and
bear the signatures of the Authorized Officers and any other officers of the
Borrower authorized to sign the Loan Documents (together with the Authorized
Officers, being collectively, the “Designated Persons” and each being a “Designated
Person”) to which the Borrower is a party, upon which certificate the Agent
and the Lenders shall be entitled to rely until informed of any change in
writing by the Borrower and (ii) certify as to the tax identification
number and a business address of the Borrower, as well as any other information
reasonably requested in writing by the Agent or any Lender prior to the Closing
Date as necessary for the Agent or any Lender to verify the identity of the
Borrower as required by Section 326 of the Patriot Act.


 


4.1.4        A certificate, signed by the chief financial officer or treasurer of
the Borrower, stating that (a) as of the Closing Date, there are no
material actions, suits, investigations or legal, equitable, arbitration or
administrative proceedings pending or, to the best of such officer’s knowledge,
threatened against the Borrower in writing which could reasonably be expected
to have a Material Adverse Effect, (b) as of the Closing Date, no event or
condition has occurred since December 31, 2006 that has had or could
reasonably be expected to have a Material Adverse Effect, (c) all material
financial statements and information delivered to the Agent and the Lenders on
or before the Closing Date were prepared in good faith and, in the case of such
financial statements, in accordance with GAAP and (d) immediately after
giving effect to this Agreement, the other Loan Documents and all the
transactions contemplated herein and therein to occur on the Closing Date, (A) no
Default or Unmatured Default exists and (B) all representations and
warranties contained herein and in the other Loan Documents are true and
correct in all material respects on and as of the date made (except to the
extent such representations and warranties expressly speak to an earlier date,
in which case such representation or warranty shall have been true and correct
on and as of such earlier date).


 


4.1.5        A written opinion of the Borrower’s counsels, in form and substance
satisfactory to the Agent and addressed to the Lenders, in substantially the
form of Exhibit A.


 


35

















 


4.1.6        Any Notes requested by a Lender pursuant to Section 2.13 payable
to the order of each such requesting Lender.


 


4.1.7        Written money transfer instructions, in substantially the form of Exhibit D,
addressed to the Agent and signed by a Designated Person, together with such
other related money transfer authorizations as the Agent may have reasonably
requested.


 


4.1.8        The Agent shall have received duly executed copies of this Agreement
from each party hereto.


 


4.1.9        As of the Closing Date, there shall be no material actions, suits,
investigations or legal, equitable, arbitration or administrative proceedings
pending or threatened against the Borrower which are reasonably likely to be
decided adversely to the Borrower and if so decided would have a Material
Adverse Effect.


 


4.1.10      As of the Closing Date, no event or condition shall have occurred since
December 31, 2006 that has had or could be reasonably expected to have a
Material Adverse Effect.


 


4.1.11      The aggregate amount of Commitments of all Lenders on the Closing Date
shall be not less than $250,000,000.


 


4.1.12      Completion prior to or concurrently herewith of the initial public
offering (the “IPO”) of the limited partnership units of the MLP on
terms consistent with the form S-1 (as amended) filed by the Borrower with the
SEC on November 29, 2007, with such amendments and modifications thereto
which are not materially adverse to the Agent and the Lenders.


 


4.1.13      Payment by the Borrower of all fees and expenses owed by it to the
Lenders, the Agent and the Arrangers which are due on the Closing Date,
including, without limitation, payment of the fees set forth in the Fee
Letters.


 


4.1.14      Such other documents as any Lender or its counsel may have reasonably
requested.


 


The
Agent shall promptly notify the Borrower and the Lenders of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.


 


4.2          Each Credit Extension. 
Subject to the terms and conditions of this Agreement, the Lenders shall
make Credit Extensions (including the initial Credit Extension hereunder);
provided that the Lenders shall not be required to make such Credit Extensions
(except as set forth in Section 2.23.4 with respect to Revolving Loans for
the purpose of repaying Swing Line Loans) if on the applicable Credit Extension
Date:


 


4.2.1        There exists a Default or Unmatured Default; or


 


4.2.2        The representations and warranties contained in Article V are not
true and correct in all material respects as of such Credit Extension Date except
to the extent any such representation or warranty is stated to relate solely to
an earlier date, in which case such representation or warranty shall have been
true and correct on and as of such earlier date.


 


36

















 


Each
Borrowing Notice, Swing Line Borrowing Notice or request for issuance of a
Facility LC with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2.1 and 4.2.2 have been satisfied. 
The Agent may require a duly completed compliance certificate in
substantially the form of Exhibit B as a condition to making a
Credit Extension.


 


ARTICLE V


 


REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants to the Lenders
that:


 


5.1          Existence and Standing.  Each
of the Borrower and its Material Subsidiaries (a) is a corporation,
partnership (in the case of Subsidiaries only) or limited liability company
duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization
and in such other jurisdictions where the conduct of its business would require
such qualification and (b) has all requisite authority to conduct its
business as now conducted or proposed to be conducted, in each case, except
where the failure to be so qualified or have such authority would not have and
could not reasonably be expected to have a Material Adverse Effect.


 


5.2          Authorization and Validity.  The
Borrower has the power and authority and legal right to execute and deliver the
Loan Documents (as in effect on the date that this representation is made or
deemed made) and to perform its obligations thereunder.  The execution and delivery by the Borrower of
the Loan Documents (as in effect on the date that this representation is made
or deemed made) and the performance of its obligations thereunder have been
duly authorized by proper corporate or other applicable proceedings, and the
Loan Documents to which the Borrower is a party constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally.


 


5.3          No Conflict; Government Consent. 
Neither the execution and delivery by the Borrower of the Loan
Documents, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will (i) violate or conflict with
the Borrower’s or any Material Subsidiary’s articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (ii) violate (a) any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on the
Borrower or any of its Subsidiaries or (b) contravene or conflict with the
provisions of any indenture, instrument or agreement to which the Borrower or
any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement, unless such violation with respect to this
clause (ii) would not have or could not reasonably be expected to have a
Material Adverse Effect. No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or public body or
authority, or any subdivision thereof, which has not been obtained by the
Borrower or any of its Subsidiaries, is required to be obtained by the Borrower
or any of its Subsidiaries in connection with the execution and delivery of the
Loan Documents, the borrowings under this Agreement, the payment and
performance by the Borrower of the Obligations thereunder or the legality,
validity, binding effect or enforceability of any of the Loan Documents.


 


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5.4          Financial Statements.  The
consolidated financial statements of the Borrower and its Subsidiaries
delivered to the Lenders pursuant to Section 6.1.1 were prepared in
accordance with GAAP in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of the
Borrower and its Subsidiaries at such date and the consolidated results of
their operations for the period then ended.


 


5.5          Taxes.  The
Borrower and its Material Subsidiaries have filed all United States federal tax
returns and all other material tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries, except in respect of such
taxes, if any, (i) which are not in the aggregate material or (ii) as
are being contested in good faith and as to which adequate reserves have been
set aside in accordance with GAAP and as to which no Lien exists (except as permitted
by Section 6.12.5).  The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of any taxes or other governmental charges are adequate.


 


5.6          Subsidiaries.  Schedule
1 contains an accurate list of all Subsidiaries of the Borrower as of the
date of this Agreement (as updated from time to time pursuant to Section 6.1.3),
setting forth which Subsidiaries are Material Subsidiaries and which
Subsidiaries are Excluded Subsidiaries and setting forth each Subsidiary’s respective
jurisdictions of organization and the percentage of their respective capital
stock or other ownership interests owned by the Borrower or other Subsidiaries.


 


5.7          Use
of Proceeds; Margin Stock.  The proceeds of the Loans
hereunder will be used solely for the purposes specified in Section 6.2.
Neither the Borrower nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying
margin stock (as defined in Regulation U), and after applying the proceeds of
each Advance, margin stock (as so defined) constitutes less than 25% of the
value of those assets of the Borrower and its Subsidiaries which are subject to
any limitation on sale, pledge, or other restriction hereunder.


 


5.8          Compliance With Laws.  The
Borrower and its Subsidiaries have complied with all applicable statutes,
rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over
the conduct of their respective businesses or the ownership of their respective
Property, except for any failure to comply with any of the foregoing which
could not reasonably be expected to have a Material Adverse Effect and except
where the necessity of compliance therewith is being contested in good faith by
appropriate proceedings.


 


5.9          Investment Company Act. 
Neither the Borrower nor any Subsidiary is an “investment company” or a
company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.


 


5.10        Compliance
with OFAC Rules and Regulations. 
Neither the Borrower nor any of its Subsidiaries (i) is a
Sanctioned Person, (ii) has more than 15% of its assets in Sanctioned
Countries, or (iii) derives more than 15% of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned
Countries.  No part of the proceeds of
any Credit Extension 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.


 


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ARTICLE VI


 


COVENANTS


 


During
the term of this Agreement, unless the Lenders or the Required Lenders, as
applicable, shall otherwise consent in writing:


 


6.1          Financial Reporting.  The
Borrower will maintain, for itself and each Subsidiary, a system of accounting
established and administered in accordance with GAAP, and furnish to the Agent
and the Lenders:


 


6.1.1        Within ninety (90) days after the close of each of its fiscal years,
financial statements prepared in accordance with GAAP on a consolidated basis
for itself and its Subsidiaries, including balance sheets as of the end of such
period, statements of income and statements of cash flows, setting forth in
comparative form figures for the preceding fiscal year, accompanied by an audit
report, consistent with the requirements of the Securities and Exchange
Commission, of a nationally recognized firm of independent public accountants
or other independent public accountants reasonably acceptable to the Required
Lenders.


 


6.1.2        Within forty-five (45) days after the close of the first three
quarterly periods of each of its fiscal years, financial statements prepared in
accordance with GAAP (other than with regard to the absence of footnotes and
subject to changes resulting from audit and normal year-end audit adjustments
to same) on a consolidated basis for itself and its Subsidiaries, including,
consolidated unaudited balance sheets as at the close of each such period and
consolidated unaudited statements of income and a statement of cash flows for
the period from the beginning of such fiscal year to the end of such quarter,
in each case setting forth in comparative form figures for the corresponding
period of the preceding fiscal year, and accompanied by a certificate of the
chief financial officer or treasurer of the Borrower to the effect that such quarterly
financial statements fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries and have been prepared in
accordance with GAAP (other than with regard to the absence of footnotes and
subject to changes resulting from audit and normal year-end audit adjustments
to same).


 


6.1.3        Together with the financial statements required under Sections 6.1.1
and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B
signed by an Authorized Officer (a) showing the calculations necessary to
determine compliance with Section 6.16, (b) stating that no Default
or Unmatured Default exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof and (c) updating Schedule 1
with respect to its Subsidiaries, Material Subsidiaries and Excluded
Subsidiaries, if appropriate and (ii) such financial information as
reasonable requested by the Agent, including, but not limited to consolidating
financial statements, as is necessary to account for Excluded Indebtedness and
Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.


 


6.1.4        If requested, within 270 days after the close of each fiscal year of
the Borrower, a copy of the actuarial report showing the Unfunded Liabilities
of each Single Employer Plan as of the valuation date occurring in such fiscal
year, certified by an actuary enrolled under ERISA.


 


6.1.5        As soon as possible and in any event within ten (10) days after an
Authorized Officer knows that any Reportable Event has occurred with respect to
any Plan that could reasonably be expected to have a Material Adverse Effect, a
statement, signed by an Authorized


 


39

















 


Officer,
describing said Reportable Event and the action which the Borrower proposes to
take with respect thereto.


 


6.1.6        From time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Agent, at the
request of any Lender, may reasonably request, including the support for any
pro forma calculations hereunder.


 


6.1.7        Promptly, upon the filing thereof, copies of all registration
statements (other than any registration statement on Form S-8 and any
registration statement in connection with a dividend reinvestment plan,
shareholder purchase plan or employee benefit plan) and reports on form 10-K,
10-Q or 8-K (or their equivalents) which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission.


 


6.1.8        Promptly, information regarding any change in the Borrower’s Debt
Rating.


 


Information
required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7
shall be deemed to have been delivered on the date on which the Borrower
provides notice to the Lenders that such information has been posted on the
Securities and Exchange Commission website on the Internet at
sec.gov/edaux/searches.htm, on the Borrower’s IntraLinks site at intralinks.com
or at another website identified in such notice and accessible by the Lenders
without charge; provided that (i) such notice may be included in a
certificate delivered pursuant to Section 6.1.3 and such notice or
certificate shall also be deemed to have been delivered upon being posted to
the Borrower’s IntraLinks site or such other website and (ii) the Borrower
shall deliver paper copies of the information referred to in Sections 6.1.1,
6.1.2 and 6.1.7 to any Lender which requests such delivery.


 


6.2          Use of Proceeds.  The
Borrower will use the proceeds of the Credit Extensions solely for (a) letters
of credit and (b) working capital and other general corporate purposes of
the Borrower and its Subsidiaries, including, capital expenditures, permitted
acquisitions, permitted investments and permitted distributions.  The Borrower shall use the proceeds of the
Advances in compliance with all applicable legal and regulatory requirements
and any such use shall not result in a violation of any such requirements,
including, without limitation, Regulations U and X, the Securities Act of 1933,
as amended, and the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder.


 


6.3          Notice of Default.  The
Borrower will deliver to the Agent within five (5) days after any
Authorized Officer of the Borrower obtains knowledge thereof of any Default or
Unmatured Default and, if such Default or Unmatured Default is then continuing,
a certificate of an Authorized Officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to take
with respect thereto.


 


6.4          Maintenance of Existence.  The
Borrower will preserve, renew and keep in full force and effect, and will cause
each Material Subsidiary to preserve, renew and keep in full force and effect
their respective corporate or other legal existence and their respective
rights, privileges and franchises material to the normal conduct of their
respective businesses; provided that nothing in this Section 6.4
shall prohibit (i) any transaction permitted pursuant to Section 6.10
or (ii) the termination of any right, privilege or franchise of the
Borrower or any Material Subsidiary or of the corporate or other legal
existence of any Material Subsidiary or the change in form of organization of
the Borrower or any Material Subsidiary if the Borrower in good faith
determines that such termination or change is in the best interest of the
Borrower, is not materially disadvantageous to the Lenders and, in the case of
a change in the form of organization of the Borrower, the Agent has received
prior notice thereof and, if the Agent reasonably requests it, has received any
affirmation of the Borrower’s obligations as a result of such change.


 


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6.5          Taxes.  The
Borrower will, and will cause each Material Subsidiary to, pay when due all
taxes, assessments and governmental charges and levies upon it or its income,
profits or Property, except those (i) which are not in the aggregate
material or (ii) which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with GAAP.


 


6.6          Insurance.  The
Borrower will, and will cause each Material Subsidiary to, maintain with
financially sound and reputable insurance companies insurance on all their
Property in such amounts, subject to such deductibles and self-insurance
retentions, and covering such risks as is consistent with sound business
practice, and the Borrower will furnish to any Lender upon request full
information as to the insurance carried.


 


6.7          Compliance with Laws.  The
Borrower will, and will cause each Subsidiary to, comply in all material
respects with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including, without
limitation, all Environmental Laws, except where (a) failure to so comply
could not reasonably be expected to result in a Material Adverse Effect or (b) necessity
of compliance therewith is being contested in good faith by appropriate proceedings.


 


6.8          Maintenance of Properties. 
Subject to Section 6.10, the Borrower will, and will cause each
Material Subsidiary to keep its Property useful and necessary in the operation
of its business in good repair, working order and condition, ordinary wear and
tear excepted.


 


6.9          Inspection; Keeping of Books and Records.  The
Borrower will, and will cause each Subsidiary to, permit the Agent and the
Lenders, by their respective representatives and agents, to inspect any of the
Property (subject to such physical security requirements as the Borrower or the
applicable Subsidiary may reasonably require), to examine and make copies of
the books of accounts and other financial records of the Borrower and each
Subsidiary (except to the extent that such access is restricted by law or by a
bona fide non-disclosure agreement not entered into for the purpose of evading
the requirements of this Section), and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers upon reasonable notice and at such
reasonable times and intervals as the Agent or any Lender may designate;
provided, that absent the existence of a Default such visits and inspections
shall occur no more frequently than once in any twelve month period.  The Borrower shall keep and maintain, and
cause each of its Subsidiaries to keep and maintain, in all material respects,
proper books of record and account in which entries shall be made of all
dealings and transactions in relation to their respective businesses and
activities in sufficient detail to permit the preparation of financial
statements in accordance with GAAP.


 


6.10       Fundamental Changes.


 


6.10.1      The Borrower will not, and will not permit any of its Material
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 as long as no Default or Unmatured Default
exists and is continuing or would be caused thereby:  (i) a Person (including a Subsidiary of
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 and (B) 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
Material Subsidiary may (A) merge or consolidate with or into another
Subsidiary of the Borrower or (B) merge or consolidate with or into any
other Person so long as either (x) such Material Subsidiary shall be the
surviving entity of such merger or consolidation or (y) upon such merger
or consolidation, such other Person would become a Material Subsidiary of the
Borrower and (iii) the


 


41

















 


Borrower or any Subsidiary may otherwise take
such action to the extent permitted by Section 6.10.2.


 


6.10.2     The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, convey, sell, lease,
transfer, or otherwise dispose of assets (including interests in any Person),
businesses or operations of any Person; provided that if no Default or
Unmatured Default exists and is continuing or would be caused thereby the
Borrower and its Subsidiaries may convey sale, lease, transfer or dispose of
assets in an aggregate amount not to exceed substantially all of the Borrower’s
and its Subsidiaries’ assets on a consolidated basis.  Notwithstanding the foregoing, nothing herein
shall be deemed to prohibit any Subsidiary from conveying, selling, leasing,
transferring, or otherwise disposing of any of assets to any other Subsidiary
or to the Borrower.


 


6.11       Indebtedness.


 


6.11.1     The Borrower shall not incur any Indebtedness
unless after giving effect thereto the Borrower is in compliance with the
financial covenant in Section 6.16 on a pro forma basis.


 


6.11.2     The Borrower will not permit its Subsidiaries
(other than Excluded Subsidiaries) to create, assume or incur any Indebtedness
except for the following:


 


(a)           Indebtedness
created under the Loan Documents and Indebtedness existing on the Closing Date
as set forth on Schedule 2 and extensions, renewals and replacements of
any such Indebtedness in a principal amount not in excess of that outstanding
as of the date hereof.


 


(b)           Indebtedness
of any Subsidiary to the Borrower or any other Subsidiary.


 


(c)           unsecured
Indebtedness of an Person that becomes a Subsidiary (including by way of
acquisition, merger or consolidation) after the Closing Date; provided that
such Indebtedness was not incurred in contemplation of such Person becoming a
Subsidiary, together with extensions, renewals and replacements of any such
Indebtedness in a principal amount not in excess of that outstanding as of the
date of such extension, renewal or replacement.


 


(d)           guarantees
by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary
permitted hereunder.


 


(e)           Indebtedness
of any Subsidiary (or any Person that will become a Subsidiary (including by
way of acquisition, merger or consolidation) after the Closing Date, provided
that such Indebtedness is not incurred in contemplation of such entity becoming
a Subsidiary) secured by a Lien permitted pursuant to Section 6.12.1,
together with extensions, renewals and replacements of any such Indebtedness in
a principal amount not in excess of that outstanding as of the date of such
extension, renewal or replacement.


 


(f)            Indebtedness
in respect of Swap Agreements or credit support in respect thereof entered into
the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets or property held
or reasonably anticipated.


 


(g)           Indebtedness
in respect of a receivables securitization program in an aggregate amount not to
exceed at any one time outstanding (when consolidated with the


 


42

















 


aggregate amount of receivables
securitization debt outstanding as permitted Section 6.12.20) 5% of
Consolidated Tangible Net Assets.


 


(h)           Indebtedness
in an aggregate amount not to exceed at any one time outstanding (when
consolidated with the aggregate amount of secured debt outstanding as permitted
by Section 6.12.22)) the greater of (A) $200,000,000 and (B) 15%
of Consolidated Tangible Net Assets.


 


6.12       Liens.  The Borrower will not, nor will it permit any
Subsidiary (other than an Excluded Subsidiary) to, create, incur, or suffer to
exist any Lien in, of or on the Property of the Borrower or any of its
Subsidiaries (other than Excluded Subsidiaries), except:


 


6.12.1 any
Lien on any asset securing Indebtedness, including a Capital Lease, incurred or
assumed for the purpose of financing all or any part of the cost of acquiring,
repairing, constructing or improving such asset; provided that such Lien
attaches to such asset concurrently with or within 12 months after the
acquisition thereof or the completion of the repair, construction or
improvement thereof (including, without limitation, Liens in favor of the
United States of America or any state thereof, or any department, agency or
instrumentality or political subdivision of the United States of America or any
state thereof, or for the benefit of holders of securities issued by any such
entity to finance any of the foregoing).


 


6.12.2      any Lien on any asset of any Person existing at the time such company
is merged or consolidated with or into the Borrower or any of its Subsidiaries
and not created in contemplation of such event.


 


6.12.3      any Lien existing on any asset prior to the acquisition thereof by the
Borrower or any of its Subsidiaries and not created in contemplation of such
acquisition.


 


6.12.4      any Lien arising out of the refinancing, extension, renewal or
refunding of any debt secured by any Lien permitted by any of the foregoing
clauses or Sections 6.12.14, 6.12.15 or 6.12.19; provided that such debt is not
increased and is not secured by any additional assets.


 


6.12.5      Liens for taxes, assessments or other governmental charges or levies
not yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP.


 


6.12.6      statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen, and interest owners of oil and gas production and other
Liens imposed by law, created in the ordinary course of business and for
amounts not past due for more than 60 days or which are being contested in good
faith by appropriate proceedings, properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP.


 


6.12.7      Liens incurred or deposits made in the ordinary course of business
(including, without limitation, surety bonds and appeal bonds) in connection
with pension or retirement plans, workers’ compensation, unemployment insurance
and other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the prepayment of debt),
statutory obligations and other similar obligations or arising as a result of
progress payments under government contracts.


 


43

















 


6.12.8      easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights of way, covenants, consents,
reservations, encroachments, variations and other restrictions, charges or
encumbrances (whether or not recorded) affecting the use of real property.


 


6.12.9      Liens with respect to judgments and attachments which do not result in
a Default.


 


6.12.10    Liens on deposits required by any Person with
whom the Borrower or any of its Subsidiaries enters into Swap Agreements or any
credit support therefor, in each case, in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets or property held or reasonably anticipated.


 


6.12.11    Liens, including Liens imposed by Environmental Laws, arising in the
ordinary course of its business that (i) do not secure Indebtedness, (ii) do
not secure obligations in an aggregate amount exceeding $40,000,000 at any
time, and (iii) do not in the aggregate materially detract from the value
of its assets or materially impair the use thereof in the operation of its
business.


 


6.12.12    deposits securing liability to insurance carriers under insurance or
self-insurance arrangements.


 


6.12.13    Liens securing Indebtedness of a Subsidiary to the Borrower or another
Subsidiary.


 


6.12.14    Liens created or assumed by a Subsidiary on any contract for the
permitted sale of any product or service or any proceeds therefrom (including
accounts and other receivables).


 


6.12.15    Liens created by a Subsidiary on advance payment obligations by such Subsidiary
to secure indebtedness incurred to finance advances for oil, gas hydrocarbon
and other mineral exploration and development.


 


6.12.16    Liens securing obligations, neither assumed by the Borrower or any
Subsidiary nor on account of which the Borrower or any Subsidiary customarily
pays interest, upon real estate or under which the Borrower or any Subsidiary
has a right-of-way, easement, franchise or other servitude or of which the
Borrower or any Subsidiary is the lessee of the whole thereof or any interest
therein for the purpose of locating pipe lines, substations, measuring
stations, tanks, pumping or delivery equipment or similar equipment.


 


6.12.17    Liens arising by virtue of any statutory or common law provision
relating to banker’s liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a depository institution and liens of a
collecting bank arising in the ordinary course of business under Section 4-208
of the Uniform Commercial Code in effect in the relevant jurisdiction covering
only the items being collected upon.


 


6.12.18    Liens granted to the Administrative Agent for the benefit of the
Lenders in respect of cash collateral for the Facility LC’s.


 


6.12.19    Liens existing on the Closing Date as set forth on Schedule 3.


 


6.12.20    Liens arising in connection with a receivables securitization program
securing Indebtedness in an aggregate amount not to exceed at any one time
outstanding (when


 


44

















 


consolidated
with the aggregate amount of Indebtedness outstanding incurred by Subsidiaries
of the Borrower permitted in Section 6.11.2(g)), 5% of Consolidated
Tangible Net Assets.


 


6.12.21    Liens incurred in the ordinary course of
business in connection with leases and subleases of real property owned or
leased by the Borrower or any Subsidiary and not interfering with the ordinary
conduct of the business of the Borrower and the Subsidiaries.


 


6.12.212  other Liens securing indebtedness in an aggregate amount not to exceed
at any one time outstanding (when consolidated with the aggregate amount of
Indebtedness outstanding incurred by Non-Excluded Subsidiaries of the Borrower
permitted in Section 6.11.2(h)), the greater of (i) $200,000,000 and (ii) 15%
of Consolidated Tangible Net Assets.


 


6.13       Affiliates.  The
Borrower will not, and will not permit any Subsidiary to, directly or
indirectly, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or transfer
to, any Affiliate (other than transactions between the Borrower and any
Non-Excluded Subsidiary or between any Non-Excluded Subsidiary and another
Non-Excluded Subsidiary) except upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary than the Borrower or such
Subsidiary would obtain in a comparable arms length transaction; provided, that this Section shall not prohibit (a) any
Restricted Payment permitted under Section 6.14, (b) the provision by
Borrower of credit support for Swap Agreements and other commodities contracts
entered into by its Affiliates permitted hereunder, (c) intercompany loans
from OGE Energy Corp to the Borrower and its Subsidiaries, (d) payments to
Affiliates under and pursuant to the Omnibus Agreement  and
the Marketing and Administrative Services Agreement and other agreements with
substantially the same terms, (e) equity investments by the Borrower and
its Subsidiaries in any such Affiliates in an amount not to exceed
$200,000,000, in the aggregate, at any one time and (f) the transactions
set forth on Schedule 4.


 


6.14       Restricted
Payments.  The Borrower shall not, and shall not permit
its Subsidiaries to, make any Restricted Payments other than the
following:  (a) ratable
distributions by Subsidiaries and joint ventures of the Borrower or its
Subsidiaries, to the Borrower and/or to Subsidiaries of the Borrower and the
other joint venturers therein, (b) ratable distributions paid only in
common (non-preferential and non-redeemable) equity securities, (c) distributions
in connection with stock option or other benefit plans for management and
employees, (d) payment of management, marketing services, credit support
and general and administrative fees and expenses in accordance with its
governing documents, the Omnibus Agreement and the Marketing and Administrative
Services Agreement and payment of or reimbursement for (or indemnification for)
costs, fees and expenditures made or incurred for or on behalf of it or its
Subsidiaries under and pursuant to the Omnibus Agreement and the Marketing and
Administrative Services Agreement and (e) if and to the extent that no
Default then exists or would result therefrom, payment of monthly and quarterly
distributions in amount not to exceed the greater of (i) the amount by
which the Borrower’s cash on hand exceeds its current and anticipated needs,
including, without limitation, for operating expenses, debt service,
acquisitions and a reasonable contingency reserve (as determined from time to
time by the Borrower’s management in accordance with the Borrower’s operating
agreement) and (ii) the aggregate amount necessary to provide Enogex
Operating LLC, the Borrower’s managing member (taking into account Enogex
Operating LLC’s allocable portion of any such distribution) or any successor
thereto, and the MLP with any shortfall in the MLP’s Available Cash (as defined
in the MLP Limited Partnership Agreement) to fund the Minimum Quarterly
Distributions (as defined in the MLP Limited Partnership Agreement) to the MLP’s
unitholders; it being acknowledged that the Borrower may make borrowings under
this Agreement to fund any such permitted distribution.


 


6.15       Nature of Business.  The
Borrower and its Subsidiaries shall not engage in any business other than such
business that is substantially the same as conducted by the Borrower and its
Subsidiaries as of the Closing Date and other businesses in the energy industry
reasonably related thereto


 


45














 


(including,
without limitation, the gathering, fractionation, distillation, marketing,
processing, purchase, sale, storage, trading, treatment, and transportation of
natural gas, natural gas liquids, crude oil, and their products).


 


6.16        Consolidated Leverage Ratio.


 


6.16.1      Subject to Section 6.16.2 below, the
Consolidated Leverage Ratio shall, as of the last day of each fiscal quarter of
the Borrower, be less than or equal to 5.00 to 1.0; provided that, for the
three fiscal quarter ends following any date that the Borrower and its Material
Subsidiaries have consummated an acquisition that causes them to meet the
definition of Significant Acquisition for the prior twelve month period
(including the fiscal quarter in which the definition of Significant Acquisition
was met) the Consolidated Leverage Ratio, as of the last day of each such
fiscal quarter, shall instead be less than or equal to 5.50 to 1.0.


 


6.16.2      For purposes of calculating compliance with
the financial covenant set forth in Section 6.16.1, Consolidated EBITDA
may include, at Borrower’s option, any Qualified Project EBITDA Adjustments as
provided in the definition thereof.


 


6.17        Excluded
Subsidiaries.  The Borrower shall take such action as is
necessary to ensure that the aggregate assets owned by all Excluded
Subsidiaries does not exceed, at any one time, 15% of consolidated assets of
the Borrower and its Subsidiaries, as
determined by the most recent balance sheet delivered by the Borrower pursuant
to Section 6.1.


 


ARTICLE VII


 


DEFAULTS


 


The occurrence of any one or more of the following
events shall constitute a Default:


 


7.1           Any representation or warranty made or deemed
made by or on behalf of the Borrower under or in connection with this
Agreement, any Credit Extension, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.


 


7.2           (a) Nonpayment of principal of any Loan
when due, (b) nonpayment of any Reimbursement Obligation after the same becomes
due, (c) nonpayment of interest upon any Loan or any stated fees set forth
herein or in the Fee Letters, in each case, within five (5) Business Days
after the same become due and (d) nonpayment of other obligations under
this Agreement or any of the Loan Documents within thirty (30) days after the
same become due.


 


7.3           (a) The breach by the Borrower of any of
the terms or provisions of Section 6.2, 6.3 or 6.16, (b) the breach
by the Borrower of any of the terms or provisions of Section 6.1.1, 6.1.2,
6.1.3, or 6.1.8 which is not remedied within five (5) Business Days after
written notice thereof is given by the Agent or a Lender to the Borrower or (c) the
breach by the Borrower of any of the terms or provisions of Section 6.9,
6.10, 6.11, 6.12, 6.13, 6.14 or 6.15 after the earlier of (i) five (5) Business
Days after written notice thereof is given by the Agent or a Lender to the
Borrower and (ii) the date an Authorized Officer becomes aware of such
Default.


 


7.4           The breach by the Borrower (other than a
breach which constitutes a Default under another Section of this Article VII)
of any of the terms or provisions of this Agreement which is not remedied
within thirty (30) days after written
notice thereof is given by the Agent or a Lender to the Borrower.


 


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7.5           (a) Failure of the Borrower or any
Subsidiary to pay when due (beyond the applicable grace period with respect
thereto, if any) any Material Indebtedness; or (b) the Borrower or any
Subsidiary shall default (after giving effect to any applicable grace period)
in the observance or performance of any covenant or agreement relating to such
Material Indebtedness and, as a result thereof, such Material Indebtedness is
declared or becomes due or is required to be repaid or redeemed prior to its
stated maturity.


 


7.6           The Borrower or any of its Material
Subsidiaries shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make
an assignment for the benefit of creditors, (iii) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial Portion of
its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, (v) take any corporate or partnership action to
authorize or effect any of the foregoing actions set forth in this Section 7.6,
(vi) fail to contest in good faith in a timely manner any appointment or
proceeding described in Section 7.7 or (vii) fail to pay, or admit in
writing its inability to pay, its debts generally as they become due.


 


7.7           Without the application, approval or consent
of the Borrower or any of its Material Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Borrower or
any of its Material Subsidiaries or any Substantial Portion of its Property, or
a proceeding described in Section 7.6(iv) shall be instituted against
the Borrower or any of its Material Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of ninety (90) consecutive days.


 


7.8           A judgment or other court order for the
payment of money in excess of $40,000,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall continue without
being vacated, discharged, satisfied or stayed or bonded pending appeal for a
period of forty-five (45) days.


 


7.9           The Unfunded Liabilities of all Single
Employer Plans could in the aggregate reasonably be expected to result in a
Material Adverse Effect or any Reportable Event shall occur in connection with
any Plan that could reasonably be expected to have a Material Adverse Effect.


 


7.10         Any Change in Control shall occur.


 


7.11         The Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal
liability to such Multiemployer Plan in an amount which, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Borrower or
any other member of the Controlled Group as withdrawal liability (determined as
of the date of such notification), exceeds $65,000,000 or requires payments
exceeding $10,000,000 per annum.


 


7.12         The Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such reorganization
or termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased, in the aggregate, over the amounts contributed to such Multiemployer
Plans for the


 


47

















 


respective
plan years of such Multiemployer Plans immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding
$65,000,000.


 


7.13         Any Loan Document shall fail to remain in
full force or effect or any action shall be taken by the Borrower to assert the
invalidity or unenforceability of any Loan Document.


 


ARTICLE VIII


 


ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES


 


8.1          Acceleration/Remedies.


 


8.1.1 (i) If any Default described in Section 7.6
or 7.7 occurs with respect to the Borrower, the obligations of the Lenders,
including the Swingline Lender, to make Loans hereunder and the obligation and
power of the LC Issuer to issue Facility LCs shall automatically terminate and
the Obligations shall immediately become due and payable without any election
or action on the part of the Agent, the LC Issuer or any Lender, and the
Borrower will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to the Agent an amount in immediately
available funds, which funds shall be held in the Facility LC Collateral
Account, equal to the difference of (x) 100% of the amount of LC
Obligations at such time less (y) the amount on deposit in the Facility LC
Collateral Account at such time which is free and clear of all rights and
claims of third parties (other than the Agent and the Lenders) and has not been
applied against the Obligations (the “Collateral Shortfall Amount”).  If any other Default occurs, the Agent may
with the consent of the Required Lenders (a) terminate or suspend the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs, or declare the Obligations to be due
and payable, or both, whereupon the Obligations shall become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives and (b) upon notice to the
Borrower and in addition to the continuing right to demand payment of all
amounts payable under this Agreement, make demand on the Borrower to pay (a “Funding
Demand”), and the Borrower will forthwith upon such demand and without any
further notice or act pay to the Agent the Collateral Shortfall Amount which
funds shall be deposited in the Facility LC Collateral Account.


 


(ii)           If
at any time while any Default is continuing with respect to which the Agent has
made a Funding Demand, the Agent determines that the Collateral Shortfall
Amount at such time is greater than zero, the Agent may make demand on the
Borrower to pay, and the Borrower will, forthwith upon such demand and without
any further notice or act, pay to the Agent the Collateral Shortfall Amount,
which funds shall be deposited in the Facility LC Collateral Account.


 


(iii)          The
Agent may at any time or from time to time after funds are deposited in the
Facility LC Collateral Account, apply such funds to the payment of the
Obligations.


 


(iv)          Except
as expressly provided below, at any time while any Default is continuing,
neither the Borrower nor any Person claiming on behalf of or through the
Borrower shall, unless the Required Lenders shall otherwise consent, have any
right to withdraw any of the funds held in the Facility LC Collateral
Account.  Upon request of the Borrower,
the Agent shall permit the Borrower to withdraw from the Facility LC Collateral
Account, so long as no Default then exists, the balance of the Facility LC
Collateral Account.  If a Default then
exists, the Agent shall, upon


 


48

















 


the
request of the Borrower apply the Excess Balance (as defined below) to the
payment of the Obligations; provided further that if there are no Obligations
(other than LC Obligations) due and payable, the Agent shall, upon request of
the Borrower, release to the Borrower the Excess Balance.  As used herein, “Excess Balance” means the
amount by which the balance of the Facility LC Collateral Account exceeds the
amount of L/C Obligations.  In addition,
after all of the Obligations have been paid in full and the Aggregate
Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Agent to the Borrower or paid to
whomever may be legally entitled thereto at such time.  Notwithstanding anything in this Agreement to
the contrary, to the extent the Borrower has deposited cash in the Facility LC
Collateral Account in accordance with the requirements of 2.20.1, the Borrower
shall not be permitted to withdraw such amounts from the Facility LC Collateral
Account until the Facility LC’s secured thereby have been cancelled and
returned to the applicable LC Issuer on terms and conditions satisfactory to
such LC Issuer.


 


(v)           If,
after acceleration of the maturity of the Obligations or termination of the
obligations of the Lenders to make Loans and the obligation and power of the LC
Issuer to issue Facility LCs hereunder as a result of any Default (other than
any Default as described in Section 7.6 or 7.7 with respect to the
Borrower) and before any judgment or decree for the payment of the Obligations
due shall have been obtained or entered, the Required Lenders (in their sole
discretion) shall so direct, the Agent shall, by notice to the Borrower,
rescind and annul such acceleration and/or termination.


 


(vi)          Notwithstanding the
fact that enforcement powers reside primarily with the Agent, each Lender has,
to the extent permitted by law, a separate right of payment and shall be
considered a separate “creditor” holding a separate “claim” within the meaning
of Section 101(5) of the Bankruptcy Code or any other insolvency
statute.


 


8.1.2        Notwithstanding any other provision of this Agreement, after the
occurrence and during the continuance of a Default, all amounts collected or
received by the Agent or any Lender on account of amounts outstanding under any
of the Loan Documents shall be paid over or delivered as follows:


 


FIRST, to the payment of all reasonable
out-of-pocket costs and expenses (including without limitation reasonable
attorneys’ fees) of the Agent and the Lenders in connection with enforcing the
rights of the Lenders under the Loan Documents, pro rata as set forth below;


 


SECOND, to payment of any fees owed to the
Agent, or any Lender, pro rata as set forth below;


 


THIRD, to the payment of all accrued interest
payable to the Lenders hereunder, pro rata as set forth below;


 


FOURTH, to the payment of the outstanding
principal amount of the Loans and to the payment or cash collateralization of
the outstanding LC Obligations, pro rata, as set forth below;


 


FIFTH, to all other obligations which shall
have become due and payable under the Loan Documents and not repaid pursuant to
clauses “FIRST” through “FOURTH” above; and


 


SIXTH, to the payment of the surplus, if any,
to whomever may be lawfully entitled to receive such surplus.


 


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In
carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal
to its Pro Rata Share of amounts available to be applied; and (c) to the
extent that any amounts available for distribution pursuant to clause “FOURTH”
above are attributable to the issued but undrawn amount of outstanding Facility
LC’s, such amounts shall be held by the Agent in the Facility LC Collateral
Account and applied (i) first, to reimburse the LC Issuer from time to
time for any drawings under such Facility LC’s and (ii) then, following
the expiration of all Facility LC’s, to all other obligations of the types
described in clauses “FOURTH”, “FIFTH” and “SIXTH” above in the manner provided
in this Section 8.1.2.


 


8.2          Amendments. 
Subject to the provisions of this Section 8.2, the Required Lenders
(or the Agent with the consent in writing of the Required Lenders) and the
Borrower may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders affected thereby:


 


8.2.1        Except as specifically provided in this Agreement, extend the final maturity
of any Loan, extend the expiry date of any Facility LC to a date after the date
that is one year after the Revolving Credit Termination Date, or postpone any
regularly scheduled payment of principal of any Loan or forgive all or any
portion of the principal amount thereof, or any Reimbursement Obligations
related thereto, or reduce the rate or extend the time of payment of interest
or fees thereon or Reimbursement Obligations related thereto (other than a
waiver of the application of the default rate of interest pursuant to Section 2.11
hereof).


 


8.2.2        Reduce the percentage specified in the definition of Required Lenders
or any other percentage of Lenders specified to be the applicable percentage in
this Agreement to act on specified matters or amend the definition of “Pro Rata
Share”.


 


8.2.3        Except as specifically provided in this Agreement, (i) extend the
Revolving Credit Termination Date, or (ii) reduce the amount or extend the
payment date for, the mandatory payments required under Section 2.2, or (iii) increase
the amount of the Commitment of any Lender hereunder or the commitment to issue
Facility LCs, or (iv) permit the Borrower to assign its rights or
obligations under this Agreement.


 


8.2.4        Amend this Section 8.2 or Sections 7.2 or 9.6 or amend Article XI.


 


No
amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent, no amendment of any
provision of this Agreement relating to the Swing Line Lender or any Swing Line
Loans shall be effective without the written consent of the Swing Line Lender
and no amendment of any provision relating to the LC Issuer shall be effective
without the written consent of the LC Issuer. 
The Agent may waive payment of the fee required under Section 12.3.3
without obtaining the consent of any other party to this Agreement.


 


8.3          Preservation of Rights.  No
delay or omission of the Lenders or the Agent to exercise any right under the
Loan Documents shall impair such right or be construed to be a waiver of any
Default or an acquiescence therein, and the making of a Credit Extension
notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Credit Extension shall not constitute
any waiver or acquiescence.  Any single
or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment
or


 


50

















 


other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth.  All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent and the Lenders until the Obligations have been
paid in full.


 


ARTICLE IX


 


GENERAL PROVISIONS


 


9.1          Survival of Representations.  All
representations and warranties of the Borrower contained in this Agreement
shall survive the making of the Credit Extensions herein contemplated.


 


9.2          Governmental Regulation. 
Anything contained in this Agreement to the contrary notwithstanding,
neither the LC Issuer nor any Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.


 


9.3          Headings.  Section headings
in the Loan Documents are for convenience of reference only, and shall not
govern the interpretation of any of the provisions of the Loan Documents.


 


9.4          Entire Agreement.  The
Loan Documents embody the entire agreement and understanding among the
Borrower, the Agent and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agent and the Lenders relating to the
subject matter thereof  (including any
previously executed commitment letters among the parties or, in the case of the
Borrower, its predecessors), other than those contained in the Fee Letters
described in Section 10.13 which shall survive and remain in full force
and effect during the term of this Agreement.


 


9.5          Several Obligations; Benefits of this Agreement.  The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to
which the Agent is authorized to act as such). 
The failure of any Lender to perform any of its obligations hereunder
shall not relieve any other Lender from any of its obligations hereunder.  This Agreement shall not be construed so as
to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however,
that the parties hereto expressly agree that each Arranger shall enjoy the
benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the extent
specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it were
a party to this Agreement.


 


9.6          Expenses; Indemnification.  (i) The
Borrower shall reimburse the Agent and each Arranger for any reasonable costs,
internal charges and out-of-pocket expenses (including reasonable attorneys’
and paralegals’ fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent and expenses of and fees for other
advisors and professionals engaged by the Agent or any Arranger) paid or
incurred by the Agent or any Arranger in connection with the investigation,
preparation, negotiation, documentation, execution, delivery, syndication,
distribution (including, without limitation, via the internet), review,
amendment, modification and administration of the Loan Documents.  The Borrower also agrees to reimburse the
Agent, the Syndication Agent, the Co-Documentation Agents, the Arrangers and
the Lenders for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys’ and paralegals’ fees and time charges
and expenses of attorneys and paralegals for the Agent, the Syndication Agent,
the Co-Documentation Agents, the Arrangers and the Lenders, which attorneys and
paralegals may be employees of the Agent,


 


51

















 


the
Syndication Agent, the Co-Documentation Agents, the Arrangers or the Lenders)
paid or incurred by the Agent, the Syndication Agent, the Co-Documentation
Agents, the Arrangers or any Lender in connection with the collection and
enforcement of the Loan Documents.


 


(ii)           The
Borrower hereby further agrees to indemnify the Agent, the Syndication Agent,
the Co-Documentation Agents, the Arrangers, each Lender, their respective
affiliates, and each of their directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent, the Syndication Agent, the Co-Documentation
Agents, either Arranger, any Lender or any affiliate is a party thereto, and
all reasonable attorneys’ and paralegals’ fees, reasonable time charges and
reasonable expenses of attorneys and paralegals of the party seeking
indemnification, which attorneys and paralegals may or may not be employees of
such party seeking indemnification) which any of them may pay or incur arising
out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder except
to the extent that they (a) have resulted from the gross negligence or
willful misconduct of the party seeking indemnification or (b) in the case
of the Lenders (other than the Agent or, as applicable a LC Issuer), arise or
were incurred in connection with the investigation, preparation, negotiation,
documentation, execution, delivery, syndication, distribution (including,
without limitation, via the internet), review, amendment, modification and
administration (as distinguished from the enforcement) of the Loan
Documents.  The obligations of the
Borrower under this Section 9.6 shall survive the termination of this
Agreement.


 


9.7          Numbers of Documents.  All
statements, notices, closing documents, and requests hereunder shall be furnished
to the Agent with sufficient counterparts so that the Agent may furnish one to
each of the Lenders, to the extent that the Agent deems necessary.


 


9.8          Accounting. 
Except as provided to the contrary herein, all accounting terms used in
the calculation of any financial covenant or test shall be interpreted and all
accounting determinations hereunder in the calculation of any financial
covenant or test shall be made in accordance with Agreement Accounting
Principles.  If any changes in GAAP are
hereafter required or permitted and are adopted by the Borrower or any of its
Subsidiaries with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, tests, restrictions or standards herein or in the related
definitions or terms used therein (“Accounting Changes”), the parties
hereto agree, at the Borrower’s request, to enter into negotiations, in good
faith, in order to amend such provisions in a credit neutral manner so as to
reflect equitably such changes with the desired result that the criteria for
evaluating the Borrower’s and its Subsidiaries’ financial condition shall be
the same after such changes as if such changes had not been made; provided,
however, until such provisions are amended in a manner reasonably
satisfactory to the Agent and the Required Lenders, no Accounting Change shall
be given effect in such calculations.  In
the event such amendment is entered into, all references in this Agreement to
Agreement Accounting Principles shall mean GAAP as of the date of such
amendment. Notwithstanding the foregoing, all financial statements (other than
pro forma financial statements or projections) to be delivered by the Borrower
pursuant to Section 6.1 shall be prepared in accordance with GAAP in
effect at such time (other than in the case of interim financial statements,
with respect to the absence of footnotes and year end adjustments).


 


9.9          Severability of Provisions.  Any
provision in any Loan Document that is held to be inoperative, unenforceable,
or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in
any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.


 


52

















 


9.10        Nonliability of Lenders.  The
relationship between the Borrower on the one hand and the Lenders and the Agent
on the other hand shall be solely that of borrower and lender.  Neither the Agent nor any Arranger or Lender
shall have any fiduciary responsibilities to the Borrower.  Neither the Agent nor any Arranger or Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower’s business or
operations.  The Borrower agrees that
neither the Agent nor any Arranger or Lender shall have liability to the
Borrower (whether sounding in tort, contract or otherwise) for losses suffered
by the Borrower in connection with, arising out of, or in any way related to,
the transactions contemplated and the relationship established by the Loan Documents,
or any act, omission or event occurring in connection therewith, unless such
losses resulted from the gross negligence or willful misconduct of the party
from which recovery is sought.  Neither
the Agent nor any Arranger or Lender shall have any liability with respect to,
and the Borrower hereby waives, releases and agrees not to sue for, any
special, indirect, consequential or punitive damages suffered by the Borrower
in connection with, arising out of, or in any way related to the Loan Documents
or the transactions contemplated thereby.


 


9.11        Confidentiality.  Each
of the Agent and the Lenders agrees that any information delivered or made
available by the Borrower pursuant to this Agreement shall be kept
confidential, shall be used solely in connection with evaluating, approving,
structuring, administering or enforcing the credit facility contemplated hereby
and shall not be provided to any other Person; provided that nothing
herein shall prevent any Lender from disclosing such information (a) to
any other Lender or the Agent, (b) to any other Person if reasonably
incidental to the evaluation, administration or enforcement of the credit
facility contemplated hereby, which Person has been informed of the
confidential nature of such information, (c) upon the order of any court
or administrative agency, (d) upon the request or demand of any regulatory
agency or authority, (e) which had been publicly disclosed other than as a
result of a disclosure by the Agent or any Lender prohibited by this Agreement,
(f) in connection with any litigation (to the extent relating to or
involving the Loan Documents or the credit facility evidenced thereby) to which
the Agent, any Lender or its Affiliates may be a party, (g) to the extent
necessary in connection with the exercise of any remedy hereunder, (h) to
such Lender’s or the Agent’s legal counsel, independent auditors and other
professional advisors, which Persons have been informed of the confidential
nature of such information, (i) to such Lender’s direct or indirect contractual
counterparties in swap agreements relating to this Agreement, or the
Commitments or Loans hereunder, or to legal counsel, accountants and other
professional advisors to such counterparties, in each case which have been
informed as to the confidential nature of such information, (j) to rating
agencies if requested or required by such agencies in connection with a rating
relating to the Credit Extensions hereunder and (k) subject to provisions
substantially similar to those contained in this Section 9.11, to any
actual or proposed Participant or assignee.


 


9.12        Lenders Not Utilizing Plan Assets.  Each
Lender represents and warrants that none of the consideration used by such
Lender to make its Loans constitutes for any purpose of ERISA or Section 4975
of the Code assets of any “plan” as defined in Section 3(3) of ERISA
or Section 4975 of the Code and the rights and interests of such Lender in
and under the Loan Documents shall not constitute such “plan assets” under
ERISA.


 


9.13        Nonreliance.  Each
Lender hereby represents that it is not relying on or looking to any margin
stock (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) for the repayment of the Credit Extensions provided for herein.


 


9.14        Disclosure.  The
Borrower and each Lender, including the LC Issuer, hereby acknowledge and agree
that Wachovia and/or its Affiliates from time to time may hold investments in,
make other loans to or have other relationships with the Borrower and its
Affiliates.


 


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9.15        USA Patriot Act Notification.  The
following notification is provided to the Borrower pursuant to the Patriot Act:


 


IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT.  To help the government of the United States
of America fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each Person that opens an account, including any
deposit account, treasury management account, loan, other extension of credit,
or other financial services product. 
Accordingly, when the Borrower opens an account, the Agent and the
Lenders will ask for the Borrower’s name, tax identification number, business
address, and other information that will allow the Agent and the Lenders to
identify the Borrower.  The Agent and the
Lenders may also ask to see the Borrower’s legal organizational documents or
other identifying documents.


 


9.16        Defaulting Lender.  Each
Lender understands and agrees that if such Lender is a Defaulting Lender then
it shall not be entitled to vote on any matter requiring the consent of the
Required Lenders or to object to any matter requiring the consent of all the
Lenders; provided, however, that (a) a Lender’s Commitment
may not be increased without its consent whether or not it is a Defaulting
Lender and (b) all other benefits and obligations under the Loan Documents
shall apply to such Defaulting Lender.


 


9.17        Excluded
Subsidiaries.  The Borrower shall the right, at any time
with prior written notice to the Agent, to (i) designate any Subsidiary as
an Excluded Subsidiary in accordance with the requirements of such definition
or (ii) to remove any Subsidiary from being an Excluded Subsidiary; provided
that the Borrower shall only have the right to make any such designation one
time with respect to each Subsidiary and once a Subsidiary is removed by the
Borrower from being an Excluded Subsidiary it may not be re-designated one at a
later date.


 


ARTICLE X


 


THE AGENT


 


10.1        Appointment; Nature of Relationship. 
Wachovia Bank, National Association is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the “Agent”)
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents.  The Agent agrees
to act as such contractual representative upon the express conditions contained
in this Article X.  Notwithstanding
the use of the defined term “Agent,” it is expressly understood and agreed that
the Agent shall not have any fiduciary responsibilities to any Lender by reason
of this Agreement or any other Loan Document and that the Agent is merely
acting as the contractual representative of the Lenders with only those duties
as are expressly set forth in this Agreement and the other Loan Documents.  In its capacity as the Lenders’ contractual
representative, the Agent (i) does not hereby assume any fiduciary duties
to any of the Lenders, (ii) is a “representative” of the Lenders within
the meaning of the term “secured party” as defined in the New York Uniform
Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. 
Each of the Lenders hereby agrees to assert no claim against the Agent
on any agency theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.


 


10.2        Powers.  The Agent shall have and may
exercise such powers under the Loan Documents as are specifically delegated to
the Agent by the terms of each thereof, together with such powers as are
reasonably incidental thereto.  The Agent
shall have no implied duties to the Lenders, or any obligation to


 


54

















 


the
Lenders to take any action thereunder except any action specifically provided
by the Loan Documents to be taken by the Agent.


 


10.3        General Immunity. 
Neither the Agent nor any of its directors, officers, agents or
employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except to the extent such
action or inaction is determined in a final non-appealable judgment by a court
of competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.


 


10.4        No Responsibility for Loans, Recitals, etc. 
Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (a) any statement, warranty or representation made in connection
with any Loan Document or any borrowing hereunder; (b) the performance or
observance of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (c) the satisfaction of any condition
specified in Article IV, except receipt of items required to be delivered
solely to the Agent; (d) the existence or possible existence of any
Default or Unmatured Default; (e) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; (f) the value,
sufficiency, creation, perfection or priority of any Lien in any collateral
security; or (g) the financial condition of the Borrower or any guarantor
of any of the Obligations or of any of the Borrower’s or any such guarantor’s
respective Subsidiaries.  The Agent shall
have no duty to disclose to the Lenders information that is not required to be
furnished by the Borrower to the Agent at such time, but is voluntarily
furnished by the Borrower to the Agent (either in its capacity as Agent or in
its individual capacity).


 


10.5        Action on Instructions of Lenders.  The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.  The Lenders hereby acknowledge
that the Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders.  The Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.


 


10.6        Employment of Agents and Counsel.  The
Agent may execute any of its duties as Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact and shall not
be answerable to the Lenders, except as to money or securities received by it
or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.  The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent’s duties hereunder and under any other
Loan Document.


 


10.7        Reliance on Documents; Counsel.  The
Agent shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document reasonably believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of
counsel selected by the Agent, which counsel may be employees of the Agent.


 


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10.8        Agent’s Reimbursement and Indemnification.  The
Lenders agree to reimburse and indemnify the Agent, the Syndication Agent and
the Co-Documentation Agents ratably in proportion to the Lenders’ Pro Rata
Shares of the Aggregate Commitment (or, if the Aggregate Commitment has been
terminated, of the Outstanding Credit Exposure) (i) for any amounts not
reimbursed by the Borrower for which the Agent, the Syndication Agent or either
Co-Documentation Agent is entitled to reimbursement by the Borrower under the
Loan Documents, (ii) for any other expenses incurred by the Agent, the
Syndication Agent, or either Co-Documentation Agent on behalf of the Lenders,
in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Agent or the Syndication Agent in connection with any
dispute between the Agent or the Syndication Agent and any Lender or between
two or more of the Lenders) and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent, the Syndication Agent, or either
Co-Documentation Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent, the Syndication Agent, or
either Co-Documentation Agent in connection with any dispute between the Agent,
the Syndication Agent, the Co-Documentation Agents and any Lender or between
two or more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents; provided that (i) no
Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of the party seeking indemnification and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of
this Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof.  The obligations of
the Lenders under this Section 10.8 shall survive payment of the
Obligations and termination of this Agreement.


 


10.9        Notice of Default.  The
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default or Unmatured Default hereunder unless the Agent has received written
notice from a Lender or the Borrower referring to this Agreement describing
such Default or Unmatured Default and stating that such notice is a “notice of
default”.  In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof to the
Lenders.


 


10.10      Rights as a Lender.  In
the event the Agent is a Lender, the Agent shall have the same rights and
powers hereunder and under any other Loan Document with respect to its
Commitment and its Loans as any Lender and may exercise the same as though it
were not the Agent, and the term “Lender” or “Lenders” shall, at any time when
the Agent is a Lender, unless the context otherwise indicates, include the
Agent in its individual capacity.  The
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person.  The Agent, in its individual capacity, is not
obligated to remain a Lender.


 


10.11      Lender Credit Decision.  Each
Lender acknowledges that it has, independently and without reliance upon the
Agent, any Arranger or any other Lender and based on the financial statements
prepared by the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents. 
Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, any Arranger 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 this
Agreement and the other Loan Documents.


 


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10.12      Successor
Agent.  The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five (45) days after the retiring Agent gives notice
of its intention to resign.  The Agent
may be removed at any time with or without cause by written notice received by
the Agent from the Required Lenders, such removal to be effective on the date
specified by the Required Lenders.  Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, an existing Lender to be
the successor Agent (which successor Agent shall, unless a Default is then
continuing, be approved by the Borrower, such approval not to be unreasonably
withheld or delayed).  If no successor
Agent shall have been so appointed by the Required Lenders within thirty (30) days
after the resigning Agent’s giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, an
existing Lender to be the successor Agent (which successor Agent shall, unless
a Default is then continuing, be approved by the Borrower, such approval not to
be unreasonably withheld or delayed). 
Notwithstanding the previous sentence, the Agent may at any time without
the consent of the Borrower or any Lender, appoint any of its Affiliates which
is a commercial bank as a successor Agent hereunder.  If the Agent has resigned or been removed and
no successor Agent has been appointed, the Lenders may perform all the duties
of the Agent hereunder and the Borrower shall make all payments in respect of
the Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders.  No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment.  Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $100,000,000.  Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent.  Upon the effectiveness of the resignation or
removal of the Agent, the resigning or removed Agent shall be discharged from
its duties and obligations hereunder and under the Loan Documents.  After the effectiveness of the resignation or
removal of an Agent, the provisions of this Article X shall continue in
effect for the benefit of such Agent in respect of any actions taken or omitted
to be taken by it while it was acting as the Agent hereunder and under the
other Loan Documents.  In the event that
there is a successor to the Agent by merger, or the Agent assigns its duties
and obligations to an Affiliate pursuant to this Section 10.12, then the
term “Prime Rate” as used in this Agreement shall mean the prime rate, base
rate or other analogous rate of the new Agent.


 


10.13      Agent and Arrangers’ Fees.  The
Borrower agrees to pay to the Agent and each Arranger, for their respective
accounts, the fees agreed to by Enogex, Inc, for and on behalf of the Borrower,
the Agent and such Arranger pursuant to those certain letter agreements dated December 14,
2007 (the “Fee Letters”), or as otherwise agreed from time to time.


 


10.14      Delegation to Affiliates.  The
Borrower and the Lenders agree that the Agent may delegate any of its duties
under this Agreement to any of its Affiliates. 
Any such Affiliate (and such Affiliate’s directors, officers, agents and
employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other protective
provisions to which the Agent is entitled under Articles IX and X.


 


10.15      Syndication Agent and Co-Documentation Agents.  None
of the Syndication Agent and the Co-Documentation Agents shall have any rights,
obligations, liabilities, responsibilities or duties under this Agreement other
than those applicable to all Lenders. 
Without limiting the foregoing, none of the Syndication Agent and the
Co-Documentation Agents shall have or be deemed to have a fiduciary
relationship with any Lender.  Each Lender
hereby makes the same acknowledgements with respect to the Syndication Agent
and the Co-Documentation Agents as it makes with respect to the Agent in Section 10.11.


 


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ARTICLE XI


 


SETOFF; RATABLE PAYMENTS


 


11.1        Setoff.  In addition to, and without
limitation of, any rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced, or any Default occurs and is continuing,
any and all deposits (including all account balances, whether provisional or
final and whether or not collected or available) and any other Indebtedness at
any time held or owing by any Lender or any Affiliate of any Lender to or for
the credit or account of the Borrower may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part thereof, shall then be due.


 


11.2        Ratable Payments.  If
any Lender, whether by setoff or otherwise, has payment made to it upon its
Outstanding Credit Exposure (other than (i) payments received pursuant to Section 3.1,
3.2, 3.4 or 3.5, (ii) payments in accordance with Section 2.21 to any
Lender which has not extended its Commitment pursuant to such Section and (iii) payments
to which the LC Issuer or the Swing Line Lender is entitled under Section 2.20.6
or Section 2.23.4, as applicable) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure.  If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such
action necessary such that all Lenders share in the benefits of such collateral
ratably in proportion to their respective Pro Rata Shares of the Aggregate
Outstanding Credit Exposure.  In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.


 


ARTICLE XII


 


BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS


 


12.1        Successors and Assigns.  The
terms and provisions of the Loan Documents shall be binding upon and inure to
the benefit of the Borrower, the Agent and the Lenders and their respective
successors and assigns permitted hereby, except that (i) the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents without the prior written consent of each Lender, (ii) any
assignment by any Lender must be made in compliance with Section 12.3, and
(iii) any transfer by participation must be made in compliance with Section 12.2.  Any attempted assignment or transfer by any
party not made in compliance with this Section 12.1 shall be null and
void, unless such attempted assignment or transfer is treated as a
participation in accordance with Section 12.3.3.  The parties to this Agreement acknowledge
that clause (ii) of this Section 12.1 relates only to absolute
assignments and this Section 12.1 does not prohibit assignments creating
security interests, including, without limitation, any pledge or assignment by
any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank; provided,  however, that no such pledge or assignment creating
a security interest shall release the transferor Lender from its obligations
hereunder unless and until the parties thereto have complied with the
provisions of Section 12.3.  The
Agent may treat each Lender which made any Credit Extension or which holds any
Note as the owner thereof for all purposes hereof unless and until such Lender
complies with Section 12.3; provided,  however, that the Agent may in its discretion (but
shall not be required to) follow instructions from the Lender which made any
Credit Extension or which holds any Note to direct payments relating to such
Credit Extension or Note to another Person. 
Any assignee of the rights to any Credit Extension or any Note agrees by
acceptance of such assignment


 


58

















 


to
be bound by all the terms and provisions of the Loan Documents.  Any request, authority or consent of any
Lender, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Credit Extension (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Credit Extension.


 


12.2        Participations.


 


12.2.1      Permitted Participants; Effect.  Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities (“Participants”)
participating interests in any Outstanding Credit Exposure of such Lender, any
Note held by such Lender, any Commitment of such Lender or any other interest
of such Lender under the Loan Documents. 
In the event of any such sale by a Lender of participating interests to
a Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
owner of its Outstanding Credit Exposure and the holder of any Note issued to
it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under the Loan Documents.  Notwithstanding the foregoing, unless a
Default has occurred and is continuing, the Lenders may not sell participations
in respect of their Loans or Commitments to any competitor of the Borrower or
any of its Subsidiaries or any other company engaged in the business of selling
or distributing energy products.


 


12.2.2      Voting Rights.  Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which would require consent of all of
the Lenders pursuant to the terms of Section 8.2.


 


12.2.3      Benefit of Certain Provisions.  The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents; provided
that each Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to each Participant.  The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided
in Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender.  The Borrower further agrees that each
Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and 3.5
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 12.3; provided that (i) a
Participant shall not be entitled to receive any greater payment under Section 3.1,
3.2, 3.4 or 3.5 than the Lender who sold the participating interest to such
Participant would have received had it retained such interest for its own
account, unless the sale of such interest to such Participant is made with the
prior written consent of the Borrower, and (ii) any Participant not
incorporated under the laws of the United States of America or any State
thereof agrees to comply with the provisions of Section 3.5 to the same
extent as if it were a Lender.


 


12.3        Assignments.


 


12.3.1      Permitted Assignments.  Any Lender may at any time assign to one or
more banks or other entities (“Purchasers”) all or any part of its
rights and obligations under the Loan Documents.  Such assignment shall be substantially in the
form of Exhibit C or in such other form as may


 


59

















 


be
agreed to by the parties thereto.  Each
such assignment with respect to a Purchaser which is not a Lender or an
Affiliate of a Lender or an Approved Fund shall either be in an amount equal to
the entire applicable Commitment and Outstanding Credit Exposure of the
assigning Lender or (unless each of the Borrower and the Agent otherwise
consents) be in an aggregate amount not less than $5,000,000. The amount of the
assignment shall be based on the Commitment or Outstanding Credit Exposure (if
the Commitment has been terminated) subject to the assignment, determined as of
the date of such assignment or as of the “Trade Date,” if the “Trade Date” is
specified in the assignment. 
Notwithstanding the foregoing, unless a Default has occurred and is
continuing, the Lenders may not make assignments in respect of their Loans or
Commitments to any competitor of the Borrower or any other company engaged in
the business of selling or distributing energy products.


 


12.3.2      Consents.  The consent of the Agent and the Borrower
shall be required prior to an assignment becoming effective; provided
that the consent of the Borrower shall not be required if a Default has
occurred and is continuing.  Any consent
required under this Section 12.3.2 shall not be unreasonably withheld or
delayed; it being acknowledged and agreed however that such consents may be
withheld (and it shall not be deemed unreasonable to withhold such consent) if
such proposed assignee has not complied with the requirements Section 3.5(iv) or
the assignment to such proposed assignee would subject the Borrower to costs,
indemnities or limitations of the type described in Article III hereof in
excess of those applicable to the assigning Lender.


 


12.3.3      Effect; Effective Date.  Upon (i) delivery to the Agent of an
assignment, together with any consents required by Section 12.3.2, and (ii) payment
by the assigning Lender of a $3,500 fee to the Agent for processing such
assignment (unless such fee is waived by the Agent), such assignment shall
become effective on the effective date specified in such assignment.  The assignment shall contain a representation
and warranty by the Purchaser to the effect that none of the funds, money,
assets or other consideration used to make the purchase and assumption of the
Commitment and Outstanding Credit Exposure under the applicable assignment
agreement constitutes “plan assets” as defined under ERISA and that the rights,
benefits and interests of the Purchaser in and under the Loan Documents will
not be “plan assets” under ERISA.  On and
after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by or on behalf of the Lenders and shall have all the rights, benefits
and obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party thereto, and the transferor Lender shall be released
with respect to the Commitment and Outstanding Credit Exposure assigned to such
Purchaser without any further consent or action by the Borrower, the Lenders or
the Agent.  In the case of an assignment
covering all of the assigning Lender’s rights, benefits and obligations under
this Agreement, such Lender shall cease to be a Lender hereunder but shall
continue to be entitled to the benefits of, and subject to, those provisions of
this Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the Loan Documents.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 12.3
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 12.2.  Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.3, the transferor Lender, the
Agent and the Borrower shall, if the transferor Lender or the Purchaser desires
that its Loans be evidenced by Notes, make appropriate arrangements so that,
upon cancellation and surrender to the Borrower of the Notes (if any) held by
the transferor Lender, new Notes or, as appropriate, replacement Notes are
issued to such transferor Lender, if applicable, and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments (or if the Aggregate
Commitment has been terminated, their respective Outstanding Credit Exposure),
as adjusted pursuant to such assignment.


 


12.3.4      Register.  The Agent, acting solely for this purpose as
an agent of the Borrower (and the Borrower hereby designates the Agent to act
in such capacity), shall maintain at one of its offices


 


60

















 


a
copy of each Assignment and Assumption Agreement delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans 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 Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.  The Register
shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


12.4        Dissemination of Information.  The
Borrower authorizes each Lender to disclose to any Participant or Purchaser or
any other Person acquiring an interest in the Loan Documents by operation of
law (each a “Transferee”) and any prospective Transferee any and all
information in such Lender’s possession concerning the creditworthiness of the
Borrower and its Subsidiaries; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.


 


12.5        Tax Certifications.  If
any interest in any Loan Document is transferred to any Transferee which is not
incorporated under the laws of the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 3.5(iv).


 


ARTICLE XIII


 


NOTICES


 


13.1        Notices.  Except as otherwise permitted
by Section 2.14 with respect to borrowing notices, all notices, requests
and other communications to any party hereunder shall be in writing (including
electronic transmission, facsimile transmission or similar writing) and shall
be given to such party: (x) in the case of the Borrower, the Lenders or
the Agent, at its address or facsimile number set forth on the signature pages hereof
or, (y) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Agent and the Borrower in accordance with the provisions of this Section 13.1.  Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission,
when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (ii) if given by mail, three (3) Business
Days after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other
means, when delivered (or, in the case of electronic transmission, received) at
the address specified in this Section; provided that, subject to Section 2.14,
notices to the Agent under Article II shall not be effective until received.


 


13.2        Change of Address.  The
Borrower, the Agent and any Lender may each change the address for service of
notice upon it by a notice in writing to the other parties hereto.


 


ARTICLE XIV


 


COUNTERPARTS


 


This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart.  This Agreement shall be effective when it has
been executed by the Borrower, the Agent and the Lenders and each party has
notified the Agent by facsimile transmission or telephone that it has taken


 


61

















 


such
action.  Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed original counterpart of this
Agreement.


 


ARTICLE XV


 


CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL


 


15.1        CHOICE OF LAW.  THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


 


15.2        CONSENT TO JURISDICTION.  THE BORROWER, THE AGENT AND EACH LENDER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF
THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND THE BORROWER, THE AGENT AND EACH LENDER HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.  NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF
ANY OTHER JURISDICTION.  ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.


 


15.3        WAIVER OF JURY TRIAL; CONSEQUENTIAL DAMAGES.  THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.  The Borrower, the Agent and each Lender
hereby agrees not to assert any claim against the other, or any of their
respective directors, officers, employees, attorneys or agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to any of the transactions contemplated hereby or
by the other Loan Documents.


 


[Signature Pages Follow]


 


62

















 


IN
WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed this
Agreement as of the date first above written.


 


 


	
   

  	
  ENOGEX
  LLC,

  
	
   

  	
  as
  the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  321
  N. Harvey

  
	
   

  	
  Oklahoma
  City, OK 73102

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Deborah
  S. Fleming

  
	
   

  	
  Phone:

  	
  (405)
  553-3800

  
	
   

  	
  Facsimile:

  	
  (405)
  553-3576

  
					



 


 


SIGNATURE PAGE TO


ENOGEX LLC


CREDIT AGREEMENT


[                 ],
2008


 

















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Administrative Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  301
  S. College St.

  
	
   

  	
  NC-0760,
  DC-06

  
	
   

  	
  Charlotte,
  NC 28288-0760

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  as
  Syndication Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  600
  Travis, 20th Floor

  
	
   

  	
  Houston,
  TX 77030

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  JP
  MORGAN CHASE BANK, N.A.,

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  MIZUHO
  CORPORATE BANK, LTD.,

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  UNION
  BANK OF CALIFORNIA,

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  CITIBANK,
  N.A.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  UBS
  LOAN FINANCE LLC,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 














 


	
   

  	
  LEHMAN BROTHERS BANK,
  FSB,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  THE
  BANK OF NEW YORK,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  US
  BANK, N.A.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]

  
					



 

















 


	
   

  	
  BANK
  OF OKLAHOMA, N.A.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  [                    ]

  
	
   

  	
  [                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  [                    ]

  
	
   

  	
  Phone:

  	
  [                    ]

  
	
   

  	
  Facsimile:

  	
  [                    ]