**Exhibit 10.30**

 

Execution Copy

 

 

 

**CREDIT AGREEMENT**

 

Dated as of August1, 2005

 

among

 

**COPANOENERGY, L.L.C.,**as the Borrower,

 

**BANK OFAMERICA, N.A.,**as Administrative Agent andL/C Issuer,

 

**COMERICABANK** and **U.S. BANK NATIONALASSOCIATION**,

as Co-SyndicationAgents,

 

**BANK OFSCOTLAND** and **FORTIS CAPITAL CORP.**,

as Co-DocumentationAgents,

 

and

 

The OtherLenders Party Hereto

 

**BANC OFAMERICA SECURITIES LLC,**asSole Lead Arranger and Sole Book Manager

 

 

 

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**TABLE OF CONTENTS**

 
| **Section**                                           |       |                                                                         |
|-------------------------------------------------------|------------|------------------------------------------------------------------------------|
|                                                  |       |                                                                         |   |
| ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS           |       |
| ** **                                            | 1.01       | Defined  Terms                                                               |   |
| ** **                                            | 1.02       | Other Interpretive Provisions                                                |   |
| ** **                                            | 1.03       | Accounting  Terms                                                            |   |
| ** **                                            | 1.04       | Rounding                                                                     |   |
| ** **                                            | 1.05       | Times  of Day                                                                |   |
| ** **                                            | 1.06       | Letter  of Credit Amounts                                                    |   |
| ** **                                            | ** ** | ** **                                                                   | ** ** |
| ARTICLE II. THE COMMITMENTS AND CREDIT  EXTENSIONS    |       |
| ** **                                            | 2.01       | Loans                                                                        |   |
| ** **                                            | 2.02       | Borrowings,  Conversions and Continuations of Loans                          |   |
| ** **                                            | 2.03       | Letters of Credit                                                            |   |
| ** **                                            | 2.04       | Reserved                                                                     |   |
| ** **                                            | 2.05       | Prepayments                                                                  |   |
| ** **                                            | 2.06       | Termination or Reduction  of Commitments                                     |   |
| ** **                                            | 2.07       | Repayment of Loans                                                           |   |
| ** **                                            | 2.08       | Interest                                                                     |   |
| ** **                                            | 2.09       | Fees                                                                         |   |
| ** **                                            | 2.10       | Computation of Interest and  Fees                                            |   |
| ** **                                            | 2.11       | Evidence of Debt                                                             |   |
| ** **                                            | 2.12       | Payments Generally;  Administrative Agent’s Clawback                    |   |
| ** **                                            | 2.13       | Sharing of Payments by Lenders                                               |   |
| ** **                                            | 2.14       | Increase in Commitments                                                      |   |
| ** **                                            | ** ** | ** **                                                                   | ** ** |
| ARTICLE III. TAXES, YIELD PROTECTION AND  ILLEGALITY  |       |
| ** **                                            | 3.01       | Taxes                                                                        |   |
| ** **                                            | 3.02       | Illegality                                                                   |   |
| ** **                                            | 3.03       | Inability to Determine Rates                                                 |   |
| ** **                                            | 3.04       | Increased Costs; Reserves  on Eurodollar Rate Loans                          |   |
| ** **                                            | 3.05       | Compensation for Losses                                                      |   |
| ** **                                            | 3.06       | Mitigation  Obligations; Replacement of Lenders                              |   |
| ** **                                            | 3.07       | Survival                                                                     |   |
| ** **                                            | ** ** | ** **                                                                   | ** ** |
| ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS |       |
| ** **                                            | 4.01       | Conditions of Initial Credit  Extension                                      |   |
| ** **                                            | 4.02       | Conditions to all Credit  Extensions                                         |   |
| ** **                                            | ** ** | ** **                                                                   | ** ** |
| ARTICLE V. REPRESENTATIONS AND WARRANTIES             |       |
| ** **                                            | 5.01       | Existence, Qualification and  Power; Compliance with Laws                    |   |
| ** **                                            | 5.02       | Authorization; No Contravention                                              |   |
| ** **                                            | 5.03       | Governmental Authorization;  Other Consents                                  |   |
| ** **                                            | 5.04       | Binding Effect                                                               |   |
| ** **                                            | 5.05       | Financial  Statements; No Material Adverse Effect; No Internal Control Event |   |
| ** **                                            | 5.06       | Litigation                                                                   |   |
| ** **                                            | 5.07       | No Default                                                                   |   |
|                                                       |            |                                                                              |  |  |

 

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| ** **                        | 5.08       | Ownership of Property; Liens                                                    |       |
|-----------------------------------|------------|---------------------------------------------------------------------------------|------------|
| ** **                        | 5.09       | Environmental Compliance                                                        |       |
| ** **                        | 5.10       | Insurance                                                                       |       |
| ** **                        | 5.11       | Taxes                                                                           |       |
| ** **                        | 5.12       | ERISA Compliance                                                                |       |
| ** **                        | 5.13       | Subsidiaries; Equity  Interests                                                 |       |
| ** **                        | 5.14       | Margin Regulations;  Investment Company Act; Public Utility Holding Company Act |       |
| ** **                        | 5.15       | Disclosure                                                                      |       |
| ** **                        | 5.16       | Compliance with Laws                                                            |       |
| ** **                        | 5.17       | Intellectual Property;  Licenses, Etc                                           |       |
| ** **                        | 5.18       | Labor Disputes and Acts of  God                                                 |       |
| ** **                        | 5.19       | Solvency                                                                        |       |
| ** **                        | 5.20       | Acquisition Closing                                                             |       |
| ** **                        | ** ** | ** **                                                                      | ** ** |
| ARTICLE VI. AFFIRMATIVE COVENANTS |       |
| ** **                        | 6.01       | Financial Statements                                                            |       |
| ** **                        | 6.02       | Certificates; Other  Information                                                |       |
| ** **                        | 6.03       | Notices                                                                         |       |
| ** **                        | 6.04       | Payment of Obligations                                                          |       |
| ** **                        | 6.05       | Preservation of Existence,  Etc                                                 |       |
| ** **                        | 6.06       | Maintenance of Properties                                                       |       |
| ** **                        | 6.07       | Maintenance of Insurance                                                        |       |
| ** **                        | 6.08       | Compliance with Laws                                                            |       |
| ** **                        | 6.09       | Books and Records                                                               |       |
| ** **                        | 6.10       | Inspection Rights                                                               |       |
| ** **                        | 6.11       | Use of Proceeds                                                                 |       |
| ** **                        | 6.12       | Additional Guarantors                                                           |       |
| ** **                        | 6.13       | Agreement to Deliver  Security Documents                                        |       |
| ** **                        | 6.14       | Perfection and Protection  of Security Interests and Liens                      |       |
| ** **                        | 6.15       | Performance on Loan Parties’  Behalf                                       |       |
| ** **                        | 6.16       | Environmental Matters;  Environmental Reviews                                   |       |
| ** **                        | 6.17       | Compliance with Agreements                                                      |       |
| ** **                        | 6.18       | Unrestricted Subsidiaries                                                       |       |
| ** **                        | ** ** | ** **                                                                      | ** ** |
| ARTICLE VII. NEGATIVE COVENANTS   |       |
| ** **                        | 7.01       | Liens                                                                           |       |
| ** **                        | 7.02       | Investments                                                                     |       |
| ** **                        | 7.03       | Indebtedness                                                                    |       |
| ** **                        | 7.04       | Fundamental Changes                                                             |       |
| ** **                        | 7.05       | Dispositions                                                                    |       |
| ** **                        | 7.06       | Restricted Payments                                                             |       |
| ** **                        | 7.07       | Change in Nature of Business                                                    |       |
| ** **                        | 7.08       | Transactions with  Affiliates                                                   |       |
| ** **                        | 7.09       | Burdensome Agreements                                                           |       |
| ** **                        | 7.10       | Use of Proceeds                                                                 |       |
| ** **                        | 7.11       | Prohibited Contracts                                                            |       |
| ** **                        | 7.12       | Hedging Contracts                                                               |       |
| ** **                        | 7.13       | Subsidiaries                                                                    |       |
| ** **                        | 7.14       | Limitation on Credit  Extensions                                                |       |
| ** **                        | 7.15       | Risk Management Compliance                                                      |       |
| ** **                        | 7.16       | Subordinated Debt                                                               |       |

 

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| ** **                                    | 7.17       | Material Contracts                                                                                          |       |
|-----------------------------------------------|------------|-------------------------------------------------------------------------------------------------------------|------------|
| ** **                                    | 7.18       | Designation and Conversion  of Restricted and Unrestricted Subsidiaries; Debt of Unrestricted  Subsidiaries |       |
| ** **                                    | 7.19       | Capital Expenditures                                                                                        |       |
| ** **                                    | 7.20       | Amendments to Organizational  Documents                                                                     |       |
| ** **                                    | 7.21       | Financial Covenants                                                                                         |       |
| ** **                                    | ** ** | ** **                                                                                                  | ** ** |
| ARTICLE VIII. EVENTS OF DEFAULT AND  REMEDIES |       |
| ** **                                    | 8.01       | Events of Default                                                                                           |       |
| ** **                                    | 8.02       | Remedies Upon Event of  Default                                                                             |       |
| ** **                                    | 8.03       | Application of Funds                                                                                        |       |
| ** **                                    | ** ** | ** **                                                                                                  | ** ** |
| ARTICLE IX. ADMINISTRATIVE AGENT              |       |
| ** **                                    | 9.01       | Appointment and Authority                                                                                   |       |
| ** **                                    | 9.02       | Rights as a Lender                                                                                          |       |
| ** **                                    | 9.03       | Exculpatory Provisions                                                                                      |       |
| ** **                                    | 9.04       | Reliance by Administrative  Agent                                                                           |       |
| ** **                                    | 9.05       | Delegation of Duties                                                                                        |       |
| ** **                                    | 9.06       | Resignation of  Administrative Agent                                                                        |       |
| ** **                                    | 9.07       | Non-Reliance on  Administrative Agent and Other Lenders                                                     |       |
| ** **                                    | 9.08       | No Other Duties, Etc                                                                                        |       |
| ** **                                    | 9.09       | Administrative Agent May  File Proofs of Claim                                                              |       |
| ** **                                    | 9.10       | Collateral and Guaranty  Matters                                                                            |       |
| ** **                                    | ** ** | ** **                                                                                                  | ** ** |
| ARTICLE X. MISCELLANEOUS                      |       |
| ** **                                    | 10.01      | Amendments, Etc                                                                                             |       |
| ** **                                    | 10.02      | Notices; Effectiveness;  Electronic Communication                                                           |       |
| ** **                                    | 10.03      | No Waiver; Cumulative Remedies                                                                              |       |
| ** **                                    | 10.04      | Expenses; Indemnity; Damage  Waiver                                                                         |       |
| ** **                                    | 10.05      | Payments Set Aside                                                                                          |       |
| ** **                                    | 10.06      | Successors and Assigns                                                                                      |       |
| ** **                                    | 10.07      | Treatment of Certain  Information; Confidentiality                                                          |       |
| ** **                                    | 10.08      | Right of Setoff                                                                                             |       |
| ** **                                    | 10.09      | Interest Rate Limitation                                                                                    |       |
| ** **                                    | 10.10      | Counterparts; Integration;  Effectiveness                                                                   |       |
| ** **                                    | 10.11      | Survival of Representations  and Warranties                                                                 |       |
| ** **                                    | 10.12      | Severability                                                                                                |       |
| ** **                                    | 10.13      | Replacement of Lenders                                                                                      |       |
| ** **                                    | 10.14      | Governing Law; Jurisdiction;  Etc                                                                           |       |
| ** **                                    | 10.15      | Waiver of Jury Trial                                                                                        |       |
| ** **                                    | 10.16      | USA PATRIOT Act Notice                                                                                      |       |
| ** **                                    | 10.17      | Amendment and Restatement                                                                                   |       |
| ** **                                    | 10.18      | ENTIRE AGREEMENT                                                                                            |       |
| ** **                                    | ** ** | ** **                                                                                                  | ** ** |
| SIGNATURES                                    |       |

 

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| **SCHEDULES** | ** ** | ** **                                                         |
|---------------|------------|--------------------------------------------------------------------|
| ** **    | ** ** | ** **                                                         |
| ** **    | 1.01       | Security Schedule                                                  |   |
| ** **    | 2.01       | Commitments and Applicable  Percentages                            |   |
| ** **    | 5.05       | Supplement to Interim Financial  Statements                        |   |
| ** **    | 5.09       | Environmental Matters                                              |   |
| ** **    | 5.13       | Subsidiaries; Other Equity  Investments                            |   |
| ** **    | 7.01       | Existing Liens                                                     |   |
| ** **    | 7.03       | Existing Indebtedness                                              |   |
| ** **    | 7.11       | Prohibited Contracts                                               |   |
| ** **    | 10.02      | Administrative Agent’s Office;  Certain Addresses for Notices |   |
| ** **    | 10.06      | Processing and Recordation Fees                                    |   |
| ** **    | ** ** | ** **                                                         | ** ** |
| **EXHIBITS**  | ** ** | ** **                                                         |
| ** **    | ** ** | ** **                                                         |
| ** **    | A          | Loan Notice                                                        |   |
| ** **    | B          | Reserved                                                           |   |
| ** **    | C          | Note                                                               |   |
| ** **    | D          | Compliance Certificate                                             |   |
| ** **    | E          | Assignment and Assumption                                          |   |
| ** **    | F          | Guaranty                                                           |   |
| ** **    | G          | Pledge and Security Agreement                                      |   |
| ** **    | H          | Opinion Matters                                                    |   |
| ** **    | I          | Solvency Certificate                                               |   |
| ** **    | J          | Collateral Sharing Agreement                                       |   |
| ** **    | K          | Risk Management Policy                                             |   |

 

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**CREDIT AGREEMENT**

 

This CREDIT AGREEMENT (“Agreement”) isentered into as of August 1, 2005,****among COPANOENERGY, L.L.C., a Delaware limited liability company (the “Borrower”),each lender from time to time party hereto (collectively, the “Lenders”and individually, a “Lender”), and BANK OF AMERICA, N.A.**,**as Administrative Agent and L/C Issuer.

 

The Borrower has requested that the Lendersprovide a revolving credit facility, and the Lenders are willing to do so onthe terms and conditions set forth herein.

 

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

 

# **ARTICLE I.DEFINITIONS AND ACCOUNTING TERMS**

#  

**1.01****                        DefinedTerms****.  **As used in thisAgreement, the following terms shall have the meanings set forth below:

 

“Acquisition” means the purchase bythe Acquisition Subsidiary of all the Equity Interests of ScissorTail pursuantto the Acquisition Agreement.

 

“Acquisition Agreement” means thatcertain Membership Interest Purchase Agreement dated as of June 20, 2005, byand among the Borrower, the Acquisition Subsidiary, ScissorTail, HamiltonScissorTail, LLC, ScissorTail Holdings, LLC, Jay A. Precourt and Frederic C.Hamilton.

 

“Acquisition Documents” means (a) theAcquisition Agreement, and (b) all other agreements, assignments, deeds,conveyances, certificates and other documents and instruments now or hereafterexecuted and delivered in connection with the Acquisition.

 

“Acquisition Subsidiary” means CopanoEnergy/Rocky Mountains and Mid-Continent, L.L.C., a Delaware limited liabilitycompany, a wholly-owned Subsidiary of the Borrower.

 

“Additional Debt” means Indebtednessfor borrowed money other than Indebtedness described in Section 7.03 hereof.

 

“Additional Equity” means anycontribution to the equity capital of any Person whether or not occurring inconnection with the issuance or sale of Equity Interests by such Person.

 

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

 

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

 

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

 

“Affiliate” means, with respect to anyPerson, another Person that directly, or indirectly through one or moreintermediaries, Controls or is Controlled by or is under common Control withthe Person specified.

 

“Aggregate Commitments” means theCommitments of all the Lenders.

 

“Agreement” means this CreditAgreement.

 

“Applicable Percentage” means, withrespect to any Lender at any time, the percentage (carried out to the ninthdecimal place) of the Aggregate Commitments represented by such Lender’sCommitment at such time.  If thecommitment of each Lender to make Loans and the obligation of the L/C Issuer tomake L/C Credit Extensions have been terminated pursuant to Section 8.02or if the Aggregate Commitments have expired, then the Applicable Percentage ofeach Lender shall be determined based on the Applicable Percentage of suchLender most recently in effect, giving effect to any subsequentassignments.  The initial ApplicablePercentage of each Lender is set forth opposite the name of such Lender on Schedule2.01 or in the Assignment and Assumption pursuant to which such Lenderbecomes a party hereto, as applicable.

 

“Applicable Rate” means the followingpercentages per annum, based upon the Consolidated Senior Leverage Ratio as setforth in the most recent Compliance Certificate received by the AdministrativeAgent pursuant to Section 6.02(b):

 

**Applicable Rate**

 

| ** **        | ** ** | ** **                               | ** ** | ** **          | ** ** | **Eurodollar   Rate +** | ** ** | ** **        | ** ** |
|-------------------|------------|------------------------------------------|------------|---------------------|------------|-------------------------|------------|-------------------|------------|
| **Pricing Level** | ** ** | **Consolidated Senior   Leverage Ratio** | ** ** | **Commitment  Fee** | ** ** | **Letters of   Credit** | ** ** | **Base Rate   +** | ** ** |
| 1                 |       | >3.50:1                               |       | 0.375               | %          | 2.75                    | %          | 1.25              | %          |
| 2                 |       | >3.00:1 but < 3.50:1               |       | 0.375               | %          | 2.50                    | %          | 1.00              | %          |
| 3                 |       | >2.50:1 but < 3.00:1               |       | 0.300               | %          | 2.25                    | %          | 0.75              | %          |
| 4                 |       | <2.50:1                               |       | 0.250               | %          | 1.75                    | %          | 0.25              | %          |

 

Any increase or decrease in the ApplicableRate resulting from a change in the Consolidated Senior Leverage Ratio shallbecome effective as of the first Business Day immediately following the date aCompliance Certificate is delivered pursuant to Section 6.02(b); provided,however, that if a Compliance Certificate is not delivered when due inaccordance with such Section, then Pricing Level 1 shall apply as of thefirst Business Day after the date on which such Compliance Certificate wasrequired to have been delivered.  TheApplicable Rate in effect from the Closing Date through the date following September30, 2005 on which a Compliance Certificate is delivered or to be deliveredpursuant to Section 6.02(b) shall be determined based upon Pricing Level3.

 

2

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“Approved Counterparty” means (a) anyPerson whose long term senior unsecured debt rating is A- by S&P or higheror A3 by Moody’s or higher (or any Person whose obligations under a HedgingContract are unconditionally guaranteed by an Affiliate with such debt rating)or (b) any other Person from time to time approved by the Administrative Agent,in each case who has executed and delivered a Collateral Sharing Agreement.

 

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

 

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

 

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

 

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

 

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

 

“Audited Financial Statements” meansthe audited consolidated balance sheet of the Borrower and its Subsidiaries forthe fiscal year ended December 31, 2004, andthe related consolidated statements of income or operations, members’ capitaland cash flows for such fiscal year of the Borrower and its Subsidiaries,including the notes thereto.

 

“Availability Period” means the periodfrom and including the Closing Date to the earliest of (a) the MaturityDate, (b) the date of termination of the Aggregate Commitments pursuant toSection 2.06, and (c) the date of termination of thecommitment of each Lender to make Loans and of the obligation of the L/C Issuerto make L/C Credit Extensions pursuant to Section 8.02.

 

“Available Cash” for any fiscalquarter has the meaning set forth in the Borrower LLC Agreement.

 

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

 

“Base Rate”means for any day a fluctuatingrate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2of 1% and (b) the rate of interest in effect for such day as publiclyannounced from time to time by Bank of America as its “prime rate”.  The “prime rate” is a rate set by Bank ofAmerica based upon various factors including Bank of America’s costs and 

 

3

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desired return, general economic conditionsand other factors, and is used as a reference point for pricing some loans,which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank ofAmerica shall take effect at the opening of business on the day specified inthe public announcement of such change.

 

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

 

“BBA LIBOR” has themeaning specified in Section 1.01 under the definition of “Eurodollar Rate”.

 

“Borrower” has the meaning specifiedin the introductory paragraph hereto.

 

“Borrower LLC Agreement” means theSecond Amended and Restated Limited Liability Company Agreement of the Borrowerdated as of November 15, 2004.

 

“Borrower Materials” has the meaningspecified in Section 6.02.

 

“Borrowing” means a borrowingconsisting of simultaneous Loans of the same Type and, in the case ofEurodollar Rate Loans, having the same Interest Period made by each of theLenders pursuant to Section 2.01.

 

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

 

“Capital Expenditures” means, for anyperiod, for the Borrower and its Restricted Subsidiaries on a consolidatedbasis, an amount equal to the sum of (i) the aggregate amount of allexpenditures of the Borrower and its Restricted Subsidiaries for fixed or capitalassets made during such period which, in accordance with GAAP, would beclassified as capital expenditures plus (ii) the aggregate amount of all capitalizedlease liabilities incurred during such period.

 

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

 

“Change in Law” means the occurrence,after the date of this Agreement, of any of the following: (a) theadoption or taking effect of any law, rule, regulation or treaty, (b) anychange in any law, rule, regulation or treaty or in the administration,interpretation or application thereof by any Governmental Authority or (c) themaking or issuance of any request, guideline or directive (whether or nothaving the force of law) by any Governmental Authority.

 

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

 

(a)                                 any“person” or “group” (as such terms are used in Sections 13(d) and 14(d) ofthe Securities Exchange Act of 1934, but excluding any employee benefit plan ofsuch person or its subsidiaries, and any person or entity acting in itscapacity as trustee, agent or other fiduciary or administrator of any suchplan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 underthe Securities Exchange Act of 

 

4

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1934), except that a person or group shall bedeemed to have “beneficial ownership” of all securities that such person orgroup has the right to acquire (such right, an “option right”), whethersuch right is exercisable immediately or only after the passage of time),directly or indirectly, of 30% or more of the equity securities of the Borrowerentitled to vote for members of the board of directors or equivalent governingbody of the Borrower on a fully-diluted basis (and taking into account all suchsecurities that such person or group has the right to acquire pursuant to anyoption right);

 

(b)                                 duringany period of 12 consecutive months, a majority of the members of the board ofdirectors or other equivalent governing body of the Borrower cease to be composedof individuals (i) who were members of that board or equivalent governing bodyon the first day of such period, (ii) whose election or nomination to thatboard or equivalent governing body was approved by individuals referred to inclause (i) above constituting at the time of such election or nominationat least a majority of that board or equivalent governing body or (iii) whoseelection or nomination to that board or other equivalent governing body wasapproved by individuals referred to in clauses (i) and (ii) aboveconstituting at the time of such election or nomination at least a majority ofthat board or equivalent governing body (excluding, in the case of both clause(ii) and clause (iii), any individual whose initial nomination for, orassumption of office as, a member of that board or equivalent governing bodyoccurs as a result of an actual or threatened solicitation of proxies orconsents for the election or removal of one or more directors by any person orgroup other than a solicitation for the election of one or more directors by oron behalf of the board of directors); or

 

(c)                                  anyPerson or two or more Persons acting in concert shall have acquired by contractor otherwise, or shall have entered into a contract or arrangement that, uponconsummation thereof, will result in its or their acquisition of the power toexercise, directly or indirectly, a controlling influence over the managementor policies of the Borrower, or control over the equity securities of theBorrower entitled to vote for members of the board of directors or equivalentgoverning body of the Borrower on a fully-diluted basis (and taking intoaccount all such securities that such Person or group has the right to acquirepursuant to any option right) representing 30% or more of the combined votingpower of such securities.

 

“Closing Date” means the first dateall the conditions precedent in Section 4.01 are satisfied orwaived in accordance with Section 10.01.

 

“Code” means the Internal Revenue Codeof 1986.

 

“Collateral” means all property of anykind which is subject to a Lien in favor of Lenders (or in favor ofAdministrative Agent for the benefit of Lenders and Lender Counterparties) orwhich, under the terms of any Security Document, is purported to be subject tosuch a Lien, in each case granted or created to secure all or part of theObligations.

 

“Collateral Sharing Agreement” means aCollateral Sharing Agreement by and among an Approved Counterparty, theAdministrative Agent, and the Borrower or a Guarantor (as applicable),substantially in the form of Exhibit J.

 

5

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“Comerica Credit Facility” means thatcertain Credit Agreement among Copano Houston Central, L.L.C., CopanoProcessing, L.P., Copano NGL Services, L.P. and Comerica Bank dated as ofNovember 15, 2004, as the same has been amended prior to the date hereof.

 

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

 

“Compliance Certificate” means acertificate substantially in the form of Exhibit D.

 

“Consolidated EBITDA” means, for anyperiod, for the Borrower and its Restricted Subsidiaries on a consolidatedbasis, an amount equal to Consolidated Net Income for such period plus(a) the following to the extent deducted in calculating such Consolidated NetIncome: (i) Consolidated Interest Charges for such period, (ii) the provisionfor Federal, state, local and foreign income taxes payable by the Borrower andits Restricted Subsidiaries for such period, (iii) depreciation andamortization expense, and (iv) other expenses of the Borrower and its RestrictedSubsidiaries reducing such Consolidated Net Income which do not represent acash item in such period or any future period and minus (b) thefollowing to the extent included in calculating such Consolidated Net Income:  (i) Federal, state, local and foreign incometax credits of the Borrower and its Restricted Subsidiaries for such period and(ii) all non-cash items increasing Consolidated Net Income for such period; providedthat for the purposes of Section 7.21, if the Borrower or any RestrictedSubsidiary shall acquire or dispose of any material property or a Subsidiaryshall be redesignated as either an Unrestricted Subsidiary or a RestrictedSubsidiary, in any case, during the period of four fiscal quarters ending onthe last day of the fiscal quarter immediately preceding the date of determinationfor which financial statements are available and up to and including the dateof the consummation of such acquisition, disposition or redesignation, thenConsolidated EBITDA shall be calculated, in a manner satisfactory to theAdministrative Agent in its reasonable discretion, after giving pro formaeffect to such acquisition (including the revenues of the properties acquired),merger, disposition or redesignation, as if such acquisition, merger,disposition or redesignation had occurred on the first day of such period.

 

“Consolidated Fixed Charge Coverage Ratio”means, as of any date of determination, the ratio of (a) Consolidated EBITDAminus Maintenance Capital Expenditures for the applicable period to (b) ConsolidatedFixed Charges for the applicable period.

 

“Consolidated Fixed Charges” means, forany period, for the Borrower and its Restricted Subsidiaries on a consolidatedbasis, an amount equal to the sum (without duplication) of the following (ineach case, eliminating all offsetting debits and credits between the Borrowerand its Restricted Subsidiaries and all other items required to be eliminatedin the course of the preparation of consolidated financial statements of the Borrowerand its Restricted Subsidiaries in accordance with GAAP):  (a) Consolidated Interest Charges; plus(b) all fees, expenses and charges in respect of letters of credit issuedfor the account of the Borrower or any of its Restricted Subsidiaries, whichare accrued during such period and whether expensed in such 

 

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period or capitalized; plus (c) paymentsof principal in respect of Indebtedness of the Borrower or its RestrictedSubsidiaries (including the principal component of payments under capital leases)paid or payable in such period (other than payments of principal of Loans whichare available to be reborrowed hereunder).

 

“Consolidated Funded Indebtedness”means, as of any date of determination, for the Borrower and its RestrictedSubsidiaries on a consolidated basis, the sum of (a) the outstanding principalamount of all obligations, whether current or long-term, for borrowed money(including Obligations hereunder) and all obligations evidenced by bonds,debentures, notes, loan agreements or other similar instruments, (b) allpurchase money Indebtedness, (c) all direct obligations arising under lettersof credit (including standby and commercial), bankers’ acceptances, bankguaranties, surety bonds and similar instruments, (d) all obligations inrespect of the deferred purchase price of property or services (other thantrade accounts payable in the ordinary course of business), (e) AttributableIndebtedness in respect of capital leases and Synthetic Lease Obligations, (f)without duplication, all Guarantees with respect to outstanding Indebtedness ofthe types specified in clauses (a) through (e) above of Persons other than theBorrower or any Restricted Subsidiary, and (g) all Indebtedness of the typesreferred to in clauses (a) through (f) above of any partnership or jointventure (other than a joint venture that is itself a corporation or limitedliability company) in which the Borrower or a Restricted Subsidiary is ageneral partner or joint venturer, unless such Indebtedness is expressly madenon-recourse to the Borrower or such Restricted Subsidiary.

 

“Consolidated Interest Charges” means,for any period, for the Borrower and its Restricted Subsidiaries on aconsolidated basis, the sum of (a) all interest, premium payments, debtdiscount, fees, charges and related expenses of the Borrower and its RestrictedSubsidiaries in connection with borrowed money (including capitalized interest)or in connection with the deferred purchase price of assets, in each case tothe extent treated as interest in accordance with GAAP, excluding (i)distributions and payments to the Borrower’s preferred unitholders andwarrantholders prior to November 15, 2004 and (ii) one-time charges in respectof loan origination or similar fees and non-cash amortized amounts with respectthereto, and (b) the portion of rent expense of the Borrower and its RestrictedSubsidiaries with respect to such period under capital leases that is treatedas interest in accordance with GAAP.

 

“Consolidated Interest Coverage Ratio”means, as of any date of determination, the ratio of (a) Consolidated EBITDA *to* (b) Consolidated Interest Charges for the applicable period.

 

“Consolidated Net Income” means, forany period, for the Borrower and its Restricted Subsidiaries’ gross revenuesfor such period, including any cash dividends or distributions actuallyreceived from any other Person during such period, minus the Borrower’s and itsRestricted Subsidiaries’ expenses and other proper charges against income(including taxes on income to the extent imposed), determined on a consolidatedbasis in accordance with GAAP consistently applied after eliminating earningsor losses attributable to outstanding minority interests and excluding the netearnings of any Person other than a Restricted Subsidiary in which the Borroweror any of its Subsidiaries has an ownership interest.  Consolidated Net Income shall not include (i)any gain or loss from the Disposition of assets, (ii) any extraordinary gainsor losses or (iii) any non-cash gains or losses resulting from mark to marketactivity as a 

 

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result of the implementation of Statement ofFinancial Accounting Standards 133, “Accounting for Derivative Instruments andHedging Activities” (“SFAS 133”).

 

“Consolidated Senior Funded Indebtedness”means, as of any date of determination, Consolidated Funded Indebtedness, butexcluding Indebtedness under the Senior Bridge Facility (or any refinancing orreplacement thereof permitted pursuant to Section 7.03(b)) and Subordinated Debt.

 

“Consolidated Senior Leverage Ratio”means, as of any date of determination, the ratio of (a) Consolidated SeniorFunded Indebtedness as of such date to (b) Consolidated EBITDA for the applicableperiod ending on such date.

 

“Consolidated Total Leverage Ratio”means, as of any date of determination, the ratio of (a) Consolidated FundedIndebtedness as of such date to (b) Consolidated EBITDA for the applicable periodending on such date.

 

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

 

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

 

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

 

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

 

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

 

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

 

“Defaulting Lender” means any Lenderthat (a) has failed to fund any portion of the Loans or participations in L/CObligations required to be funded by it hereunder within one Business Day ofthe date required to be funded by it hereunder, (b) has otherwise failed to pay

 

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over to the Administrative Agent or any otherLender any other amount required to be paid by it hereunder within one BusinessDay of the date when due, unless the subject of a good faith dispute, or (c)has been deemed insolvent or become the subject of a receivership, bankruptcyor insolvency proceeding.

 

“Disposition” or “Dispose”means the sale, transfer, license, lease or other disposition (including anysale and leaseback transaction) of any property by any Person, including anysale, assignment, transfer or other disposal, with or without recourse, of anynotes or accounts receivable or any rights and claims associated therewith.

 

“Dollar” and “$” mean lawfulmoney of the United States.

 

“Eligible Assignee” means (a) aLender; (b) an Affiliate of a Lender; (c) an Approved Fund; and(d) any other Person (other than a natural person) approved by (i) theAdministrative Agent and the L/C Issuer, and (ii) unless an Event ofDefault has occurred and is continuing, the Borrower (each such approval not tobe unreasonably withheld or delayed); provided that notwithstanding theforegoing, “Eligible Assignee” shall not include the Borrower or any of theBorrower’s Affiliates or Subsidiaries.

 

“Environmental Laws” means any and allFederal, state, local, and foreign statutes, laws, regulations, ordinances,rules, judgments, orders, decrees, permits, concessions, grants, franchises,licenses, agreements or governmental restrictions relating to pollution and theprotection of the environment or the release of any Hazardous Materials into theenvironment, including those related to hazardous substances or wastes, airemissions and discharges to waste or public systems.

 

“Environmental Liability”means any liability, contingent or otherwise (including any liability fordamages, costs of environmental remediation, fines, penalties or indemnities),of the Borrower, any other Loan Party or any Restricted Subsidiary directly orindirectly resulting from or based upon (a) violation of any Environmental Law,(b) the generation, use, handling, transportation, storage, treatment ordisposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,(d) the release or threatened release of any Hazardous Materials into theenvironment or (e) any contract, agreement or other consensual arrangementpursuant to which liability is assumed or imposed with respect to any of theforegoing.

 

“Equity Interests” means, with respectto any Person, all of the shares of capital stock of (or other ownership orprofit interests in) such Person, all of the warrants, options or other rightsfor the purchase or acquisition from such Person of shares of capital stock of(or other ownership or profit interests in) such Person, all of the securitiesconvertible into or exchangeable for shares of capital stock of (or otherownership or profit interests in) such Person or warrants, rights or optionsfor the purchase or acquisition from such Person of such shares (or such otherinterests), and all of the other ownership or profit interests in such Person(including partnership, member or trust interests therein), whether voting ornonvoting, and whether or not such shares, warrants, options, rights or otherinterests are outstanding on any date of determination.

 

“ERISA” means the Employee RetirementIncome Security Act of 1974.

 

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

 

“ERISA Event” means (a) a ReportableEvent with respect to a Pension Plan; (b) a withdrawal by the Borrower or anyERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during aplan year in which it was a substantial employer (as defined inSection 4001(a)(2) of ERISA) or a cessation of operations that is treatedas such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partialwithdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan ornotification that a Multiemployer Plan is in reorganization; (d) the filing ofa notice of intent to terminate, the treatment of a Plan amendment as atermination under Sections 4041 or 4041A of ERISA, or the commencement ofproceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)an event or condition which constitutes grounds under Section 4042 of ERISA forthe termination of, or the appointment of a trustee to administer, any PensionPlan or Multiemployer Plan; or (f) the imposition of any liability under TitleIV of ERISA, other than for PBGC premiums due but not delinquent under Section4007 of ERISA, upon the Borrower or any ERISA Affiliate.

 

“Eurodollar Rate” means for anyInterest Period with respect to a Eurodollar Rate Loan, the rate per annumequal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), aspublished by Reuters (or other commercially available source providingquotations of BBA LIBOR as designated by the Administrative Agent from time totime) at approximately 11:00 a.m., London time, two Business Days prior to thecommencement of such Interest Period, for Dollar deposits (for delivery on thefirst day of such Interest Period) with a term equivalent to such InterestPeriod.  If such rate is not available atsuch time for any reason, then the “Eurodollar Rate” for such Interest Periodshall be the rate per annum determined by the Administrative Agent to be therate at which deposits in Dollars for delivery on the first day of suchInterest Period in same day funds in the approximate amount of the EurodollarRate Loan being made, continued or converted by Bank of America and with a termequivalent to such Interest Period would be offered by Bank of America’s LondonBranch to major banks in the London interbank Eurodollar market at theirrequest at approximately 11:00 a.m. (London time) two Business Days prior tothe commencement of such Interest Period.

 

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

 

“Event of Default” has the meaningspecified in Section 8.01.

 

“Excess Sale Proceeds” has the meaningspecified in Section 7.05(c).

 

“Excluded Taxes” means, with respectto the Administrative Agent, any Lender, the L/C Issuer or any other recipientof any payment to be made by or on account of any obligation of the Borrower orany other Loan Party hereunder or under any other Loan Document, (a) taxesimposed on or measured by its net income (however denominated), and franchisetaxes imposed on it, by the United States or by the jurisdiction (or anypolitical subdivision thereof) under the laws of which such recipient isorganized or resident or in which its principal office is located or 

 

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in which it is doing or has done business or,in the case of any Lender, in which its applicable Lending Office is located orin which it is doing or has done business, (b) any branch profits taxes imposedby the United States or any similar tax imposed by any other jurisdiction (or anypolitical subdivision thereof) in which the Borrower is located and (c) in thecase of a Foreign Lender (other than an assignee pursuant to a request by theBorrower under Section 10.13), any withholding tax that is imposedon amounts payable to such Foreign Lender at the time such Foreign Lenderbecomes a party hereto (or designates a new Lending Office) or is attributableto such Foreign Lender’s failure to comply with Section 3.01(h) or its failureor inability (other than as a result of a Change in Law) to comply with Section 3.01(e),except to the extent that such Foreign Lender (or its assignor, if any) wasentitled, at the time of designation of a new Lending Office (or assignment),to receive additional amounts from the Borrower with respect to suchwithholding tax pursuant to Section 3.01(a).

 

“Existing Credit Agreement” means thatcertain Amended and Restated Credit Agreement dated as of February 13,2004, among Copano Pipelines Group, L.L.C., Copano Field Services/Copano Bay,L.P., Copano Field Services/Agua Dulce, L.P., Copano Field Services/SouthTexas, L.P., Copano Field Services/Live Oak, L.P., Copano FieldServices/Central Gulf Coast, L.P., Copano Field Services/Upper Gulf Coast, L.P.,                CopanoPipelines/South Texas, L.P., Copano Pipelines/Upper Gulf Coast, L.P., CopanoPipelines/Hebbronville, L.P., Copano Energy Services/Upper Gulf Coast, L.P.,Bank of America, N.A. (successor by merger to Fleet National Bank), as agent,and a syndicate of lenders, as amended or supplemented to the Closing Date.

 

“Existing Letters of Credit” means allLetters of Credit existing on the Closing Date issued under the Existing CreditAgreement or under the ScissorTail Credit Facility.

 

“Extraordinary Receipts” means grossproceeds received by any Loan Party relating to (a) insurance in respect ofcasualty to property that such Loan Party has determined (which determinationmust be made with reasonable promptness following such casualty) will not beapplied to the repair or replacement thereof within 180 days following suchcasualty in accordance with the Security Documents,  or (b) payments pursuant to any indemnityagreement that such Loan Party has determined (which determination must be madewith reasonable promptness following receipt of such payment) will not beapplied to remedy the circumstances or improve, repair or replace the propertyof such Loan Party pursuant to which such indemnity payment arose within 180days following such payment, or (c) pension reversions; providedthatin no event shall such Extraordinary Receipts include Net Cash Proceeds.

 

“Federal Funds Rate”means, for any day, the rate perannum equal to the weighted average of the rates on overnight Federal fundstransactions with members of the Federal Reserve System arranged by Federalfunds brokers on such day, as published by the Federal Reserve Bank of New Yorkon the Business Day next succeeding such day; provided that (a) if suchday is not a Business Day, the Federal Funds Rate for such day shall be suchrate on such transactions on the next preceding Business Day as so published onthe next succeeding Business Day, and (b) if no such rate is so published onsuch next succeeding Business Day, the Federal Funds Rate for such day shall bethe average rate (rounded upward, if necessary, to a whole multiple of 1/100 of1%) charged to Bank of America on such day on such transactions as determinedby the Administrative Agent.

 

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“Fee Letter” means the letteragreement, dated June 20, 2005, among the Borrower, the AdministrativeAgent, the Arranger, and Banc of America Bridge LLC.

 

“Foreign Lender” means any Lender thatis organized under the laws of a jurisdiction other than that in which theBorrower is resident for tax purposes. For purposes of this definition, the United States, each State thereofand the District of Columbia shall be deemed to constitute a singlejurisdiction.

 

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

 

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

 

“GAAP” means generally acceptedaccounting principles in the United States set forth in the opinions andpronouncements of the Accounting Principles Board and the American Institute ofCertified Public Accountants and statements and pronouncements of the FinancialAccounting Standards Board or such other principles as may be approved by asignificant segment of the accounting profession in the United States, that areapplicable to the circumstances as of the date of determination, consistentlyapplied.

 

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

 

“Granting Lender” has the meaningspecified in Section 10.06(h).

 

“Guarantee” means, as to any Person, (a)any obligation, contingent or otherwise, of such Person guaranteeing or havingthe economic effect of guaranteeing any Indebtedness or other obligationpayable by another Person (the “primary obligor”) in any manner, whetherdirectly or indirectly, and including any obligation of such Person, direct orindirect, (i) to purchase or pay (or advance or supply funds for the purchaseor payment of) such Indebtedness or other obligation, (ii) to purchase or leaseproperty, securities or services for the purpose of assuring the obligee inrespect of such Indebtedness or other obligation of the payment or performanceof such Indebtedness or other obligation, (iii) to maintain working capital,equity capital or any other financial statement condition or liquidity or levelof income or cash flow of the primary obligor so as to enable the primaryobligor to pay such Indebtedness or other obligation, or (iv) entered into forthe purpose of assuring in any other manner the obligee in respect of suchIndebtedness or other obligation of the payment or performance thereof or toprotect such obligee against loss in respect thereof (in whole or in part), or(b) any Lien on any assets of such Person securing any Indebtedness or otherobligation of any other Person, whether or not such Indebtedness or otherobligation is assumed by such Person (or any right, contingent or otherwise, ofany holder of such Indebtedness to obtain any such Lien).  The amount of any

 

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Guarantee shall be deemed to be an amountequal to the stated or determinable amount of the related primary obligation,or portion thereof, in respect of which such Guarantee is made.  The term “Guarantee” as a verb has acorresponding meaning.

 

“Guarantors” means, collectively, eachRestricted Subsidiary of the Borrower.

 

“Guaranty” means the Guaranty made bythe Guarantors in favor of the Administrative Agent and the Lenders,substantially in the form of Exhibit F.

 

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

 

“Hedging Contract” means(a) any and all rate swap transactions, basis swaps, credit derivativetransactions, forward rate transactions, commodity swaps, commodity options,forward commodity contracts, equity or equity index swaps or options, bond orbond price or bond index swaps or options or forward bond or forward bond priceor forward bond index transactions, interest rate options, forward foreignexchange transactions, cap transactions, floor transactions, collartransactions, currency swap transactions, cross-currency rate swaptransactions, currency options, spot contracts, or any other similartransactions or any combination of any of the foregoing (including any optionsto enter into any of the foregoing), whether or not any such transaction isgoverned by or subject to any master agreement, and (b) any and alltransactions of any kind, and the related confirmations, which are subject tothe terms and conditions of, or governed by, any form of master agreementpublished by the International Swaps and Derivatives Association, Inc., anyInternational Foreign Exchange Master Agreement, or any other master agreement(any such master agreement, together with any related schedules, a “MasterAgreement”), including any such obligations or liabilities under any MasterAgreement.

 

“Hedging Termination Value”means, in respect of any one or more Hedging Contracts, after taking intoaccount the effect of any legally enforceable netting agreement relating tosuch Hedging Contracts, (a) for any date on or after the date such HedgingContracts have been closed out and termination value(s) determined in accordancetherewith, such termination value(s), and (b) for any date prior to the datereferenced in clause (a), the amount(s) determined as the mark-to-marketvalue(s) for such Hedging Contracts, as determined based upon one or moremid-market or other readily available quotations provided by any recognizeddealer in such Hedging Contracts (which may include a Lender or any Affiliateof a Lender).

 

“Honor Date” has themeaning specified in Section 2.03(c)(i).

 

“Indebtedness” means, as to any Personat a particular time, without duplication, all of the following, whether or notincluded as indebtedness or liabilities in accordance with GAAP:

 

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

 

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

 

(c)                                  net obligations ofsuch Person under any Hedging Contract;

 

(d)                                 all obligations ofsuch Person to pay the deferred purchase price of property or services (otherthan trade accounts payable in the ordinary course of business and, in each case,not past due for more than 60 days after the date on which such trade accountpayable was created);

 

(e)                                  indebtedness(excluding prepaid interest thereon) secured by a Lien (other than Liensdescribed in Section 7.01(l)) on property owned or being purchased by suchPerson (including indebtedness arising under conditional sales or other titleretention agreements), whether or not such indebtedness shall have been assumedby such Person or is limited in recourse;

 

(f)                                   capital leases andSynthetic Lease Obligations;

 

(g)                                  all obligations ofsuch Person to purchase, redeem, retire, defease or otherwise make any paymentin respect of any Equity Interest in such Person (other than as permittedpursuant to Section 7.06) or any other Person, valued, in the case of aredeemable preferred interest, at the greater of its voluntary or involuntaryliquidation preference plus accrued and unpaid dividends; and

 

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

 

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

 

“Indemnified Taxes” means Taxes otherthan Excluded Taxes.

 

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

 

“Information” has the meaningspecified in Section 10.07.

 

“Initial Financial Statements” means:

 

(a)                                 the Audited FinancialStatements;

 

(b)                                 the auditedconsolidated financial statements of the Borrower as of December 31, 2002 and December31, 2003;

 

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(c)                                  the unaudited consolidatedfinancial statements of the Borrower as of March 31, 2005; and

 

(d)                                 the *pro forma* consolidated balance sheet of the Borrower and theRestricted Subsidiaries as of March 31, 2005 after giving effect to theAcquisition.

 

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

 

“Interest Period” means, as to eachEurodollar Rate Loan, the period commencing on the date such Eurodollar RateLoan is disbursed or converted to or continued as a Eurodollar Rate Loan andending on the date one, two, three or six months thereafter, as selected by theBorrower in its Loan Notice or such other period that is twelve months or lessrequested by the Borrower and consented to by all the Lenders; providedthat:

 

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

 

(ii)                                  any Interest Periodthat begins on the last Business Day of a calendar month (or on a day for whichthere is no numerically corresponding day in the calendar month at the end ofsuch Interest Period) shall end on the last Business Day of the calendar monthat the end of such Interest Period; and

 

(iii)                               no Interest Period shallextend beyond the Maturity Date.

 

“Internal Control Event” means (a) a determinationof a material weakness in, or (b) any fraud that involves management or otheremployees who have a significant role in, the Borrower’s internal controls overfinancial reporting, in each case as described in the Securities Laws.

 

“Investment” means, as to any Person,any direct or indirect acquisition or investment by such Person, whether bymeans of (a) the purchase or other acquisition of Equity Interests of anotherPerson, or (b) a loan, advance or capital contribution to, Guarantee orassumption of Indebtedness of, or purchase or other acquisition of any other Indebtednessor Equity Interests of, another Person, including any partnership or jointventure interest in such other Person and any arrangement pursuant to which theinvestor Guarantees Indebtedness of such other Person.  For purposes of covenant compliance, theamount of any Investment shall be the amount actually invested, withoutadjustment for subsequent increases or decreases in the value of suchInvestment.

 

“IP Rights” has the meaning specifiedin Section 5.17.

 

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“IRS” means the United States InternalRevenue Service.

 

“ISP” means, with respect to anyLetter of Credit, the “International Standby Practices 1998” published by theInstitute of International Banking Law & Practice (or such later versionthereof as may be in effect at the time of issuance).

 

“Issuer Documents” means with respectto any Letter of Credit, the Letter of Credit Application, and any otherdocument, agreement and instrument entered into by the L/C Issuer and theBorrower (or any Restricted Subsidiary) or in favor of the L/C Issuer andrelating to any such Letter of Credit.

 

“Kinder Morgan Gas Processing Agreement”means that certain Gas Processing Contract dated as of January 1, 2004, betweenCopano Processing, L.P. and Kinder Morgan Texas Pipeline, L.P., and thatcertain related Letter Agreement between Copano Processing, L.P. and KinderMorgan Texas Pipeline, L.P., regarding prepayment of carbon dioxide handlingfees, together with all amendments and modifications thereto permitted to bemade by this Agreement.

 

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

 

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

 

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

 

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

 

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

 

“L/C Obligations” means, as at anydate of determination, the aggregate amount available to be drawn under alloutstanding Letters of Credit plus the aggregate of all UnreimbursedAmounts, including all L/C Borrowings.  Forpurposes of computing the amount available to be drawn under any Letter ofCredit, the amount of such Letter of Credit shall be determined in accordancewith Section 1.06.  For allpurposes of this Agreement, if on any date of determination a Letter of Credithas expired by its terms but any amount may still be drawn thereunder by reasonof the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemedto be “outstanding” in the amount so remaining available to be drawn.

 

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

 

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“Lender Counterparty” means a Lenderor an Affiliate of a Lender.

 

“Lender Hedging Obligations” means allobligations arising from time to time under Hedging Contracts entered into fromtime to time between the Borrower or any Guarantor and a Lender Counterparty;provided that (a) if such Lender Counterparty ceases to be a Lender hereunderor an Affiliate of a Lender hereunder, Lender Hedging Obligations shall onlyinclude such obligations to the extent arising from transactions entered intoat the time such counterparty was a Lender hereunder or an Affiliate of aLender hereunder, and (b) for any of the forgoing to be included within “LenderHedging Obligations” hereunder, the applicable Lender Counterparty must haveprovided the Administrative Agent written notice of the existence thereof andsuch transaction must not otherwise be prohibited under this Agreement.

 

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

 

“Letter of Credit” means any standby letter of credit issuedhereunder and shall include the Existing Letters of Credit.

 

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

 

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

 

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

 

“Letter of Credit Sublimit” means anamount equal to $25,000,000.  The Letterof Credit Sublimit is part of, and not in addition to, the AggregateCommitments.

 

“Lien” means any mortgage, pledge,hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory orother), charge, or preference, priority or other security interest orpreferential arrangement in the nature of a security interest of any kind ornature whatsoever (including any conditional sale or other title retentionagreement, any easement, right of way or other encumbrance on title to realproperty, and any financing lease having substantially the same economic effectas any of the foregoing).

 

“Loan” has the meaning specified in Section 2.01.

 

“Loan Documents” means this Agreement,each Note, each Issuer Document, each Security Document, the Fee Letter and allother agreements, certificates, documents, instruments and writings at any timedelivered in connection herewith or therewith (exclusive of term sheets andcommitment letters).

 

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

 

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

 

“Maintenance Capital Expenditures”means, for any period, all amounts properly classified as capital expendituresunder GAAP that are employed to replace partially or fully depreciated assetsto maintain the existing operating capacity of assets and to extend theiruseful lives, or other amounts classified as capital expenditures under GAAPthat are incurred in maintaining existing system volumes and related cashflows, excluding all costs associated with new well hook-ups.

 

“Material Adverse Effect” means (a) amaterial adverse change in, or a material adverse effect upon, the operations,business, properties, liabilities (actual or contingent) or condition (financialor otherwise) of the Borrower or the Borrower and its Restricted Subsidiariestaken as a whole; (b) a material impairment of the ability of any Loan Party toperform its obligations under any Loan Document to which it is a party; or (c)a material adverse effect upon the legality, validity, binding effect orenforceability against any Loan Party of any Loan Document to which it is aparty.

 

“Material Contracts” means (a) theAcquisition Documents, (b) the Kinder Morgan Gas Processing Agreement, (c) theNew Dominion Gas Purchase Agreement, and (d) any other contract or arrangementto which the Borrower or any of its Restricted Subsidiaries is a party (otherthan the Loan Documents) that constitutes ten percent (10%) or more of theaggregate revenue of the Loan Parties on a consolidated basis.

 

“Maturity Date” means July 31, 2010.

 

“Maximum Rate” has the meaningspecified in Section 10.09.

 

“Moody’s” means Moody’s InvestorsService, Inc.****and any successor thereto.

 

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

 

“Net Cash Proceeds” means the remainderof (a) the gross proceeds received by any Loan Party from (i) a Disposition,****(ii) the issuance of Additional Debt, or (iii) the issuanceof Additional Equity, as applicable, less (b) underwriter discounts andcommissions, investment banking fees, legal, accounting and other professionalfees and expenses, and other usual and customary transaction costs, in eachcase only to the extent paid or payable by a Loan Party in cash and related tosuch Disposition, Additional Debt issuance, or Additional Equity issuance, asapplicable.

 

“New Dominion Gas Purchase Agreement”means that certain Amended and Restated Gas Purchase and Processing  Agreement dated May 1, 2005  between ScissorTail, Buyer/Processor, and NewDominion, L.L.C., Supplier.

 

“Non-Recourse Debt” means anyIndebtedness of any Unrestricted Subsidiary, in each case in respect of which:(a) the holder or holders thereof (i) shall have recourse only to, and 

 

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shall have the right to require the obligationsof such Unrestricted Subsidiary to be performed, satisfied, and paid only outof, the property of such Unrestricted Subsidiary and/or one or more of itsSubsidiaries (but only to the extent that such Subsidiaries are UnrestrictedSubsidiaries) and/or any other Person (other than the Borrower and/or anyRestricted Subsidiary) and (ii) shall have no direct or indirect recourse(including by way of guaranty, support or indemnity) to the Borrower or anyRestricted Subsidiary or to any of the property of the Borrower or anyRestricted Subsidiary, whether for principal, interest, fees, expenses orotherwise; and (b) with respect to any such Indebtedness of any UnrestrictedSubsidiary in which the Borrower directly or indirectly owns 75% or more of theEquity Interests thereof, the terms and conditions relating to the non-recoursenature of such Indebtedness are in form and substance reasonably acceptable tothe Administrative Agent.

 

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

 

“Obligations” means the Lender HedgingObligations and all advances to, and debts, liabilities, obligations, covenantsand duties of, any Loan Party arising under any Loan Document or otherwise withrespect to any Loan or Letter of Credit, whether direct or indirect (includingthose acquired by assumption), absolute or contingent, due or to become due,now existing or hereafter arising and including interest and fees that accrueafter the commencement by or against any Loan Party of any proceeding under anyDebtor Relief Laws naming such Person as the debtor in such proceeding,regardless of whether such interest and fees are allowed claims in suchproceeding.

 

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

 

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

 

“Outstanding Amount” means (i) withrespect to Loans on any date, the aggregate outstanding principal amount thereofafter giving effect to any Borrowings and prepayments or repayments of Loans,as the case may be, occurring on such date; and (ii) with respect to anyL/C Obligations on any date, the amount of such L/C Obligations on such dateafter giving effect to any L/C Credit Extension occurring on such date and anyother changes in the aggregate amount of the L/C Obligations as of such date,including as a result of any reimbursements by the Borrower of UnreimbursedAmounts.

 

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

 

“PBGC” means the Pension BenefitGuaranty Corporation.

 

“Pension Plan” means any “employeepension benefit plan” (as such term is defined in Section 3(2) of ERISA), otherthan a Multiemployer Plan, that is subject to Title IV of ERISA and issponsored or maintained by the Borrower or any ERISA Affiliate or to which theBorrower or any ERISA Affiliate contributes or has an obligation to contribute,or in the case of a multiple employer or other plan described in Section4064(a) of ERISA, has made contributions at any time during the immediatelypreceding five plan years.

 

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

 

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

 

“Pledge and Security Agreement” meansthe Pledge and Security Agreement made by the Loan Parties in favor of theAdministrative Agent, substantially in the form of Exhibit G.

 

“Register” has the meaning specifiedin Section 10.06(c).

 

“Registered Public Accounting Firm”has the meaning specified in the Securities Laws and shall be independent ofthe Borrower as prescribed by the Securities Laws.

 

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

 

“Reportable Event” means any of theevents set forth in Section 4043(c) of ERISA, other than events for which the30 day notice period has been waived.

 

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

 

“Required Lenders” means, as of anydate of determination, Lenders having more than 50% of the AggregateCommitments or, if the commitment of each Lender to make Loans and theobligation of the L/C Issuer to make L/C Credit Extensions have been terminatedpursuant to Section 8.02, Lenders holding in the aggregate morethan 50% of the Total Outstandings (with the aggregate amount of each Lender’srisk participation and funded participation in L/C Obligations being deemed “held”by such Lender for purposes of this definition); provided that theCommitment of, and the portion of the Total Outstandings held or deemed heldby, any Defaulting Lender shall be excluded for purposes of making adetermination of Required Lenders.

 

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“Responsible Officer” means the chiefexecutive officer, president, chief financial officer, vice president, manager,treasurer or assistant treasurer of a Loan Party (or any general partner,managing member or Person in a similar capacity with respect thereto).  Any document delivered hereunder that issigned by a Responsible Officer of a Loan Party shall be conclusively presumedto have been authorized by all necessary corporate, partnership and/or otheraction on the part of such Loan Party and such Responsible Officer shall beconclusively presumed to have acted on behalf of such Loan Party.

 

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

 

“Restricted Subsidiary” means eachSubsidiary of the Borrower that is not an Unrestricted Subsidiary.

 

“Risk Management Policy” means theRisk Management Policy attached hereto as Exhibit K, as the same may berevised, amended, supplemented, modified or replaced from time to time (withany material revisions, amendments, supplements, modifications or replacementsbeing reasonably satisfactory to Administrative Agent).

 

“S&P” means Standard & Poor’sRatings Services, a division of The McGraw-Hill Companies, Inc. and anysuccessor thereto.

 

“Sarbanes-Oxley” means theSarbanes-Oxley Act of 2002.

 

“ScissorTail” means ScissorTailEnergy, LLC, a Delaware limited liability company.

 

“ScissorTail Credit Facility” means thatcertain Amended and Restated Loan and Security Agreement, dated as of May 30,2002, as amended, among ScissorTail, Bank of America, N.A. and the otherlenders party thereto.

 

“SEC” means the Securities andExchange Commission, or any Governmental Authority succeeding to any of itsprincipal functions.

 

“Secured Hedging Obligations” means(a) Lender Hedging Obligations and (b) all obligations arising from time totime under Hedging Contracts entered into from time to time between theBorrower or any Guarantor and an Approved Counterparty, provided that (i) ifsuch Approved Counterparty ceases to be an Approved Counterparty, Secured HedgingObligations shall only include such obligations to the extent arising fromtransactions entered into at the time such Person was an Approved Counterparty,and (ii) for any of the forgoing to be included within “Secured HedgingObligations” hereunder, the applicable Approved Counterparty must have providedthe Administrative Agent written notice of the existence thereof and suchtransaction must not otherwise be prohibited under this Agreement.

 

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“Securities Laws” means the SecuritiesAct of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley and theapplicable accounting and auditing principles, rules, standards and practicespromulgated, approved or incorporated by the SEC or the Public CompanyAccounting Oversight Board, as each of the foregoing may be amended and ineffect on any applicable date hereunder.

 

“Security Documents” means theinstruments listed in the Security Schedule and all other security agreements,deeds of trust, mortgages, pledges, deposit instruments, guarantees, financingstatements, continuation statements, extension agreements and other agreementsor instruments now, heretofore, or hereafter delivered by any Loan Party toAdministrative Agent in connection with this Agreement or any transactioncontemplated hereby to secure or guarantee the payment of any part of theObligations or the performance of any Loan Party’s other duties and obligationsunder the Loan Documents.

 

“Security Schedule” means Schedule1.01 hereto.

 

“Senior Bridge Facility” means thatcertain Term Loan Agreement of even date herewith between the Borrower and Bancof America Bridge LLC.

 

“Solvent” and “Solvency” mean,with respect to any Person on a particular date, that on such date both (a) (i)the fair value of the property of such Person is greater than the total amountof liabilities, including, without limitation, contingent liabilities, of suchPerson, (ii) the present fair salable value of the assets of such Person is notless than the amount that will be required to pay the probable liability ofsuch Person on its debts as they become absolute and matured, (iii) such Persondoes not intend to, and does not believe that it will, incur debts orliabilities beyond such Person’s ability to pay such debts and liabilities asthey mature, and (iv) such Person is not engaged in business or a transaction,and is not about to engage in business or a transaction, for which such Person’sproperty would constitute an unreasonably small capital, and (b) such Loan Partyis “solvent” within the meaning given that term and similar terms underapplicable laws relating to fraudulent transfers and conveyances.  The amount of contingent liabilities at anytime shall be computed as the amount that, in the light of all the facts andcircumstances existing at such time, represents the amount that can reasonablybe expected to become an actual or matured liability (irrespective of whethersuch contingent liabilities meet the criteria for accrual under Statement ofFinancial Accounting Standard No. 5).

 

“Southern Dome” means Southern Dome,LLC, a Delaware limited liability company, in which Borrower owns, directly orindirectly, a majority interest.

 

“SPC” has the meaning specified in Section 10.06(h).

 

“Subordinated Debt” means all Indebtednessof the Borrower and its Restricted Subsidiaries on a consolidated basis formoney borrowed (a) the structure, amount, term, tenor and incurrence thereof isapproved in writing by the Required Lenders, (b) on terms and conditions lessrestrictive than the Loan Documents, and (c) subordinated, upon termssatisfactory to the Administrative Agent (which may include paymentrestrictions, restrictions on enforcement of remedies, restrictions onamendment or modification of the terms and conditions 

 

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of such Indebtedness and restrictions on suchcreditor’s rights in insolvency or bankruptcy proceedings), in right of paymentto the payment in full in cash of all Obligations.

 

“Subsidiary” of a Person means acorporation, partnership, joint venture, limited liability company or otherbusiness entity of which a majority of the shares of securities or otherinterests having ordinary voting power for the election of directors or othergoverning body (other than securities or interests having such power only byreason of the happening of a contingency) are at the time beneficially owned,or the management of which is otherwise controlled, directly, or indirectlythrough one or more intermediaries, or both, by such Person.  Unless otherwise specified, all referencesherein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary orSubsidiaries of the Borrower.

 

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

 

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

 

“Threshold Amount” means $5,000,000.

 

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

 

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

 

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

 

“United States” and “U.S.” meanthe United States of America.

 

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

 

“Unrestricted Subsidiary” means EstesCove Facilities, L.L.C., Nueces Gathering, L.L.C., Southern Dome, Webb/Duval Gatherers,or any other Subsidiary of the Borrower designated as such on Schedule 5.13or which the Borrower has designated in writing to the Administrative Agent tobe an Unrestricted Subsidiary pursuant to Section 7.18.

 

**1.02****                        OtherInterpretive****Provisions.  **Withreference to this Agreement and each other Loan Document, unless otherwisespecified herein or in such other Loan Document:

 

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### (a)                           The definitions of termsherein shall apply equally to the singular and plural forms of the termsdefined.  Whenever the context mayrequire, any pronoun shall include the corresponding masculine, feminine andneuter forms.  The words “include,”“includes” and “including” shall be deemed to be followed by thephrase “without limitation.”  The word “will”shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i)any definition of or reference to any agreement, instrument or other document(including any Organization Document) shall be construed as referring to suchagreement, instrument or other document as from time to time amended,supplemented or otherwise modified (subject to any restrictions on suchamendments, supplements or modifications set forth herein or in any other LoanDocument), (ii) any reference herein to any Person shall be construed toinclude such Person’s successors and assigns, (iii) the words “herein,” “hereof”and “hereunder,” and words of similar import when used in any LoanDocument, shall be construed to refer to such Loan Document in its entirety andnot to any particular provision thereof, (iv) all references in a Loan Documentto Articles, Sections, Exhibits and Schedules shall be construed to refer toArticles and Sections of, and Exhibits and Schedules to, the Loan Document inwhich such references appear, (v) any reference to any Law shall include allstatutory and regulatory provisions consolidating, amending, replacing orinterpreting such Law and any reference to any Law or regulation shall, unlessotherwise specified, refer to such Law or regulation as amended, modified orsupplemented from time to time, and (vi) the words “asset” and “property”shall be construed to have the same meaning and effect and to refer to any andall tangible and intangible assets and properties, including cash, securities,accounts and contract rights.

###  

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

###  

### (c)                            Section headings herein andin the other Loan Documents are included for convenience of reference only andshall not affect the interpretation of this Agreement or any other LoanDocument.

###  

**1.03****                        Accounting****Terms.**

 

### (a)                           Generally.  Allaccounting terms not specifically or completely defined herein shall beconstrued in conformity with, and all financial data (including financialratios and other financial calculations) required to be submitted pursuant tothis Agreement shall be prepared in conformity with, GAAP applied on aconsistent basis, as in effect from time to time, applied in a mannerconsistent with that used in preparing the Audited Financial Statements, exceptas otherwise specifically prescribed herein.

###  

### (b)                           Changes in GAAP.  Ifat any time any change in GAAP would affect the computation of any financialratio or requirement set forth in any Loan Document, and either the Borrower orthe Required Lenders shall so request, the Administrative Agent, the Lendersand the Borrower shall negotiate in good faith to amend such ratio orrequirement to preserve the original intent thereof in light of such change inGAAP (subject to the approval of the Required Lenders); provided that, until soamended, (i) such ratio or requirement shall continue to be computed inaccordance with GAAP prior to such change therein and (ii) the Borrower 

 

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### shall provide to the Administrative Agent and the Lenders financialstatements and other documents required under this Agreement or as reasonablyrequested hereunder setting forth a reconciliation between calculations of suchratio or requirement made before and after giving effect to such change inGAAP.

###  

### (c)                            Consolidation ofVariable Interest Entities.  All references herein toconsolidated financial statements of the Borrower and its Subsidiaries or to thedetermination of any amount for the Borrower and its Subsidiaries on aconsolidated basis or any similar reference shall, in each case, be deemed toinclude each variable interest entity that the Borrower is required toconsolidate pursuant to FASB Interpretation No. 46 – Consolidation of VariableInterest Entities: an interpretation of ARB No. 51 (January 2003) as ifsuch variable interest entity were a Subsidiary as defined herein.

###  

**1.04****                        Rounding**.  Anyfinancial ratios required to be maintained by the Borrower pursuant to thisAgreement shall be calculated by dividing the appropriate component by theother component, carrying the result to one place more than the number ofplaces by which such ratio is expressed herein and rounding the result up or downto the nearest number (with a rounding-up if there is no nearest number).

 

**1.05****                        Timesof****Day.  **Unless otherwisespecified, all references herein to times of day shall be references to Easterntime (daylight or standard, as applicable).

 

**1.06****                        Letterof****Credit Amounts.  **Unlessotherwise specified, all references herein to the amount of a Letter of Creditat any time shall be deemed to be the stated amount of such Letter of Credit ineffect at such time; provided, however, that with respect to any Letter of Creditthat, by its terms or the terms of any Issuer Document related thereto,provides for one or more automatic increases in the stated amount thereof, theamount of such Letter of Credit shall be deemed to be the maximum stated amountof such Letter of Credit after giving effect to all such increases, whether ornot such maximum stated amount is in effect at such time.

 

# **ARTICLE II.THE COMMITMENTS AND CREDIT EXTENSIONS**

#  

**2.01****                        Loans****.  **Subject to the terms and conditions set forthherein, each Lender severally agrees to make loans (each such loan, a “Loan”)to the Borrower from time to time, on any Business Day during the AvailabilityPeriod, in an aggregate amount not to exceed at any time outstanding the amountof such Lender’s Commitment; provided, however, that after givingeffect to any Borrowing, (i) the Total Outstandings shall not exceed theAggregate Commitments, and (ii) the aggregate Outstanding Amount of the Loansof any Lender, plus such Lender’s Applicable Percentage of theOutstanding Amount of all L/C Obligations shall not exceed such Lender’sCommitment.  Within the limits of eachLender’s Commitment, and subject to the other terms and conditions hereof, theBorrower may borrow under this Section 2.01, prepay under Section 2.05,and reborrow under this Section 2.01.  Loans may be Base Rate Loans or EurodollarRate Loans, as further provided herein.

 

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**2.02****        Borrowings,Conversions and Continuations of Loans.**

 

### (a)         EachBorrowing, each conversion of Loans from one Type to the other, and eachcontinuation of Eurodollar Rate Loans shall be made upon the Borrower’sirrevocable notice to the Administrative Agent, which may be given bytelephone.  Each such notice must bereceived by the Administrative Agent not later than 11:00 a.m. (i) threeBusiness Days prior to the requested date of any Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans or of any conversion of Eurodollar RateLoans to Base Rate Loans, and (ii) on the requested date of any Borrowing of BaseRate Loans; provided, however, that if the Borrower wishes torequest Eurodollar Rate Loans having an Interest Period other than one, two,three or six months in duration as provided in the definition of “InterestPeriod”, the applicable notice must be received by the Administrative Agent notlater than 11:00 a.m. four Business Days prior to the requested date of suchBorrowing, conversion or continuation, whereupon the Administrative Agent shallgive prompt notice to the Lenders of such request and determine whether therequested Interest Period is acceptable to all of them.  Not later than 11:00 a.m., three BusinessDays before the requested date of such Borrowing, conversion or continuation,the Administrative Agent shall notify the Borrower (which notice may be bytelephone) whether or not the requested Interest Period has been consented toby all the Lenders.  Each telephonicnotice by the Borrower pursuant to this Section 2.02(a) must beconfirmed promptly by delivery to the Administrative Agent of a written LoanNotice, appropriately completed and signed by a Responsible Officer of theBorrower.  Each Borrowing of, conversionto or continuation of Eurodollar Rate Loans shall be in a principal amount of$5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Section 2.03(c),each Borrowing of or conversion to Base Rate Loans shall be in a principalamount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Loan Notice (whether telephonic orwritten) shall specify (i) whether the Borrower is requesting a Borrowing, aconversion of Loans from one Type to the other, or a continuation of EurodollarRate Loans, (ii) the requested date of the Borrowing, conversion orcontinuation, as the case may be (which shall be a Business Day), (iii) theprincipal amount of Loans to be borrowed, converted or continued, (iv) the Typeof Loans to be borrowed or to which existing Loans are to be converted, and (v)if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Loanin a Loan Notice or if the Borrower fails to give a timely notice requesting aconversion or continuation, then the applicable Loans shall be made as, orconverted to, Base Rate Loans.  Any suchautomatic conversion to Base Rate Loans shall be effective as of the last dayof the Interest Period then in effect with respect to the applicable EurodollarRate Loans.  If the Borrower requests aBorrowing of, conversion to, or continuation of Eurodollar Rate Loans in anysuch Loan Notice, but fails to specify an Interest Period, it will be deemed tohave specified an Interest Period of one month.

###  

### (b)         Followingreceipt of a Loan Notice, the Administrative Agent shall promptly notify eachLender of the amount of its Applicable Percentage of the applicable Loans, andif no timely notice of a conversion or continuation is provided by the Borrower,the Administrative Agent shall notify each Lender and the Borrower of thedetails of any automatic conversion to Base Rate Loans described in thepreceding subsection.  In the case of a Borrowing,each Lender shall make the amount of its Loan available to the AdministrativeAgent in immediately available funds at the Administrative Agent’s Office notlater than 1:00 p.m. on the Business Day specified in the applicable LoanNotice.  Upon satisfaction of theapplicable conditions set 

 

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### forth in Section 4.02 (and, if such Borrowing is theinitial Credit Extension, Section 4.01), the Administrative Agentshall make all funds so received available to the Borrower in like funds asreceived by the Administrative Agent either by (i) crediting the account of theBorrower on the books of Bank of America with the amount of such funds or (ii)wire transfer of such funds, in each case in accordance with instructionsprovided to (and reasonably acceptable to) the Administrative Agent by theBorrower; provided, however, that if, on the date the Loan Noticewith respect to such Borrowing is given by the Borrower, there are L/CBorrowings outstanding, then the proceeds of such Borrowing, first,shall be applied to the payment in full of any such L/C Borrowings, and second,shall be made available to the Borrower as provided above.

###  

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

###  

### (d)         TheAdministrative Agent shall promptly notify the Borrower and the Lenders of theinterest rate applicable to any Interest Period for Eurodollar Rate Loans upondetermination of such interest rate.  Atany time that Base Rate Loans are outstanding, the Administrative Agent shallnotify the Borrower and the Lenders of any change in Bank of America’s primerate used in determining the Base Rate promptly following the publicannouncement of such change.

###  

### (e)         Aftergiving effect to all Borrowings, all conversions of Loans from one Type to theother, and all continuations of Loans as the same Type, there shall not be morethan six Interest Periods in effect with respect to Loans.

###  

**2.03****        Letters ofCredit.**

 

### (a)         TheLetter of Credit Commitment.

###  

#### (i)              Subjectto the terms and conditions set forth herein, (A) the L/C Issuer agrees, inreliance upon the agreements of the Lenders set forth in this Section 2.03,(1) from time to time on any Business Day during the period from theClosing Date until the Letter of Credit Expiration Date, to issue Letters ofCredit for the account of the Borrower or its Restricted Subsidiaries, and toamend Letters of Credit previously issued by it, in accordance withsubsection (b) below, and (2) to honor drawings under the Letters ofCredit; and (B) the Lenders severally agree to participate in Letters ofCredit issued for the account of the Borrower or its Restricted Subsidiaries and any drawings thereunder; providedthat after giving effect to any L/C Credit Extension with respect to any Letterof Credit, (x) the Total Outstandings shall not exceed the AggregateCommitments, (y) the aggregate Outstanding Amount of the Loans of anyLender, plus such Lender’s Applicable Percentage of the OutstandingAmount of all L/C Obligations shall not exceed such Lender’s Commitment, and(z) the Outstanding Amount of the L/C Obligations shall not exceed the Letterof Credit Sublimit.  Each request by theBorrower for the issuance or amendment of a Letter of Credit shall be deemed tobe a representation by the Borrower that the L/C Credit Extension so requestedcomplies with the conditions set forth in the proviso to the precedingsentence.  Within the foregoing limits,and subject to the terms 

 

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#### and conditions hereof, the Borrower’s ability to obtain Letters ofCredit shall be fully revolving, and accordingly the Borrower may, during theforegoing period, obtain Letters of Credit to replace Letters of Credit thathave expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall bedeemed to have been issued pursuant hereto, and from and after the Closing Dateshall be subject to and governed by the terms and conditions hereof.

####  

#### (ii)             TheL/C Issuer shall not issue any Letter of Credit, if:

####  

##### (A)          theexpiry date of such requested Letter of Credit would occur more than twelve monthsafter the date of issuance, unless the Required Lenders have approved suchexpiry date; or

#####  

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

#####  

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

####  

##### (A)          anyorder, judgment or decree of any Governmental Authority or arbitrator shall byits terms purport to enjoin or restrain the L/C Issuer from issuing such Letterof Credit, or any Law applicable to the L/C Issuer or any request or directive(whether or not having the force of Law) from any Governmental Authority withjurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuerrefrain from, the issuance of letters of credit generally or such Letter ofCredit in particular or shall impose upon the L/C Issuer with respect to suchLetter of Credit any restriction, reserve or capital requirement (for which theL/C Issuer is not otherwise compensated hereunder) not in effect on the ClosingDate, or shall impose upon the L/C Issuer any unreimbursed loss, cost orexpense which was not applicable on the Closing Date and which the L/C Issuerin good faith deems material to it;

#####  

##### (B)          theissuance of such Letter of Credit would violate one or more policies of the L/CIssuer;

#####  

##### (C)          exceptas otherwise agreed by the Administrative Agent and the L/C Issuer, such Letterof Credit is in an initial stated amount less than $50,000;

#####  

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

#####  

##### (E)           suchLetter of Credit contains any provisions for automatic reinstatement of thestated amount after any drawing thereunder; or

#####  

##### (F)           adefault of any Lender’s obligations to fund under Section 2.03(c) existsor any Lender is at such time a Defaulting Lender hereunder, unless the L/C 

 

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##### Issuer has entered into satisfactory arrangements with the Borrower orsuch Lender to eliminate the L/C Issuer’s risk with respect to such Lender.

#####  

#### (iv)            TheL/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not bepermitted at such time to issue such Letter of Credit in its amended form underthe terms hereof.

####  

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

####  

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

####  

### (b)         Proceduresfor Issuance and Amendment of Letters of Credit.

###  

#### (i)              EachLetter of Credit shall be issued or amended, as the case may be, upon therequest of the Borrower delivered to the L/C Issuer (with a copy to theAdministrative Agent) in the form of a Letter of Credit Application,appropriately completed and signed by a Responsible Officer of theBorrower.  Such Letter of CreditApplication must be received by the L/C Issuer and the Administrative Agent notlater than 11:00 a.m. at least two Business Days (or such later date and timeas the Administrative Agent and the L/C Issuer may agree in a particularinstance in their sole discretion) prior to the proposed issuance date or dateof amendment, as the case may be.  In thecase of a request for an initial issuance of a Letter of Credit, such Letter ofCredit Application shall specify in form and detail satisfactory to the L/CIssuer: (A) the proposed issuance date of the requested Letter of Credit (whichshall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;(D) the name and address of the beneficiary thereof; (E) the documents to bepresented by such beneficiary in case of any drawing thereunder; (F) the fulltext of any certificate to be presented by such beneficiary in case of anydrawing thereunder; and (G) such other matters as the L/C Issuer may reasonablyrequire.  In the case of a request for anamendment of any outstanding Letter of Credit, such Letter of CreditApplication shall specify in form and detail satisfactory to the L/C Issuer (A)the Letter of Credit to be amended; (B) the proposed date of amendment thereof(which shall be a Business Day); (C) the nature of the proposed amendment; and(D) such other matters as the L/C Issuer may reasonably require.  Additionally, the Borrower shall furnish tothe L/C Issuer and the Administrative Agent such other documents andinformation pertaining to such requested Letter of Credit issuance oramendment, including any Issuer Documents, as the L/C Issuer or theAdministrative Agent may reasonably require.

 

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#### (ii)             Promptlyafter receipt of any Letter of Credit Application, the L/C Issuer will confirmwith the Administrative Agent (by telephone or in writing) that theAdministrative Agent has received a copy of such Letter of Credit Applicationfrom the Borrower and, if not, the L/C Issuer will provide the AdministrativeAgent with a copy thereof.  Unless theL/C Issuer has received written notice from any Lender, the AdministrativeAgent or any Loan Party, at least one Business Day prior to the requested dateof issuance or amendment of the applicable Letter of Credit, that one or moreapplicable conditions contained in Article IV shall not then besatisfied, then, subject to the terms and conditions hereof, the L/C Issuershall, on the requested date, issue a Letter of Credit for the account of theBorrower (or the applicable RestrictedSubsidiary) or enter into the applicable amendment, as the case may be,in each case in accordance with the L/C Issuer’s usual and customary businesspractices.  Immediately upon the issuanceof each Letter of Credit, each Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from the L/C Issuer a riskparticipation in such Letter of Credit in an amount equal to the product ofsuch Lender’s Applicable Percentage times the amount of such Letter ofCredit.

####  

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

####  

### (c)         Drawingsand Reimbursements; Funding of Participations.

###  

#### (i)              Uponreceipt from the beneficiary of any Letter of Credit of any notice of a drawingunder such Letter of Credit, the L/C Issuer shall notify the Borrower and theAdministrative Agent thereof.  Not laterthan 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter ofCredit (each such date, an “Honor Date”), the Borrower shall reimbursethe L/C Issuer through the Administrative Agent in an amount equal to theamount of such drawing.  If the Borrowerfails to so reimburse the L/C Issuer by such time, the Administrative Agentshall promptly notify each Lender of the Honor Date, the amount of theunreimbursed drawing (the “Unreimbursed Amount”), and the amount of suchLender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowingof Base Rate Loans to be disbursed on the Honor Date in an amount equal to theUnreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02for the principal amount of Base Rate Loans, but subject to the amount of theunutilized portion of the Aggregate Commitments and the conditions set forth inSection 4.02 (other than the delivery of a Loan Notice).  Any notice given by the L/C Issuer or theAdministrative Agent pursuant to this Section 2.03(c)(i) may begiven by telephone if immediately confirmed in writing; provided thatthe lack of such an immediate confirmation shall not affect the conclusivenessor binding effect of such notice.

####  

#### (ii)             EachLender shall upon any notice pursuant to Section 2.03(c)(i) makefunds available to the Administrative Agent for the account of the L/C Issuerat the Administrative Agent’s Office in an amount equal to its ApplicablePercentage of the Unreimbursed Amount not later than 1:00 p.m. on the BusinessDay specified in such 

 

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#### notice by the Administrative Agent, whereupon, subject to theprovisions of Section 2.03(c)(iii), each Lender that so makes fundsavailable shall be deemed to have made a Base Rate Loan to the Borrower in suchamount.  The Administrative Agent shallremit the funds so received to the L/C Issuer.

####  

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

####  

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

####  

#### (v)             EachLender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuerfor amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),shall be absolute and unconditional and shall not be affected by anycircumstance, including (A) any setoff, counterclaim, recoupment, defense orother right which such Lender may have against the L/C Issuer, the Borrower orany other Person for any reason whatsoever; (B) the occurrence or continuanceof a Default, or (C) any other occurrence, event or condition, whether or notsimilar to any of the foregoing; provided, however, that eachLender’s obligation to make Loans pursuant to this Section 2.03(c)is subject to the conditions set forth in Section 4.02 (other thandelivery by the Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair theobligation of the Borrower to reimburse the L/C Issuer for the amount of anypayment made by the L/C Issuer under any Letter of Credit, together withinterest as provided herein.

####  

#### (vi)            Ifany Lender fails to make available to the Administrative Agent for the accountof the L/C Issuer any amount required to be paid by such Lender pursuant to theforegoing provisions of this Section 2.03(c) by the time specifiedin Section 2.03(c)(ii), the L/C Issuer shall be entitled to recoverfrom such Lender (acting through the Administrative Agent), on demand, suchamount with interest thereon for the period from the date such payment isrequired to the date on which such payment is immediately available to the L/CIssuer at a rate per annum equal to the greater of the Federal Funds Rate and arate determined by the L/C Issuer in accordance with banking industry rules oninterbank compensation.  A certificate ofthe L/C Issuer submitted to any Lender (through the Administrative Agent) withrespect to any amounts owing under this clause (vi) shall be conclusive absentmanifest error.

 

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### (d)         Repaymentof Participations.

###  

#### (i)              Atany time after the L/C Issuer has made a payment under any Letter of Credit andhas received from any Lender such Lender’s L/C Advance in respect of suchpayment in accordance with Section 2.03(c), if the AdministrativeAgent receives for the account of the L/C Issuer any payment in respect of therelated Unreimbursed Amount or interest thereon (whether directly from theBorrower or otherwise, including proceeds of Cash Collateral applied thereto bythe Administrative Agent), the Administrative Agent will distribute to suchLender its Applicable Percentage thereof (appropriately adjusted, in the caseof interest payments, to reflect the period of time during which such Lender’sL/C Advance was outstanding) in the same funds as those received by theAdministrative Agent.

####  

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

####  

### (e)         ObligationsAbsolute.  The obligation of the Borrower to reimburse the L/CIssuer for each drawing under each Letter of Credit and to repay each L/CBorrowing shall be absolute, unconditional and irrevocable, and shall be paidstrictly in accordance with the terms of this Agreement under all circumstances,including the following:

###  

#### (i)              anylack of validity or enforceability of such Letter of Credit, this Agreement, orany other Loan Document;

####  

#### (ii)             theexistence of any claim, counterclaim, setoff, defense or other right that theBorrower or any Restricted Subsidiary may have at any time against anybeneficiary or any transferee of such Letter of Credit (or any Person for whomany such beneficiary or any such transferee may be acting), the L/C Issuer orany other Person, whether in connection with this Agreement, the transactionscontemplated hereby or by such Letter of Credit or any agreement or instrumentrelating thereto, or any unrelated transaction;

####  

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

####  

#### (iv)            anypayment by the L/C Issuer under such Letter of Credit against presentation of adraft or certificate that does not strictly comply with the terms of suchLetter of Credit; or any payment made by the L/C Issuer under such Letter of Creditto any 

 

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#### Person purporting to be a trustee in bankruptcy, debtor-in-possession,assignee for the benefit of creditors, liquidator, receiver or otherrepresentative of or successor to any beneficiary or any transferee of suchLetter of Credit, including any arising in connection with any proceeding underany Debtor Relief Law; or

####  

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

####  

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

 

### (f)          Roleof L/C Issuer.**  **EachLender and the Borrower agree that, in paying any drawing under a Letter ofCredit, the L/C Issuer shall not have any responsibility to obtain any document(other than any sight draft, certificates and documents expressly required bythe Letter of Credit) or to ascertain or inquire as to the validity or accuracyof any such document or the authority of the Person executing or delivering anysuch document.  None of the L/C Issuer,the Administrative Agent, any of their respective Related Parties nor anycorrespondent, participant or assignee of the L/C Issuer shall be liable to anyLender for (i) any action taken or omitted in connection herewith at therequest or with the approval of the Lenders or the Required Lenders, asapplicable; (ii) any action taken or omitted in the absence of gross negligenceor willful misconduct; or (iii) the due execution, effectiveness, validity orenforceability of any document or instrument related to any Letter of Credit orIssuer Document.  The Borrower herebyassumes all risks of the acts or omissions of any beneficiary or transfereewith respect to its use of any Letter of Credit; provided, however,that this assumption is not intended to, and shall not, preclude the Borrower’spursuing such rights and remedies as it may have against the beneficiary ortransferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of theirrespective Related Parties nor any correspondent, participant or assignee ofthe L/C Issuer shall be liable or responsible for any of the matters describedin clauses (i) through (v) of Section 2.03(e); provided, however,that anything in this Section 2.03 to the contrary notwithstanding, theBorrower may have a claim against the L/C Issuer, and the L/C Issuer may beliable to the Borrower, to the extent, but only to the extent, of any direct,as opposed to consequential or exemplary, damages suffered by the Borrowerwhich the Borrower proves were caused by the L/C Issuer’s willful misconduct orgross negligence or the L/C Issuer’s willful failure to pay under any Letter ofCredit after the presentation to it by the beneficiary of a sight draft andcertificate(s) strictly complying with the terms and conditions of a Letter ofCredit.**** In furtherance and not in limitation of theforegoing, the L/C Issuer may accept documents that appear on their face to bein order, without responsibility for further investigation, regardless of anynotice or information to the contrary, and the L/C Issuer shall not beresponsible for the validity or sufficiency of any instrument transferring orassigning or purporting to transfer or assign a Letter of Credit or the rightsor benefits thereunder or proceeds thereof, in whole or in part, which mayprove to be invalid or ineffective for any reason.

 

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### (g)         CashCollateral.  Upon the request of the Administrative Agent, (i) ifthe L/C Issuer has honored any full or partial drawing request under any Letterof Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as ofthe Letter of Credit Expiration Date, any L/C Obligation for any reason remainsoutstanding, the Borrower shall, in each case, immediately Cash Collateralizethe then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 8.02(c)set forth certain additional requirements to deliver Cash Collateralhereunder.  For purposes of this Section 2.03,Section 2.05****and Section8.02(c),“Cash Collateralize” means to pledge and deposit with or deliver to theAdministrative Agent, for the benefit of the L/C Issuer and the Lenders, ascollateral for the L/C Obligations, cash or deposit account balances pursuantto documentation in form and substance satisfactory to the Administrative Agentand the L/C Issuer (which documents are hereby consented to by theLenders).  Derivatives of such term havecorresponding meanings.  The Borrowerhereby grants to the Administrative Agent, for the benefit of the L/C Issuerand the Lenders, a security interest in all such cash, deposit accounts and allbalances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained inblocked, non-interest bearing deposit accounts at Bank of America.

###  

### (h)         Applicabilityof ISP.**  **Unless otherwiseexpressly agreed by the L/C Issuer and the Borrower when a Letter of Credit isissued (including any such agreement applicable to an Existing Letter ofCredit), the rules of the ISP shall apply to each Letter of Credit.

###  

### (i)          Letterof Credit Fees.  The Borrower shall pay to the AdministrativeAgent for the account of each Lender in accordance with its ApplicablePercentage a Letter of Credit fee (the “Letter of Credit Fee”) for eachLetter of Credit equal to the Applicable Rate times the daily amountavailable to be drawn under such Letter of Credit.  For purposes of computing the daily amountavailable to be drawn under any Letter of Credit, the amount of such Letter ofCredit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) computedon a quarterly basis in arrears and (ii) due and payable on the last BusinessDay of each March, June, September and December, commencing with the first suchdate to occur after the issuance of such Letter of Credit, on the Letter ofCredit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rateduring any quarter, the daily amount available to be drawn under each Letter ofCredit shall be computed and multiplied by the Applicable Rate separately foreach period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrarycontained herein, while any Obligation bears interest at the Default Ratepursuant to Section 2.08(b), all Letter of Credit Fees shall accrue atthe Default Rate.

###  

### (j)          FrontingFee and Documentary and Processing Charges Payable to L/C Issuer.  TheBorrower shall pay directly to the L/C Issuer for its own account a frontingfee with respect to each Letter of Credit, at the rate per annum specified inthe Fee Letter, computed on the daily amount available to be drawn under suchLetter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable onthe tenth Business Day after receipt of an invoice therefore following the endof each March, June, September and December in respect of the mostrecently-ended quarterly period (or portion thereof, in the case of the firstpayment), commencing with the first such date to occur after the issuance ofsuch Letter of Credit, on the Letter of Credit Expiration Date and thereafteron demand.  For purposes of computing thedaily amount available to be drawn under any Letter of Credit, the amount ofsuch Letter of Credit 

 

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### shall bedetermined in accordance with Section 1.06.  In addition, the Borrower shall pay directlyto the L/C Issuer for its own account the customary issuance, presentation,amendment and other processing fees, and other standard costs and charges, ofthe L/C Issuer relating to letters of credit as from time to time ineffect.  Such customary fees and standardcosts and charges are due and payable on demand and are nonrefundable.

###  

### (k)         Conflictwith Issuer Documents.  In the event of any conflict between theterms hereof and the terms of any Issuer Document, the terms hereof shallcontrol.

###  

### (l)          Lettersof Credit Issued for Restricted Subsidiaries.  Notwithstandingthat a Letter of Credit issued or outstanding hereunder is in support of anyobligations of, or is for the account of, a Restricted Subsidiary, the Borrowershall be obligated to reimburse the L/C Issuer hereunder for any and alldrawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Creditfor the account of Restricted Subsidiaries inures to the benefit of theBorrower, and that the Borrower’s business derives substantial benefits fromthe businesses of such Restricted Subsidiaries.

###  

**2.04****        Reserved.**

 

**2.05****        Prepayments.**

 

### (a)         TheBorrower may, upon notice to the Administrative Agent, at any time or from timeto time voluntarily prepay Loans in whole or in part without premium orpenalty; provided that (i) such notice must be received by theAdministrative Agent not later than 11:00 a.m. (A) three Business Days prior toany date of prepayment of Eurodollar Rate Loans and (B) on the date ofprepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loansshall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in aprincipal amount of $500,000 or a whole multiple of $100,000 in excess thereofor, in each case, if less, the entire principal amount thereof thenoutstanding.  Each such notice shallspecify the date and amount of such prepayment and the Type(s) of Loans to beprepaid.  The Administrative Agent willpromptly notify each Lender of its receipt of each such notice, and of theamount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, theBorrower shall make such prepayment and the payment amount specified in suchnotice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loanshall be accompanied by all accrued interest on the amount prepaid, togetherwith any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the Loansof the Lenders in accordance with their respective Applicable Percentages.

###  

### (b)         Iffor any reason the Total Outstandings at any time exceed the AggregateCommitments then in effect, the Borrower shall immediately prepay Loans and/orCash Collateralize the L/C Obligations in an aggregate amount equal to suchexcess; provided, however, that the Borrower shall not berequired to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)unless after the prepayment in full of the Loans the Total Outstandings exceedthe Aggregate Commitments then in effect.

 

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### (c)         AnyNet Cash Proceeds that are Excess Sale Proceeds shall be immediately applied asa mandatory prepayment on the Loans.

###  

### (d)         AnyExtraordinary Receipts shall be immediately applied as a mandatory prepaymenton the Loans; provided, however, that prepayments under this Section 2.05(d)shall not be required until the aggregate amount of unapplied ExtraordinaryReceipts exceeds $5,000,000.

###  

### (e)         Theaggregate amount of all prepayments under Section 2.04(c) and (d)in excess of $20,000,000 shall reduce the Aggregate Commitments by the amountof such excess.

###  

**2.06****        Terminationor****Reduction of Commitments.**  TheBorrower may, upon notice to the Administrative Agent, terminate the AggregateCommitments, or from time to time permanently reduce the Aggregate Commitments;provided that (i) any such notice shall be received by theAdministrative Agent not later than 11:00 a.m. five Business Days prior to thedate of termination or reduction, (ii) any such partial reduction shall be inan aggregate amount of $10,000,000 or any whole multiple of $1,000,000 inexcess thereof, (iii) the Borrower shall not terminate or reduce the AggregateCommitments if, after giving effect thereto and to any concurrent prepaymentshereunder, the Total Outstandings would exceed the Aggregate Commitments, and(iv) if, after giving effect to any reduction of the Aggregate Commitments, theLetter of Credit Sublimit exceeds the amount of the Aggregate Commitments, suchSublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notifythe Lenders of any such notice of termination or reduction of the AggregateCommitments.  Any reduction of theAggregate Commitments shall be applied to the Commitment of each Lenderaccording to its Applicable Percentage. All fees accrued until the effective date of any termination of theAggregate Commitments shall be paid on the effective date of such termination.

 

**2.07****        Repayment****of Loans**.  TheBorrower shall repay to the Lenders on the Maturity Date the aggregateprincipal amount of Loans outstanding on such date.

 

**2.08****        Interest.**

 

### (a)         Subjectto the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shallbear interest on the outstanding principal amount thereof for each InterestPeriod at a rate per annum equal to the Eurodollar Rate for such InterestPeriod plus the Applicable Rate; and (ii) each Base Rate Loan shall bearinterest on the outstanding principal amount thereof from the applicableborrowing date at a rate per annum equal to the Base Rate plus theApplicable Rate.

###  

### (b)         Ifany Obligation is not paid when due (without regard to any applicable graceperiods), whether at stated maturity, by acceleration or otherwise, such amountshall thereafter bear interest at a fluctuating interest rate per annum at alltimes equal to the Default Rate to the fullest extent permitted by applicableLaws.  Accrued and unpaid interest onpast due amounts (including interest on past due interest) shall be due andpayable upon demand.

###  

### (c)         Intereston each Loan shall be due and payable in arrears on each Interest Payment Dateapplicable thereto and at such other times as may be specified herein.  Interest 

 

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### hereunder shall be due and payable in accordance with the terms hereofbefore and after judgment, and before and after the commencement of anyproceeding with respect to the Borrower under any Debtor Relief Law.

###  

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

 

### (a)         CommitmentFee.**  **The Borrower shall pay tothe Administrative Agent for the account of each Lender in accordance with itsApplicable Percentage, a commitment fee equal to the Applicable Rate timesthe actual daily amount by which the Aggregate Commitments exceed the sum of(i) the Outstanding Amount of Loans and (ii) the Outstanding Amount of L/CObligations.  The commitment fee shallaccrue at all times during the Availability Period, including at any timeduring which one or more of the conditions in Article IV is not met, andshall be due and payable quarterly in arrears on the last Business Day of eachMarch, June, September and December, commencing with the first such date tooccur after the Closing Date, and on the Maturity Date.  The commitment fee shall be calculatedquarterly in arrears, and if there is any change in the Applicable Rate duringany quarter, the actual daily amount shall be computed and multiplied by theApplicable Rate separately for each period during such quarter that suchApplicable Rate was in effect.

###  

### (b)         OtherFees.            (i)**  **TheBorrower shall pay to the Arranger and the Administrative Agent for their ownrespective accounts fees in the amounts and at the times specified in the FeeLetter.  Such fees shall be fully earnedwhen paid and shall not be refundable for any reason whatsoever.

###  

#### (i)              TheBorrower shall pay to the Lenders such fees as shall have been separatelyagreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid andshall not be refundable for any reason whatsoever.

####  

**2.10****        Computation****of Interest and Fees.  **All computations ofinterest for Base Rate Loans when the Base Rate is determined by Bank ofAmerica’s “prime rate” shall be made on the basis of a year of 365 or 366 days,as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basisof a 360-day year and actual days elapsed (which results in more fees orinterest, as applicable, being paid than if computed on the basis of a 365-dayyear).  Interest shall accrue on eachLoan for the day on which the Loan is made, and shall not accrue on a Loan, orany portion thereof, for the day on which the Loan or such portion is paid, providedthat any Loan that is repaid on the same day on which it is made shall, subjectto Section 2.12(a), bear interest for one day.  Each determination by the AdministrativeAgent of an interest rate or fee hereunder shall be conclusive and binding forall purposes, absent manifest error.

 

**2.11****        Evidence ofDebt.**

 

### (a)         TheCredit Extensions made by each Lender shall be evidenced by one or moreaccounts or records maintained by such Lender and by the Administrative Agentin the ordinary course of business.  Theaccounts or records maintained by the Administrative Agent and each Lendershall be conclusive absent manifest error of the amount of the CreditExtensions made 

 

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### by the Lenders to the Borrower and the interest and paymentsthereon.  Any failure to so record or anyerror in doing so shall not, however, limit or otherwise affect the obligationof the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between theaccounts and records maintained by any Lender and the accounts and records ofthe Administrative Agent in respect of such matters, the accounts and recordsof the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made throughthe Administrative Agent, the Borrower shall execute and deliver to such Lender(through the Administrative Agent) a Note, which shall evidence such Lender’sLoans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon thedate, Type (if applicable), amount and maturity of its Loans and payments withrespect thereto.

###  

### (b)         Inaddition to the accounts and records referred to in subsection (a), each Lenderand the Administrative Agent shall maintain in accordance with its usualpractice accounts or records evidencing the purchases and sales by such Lenderof participations in Letters of Credit. In the event of any conflict between the accounts and records maintainedby the Administrative Agent and the accounts and records of any Lender inrespect of such matters, the accounts and records of the Administrative Agentshall control in the absence of manifest error.

###  

**2.12****        PaymentsGenerally****; Administrative Agent’sClawback.**

 

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

###  

### (b)                   (i)  Fundingby Lenders; Presumption by Administrative Agent.  Unless theAdministrative Agent shall have received notice from a Lender prior to theproposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of anyBorrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing)that such Lender will not make available to the Administrative Agent suchLender’s share of such Borrowing, the Administrative Agent may assume that suchLender has made such share available on such date in accordance with Section 2.02(or, in the case of a Borrowing of Base Rate Loans, that such Lender has madesuch share available in accordance with and at the time required by Section 2.02)and may, in reliance upon such assumption, make available to the Borrower acorresponding amount.  In such event, ifa Lender has not in fact made its share of the applicable Borrowing availableto the Administrative Agent, then the applicable Lender and the Borrowerseverally agree to pay to the Administrative Agent forthwith on demand suchcorresponding amount in immediately 

 

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### available funds with interest thereon, for each day from and includingthe date such amount is made available to the Borrower to but excluding thedate of payment to the Administrative Agent, at (A) in the case of a payment tobe made by such Lender, the greater of the Federal Funds Rate and a ratedetermined by the Administrative Agent in accordance with banking industryrules on interbank compensation and (B) in the case of a payment to be made bythe Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall paysuch interest to the Administrative Agent for the same or an overlappingperiod, the Administrative Agent shall promptly remit to the Borrower theamount of such interest paid by the Borrower for such period.  If such Lender pays its share of theapplicable Borrowing to the Administrative Agent, then the amount so paid shallconstitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be withoutprejudice to any claim the Borrower may have against a Lender that shall havefailed to make such payment to the Administrative Agent.

###  

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

####  

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

 

### (c)         Failureto Satisfy Conditions Precedent.  If any Lender makes availableto the Administrative Agent funds for any Loan to be made by such Lender asprovided in the foregoing provisions of this Article II, and such fundsare not made available to the Borrower by the Administrative Agent because theconditions to the applicable Credit Extension set forth in Article IVare not satisfied or waived in accordance with the terms hereof, theAdministrative Agent shall return such funds (in like funds as received fromsuch Lender) to such Lender, without interest.

###  

### (d)                   Obligations ofLenders Several.  The obligations of the Lenders hereunder tomake Loans, to fund participations in Letters of Credit and to make paymentspursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan,to fund any such participation or to make any payment under Section 10.04(c)on any date required hereunder shall not relieve any other Lender of itscorresponding obligation to do so on such 

 

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### date, and no Lender shall be responsible for the failure of any otherLender to so make its Loan, to purchase its participation or to make itspayment under Section 10.04(c).

###  

### (e)         FundingSource.  Nothing herein shall be deemed to obligate any Lender toobtain the funds for any Loan in any particular place or manner or toconstitute a representation by any Lender that it has obtained or will obtainthe funds for any Loan in any particular place or manner.

###  

**2.13****        Sharing****of Payments by Lenders.**  If any Lender shall, byexercising any right of setoff or counterclaim or otherwise, obtain payment inrespect of any principal of or interest on any of the Loans made by it, or theparticipations in L/C Obligations held by it resulting in such Lender’sreceiving payment of a proportion of the aggregate amount of such Loans orparticipations and accrued interest thereon greater than its proratashare thereof as provided herein, then the Lender receiving such greaterproportion shall (a) notify the Administrative Agent of such fact, and (b)purchase (for cash at face value) participations in the Loans andsubparticipations in L/C Obligations of the other Lenders, or make such otheradjustments as shall be equitable, so that the benefit of all such paymentsshall be shared by the Lenders ratably in accordance with the aggregate amountof principal of and accrued interest on their respective Loans and otheramounts owing them, provided that:

 

### (a)         ifany such participations or subparticipations are purchased and all or any portionof the payment giving rise thereto is recovered, such participations orsubparticipations shall be rescinded and the purchase price restored to theextent of such recovery, without interest; and

###  

### (b)         theprovisions of this Section shall not be construed to apply to (x) any paymentmade by the Borrower pursuant to and in accordance with the express terms ofthis Agreement or (y) any payment obtained by a Lender as consideration for theassignment of or sale of a participation in any of its Loans or subparticipationsin L/C Obligations to any assignee or participant, other than to the Borroweror any Restricted Subsidiary thereof (as to which the provisions of thisSection shall apply).

###  

Each Loan Partyconsents to the foregoing and agrees, to the extent it may effectively do sounder applicable Law, that any Lender acquiring a participation pursuant to theforegoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect tosuch participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of suchparticipation.

 

**2.14****        Increase****in Commitments.**

 

### (a)         Requestfor Increase.  Provided there exists no Default, upon notice tothe Administrative Agent (which shall promptly notify the Lenders), theBorrower may from time to time, request an increase in the AggregateCommitments by an amount (for all such requests) not exceeding $50,000,000; providedthat (i) any such request for an increase shall be in a minimum amount of$5,000,000, and (ii) the Borrower may make a maximum of three such requests.  At the time of sending such notice, theBorrower (in consultation with the Administrative Agent) shall specify the timeperiod within which each Lender is requested to 

 

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### respond (which shall in no event be less than ten Business Days fromthe date of delivery of such notice to the Lenders).

###  

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

###  

### (c)         Notificationby Administrative Agent; Additional Lenders.  The AdministrativeAgent shall notify the Borrower and each Lender of the Lenders’ responses toeach request made hereunder.  To achievethe full amount of a requested increase and subject to the approval of theAdministrative Agent and the L/C Issuer (which approvals shall not beunreasonably withheld), the Borrower may also invite additional EligibleAssignees to become Lenders pursuant to a joinder agreement in form andsubstance reasonably satisfactory to the Administrative Agent and its counsel.

###  

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

###  

### (e)         Conditionsto Effectiveness of Increase.  As a condition precedent to suchincrease, the Borrower shall deliver to the Administrative Agent a certificateof the Borrower dated as of the Increase Effective Date (in sufficient copiesfor each Lender) signed by a Responsible Officer of the Borrower (i) certifyingand attaching the resolutions adopted by the Borrower approving or consentingto such increase (and certifying that each other Loan Party has approved orconsented to such increase, attaching copies of any resolutions adopted by suchLoan Parties not previously delivered to the Administrative Agent evidencingsuch approval or consent), and (ii) certifying that, before and after givingeffect to such increase, (A) the representations and warranties contained in ArticleV and the other Loan Documents are true and correct in all materialrespects on and as of the Increase Effective Date, except to the extent thatsuch representations and warranties specifically refer to an earlier date, inwhich case they are true and correct in all material respects as of suchearlier date, and except that for purposes of this Section 2.14,the representations and warranties contained in subsections (a) and (b) of Section 5.05shall be deemed to refer to the most recent statements furnished pursuant toclauses (a) and (b), respectively, of Section 6.01, (B) no Defaultexists, and (C) the financial covenants contained in Section 7.21 aresatisfied on a *pro forma* basis after givingeffect to any incremental Borrowing associated with such increase and for themost recent determination period.  TheBorrower shall prepay any Loans outstanding on the Increase Effective Date (andpay any additional amounts required pursuant to Section 3.05) tothe extent necessary to keep the outstanding Loans ratable with any revisedApplicable Percentages arising from any nonratable increase in the Commitmentsunder this Section.

###  

### (f)          ConflictingProvisions.  This Section shall supersede any provisions inSections 2.13 or 10.01 to the contrary.

 

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# **ARTICLE III.TAXES,**YIELD PROTECTION ANDILLEGALITY

#  

**3.01****        Taxes.**

 

### (a)         PaymentsFree of Taxes.  Any and all payments by or on account of anyobligation of the Borrower hereunder or under any other Loan Document shall bemade free and clear of and without reduction or withholding for any IndemnifiedTaxes or Other Taxes, provided that if the Borrower shall be required byapplicable Law to deduct any Indemnified Taxes (including any Other Taxes) fromsuch payments, then (i) the sum payable shall be increased as necessary so thatafter making all required deductions (including deductions applicable toadditional sums payable under this Section) the Administrative Agent, Lender orL/C Issuer, as the case may be, receives an amount equal to the sum it wouldhave received had no such deductions been made, (ii) the Borrower shall makesuch deductions and (iii) the Borrower shall timely pay the full amountdeducted to the relevant Governmental Authority in accordance with applicable Law.

###  

### (b)         Paymentof Other Taxes by the Borrower.  Without limiting the provisionsof subsection (a) above, the Borrower shall timely pay any Other Taxes to therelevant Governmental Authority in accordance with applicable Law.

###  

### (c)         Indemnificationby the Borrower.  The Borrower shall indemnify the AdministrativeAgent, each Lender and the L/C Issuer, within 10 days after demand therefor,for the full amount of any Indemnified Taxes or Other Taxes (includingIndemnified Taxes or Other Taxes imposed or asserted on or attributable toamounts payable under this Section) paid by the Administrative Agent, suchLender or the L/C Issuer, as the case may be, and any penalties, interest andreasonable expenses arising therefrom or with respect thereto, whether or notsuch Indemnified Taxes or Other Taxes were correctly or legally imposed orasserted by the relevant Governmental Authority.  A certificate as to the amount of suchpayment or liability delivered to the Borrower by a Lender or the L/C Issuer (witha copy to the Administrative Agent), or by the Administrative Agent on its ownbehalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absentmanifest error.

###  

### (d)         Evidenceof Payments.  As soon as practicable after any payment of IndemnifiedTaxes or Other Taxes by the Borrower to a Governmental Authority, the Borrowershall deliver to the Administrative Agent the original or a certified copy of areceipt issued by such Governmental Authority evidencing such payment, a copyof the return reporting such payment or other evidence of such paymentreasonably satisfactory to the Administrative Agent.

###  

### (e)         Statusof Lenders.  Each Foreign Lender that is entitled to an exemptionfrom or reduction of withholding tax under the Law of the jurisdiction in whichthe Borrower is resident for tax purposes, or any treaty to which suchjurisdiction is a party, with respect to payments hereunder or under any otherLoan Document shall deliver to the Borrower (with a copy to the AdministrativeAgent), at the time or times prescribed by applicable Law or reasonablyrequested by the Borrower or the Administrative Agent, such properly completedand executed documentation prescribed by applicable Law as will permit suchpayments to be made without withholding or at a reduced rate ofwithholding.  In addition, any Lender, ifrequested by the 

 

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### Borrower or the Administrative Agent, shalldeliver such other documentation prescribed by applicable Law or reasonably requestedby the Borrower or the Administrative Agent as will enable the Borrower or theAdministrative Agent to determine whether or not such Lender is subject tobackup withholding or information reporting requirements.

###  

Without limiting the generality of theforegoing, in the event that the Borrower is resident for tax purposes in theUnited States, each Foreign Lender shall deliver to the Borrower and theAdministrative Agent (in such number of copies as shall be requested by therecipient) on or prior to the date on which such Foreign Lender becomes aLender under this Agreement (and from time to time thereafter upon the requestof the Borrower or the Administrative Agent, but only if such Foreign Lender islegally entitled to do so), whichever of the following is applicable:

 

#### (i)              dulycompleted copies of Internal Revenue Service Form W-8BEN claiming eligibilityfor benefits of an income tax treaty to which the United States is a party,

####  

#### (ii)             dulycompleted copies of Internal Revenue Service Form W-8ECI,

####  

#### (iii)            inthe case of a Foreign Lender claiming the benefits of the exemption forportfolio interest under section 881(c) of the Code, (x) a certificate to theeffect that such Foreign Lender is not (A) a “bank” within the meaning ofsection 881(c)(3)(A) of the Code, (B) a holder of ten percent (10%) or more ofthe capital or profits interests of the Borrower within the meaning of section871(h)(3)(B) of the Code, or (C) a “controlled foreign corporation” describedin section 881(c)(3)(C) of the Code and (y) duly completed copies of  Internal Revenue Service Form W-8BEN, or

####  

#### (iv)            anyother form prescribed by applicable Law as a basis for claiming exemption fromor a reduction in United States Federal withholding tax duly completed togetherwith such supplementary documentation as may be prescribed by applicable Law topermit the Borrower to determine the withholding or deduction required to bemade.

####  

### (f)          UnitedStates Lenders.  Upon request of theBorrower or the Administrative Agent, a Lender that is a United States personwithin the meaning of Section 7701(a)(30) of the Code shall deliver to suchrequesting party (in such number of copies as shall be requested thereby) dulycompleted copies of Internal Revenue Service Form W-9, or any successor orother applicable form.

###  

### (g)         Treatmentof Certain Refunds.  If the Administrative Agent, any Lender orthe L/C Issuer determines, in its sole discretion, that it has received arefund of any Taxes or Other Taxes as to which it has been indemnified by theBorrower or with respect to which the Borrower has paid additional amountspursuant to this Section, it shall pay to the Borrower an amount equal to suchrefund (but only to the extent of indemnity payments made, or additionalamounts paid, by the Borrower under this Section with respect to the Taxes orOther Taxes giving rise to such refund), net of all out-of-pocket expenses ofthe Administrative Agent, such Lender or the L/C Issuer, as the case may be,and without interest (other than any interest paid by the relevant GovernmentalAuthority with respect to such refund), provided that the Borrower, uponthe request of the Administrative Agent, such Lender or the L/C Issuer, agrees 

 

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### to repay the amount paid over to the Borrower (plus any penalties,interest or other charges imposed by the relevant Governmental Authority) tothe Administrative Agent, such Lender or the L/C Issuer in the event theAdministrative Agent, such Lender or the L/C Issuer is required to repay suchrefund to such Governmental Authority. This subsection shall not be construed to require the AdministrativeAgent, any Lender or the L/C Issuer to make available its tax returns (or anyother information relating to its taxes that it deems confidential) to theBorrower or any other Person.

###  

**3.02****        Illegality****.**  If any Lender determines that any Change in Lawhas made it unlawful, or that any Governmental Authority has asserted that itis unlawful, for any Lender or its applicable Lending Office to make, maintainor fund Eurodollar Rate Loans, or to determine or charge interest rates basedupon the Eurodollar Rate, or any Governmental Authority has imposed materialrestrictions on the authority of such Lender to purchase or sell, or to takedeposits of, Dollars in the London interbank market, then, on notice thereof bysuch Lender to the Borrower through the Administrative Agent, any obligation ofsuch Lender to make or continue Eurodollar Rate Loans or to convert Base RateLoans to Eurodollar Rate Loans shall be suspended until such Lender notifiesthe Administrative Agent and the Borrower that the circumstances giving rise tosuch determination no longer exist.  Uponreceipt of such notice, the Borrower shall, upon demand from such Lender (witha copy to the Administrative Agent), prepay or, if applicable, convert allEurodollar Rate Loans of such Lender to Base Rate Loans, either on the last dayof the Interest Period therefor, if such Lender may lawfully continue tomaintain such Eurodollar Rate Loans to such day, or immediately, if such Lendermay not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, theBorrower shall also pay accrued interest on the amount so prepaid or converted.

 

**3.03****        Inability****to Determine Rates. **Ifthe Required Lenders determine that for any reason in connection with anyrequest for a Eurodollar Rate Loan or a conversion to or continuation thereofthat (a) Dollar deposits are not being offered to banks in the Londoninterbank eurodollar market for the applicable amount and Interest Period ofsuch Eurodollar Rate Loan, (b) adequate and reasonable means do not existfor determining the Eurodollar Ratefor any requested Interest Period with respect to a proposed Eurodollar RateLoan , or (c) the Eurodollar Ratefor any requested Interest Period with respect to a proposed Eurodollar RateLoan does not adequately and fairly reflect the cost to such Lenders of fundingsuch Loan, the Administrative Agent will promptly so notify the Borrower andeach Lender.  Thereafter, the obligationof the Lenders to make or maintain Eurodollar Rate Loans shall be suspendeduntil the Administrative Agent (upon the instruction of the Required Lenders)revokes such notice.  Upon receipt ofsuch notice, the Borrower may revoke any pending request for a Borrowing of,conversion to or continuation of Eurodollar Rate Loans or, failing that, willbe deemed to have converted such request into a request for a Borrowing of BaseRate Loans in the amount specified therein.

 

**3.04****        IncreasedCosts****; Reserves on Eurodollar Rate Loans.**

 

### (a)         IncreasedCosts Generally.  If any Change inLaw shall:

 

#### (i)              impose,modify or deem applicable any reserve, special deposit, compulsory loan,insurance charge or similar requirement against assets of, deposits with 

 

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#### or for the account of, or credit extended or participated in by, anyLender (except any reserve requirement contemplatedby Section 3.04(e)) or the L/C Issuer;

####  

#### (ii)             subjectany Lender or the L/C Issuer to any tax of any kind whatsoever with respect tothis Agreement, any Letter of Credit, any participation in a Letter of Creditor any Eurodollar Rate Loan made by it, or change the basis of taxation ofpayments to such Lender or the L/C Issuer in respect thereof (except forIndemnified Taxes or Other Taxes covered by Section 3.01 and theimposition of, or any change in the rate of, any Excluded Tax payable by suchLender or the L/C Issuer); or

####  

#### (iii)            imposeon any Lender or the L/C Issuer or the London interbank market any othercondition, cost or expense affecting this Agreement or Eurodollar Rate Loansmade by such Lender or any Letter of Credit or participation therein;

####  

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

 

### (b)         CapitalRequirements.  If any Lender or the L/C Issuer determines thatany Change in Law affecting such Lender or the L/C Issuer or any Lending Officeof such Lender or such Lender’s or the L/C Issuer’s holding company, if any,regarding capital requirements has or would have the effect of reducing therate of return on such Lender’s or the L/C Issuer’s capital or on the capitalof such Lender’s or the L/C Issuer’s holding company, if any, as a consequenceof this Agreement, the Commitments of such Lender or the Loans made by, orparticipations in Letters of Credit held by, such Lender, or the Letters ofCredit issued by the L/C Issuer, to a level below that which such Lender or theL/C Issuer or such Lender’s or the L/C Issuer’s holding company could haveachieved but for such Change in Law (taking into consideration such Lender’s orthe L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’sholding company with respect to capital adequacy), then from time to time theBorrower will pay to such Lender or the L/C Issuer, as the case may be, suchadditional amount or amounts as will compensate such Lender or the L/C Issueror such Lender’s or the L/C Issuer’s holding company for any such reductionsuffered.

###  

### (c)         Certificatesfor Reimbursement.  A certificate of a Lender or the L/C Issuersetting forth the amount or amounts necessary to compensate such Lender or theL/C Issuer or its holding company, as the case may be, as specified insubsection (a) or (b) of this Section and delivered to the Borrower shall beconclusive absent manifest error.  TheBorrower shall pay such Lender or the L/C Issuer, as the case may be, theamount shown as due on any such certificate within 10 days after receiptthereof.

 

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

###  

### (e)         Reserveson Eurodollar Rate Loans.  TheBorrower shall pay to each Lender, as long as such Lender shall be required tomaintain reserves with respect to liabilities or assets consisting of orincluding Eurocurrency funds or deposits (currently known as “Eurocurrencyliabilities”), additional interest on the unpaid principal amount of eachEurodollar Rate Loan equal to the actual costs of such reserves allocated tosuch Loan by such Lender (as determined by such Lender in good faith, whichdetermination shall be conclusive absent manifest error), which shall be dueand payable on each date on which interest is payable on such Loan, providedthe Borrower shall have received at least 10 days’ prior notice (with a copy tothe Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 daysprior to the relevant Interest Payment Date, such additional interest shall bedue and payable 10 days from receipt of such notice.

###  

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

 

### (a)         anycontinuation, conversion, payment or prepayment of any Loan other than a BaseRate Loan on a day other than the last day of the Interest Period for such Loan(whether voluntary, mandatory, automatic, by reason of acceleration, orotherwise);

###  

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

###  

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

###  

including any loss of anticipated profits and any loss or expensearising from the liquidation or reemployment of funds obtained by it tomaintain such Loan or from fees payable to terminate the deposits from whichsuch funds were obtained.  The Borrowershall also pay any customary administrative fees charged by such Lender inconnection with the foregoing.

 

For purposes of calculating amounts payable by the Borrower to the Lendersunder this Section 3.05, each Lender shall be deemed to have fundedeach Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by amatching deposit or other borrowing in the London 

 

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interbank eurodollar market for a comparable amount and for acomparable period, whether or not such Eurodollar Rate Loan was in fact sofunded.

 

**3.06****        MitigationObligations****; Replacement of Lenders.**

 

### (a)         Designationof a Different Lending Office.  Ifany Lender requests compensation under Section 3.04, or theBorrower is required to pay any additional amount to any Lender or anyGovernmental Authority for the account of any Lender pursuant to Section 3.01,or if any Lender gives a notice pursuant to Section 3.02, then suchLender shall use reasonable efforts to designate a different Lending Office forfunding or booking its Loans hereunder or to assign its rights and obligationshereunder to another of its offices, branches or affiliates, if, in the judgmentof such Lender, such designation or assignment (i) would eliminate or reduceamounts payable pursuant to Section 3.01 or 3.04, asthe case may be, in the future, or eliminate the need for the notice pursuantto Section 3.02, as applicable, and (ii) in each case, would notsubject such Lender to any unreimbursed cost or expense and would not otherwisebe disadvantageous to such Lender.  TheBorrower hereby agrees to pay all reasonable costs and expenses incurred by anyLender in connection with any such designation or assignment.

###  

### (b)         Replacementof Lenders.  If any Lender requests compensation under Section 3.04,or if the Borrower is required to pay any additional amount to any Lender orany Governmental Authority for the account of any Lender pursuant to Section 3.01or if any Lender gives a notice pursuant to Section 3.02, the Borrowermay replace such Lender in accordance with Section 10.13.

###  

**3.07****        Survival****.  **All of the Borrower’s obligations under this ArticleIII shall survive termination of the Aggregate Commitments and repayment ofall other Obligations hereunder.

 

# **ARTICLE IV.CONDITIONS**PRECEDENT TO CREDITEXTENSIONS

#  

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

 

### (a)         TheAdministrative Agent’s receipt of the following, each of which shall beoriginals or telecopies (followed promptly by originals) unless otherwisespecified, each properly executed by a Responsible Officer of the signing LoanParty, each dated the Closing Date (or, in the case of certificates ofgovernmental officials, a recent date before the Closing Date) and each in formand substance satisfactory to the Administrative Agent and each of the Lenders:

###  

#### (i)              executedcounterparts of this Agreement and the Guaranty, sufficient in number fordistribution to the Administrative Agent, each Lender and the Borrower;

####  

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

 

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#### (iii)            eachSecurity Document listed in the Security Schedule;

####  

#### (iv)            suchcertificates of resolutions or other action, incumbency certificates and/orother certificates of Responsible Officers of each Loan Party as theAdministrative Agent may require evidencing the identity, authority andcapacity of each Responsible Officer thereof authorized to act as a ResponsibleOfficer in connection with this Agreement and the other Loan Documents to whichsuch Loan Party is a party;

####  

#### (v)             suchdocuments and certifications as the Administrative Agent may reasonably requireto evidence that each Loan Party is duly organized or formed, and that each ofthe Borrower and each Guarantor is validly existing, in good standing andqualified to engage in business in each jurisdiction required by Section5.01;

####  

#### (vi)            favorableopinions of Vinson & Elkins LLP, counsel to the Loan Parties, addressed tothe Administrative Agent and each Lender, as to the matters set forth in Exhibit Hand such other matters concerning the Loan Parties and the Loan Documents asthe Required Lenders may reasonably request, and favorable opinions ofDubberstein Heinen & Morris PC, special Oklahoma counsel to theAdministrative Agent, addressed to the Administrative Agent and each Lender;

####  

#### (vii)           acertificate of a Responsible Officer of the Borrower either (A) attachingcopies of all consents, licenses and approvals required in connection with theexecution, delivery and performance by any Loan Party and the validity against anysuch Loan Party of the Loan Documents to which it is a party, and suchconsents, licenses and approvals shall be in full force and effect, or (B)stating that no such consents, licenses or approvals are so required;

####  

#### (viii)          theInitial Financial Statements;

####  

#### (ix)            acertificate signed by a Responsible Officer of the Borrower certifying (A) thatthe conditions specified in Sections 4.02(a) and (b) havebeen satisfied; (B) that there has been no event or circumstance since thedate of the Audited Financial Statements that has had or could be reasonablyexpected to have, either individually or in the aggregate, a Material AdverseEffect; (C) that, after giving effect to the Credit Extension requested onthe Closing Date, the Aggregate Commitments will exceed the Total Outstandingsby an amount of at least equal to $75,000,000; and (D) that contemporaneouslywith the making of such Credit Extension, the Borrower shall receive grossproceeds of at least $170,000,000 from loans made pursuant to the Senior BridgeFacility.

####  

#### (x)            evidence that all insurance required to be maintainedpursuant to the Loan Documents has been obtained and is in effect;

 

#### (xi)            documents,in form and substance reasonably satisfactory to Administrative Agent, assigningthe Indebtedness and Liens under the Comerica Credit Facility and the ScissorTailCredit Facility to the Administrative Agent on the Closing Date and confirmingthe termination of such credit facilities;

 

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#### (xii)           areport summarizing all Hedging Contracts entered into by the Borrower or anyRestricted Subsidiary and in effect as of the Closing Date, which HedgingContracts shall be sufficient to mitigate Borrower’s and RestrictedSubsidiaries’ commodity price risk as of the Closing Date as determined by AdministrativeAgent;

####  

#### (xiii)          acertificate from a Responsible Officer of the Borrower, in substantially theform of Exhibit I hereto, attesting to the Solvency of each Loan Partybefore and after giving effect to the transactions contemplated by thisAgreement and the Acquisition Documents;

####  

#### (xiv)          acertificate from a Responsible Officer of the Borrower (A) attaching forecasts,in form reasonably satisfactory to the Administrative Agent, of income statementsfor the fiscal quarter ending December 31, 2005 and for each year commencingwith the first fiscal year of the Borrower following the Closing Date throughthe Maturity Date, (B) certifying that (1) the pro forma Consolidated EBITDA(calculated giving pro forma effect to the Acquisition) for the twelve monthsended March 31, 2005 was not less than $72,000,000, (2) the pro formaConsolidated Total Leverage Ratio (calculated giving pro forma effect to theAcquisition) for the twelve months ended March 31, 2005 was not greater than5.9 to 1.0, and (3) such pro forma financial statements and forecasts wereprepared in good faith on the basis of assumptions that were fair in light ofthen existing conditions (subject to the proviso that it is understood that suchpro forma financial statements and forecasts are necessarily based uponprofessional opinions, estimates and projections and that the Borrower does notwarrant that such opinions, estimates and projections will ultimately prove tohave been accurate), and (C) certifying (prior to giving effect to theAcquisition) as to matters that would be required by Section 302 ofSarbanes-Oxley.

####  

#### (xv)           acopy of each Acquisition Document, together with a certificate from theResponsible Officer of the Borrower certifying that (A) such copies areaccurate and complete and represent the complete understanding and agreement ofthe parties thereto, (B) no material right or obligation of any party theretohas been modified, amended or waived, except as otherwise disclosed in suchcertificate, (C) the Borrower has obtained all approvals (if any) requiredpursuant to the Hart-Scott-Rodino Antitrust Improvement Act of 1976, asamended, or the waiting period with respect thereto has expired, and (D)subject only to the contemporaneous funding of the initial Borrowing to be madehereunder and the Senior Bridge Facility (all of which conditions precedentwith respect to the Senior Bridge Facility having been satisfied or waived),the Acquisition has been consummated on the terms set forth in such AcquisitionDocuments; and

####  

#### (xvi)          suchother assurances, certificates, documents, consents or opinions as theAdministrative Agent, the L/C Issuer, or the Required Lenders reasonably mayrequire.

####  

### (b)         TheAcquisition shall have been contemporaneously completed pursuant to the termsof the Acquisition Documents, and as a result thereof, the AcquisitionSubsidiary shall have directly or indirectly acquired good title to all of theEquity Interests contemplated to be transferred by the Acquisition Documents,free and clear of all liens except Liens permitted under Section 7.01.

 

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### (c)         TheSenior Bridge Facility shall have been contemporaneously consummated upon termsand conditions satisfactory to the Administrative Agent.

###  

### (d)         Anyfees required to be paid by the Borrower to the Administrative Agent and theLenders on or before the Closing Date shall have been paid.

###  

Without limiting the generality of theprovisions of Section 9.04, for purposes of determining compliancewith the conditions specified in this Section 4.01, each Lenderthat has signed this Agreement shall be deemed to have consented to, approvedor accepted or to be satisfied with, each document or other matter requiredthereunder to be consented to or approved by or acceptable or satisfactory to aLender unless the Administrative Agent shall have received notice from suchLender prior to the proposed Closing Date specifying its objection thereto.

 

**4.02****        Conditions****to all Credit Extensions**.  The obligation of eachLender to honor any Request for Credit Extension (other than a Loan Noticerequesting only a conversion of Loans to the other Type, or a continuation ofEurodollar Rate Loans) is subject to the following conditions precedent:

 

### (a)         Therepresentations and warranties of the Borrower and each other Loan Partycontained in Article V or any other Loan Document shall be true andcorrect in all material respects on and as of the date of such CreditExtension, except to the extent that such representations and warrantiesspecifically refer to an earlier date, in which case they shall be true andcorrect as of such earlier date, and except that for purposes of this Section 4.02,the representations and warranties contained in subsections (a) and (b) of Section 5.05shall be deemed to refer to the most recent statements furnished pursuant toclauses (a) and (b), respectively, of Section 6.01.

###  

### (b)         NoDefault shall exist, or would result from such proposed Credit Extension orfrom the application of the proceeds thereof.

###  

### (c)         NoMaterial Adverse Effect shall have occurred, and no event or circumstance shallhave occurred that could reasonably be expected to cause a Material AdverseEffect, relating to the consolidated financial condition or business of theLoan Parties since the date of the date of the most recent financial statementsdelivered pursuant to Section 4.01(a)(viii) or Section 6.01, asapplicable.

###  

### (d)         EachLoan Party shall be Solvent.

###  

### (e)         TheAdministrative Agent and, if applicable, the L/C Issuer shall have received aRequest for Credit Extension in accordance with the requirements hereof.

###  

Each Request for Credit Extension (other thana Loan Notice requesting only a conversion of Loans to the other Type or acontinuation of Eurodollar Rate Loans) submitted by the Borrower shall bedeemed to be a representation and warranty that the conditions specified in Sections 4.02(a)and (c) have been satisfied on and as of the date of the applicableCredit Extension.

 

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**ARTICLE V.REPRESENTATIONS AND WARRANTIES**

** **

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

 

**5.01****        Existence,****Qualification and Power; Compliance with Laws.  **EachLoan Party (a) is duly organized or formed, validly existing and in goodstanding under the Laws of the jurisdiction of its incorporation ororganization, (b) has all requisite power and authority and all requisitegovernmental licenses, authorizations, consents and approvals to (i) own orlease its assets and carry on its business and (ii) execute, deliver andperform its obligations under the Loan Documents to which it is a party, (c) isduly qualified and is licensed and in good standing under the Laws of eachjurisdiction where its ownership, lease or operation of properties or theconduct of its business requires such qualification or license, and (d) is incompliance with all Laws applicable to it; except in each case referred to inclause (b)(i), (c) or (d), to the extent that failure to do so could notreasonably be expected to have a Material Adverse Effect.

 

**5.02****        Authorization****; No Contravention**.  The execution, delivery andperformance by each Loan Party of each Loan Document to which such Person isparty, have been duly authorized by all necessary corporate or otherorganizational action, and do not and will not (a) contravene the terms of anyof such Person’s Organization Documents; (b) conflict with or result in anybreach or contravention of, or the creation of any Lien under, or require anypayment to be made under (i) any Contractual Obligation to which such Person isa party or affecting such Person or the properties of such Person or any of itsRestricted Subsidiaries or (ii) any order, injunction, writ or decree of anyGovernmental Authority or any arbitral award to which such Person or itsproperty is subject; or (c) violate any Law. Each Loan Party is in compliance with all Contractual Obligationsreferred to in clause (b)(i), except to the extent that failure to do so couldnot reasonably be expected to have a Material Adverse Effect.

 

**5.03****        Governmental****Authorization; Other Consents.  **Noapproval, consent, exemption, authorization, or other action by, or notice to,or filing with, any Governmental Authority or any other Person is necessary orrequired in connection with the execution, delivery or performance by, orenforcement against, any Loan Party of this Agreement or any other LoanDocument or any Acquisition Document, except for the recordings and filingsrequired by the Security Documents.

 

**5.04****        Binding****Effect.  **This Agreement has been, and each otherLoan Document, when delivered hereunder, will have been, duly executed anddelivered by each Loan Party that is party thereto.  This Agreement constitutes, and each otherLoan Document when so delivered will constitute, a legal, valid and bindingobligation of such Loan Party, enforceable against each Loan Party that isparty thereto in accordance with its terms, subject to applicable bankruptcy,insolvency, reorganization, moratorium or other Laws affecting creditors’rights generally and subject to general principles of equity, regardless ofwhether considered in a proceeding in equity or at Law.

 

**5.05****        FinancialStatements****; No Material AdverseEffect; No Internal Control Event.**

 

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### (a)         TheAudited Financial Statements (i) were prepared in accordance with GAAPconsistently applied throughout the period covered thereby, except as otherwiseexpressly noted therein; (ii) fairly present in all material respects thefinancial condition of the Borrower and its Subsidiaries as of the date thereofand their results of operations for the period covered thereby in accordancewith GAAP consistently applied throughout the period covered thereby, except asotherwise expressly noted therein; and (iii) show all material indebtedness andother liabilities, direct or contingent, of the Borrower and its Subsidiariesas of the date thereof, including liabilities for taxes and Indebtedness.

###  

### (b)         Theunaudited consolidated balance sheets of the Borrower and its Subsidiariesdated March 31, 2005, and the related consolidated statements of income oroperations, members’ capital and cash flows for the fiscal quarter ended onthat date (i) were prepared in accordance with GAAP consistently appliedthroughout the period covered thereby, except as otherwise expressly notedtherein, and (ii) fairly present in all material respects the financialcondition of the Borrower and its Subsidiaries as of the date thereof and theirresults of operations for the period covered thereby, subject, in the case ofclauses (i) and (ii), to the absence of footnotes and to normal year-end auditadjustments.  Schedule 5.05 setsforth all material indebtedness and other liabilities, direct or contingent, ofthe Borrower and its consolidated Subsidiaries as of the date hereof, includingliabilities for taxes and Indebtedness, not disclosed in the Initial FinancialStatements.

###  

### (c)         Sincethe date of the Audited Financial Statements, there has been no event orcircumstance, either individually or in the aggregate, that has had or couldreasonably be expected to have a Material Adverse Effect.

###  

### (d)         Sincethe date of the Audited Financial Statements, no Internal Control Event hasoccurred.

###  

### (e)         Theconsolidated pro forma balance sheet of the Borrower and its Restricted Subsidiariesas at March 31, 2005 (taking into account the Acquisition), and the related consolidatedpro forma statements of income of the Borrower and its Restricted Subsidiariesfor the period covered thereby, certified by the chief financial officer of theBorrower, copies of which have been furnished to each Lender, fairly present inall material respects the consolidated pro forma financial condition of theBorrower and its Restricted Subsidiaries (after giving effect to theAcquisition) as at such date and the consolidated pro forma results ofoperations of the Borrower and its Restricted Subsidiaries for the period endedon such date, all in accordance with GAAP.

###  

**5.06****        Litigation****.  **Thereare no actions, suits, investigations, proceedings, claims or disputes pendingor, to the knowledge of the Borrower after due and diligent investigation,threatened or contemplated, at law, in equity, in arbitration or before anyGovernmental Authority, by or against the Borrower or any of its Restricted Subsidiariesor against any of their properties or revenues that (a) purport to affect orpertain to this Agreement or any other Loan Document, or the extensions of creditcontemplated hereby, (b) purport to affect or pertain to the Acquisition or anyAcquisition Document, or (c) either individually or in the aggregate, ifdetermined adversely, could reasonably be expected to have a Material AdverseEffect.

 

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**5.07****        No****Default.  **Neither the Borrower nor any RestrictedSubsidiary is in default under or with respect to any Contractual Obligationthat could, either individually or in the aggregate, reasonably be expected to havea Material Adverse Effect.  No Defaulthas occurred and is continuing or would result from the consummation of thetransactions contemplated by this Agreement or any other Loan Document.

 

**5.08****        Ownership****of Property; Liens.  **Each of the Borrower and eachRestricted Subsidiary has good record and marketable title to, or validleasehold interests in, all real property necessary or used in the ordinaryconduct of its business, except for such defects in title as could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.  The property of theBorrower and its Restricted Subsidiaries is subject to no Liens, other thanLiens permitted by Section 7.01.

 

**5.09****        Environmental****Compliance.  **TheBorrower and its Restricted Subsidiaries periodically conduct in the ordinarycourse of business a review of the effect of existing Environmental Laws andclaims alleging potential liability or responsibility for violation of anyEnvironmental Law on their respective businesses, operations and properties,and as a result thereof the Borrower has reasonably concluded that, except asspecifically disclosed in Schedule 5.09, such Environmental Laws andclaims could not, individually or in the aggregate, reasonably be expected tohave a Material Adverse Effect.

 

**5.10****        Insurance****.  **The properties of the Borrower and its RestrictedSubsidiaries are insured with financially sound and reputable insurancecompanies not Affiliates of the Borrower, in such amounts, with suchdeductibles and covering such risks as are customarily carried by companiesengaged in similar businesses and owning similar properties in localities wherethe Borrower or the applicable Restricted Subsidiary operates.

 

**5.11****        Taxes****.  **The Borrower and its Subsidiaries have filedall Federal, state and other material tax returns and reports required to befiled, and have paid all Federal, state and other material taxes, assessments,fees and other governmental charges levied or imposed upon them or theirproperties, income or assets otherwise due and payable, except those which arebeing contested in good faith by appropriate proceedings diligently conductedand for which adequate reserves have been provided in accordance withGAAP.  There is no proposed taxassessment against the Borrower or any Subsidiary that would, if made, have aMaterial Adverse Effect.  Neither anyLoan Party nor any Subsidiary thereof is party to any tax sharing agreement.

 

**5.12****        ERISACompliance.**

 

### (a)         EachPlan is in compliance in all material respects with the applicable provisionsof ERISA, the Code and other Federal or state Laws.  Each Plan that is intended to qualify underSection 401(a) of the Code has received a favorable determination letter fromthe IRS or an application for such a letter is currently being processed by theIRS with respect thereto and, to the best knowledge of the Borrower, nothinghas occurred which would prevent, or cause the loss of, suchqualification.  The Borrower and eachERISA Affiliate have made all required contributions to each Plan subject toSection 412 of the Code, and no application for a funding waiver or anextension of any amortization period pursuant to Section 412 of the Code hasbeen made with respect to any Plan.

 

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

###  

### (c)         (i)  NoERISA Event has occurred or is reasonably expected to occur; (ii) no PensionPlan has any Unfunded Pension Liability; (iii) neither the Borrower nor anyERISA Affiliate has incurred, or reasonably expects to incur, any liabilityunder Title IV of ERISA with respect to any Pension Plan (other than premiumsdue and not delinquent under Section 4007 of ERISA); (iv) neither the Borrowernor any ERISA Affiliate has incurred, or reasonably expects to incur, anyliability (and no event has occurred which, with the giving of notice underSection 4219 of ERISA, would result in such liability) under Sections 4201 or4243 of ERISA with respect to a Multiemployer Plan; and (v) neither theBorrower nor any ERISA Affiliate has engaged in a transaction that could besubject to Sections 4069 or 4212(c) of ERISA.

###  

**5.13****        Subsidiaries****; Equity Interests. **TheBorrower has no Subsidiaries other than those specifically disclosed in Part(a) of Schedule 5.13, and all of the outstanding Equity Interests insuch Subsidiaries have been issued and are owned by a Loan Party in the amountsspecified on Part (a) of Schedule 5.13 free and clear of all Liens otherthan Liens permitted under Section 7.01. The Borrower has no equity investments in any other corporation orentity other than those specifically disclosed in Part (b) of Schedule5.13.  Schedule 5.13identifies each Subsidiary as either Restricted or Unrestricted, its state oforganization, and its organizational identification number, and each RestrictedSubsidiary on such schedule is a wholly-owned Subsidiary.

 

**5.14****        MarginRegulations; Investment Company Act; Public Utility Holding Company Act.**

 

### (a)         TheBorrower is not engaged and will not engage, principally or as one of itsimportant activities, in the business of purchasing or carrying margin stock(within the meaning of Regulation U issued by the FRB), or extending credit forthe purpose of purchasing or carrying margin stock.

###  

### (b)         Noneof the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) isa “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate”of a “holding company” or of a “subsidiary company” of a “holding company,”within the meaning of the Public Utility Holding Company Act of 1935, or (ii)is or is required to be registered as an “investment company” under the InvestmentCompany Act of 1940.

###  

**5.15****        Disclosure****.  **The Borrower has disclosed to theAdministrative Agent and the Lenders all agreements, instruments and corporateor other restrictions to which it or any of its Restricted Subsidiaries issubject, and all other matters known to it, that, individually or in theaggregate, could reasonably be expected to result in a Material AdverseEffect.  No report, financial statement,certificate or other written information furnished by or on behalf of any LoanParty to the Administrative Agent or any Lender in connection with thetransactions contemplated hereby and the negotiation of this Agreement ordelivered hereunder or under any 

 

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other Loan Document (in each case, as modified or supplemented by otherinformation so furnished) contains any misstatement of fact or omits to stateany fact necessary to make the statements therein, in the light of thecircumstances under which they were made, not materially misleading withrespect to the Borrower and its Restricted Subsidiaries and their operations,business and properties, taken as a whole; provided that, with respectto projected financial information, the Borrower represents only that suchinformation was prepared in good faith based upon assumptions believed to bereasonable at the time.

 

**5.16****        Compliance****with Laws.  **Each of the Borrower and each RestrictedSubsidiary is in compliance in all material respects with the requirements ofall Laws and all orders, writs, injunctions and decrees applicable to it or toits properties, except in such instances in which (a) such requirement of Lawor order, writ, injunction or decree is being contested in good faith byappropriate proceedings diligently conducted or (b) the failure to complytherewith, either individually or in the aggregate, could not reasonably beexpected to have a Material Adverse Effect.

 

**5.17****        Intellectual****Property; Licenses, Etc.**  TheBorrower and its Restricted Subsidiaries own, or possess the right to use, allof the trademarks, service marks, trade names, copyrights, patents, patentrights, franchises, licenses and other intellectual property rights(collectively, “IP Rights”) that are reasonably necessary for theoperation of their respective businesses, without conflict with the rights ofany other Person.  To the best knowledgeof the Borrower, no slogan or other advertising device, product, process,method, substance, part or other material now employed, or now contemplated tobe employed, by the Borrower or any Restricted Subsidiary infringes upon anyrights held by any other Person.  Noclaim or litigation regarding any of the foregoing is pending or, to the bestknowledge of the Borrower, threatened, which, either individually or in theaggregate, could reasonably be expected to have a Material Adverse Effect.

 

**5.18****        LaborDisputes****and Acts of God.** Neither the business nor the properties of any Loan Party has beenaffected by any fire, explosion, accident, strike, lockout or other labordispute, drought, storm, hail, earthquake, embargo, act of God or of the publicenemy or other casualty (whether or not covered by insurance), which couldreasonably be expected to have a Material Adverse Effect.

 

**5.19****        Solvency****.**  Upon giving effectto the execution of this Agreement and the other Loan Documents by the Borrowerand each Guarantor that is a party thereto, the consummation of thetransactions contemplated hereby and thereby, the consummation of the SeniorBridge Facility and the consummation of the Acquisition, the Borrower and eachGuarantor will be Solvent.

 

**5.20****        Acquisition****Closing.**

 

(a)           Aftergiving effect to the Acquisition, all representations and warranties made byany Loan Party in any Loan Document will be true and correct in all material respectson and as of the Closing Date.

 

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(b)                               On the Closing Date, eachof the representations and warranties made by any party in the AcquisitionDocuments is true and correct in all material respects, other than with respectto those matters of which a Responsible Officer has obtained knowledge thereoffollowing the Closing Date, which the Borrower reasonably believes do not resultin an aggregate diminution in value of the assets and properties acquiredpursuant to the Acquisition in an amount in excess of escrowed funds under theAcquisition Agreement that will be disbursed to the Borrower as a resultthereof; and none of such parties has failed to perform any material obligationor covenant required by the Acquisition Documents to be performed or compliedwith by it on or before the Closing Date. Simultaneously with the making of the Loans on the Closing Date, the Acquisitionwill have been consummated in compliance with the material terms and conditionsof the Acquisition Documents and all conditions precedent to such consummationwill be fully satisfied or waived.

** **

**ARTICLE VI.****AFFIRMATIVECOVENANTS**

** **

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

 

**6.01****                        Financial****Statements.  **Deliver tothe Administrative Agent and each Lender, in form and detail satisfactory tothe Administrative Agent and the Required Lenders:

 

### (a)                           as soon as available, but inany event within 90 days after the end of each fiscal year of the Borrower, aconsolidated balance sheet of the Borrower and its Subsidiaries (with consolidatingbalance sheets breaking out (i) the Borrower and its Subsidiaries, excluding (x)ScissorTail and its Subsidiaries (if any) and (y) any Unrestricted Subsidiariesdescribed in clause (iii) below, (ii) ScissorTail and its Subsidiaries (ifany), and (iii) to the extent included in such consolidated balance sheet, UnrestrictedSubsidiaries with aggregate assets in excess of $1,000,000), as at the end ofsuch fiscal year, and the related consolidated and consolidating statements of income or operations and members’capital (or other form of owners’ equity) and consolidated cash flows for suchfiscal year, setting forth in each case in comparative form the figures for theprevious fiscal year, all in reasonable detail and prepared in accordance withGAAP, such consolidated statements tobe audited and accompanied by (i) a report and opinion of a RegisteredPublic Accounting Firm of nationally recognized standing reasonably acceptableto the Required Lenders, which report and opinion shall be prepared in accordancewith generally accepted auditing standards and applicable Securities Laws and shallnot be subject to any “going concern” or like qualification or exception or anyqualification or exception as to the scope of such audit and (ii) anattestation report of such Registered Public Accounting Firm as to the Borrower’sinternal controls pursuant to Section 404 of Sarbanes-Oxley that does not identifyany material weaknesses or scope limitations, other than (1) scope limitationsrelated to acquisitions by the Borrower or the Restricted Subsidiaries that areeffected during the period covered by the attestation report or (2) materialweaknesses or scope limitations to which the Required Lenders do not object; and such consolidating statements to becertified by a Responsible Officer of the Borrower to the effect that suchstatements are fairly 

 

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### stated in all material respects whenconsidered in relation to the consolidated financial statements of the Borrowerand its Subsidiaries; and

###  

### (b)                           assoon as available, but in any event within 45 days (or, with respect to thefiscal quarter ending September 30, 2005, 60 days) after the end of each of thefirst three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended September30, 2005), a consolidated balance sheet of the Borrower and itsSubsidiaries (with consolidating balance sheets breaking out (i) the Borrowerand its Subsidiaries, excluding (x) ScissorTail and its Subsidiaries (if any) and(y) any Unrestricted Subsidiaries described in clause (iii) below, (ii) ScissorTailand its Subsidiaries (if any) and (iii) to the extent included in suchconsolidated balance sheet, Unrestricted Subsidiaries with aggregate assets inexcess of $1,000,000), as at the end of such fiscal quarter, and the relatedconsolidated and consolidatingstatements of income or operations and members’ capital (or other form ofowners’ equity) and consolidated cash flows for such fiscal quarter and for theportion of the Borrower’s fiscal year then ended, setting forth in each case incomparative form the figures for the corresponding fiscal quarter of theprevious fiscal year and the corresponding portion of the previous fiscal year,all in reasonable detail, suchconsolidated statements to be certified by a Responsible Officer of theBorrower as fairly presenting in all material respects the financial condition,results of operations, members’ capital (or other owners’ equity) and cashflows of the Borrower and its Subsidiaries in accordance with GAAP, subjectonly to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to becertified by a Responsible Officer of the Borrower to the effect that suchstatements are fairly stated in all material respects when considered inrelation to the consolidated financial statements of the Borrower and itsSubsidiaries.

###  

Asto any information contained in materials furnished pursuant to Section 6.02(d),the Borrower shall not be separately required to furnish such information underclause (a) or (b) above, but the foregoing shall not be in derogation of theobligation of the Borrower to furnish the information and materials describedin clauses (a) and (b) above at the times specified therein.

 

**6.02****                        Certificates;****Other Information.  **Deliverto the Administrative Agent and each Lender, in form and detail reasonably satisfactoryto the Administrative Agent and the Required Lenders:

 

### (a)                           concurrently with thedelivery of the financial statements referred to in Section 6.01(a),the audit report and opinion referred to therein;

###  

### (b)                           concurrently with thedelivery of the financial statements referred to in Sections 6.01(a)and (b)****,****a duly completed Compliance Certificate signed by a Responsible Officer of theBorrower;

###  

### (c)                            promptly after any requestby the Administrative Agent or any Lender, copies of any detailed auditreports, management letters or recommendations submitted to the board ofdirectors (or the audit committee of the board of directors) of the Borrower byindependent accountants in connection with the accounts or books of theBorrower or any Subsidiary, or any audit of any of them;

 

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### (d)                           promptly after the same areavailable, copies of each annual report, proxy or financial statement or otherreport or communication sent to the members of the Borrower, and copies of allannual, regular, periodic and special reports and registration statements whichthe Borrower has filed with the SEC under Section 13 or 15(d) of the SecuritiesExchange Act of 1934, and not otherwise required to be delivered to theAdministrative Agent pursuant hereto;

###  

### (e)                            promptly after thefurnishing thereof, copies of any statement or report furnished to any holderof debt securities of any Loan Party or any Restricted Subsidiary thereofpursuant to the terms of any indenture, loan or credit or similar agreement andnot otherwise required to be furnished to the Lenders pursuant to Section 6.01or any other clause of this Section 6.02;

###  

### (f)                             promptly, and in any eventwithin five Business Days after receipt thereof by any Loan Party, copies ofeach notice or other correspondence received from the SEC (or comparable agencyin any applicable non-U.S. jurisdiction) concerning any investigation orpossible investigation or other inquiry by such agency regarding financial orother operational results of any Loan Party or any Subsidiary thereof;

###  

### (g)                            promptly upon theoccurrence thereof, notice of any acquisition or divestiture by the Borrower orany of its Restricted Subsidiaries of any assets or properties in excess of$5,000,000;

###  

### (h)                           promptly upon its becomingavailable, copies of all notices or documents received by the Borrower or anyother Loan Party pursuant to any Material Contract alleging a material defaultor nonperformance by such Person thereunder or terminating or suspending anysuch Material Contract;

###  

### (i)                               as soon as available,and in any event within 60 days after the end of each fiscal year, a financialplan for the Borrower (in form reasonably satisfactory to the AdministrativeAgent), prepared or caused to be prepared by a Responsible Officer of theBorrower, setting forth for the then calendar year and financial projectionsfor the Borrower;

###  

### (j)                              concurrently with theannual renewal of the Loan Parties’ insurance policies, if requested by theAdministrative Agent, a certificate of insurance showing all insurance requiredto be maintained pursuant to the Loan Documents has been obtained and is ineffect; and

###  

### (k)                           promptly, such additionalinformation regarding the business, financial or corporate affairs of theBorrower or any Subsidiary, or compliance with the terms of the Loan Documents,as the Administrative Agent or any Lender may from time to time reasonablyrequest.

###  

Documents required to be delivered pursuantto Section 6.01(a) or (b) or Section 6.02(d) maybe delivered electronically and if so delivered, shall be deemed to have beendelivered on the date (i) on which the Borrower posts such documents, orprovides a link thereto on the Borrower’s website on the Internet at thewebsite address listed on Schedule 10.02, or (ii) on which suchdocuments are posted on the Borrower’s behalf on an Internet or intranetwebsite, if any, to which each Lender and the Administrative Agent have access(whether a commercial, third-party website or whether sponsored by theAdministrative Agent); or (iii) on which Borrower provides to theAdministrative Agent by electronic mail electronic versions (i.e., soft 

 

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copies) of such documents (delivery of theCompliance Certificates required to be delivered pursuant to Section 6.02(d)also being deemed delivered on such date if included within such electronicmail under this clause (iii)); provided, the Borrower shall upon therequest of Administrative Agent provide to the Administrative Agent papercopies of any such electronically delivered Compliance Certificates); providedfurther, that the Borrower shall notify the Administrative Agent (bytelecopier or electronic mail) of the posting of any such documents pursuant toclause (i) or (ii) above and provide to the Administrative Agent by electronicmail electronic versions (i.e., soft copies) of such documents, andAdministrative hereby agrees that it shall use reasonable commercial efforts topost such documents received pursuant to this clause (iii) on the Borrower’sbehalf to a commercial, third-party or other website sponsored by theAdministrative Agent and notify the Lenders of such posting.  Except as expressly provided in the foregoingclause (iii) the Administrative Agent shall have no obligation to request thedelivery or to maintain copies of the documents referred to above, and in anyevent shall have no responsibility to monitor compliance by the Borrower withany such request for delivery, and each Lender shall be solely responsible forrequesting delivery to it or maintaining its copies of such documents.

 

The Borrower herebyacknowledges that (a) the Administrative Agent and/or the Arranger will makeavailable to the Lenders and the L/C Issuer materials and/or informationprovided by or on behalf of the Borrower hereunder (collectively, “BorrowerMaterials”) by posting the Borrower Materials on IntraLinks or anothersimilar electronic system (the “Platform”) and (b) certain of theLenders may be “public-side” Lenders (*i.e.,*Lenders that do not wish to receive material non-public information withrespect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that so long asthe Borrower is the issuer of any outstanding debt or equity securities thatare registered or issued pursuant to a private offering or is activelycontemplating issuing any such securities (w) all Borrower Materials that areto be made available to Public Lenders shall be clearly and conspicuouslymarked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shallappear prominently on the first page thereof; (x) by marking Borrower Materials“PUBLIC,” the Borrower shall be deemed to have authorized the AdministrativeAgent, the Arranger, the L/C Issuer and the Lenders to treat such BorrowerMaterials as not containing any material non-public information with respect tothe Borrower or its securities for purposes of United States Federal and statesecurities laws (provided, however, that to the extent such Borrower Materialsconstitute Information, they shall be treated as set forth in Section 10.07);(y) all Borrower Materials marked “PUBLIC” are permitted to be made availablethrough a portion of the Platform designated “Public Investor;” and (z) theAdministrative Agent and the Arranger shall be entitled to treat any BorrowerMaterials that are not marked “PUBLIC” as being suitable only for posting on aportion of the Platform not designated “Public Investor.”

 

**6.03****                        Notices****.  **Promptly notify the Administrative Agent andeach Lender after any Responsible Officer has knowledge:

 

### (a)                           of the occurrence of anyDefault;

###  

### (b)                           of any matter that has resultedor could reasonably be expected to result in a Material Adverse Effect,including (i) breach or non-performance of, or any default under, a ContractualObligation of the Borrower or any Restricted Subsidiary; (ii) any dispute,litigation, 

 

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### investigation, proceeding or suspension between the Borrower or any Subsidiaryand any Governmental Authority; or (iii) the commencement of, or any materialdevelopment in, any litigation or proceeding affecting the Borrower or any Subsidiary,including pursuant to any applicable Environmental Laws;

###  

### (c)                            of the occurrence of anyERISA Event;

###  

### (d)                           of any material change inaccounting policies or financial reporting practices adopted by the Borrower orany Restricted Subsidiary; and

###  

### (e)                            of the occurrence of anyInternal Control Event the occurrence of which would require disclosure underthe Securities Laws.

###  

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

 

**6.04****                        Payment****of Obligations.  **Pay anddischarge as the same shall become due and payable, all its obligations andliabilities, including (a) all tax liabilities, assessments and governmentalcharges or levies upon it or its properties or assets, unless the same arebeing contested in good faith by appropriate proceedings diligently conductedand adequate reserves in accordance with GAAP are being maintained by theBorrower or such Restricted Subsidiary; and (b) all lawful claims which, ifunpaid, would by Law become a Lien upon its property, unless the same are beingcontested in good faith by appropriate proceedings diligently conducted andadequate reserves in accordance with GAAP are being maintained by the Borroweror such Restricted Subsidiary.

 

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

 

**6.06****                        Maintenance****of Properties.  **(a) Maintain,preserve and protect all of its material properties and equipment necessary inthe operation of its business in good working order and condition, ordinarywear and tear excepted; (b) make all necessary repairs thereto andrenewals and replacements thereof except where the failure to do so could notreasonably be expected to have a Material Adverse Effect; and (c) use thestandard of care typical in the industry in the operation and maintenance ofits facilities.

 

**6.07****                        Maintenance****of Insurance.  **Maintainwith financially sound and reputable insurance companies not Affiliates of theBorrower, insurance with respect to its properties and business against loss ordamage of the kinds customarily insured against by Persons engaged in 

 

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the same or similar business,of such types and in such amounts as are customarily carried under similarcircumstances by such other Persons and providing (a) for payment of losses tothe Administrative Agent as its interests may appear, (b) that such policiesmay not be canceled or reduced or affected in any material manner for anyreason without 30 days prior notice to the Administrative Agent, and (c) forany other matters specified in any applicable Security Document or which theAdministrative Agent may reasonably require.

 

**6.08****                        Compliance****with Laws.  **Comply inall material respects with the requirements of all Laws and all orders, writs,injunctions and decrees applicable to it or to its business or property, exceptin such instances in which (a) such requirement of Law or order, writ,injunction or decree is being contested in good faith by appropriateproceedings diligently conducted; or (b) the failure to comply therewith couldnot reasonably be expected to have a Material Adverse Effect.

 

**6.09****                        Books****and Records.  **Maintainproper books of record in conformity with GAAP consistently applied regarding allfinancial transactions and matters involving the assets and business of theBorrower or such Restricted Subsidiary, as the case may be.

 

**6.10****                        Inspection****Rights.**  Permitrepresentatives and independent contractors of the Administrative Agent andeach Lender to visit and inspect any of its properties, to examine its corporate,financial and operating records, and make copies thereof or abstractstherefrom, and to discuss its affairs, finances and accounts with itsdirectors, officers, and independent public accountants, all at the expense ofthe Borrower and at such reasonable times during normal business hours and asoften as may be reasonably desired, upon reasonable advance notice to theBorrower; provided, however, that when an Event of Default existsthe Administrative Agent or any Lender (or any of their respective representativesor independent contractors) may do any of the foregoing at the expense of theBorrower at any time during normal business hours and without advance notice.

 

**6.11****                        Use****of Proceeds.  **Use theproceeds of the initial Credit Extension (a) to partially finance theAcquisition, (b) to refinance outstanding Indebtedness under the ExistingCredit Agreement, (c) to retire the outstanding Indebtedness under the ComericaCredit Facility and the ScissorTail Credit Facility, and (d) for the payment offees and expenses relating to the Acquisition, the Senior Bridge Facility and thisAgreement.  Use the proceeds of the otherCredit Extensions for working capital, acquisitions, Capital Expenditures, andother general corporate purposes not in contravention of any Law or of any LoanDocument.

 

**6.12****                        Additional****Guarantors.  **Notify theAdministrative Agent at the time that any Person becomes a RestrictedSubsidiary of the Borrower, and promptly thereafter (and in any event within 15days), cause (a) such Person to (i) become a Guarantor by executing anddelivering to the Administrative Agent a counterpart of the Guaranty or ajoinder thereto in the form attached as Exhibit F, and (ii) deliver tothe Administrative Agent documents of the types referred to in clauses (iv) and(v) of Section 4.01(a) and, upon request of the Administrative Agent, favorableopinions of counsel to such Person (which shall cover, among other things, thelegality, validity, binding effect and enforceability of the documentationreferred to in clause (a)(i)), all in form, content and scope reasonablysatisfactory to the Administrative Agent; and (b) (i) cause all of the EquityInterest of such Person to be pledged to the Administrative Agent 

 

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to secure the Obligations by executing and delivering the Pledge andSecurity Agreement or a joinder thereto in the form attached as Exhibit G,(ii) pursuant to the Pledge and Security Agreement, deliver or cause theapplicable Restricted Subsidiary to deliver to Administrative Agent allcertificates, stock powers and other documents required by the Pledge andSecurity Agreement with respect to all such Equity Interests of any such RestrictedSubsidiary, (iii) take or cause the applicable Restricted Subsidiary to takesuch other actions, all as may be necessary to provide the Administrative Agentwith a first priority perfected pledge or and security interest in such EquityInterests in such Restricted Subsidiary, and (iv) deliver to the AdministrativeAgent documents of the types referred to in clauses (iv) and (v) of Section4.01(a) and, upon the request of the Administrative Agent, favorable opinionsof counsel to such Person (which shall cover, among other things, the legality,validity, binding effect and enforceability of the documentation referred to inclause (b)(i)), all in form, content and scope reasonably satisfactory to theAdministrative Agent.

 

**6.13****                        Agreementto****Deliver Security Documents.**  Promptly deliver, to further secure theObligations, whenever requested by Administrative Agent in its sole andabsolute discretion, deeds of trust, mortgages, security agreements, titlesearches, financing statements and other Security Documents in form andsubstance satisfactory to Administrative Agent for the purpose of granting,confirming, and perfecting first and prior liens or security interests, subjectonly to Liens permitted under the Loan Documents, on any real or personalproperty now owned or hereafter acquired by such Person with a fair marketvalue in excess of $5,000,000.  Infurtherance thereof, promptly notify Administrative Agent of (a) any materialacquisition (whether by purchase, lease or otherwise) of property or assets byany Loan Party, and (b) any individual real properties in which a Loan Party orany of its Restricted Subsidiaries has an interest (whether by acquisition,lease or otherwise) with a fair market value in excess of $5,000,000.

 

**6.14****                        Perfectionand****Protection of Security Interests and Liens.**  Deliver from time to time to the AdministrativeAgent any financing statements, continuation statements, extension agreementsand other documents, properly completed and executed (and acknowledged whenrequired) in form and substance reasonably satisfactory to the AdministrativeAgent, which the Administrative Agent requests for the purpose of perfecting,confirming, or protecting any Liens or other rights in any property securingany Obligations.

 

**6.15****                        Performance****on Loan Parties’ Behalf.**  Immediately reimburse the AdministrativeAgent after notice by the Administrative Agent is given to the Borrower of anypayment by the Administrative Agent of any taxes or insurance premiums Borroweror any Restricted Subsidiary is required to pay under any Loan Document, whichAdministrative Agent is hereby authorized to pay, each such amount paid by theAdministrative Agent constituting an Obligation owed hereunder and due andpayable on the date such amount is paid by the Administrative Agent.

 

**6.16****                        Environmental****Matters; Environmental Reviews.**

 

### (a)                           (i) Comply in all materialrespects with all Environmental Laws now or hereafter applicable to such Personas well as all contractual obligations and agreements with respect toenvironmental remediation or other environmental matters, (ii) obtain, at orprior to the time 

 

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### required by applicable Environmental Laws, all permits, licenses andother authorizations under applicable Environmental Laws necessary for its thencurrent operations and will maintain such authorizations in full force andeffect, (iii) conduct any investigation, study, sampling and testing, andundertake any cleanup, removal, remedial or other action necessary to removeand clean up Hazardous Materials at or from any of its properties, as may berequired by, and in accordance with the requirements of, applicable EnvironmentalLaws.  Promptly pay and discharge whendue all debts, claims, liabilities and obligations with respect to any clean-upor remediation measures necessary to comply with Environmental Laws unless, ineach case, the same are being contested in good faith by appropriateproceedings diligently conducted and adequate reserves in accordance with GAAPare being maintained by the applicable Person.

###  

### (b)                           Promptly furnish to AdministrativeAgent all written notices of violation, orders, claims, citations, complaints,penalty assessments, suits or other proceedings received by such Person, or ofwhich it has notice, pending or threatened against such Person, the potentialliability of which exceeds $5,000,000 or could reasonably be expected to have aMaterial Adverse Effect if resolved adversely against such Person, by anyGovernmental Authority with respect to any alleged violation of ornon-compliance with any applicable Environmental Laws or any permits, licensesor authorizations required under applicable Environmental Laws in connectionwith its ownership or use of its properties or the operation of its business.

###  

### (c)                            Promptly furnish toAdministrative Agent all written requests for information, notices of claim,demand letters, and other written notifications, received by such Person inconnection with its ownership or use of its properties or the conduct of itsbusiness, relating to potential responsibility with respect to any investigationor clean-up of Hazardous Material arising from its operations at any location,the potential liability of which exceeds $5,000,000 or could reasonably beexpected to have a Material Adverse Effect if resolved adversely against suchPerson.

###  

**6.17****                        Compliance****with Agreements.**  Observe, perform or comply with each MaterialContract, unless any such failure to so observe, perform or comply is remediedwithin the applicable period of grace (if any) provided in such MaterialContract or unless such failure to so observe, perform or comply would notreasonably be expected to have a Material Adverse Effect.

 

**6.18****                        Unrestricted****Subsidiaries. **Will cause the management, business and affairs of each ofthe Borrower and its Restricted Subsidiaries to be conducted in such a manner(including, without limitation, by keeping separate books of account,furnishing separate financial statements of Unrestricted Subsidiaries tocreditors and potential creditors thereof and by not permitting properties ofthe Borrower and its Restricted Subsidiaries to be commingled) so that eachUnrestricted Subsidiary that is a corporation or other legal entity will betreated as an entity separate and distinct from the Borrower and the RestrictedSubsidiaries.

 

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**ARTICLE VII.NEGATIVE COVENANTS**

** **

So long as any Lender shall have anyCommitment hereunder, any Loan or other Obligation hereunder shall remainunpaid or unsatisfied, or any Letter of Credit shall remain outstanding, theBorrower shall not, nor shall it permit any Restricted Subsidiary to, directlyor indirectly:

 

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

 

### (a)                           Liens pursuant to any LoanDocument;

###  

### (b)                           Liens existing on the datehereof and listed on Schedule 7.01 and any renewals or extensionsthereof, provided that (i) the property covered thereby is not changed,(ii) the amount secured or benefited thereby is not increased (except asprovided in Section 7.03(c)), (iii) the direct or any contingent obligor withrespect thereto is not changed, and (iv) any renewal or extension of theobligations secured or benefited thereby is permitted by Section 7.03(c);

###  

### (c)                            Liens for taxes not yet dueor which are being contested in good faith and by appropriate proceedingsdiligently conducted, if adequate reserves with respect thereto are maintainedon the books of the applicable Person in accordance with GAAP;

###  

### (d)                           Landlords’, carriers’,warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liensarising in the ordinary course of business which are not overdue for a periodof more than 30 days or which are being contested in good faith and by appropriateproceedings diligently conducted, if adequate reserves with respect thereto aremaintained on the books of the applicable Person;

###  

### (e)                            pledges or deposits in theordinary course of business in connection with workers’ compensation,unemployment insurance and other social security legislation, other than anyLien imposed by ERISA;

###  

### (f)                             deposits to secure theperformance of bids, trade contracts and leases (other than Indebtedness),statutory obligations, surety and appeal bonds, performance bonds and otherobligations of a like nature incurred in the ordinary course of business;

###  

### (g)                            easements, rights-of-way,restrictions and other similar encumbrances affecting real property which, inthe aggregate, do not materially detract from the value of the property subjectthereto or materially interfere with the ordinary conduct of the business ofthe applicable Person;

###  

### (h)                           Liens securing judgments forthe payment of money not constituting an Event of Default under Section 8.01(h);

###  

### (i)                               Liens securing Indebtednesspermitted under Section 7.03(g); provided that (i) suchLiens do not at any time encumber any property other than the property financedby 

 

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### such Indebtedness and (ii) the Indebtedness secured thereby does notexceed the cost or fair market value, whichever is lower, of the property beingacquired on the date of acquisition;

###  

### (j)                              Liens arising solely byvirtue of any statutory or common law provision relating to banker’s liens,rights of set-off or similar rights and remedies, or under general depository orbrokerage agreements, and burdening only deposit or brokerage accounts or otherfunds and assets maintained with a creditor depository institution or brokerage;

###  

### (k)                           Liens arising fromprecautionary UCC financing statements relating to operating leases and othercontractual arrangements entered into in the ordinary course of business thatdescribe only the property subject to such operating lease or contractual arrangement;and

###  

### (l)                               statutory Liens arisingin the ordinary course of business relating to purchases of crude oil, naturalgas and other hydrocarbons in favor of producers thereof (“first purchaserLiens”); provided that (i) such Liens do not at any time encumberany property other than the crude oil, natural gas or other hydrocarbons beingpurchased and secure only amounts due for the purchase thereof, and (ii) the amountsecured thereby is not overdue for a period of more than 30 days or isotherwise being contested in good faith and by appropriate proceedingsdiligently conducted, if adequate reserves with respect thereto are maintainedon the books of the applicable Person;

###  

provided,nothing in this Section 7.01 shall in and of itself constitute or be deemed toconstitute an agreement or acknowledgment by the Administrative Agent or anyLender that any Indebtedness subject to or secured by any Lien, right or otherinterest permitted under subsections (a) through (i) above ranks in priority toany Obligation.

 

**7.02****                        Investments****.  **Make any Investments, except:

 

### (a)                           Investments held by theBorrower or such Loan Party in the form of cash equivalents or short-termmarketable debt securities;

###  

### (b)                           advances to officers,directors and employees of the Borrower and Restricted Subsidiaries in an aggregateamount not to exceed $100,000 at any time outstanding, for travel,entertainment, relocation and analogous ordinary business purposes;

###  

### (c)                            Investments of the Borrowerin any wholly-owned Subsidiary that is a Guarantor and Investments of anywholly-owned Subsidiary that is a Guarantor in the Borrower or in anotherwholly-owned Subsidiary that is a Guarantor;

###  

### (d)                           Investments consisting ofextensions of credit in the nature of accounts receivable or notes receivablearising from the grant of trade credit in the ordinary course of business, andInvestments received in satisfaction or partial satisfaction thereof fromfinancially troubled account debtors to the extent reasonably necessary inorder to prevent or limit loss;

###  

### (e)                            Guarantees permitted by Section 7.03;

###  

### (f)                             Investments inUnrestricted Subsidiaries (net of any distributions received by the Borrowerand Restricted Subsidiaries with respect to such Investments), provided that(i) the 

 

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### aggregate amount of all such Investments made after the Closing Date shallnot at any time exceed $25,000,000, and (ii) after giving effect to any suchInvestment, the Borrower has at least $10,000,000 in unused availability underthe Commitments; and

###  

### (g)                            other Investments (includingInvestments in Persons that are not Subsidiaries) not exceeding $1,000,000 inthe aggregate in any fiscal year of the Borrower.

###  

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

 

### (a)                           Indebtedness under the LoanDocuments;

###  

### (b)                           Unsecured Indebtedness underthe Senior Bridge Facility (or any unsecured refinancing or replacement thereofwith a maturity not earlier than 91 days after the Maturity Date and on termsand conditions not materially more restrictive than the Loan Documents taken asa whole) in an aggregate principal amount not to exceed $200,000,000 at anytime outstanding;

###  

### (c)                            Indebtedness outstanding onthe date hereof and listed on Schedule 7.03 and any refinancings,refundings, renewals or extensions thereof; provided that the amount ofsuch Indebtedness is not increased at the time of such refinancing, refunding,renewal or extension except by an amount equal to a reasonable premium or otherreasonable amount paid, and fees and expenses reasonably incurred, inconnection with such refinancing and by an amount equal to any existingcommitments unutilized thereunder;

###  

### (d)                           Guarantees of the Borroweror any Guarantor in respect of Indebtedness otherwise permitted hereunder ofthe Borrower or any other Guarantor;

###  

### (e)                            unsecured Indebtedness ofthe Borrower or any Guarantor, provided that (i) the Loan Parties comply withthe provisions of Section 2.05(e) and (ii) such Indebtedness qualifies asSubordinated Debt;

###  

### (f)                             obligations (contingent orotherwise) of the Borrower or any Restricted Subsidiary existing or arisingunder any Hedging Contract, provided that (i) such obligations are (orwere) entered into by such Person in the ordinary course of business for thepurpose of directly mitigating risks associated with liabilities, commitments,investments, assets, or property held or reasonably anticipated by such Person,or changes in the value of securities issued by such Person, and not forpurposes of speculation or taking a “market view;” and (ii) such HedgingContract does not contain any provision exonerating the non-defaulting partyfrom its obligation to make payments on outstanding transactions to thedefaulting party;

###  

### (g)                            Indebtedness in respect ofcapital leases, Synthetic Lease Obligations and purchase money obligationswithin the limitations set forth in Section 7.01(i); provided,however, that the aggregate amount of all such Indebtedness at any onetime outstanding shall not exceed $5,000,000;

###  

### (h)                           Indebtedness of any LoanParty owing to another Loan Party;

 

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### (i)                               Indebtedness (other thanas described in clause (a) of the definition of the term “Indebtedness”) of (A)Copano/Webb-Duval Pipeline, L.P. (“Webb/Duval GP”) that was incurred in theordinary course of business by Webb/Duval Gatherers and is Indebtedness ofWebb/Duval GP solely by virtue of the fact that it is a general partner ofWebb/Duval Gatherers and (B) a general partner of Webb/Duval GP with respect tothe Indebtedness described in clause (A) solely by virtue of the fact that itis such general partner; and

###  

### (j)                              Other unsecuredIndebtedness in an aggregate principal amount not to exceed $5,000,000 at anytime outstanding.

###  

**7.04****                        FundamentalChanges.  **Merge, dissolve, liquidate, consolidate with or intoanother Person, or Dispose of (whether in one transaction or in a series oftransactions) all or substantially all of its assets (whether now owned orhereafter acquired) to or in favor of any Person, except that, so long as no Defaultexists or would result therefrom:

 

### (a)                           any wholly-owned Restricted Subsidiarymay merge with (i) the Borrower, provided that the Borrower shall be thecontinuing or surviving Person, or (ii) any one or more other wholly-ownedRestricted Subsidiaries; and

###  

### (b)                           any Restricted Subsidiarymay Dispose of all or substantially all of its assets (upon voluntaryliquidation or otherwise) to the Borrower or to a wholly-owned Restricted Subsidiary.

###  

The Borrower will not issue anyEquity Interests which (i) may be classified in whole or part as Indebtedness, (ii)require mandatory distributions (other than distributions of Available Cashpermitted under Section 7.06(d)) or mandatory redemption prior to 91days after the Maturity Date, or (iii) provide for a scheduled distributionabove generally prevailing market rates at the time of issuance.  No Restricted Subsidiary of the Borrower willissue any additional Equity Interests, except a direct Subsidiary of a LoanParty may issue additional Equity Interests to such Loan Party or to theBorrower so long as (i) such Restricted Subsidiary is a wholly-owned RestrictedSubsidiary of the Borrower after giving effect thereto, and (ii) such EquityInterests shall be pledged to the Administrative Agent for the benefit of theLenders pursuant to Security Documents acceptable to the AdministrativeAgent.  No Restricted Subsidiary of the Borrowerthat is a partnership will allow any reduction of the Borrower’s interest(direct or indirect) therein.

 

**7.05****                        Dispositions.  **Makeany Disposition or enter into any agreement to make any Disposition, except:

 

### (a)                           Dispositions of obsolete,surplus or worn out property, whether now owned or hereafter acquired, in theordinary course of business;

###  

### (b)                           Dispositions of inventory inthe ordinary course of business;

###  

### (c)                            Dispositions of equipmentor real property so long as (i) the purchase price for such asset shall bepaid solely in cash; (ii) the aggregate purchase price paid to LoanParties for such asset and all other such assets sold by Loan Parties duringany period of four consecutive fiscal quarters pursuant to this clause(c) shall not exceed $5,000,000; (iii) if the portion of the 

 

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### aggregate annual Consolidated EBITDA derived from all assets soldpursuant to this clause (c) during any period of four fiscal quarters and basedon the four fiscal quarters (as to any assets of the Borrower or any RestrictedSubsidiary other than ScissorTail and its Restricted Subsidiaries) orannualized portion thereof (as to any assets of ScissorTail and its RestrictedSubsidiaries as provided in Section 7.21(e)) prior to the sale of such assetwould exceed $2,000,000, the consent (not to be unreasonably withheld) of theRequired Lenders is obtained in connection with any such sale; (iv) noDefault or Event of Default shall exist prior to or after giving effect to suchsale; and (v) the Net Cash Proceeds of such sale shall have been appliedas follows (A) within one-hundred eighty (180) days after the date of suchreceipt of Net Cash Proceeds to the purchase of capital assets used in its businessor (B) to the extent Net Cash Proceeds have not been applied pursuant tothe immediately preceding clause (A), such amount (the “Excess Sale Proceeds”) shall have been appliedto prepay the Loans as provided in Section 2.05;

###  

### (d)                           Dispositions of property byany Loan Party to another Loan Party;

###  

### (e)                            Dispositions permitted by Section 7.04;

###  

### (f)                             Dispositions of EquityInterests in Unrestricted Subsidiaries; and

###  

### (g)                            Dispositions by theBorrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05;provided that (i) at the time of such Disposition, no Default shallexist or would result from such Disposition and (ii) the aggregate book valueof all property Disposed of in reliance on this clause (g) in any fiscal yearshall not exceed $1,000,000;

###  

provided, however, that any Dispositionpursuant to clauses (a) through (g) shall be for fair market value.

 

**7.06****                        RestrictedPayments.  **Declare or make, directly or indirectly, anyRestricted Payment, or incur any obligation (contingent or otherwise) to do so,except that, so long as no Default shall have occurred and be continuing at thetime of any action described below or would result therefrom(except asotherwise provided in subsection (d) below):

 

### (a)                           each Restricted Subsidiarymay make Restricted Payments to the Borrower or any Guarantor ratably accordingto their respective holdings of the type of Equity Interest in respect of whichsuch Restricted Payment is being made;

###  

### (b)                           the Borrower and each RestrictedSubsidiary may declare and make dividend payments or other distributionspayable solely of the type of Equity Interests in respect of which such RestrictedPayment is being made;

###  

### (c)                            the Borrower and each RestrictedSubsidiary may purchase, redeem or otherwise acquire Equity Interests (otherthan preferred Equity Interests dissimilar in type to new Equity Interestsbeing concurrently issued) issued by it with the proceeds received from the substantiallyconcurrent issue of new Equity Interests; and

###  

### (d)                           so long as no Event ofDefault has occurred and is continuing at such time and so long as no Defaultor Event of Default would exist after giving pro forma effect to such 

 

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### transaction, the Borrower may declare cash quarterly distributions toits members in an amount equal to Available Cash and, notwithstanding theoccurrence of any Default or Event of Default following such declaration, pay suchdeclared distributions.

###  

**7.07****                        Change inNature of Business.  **Engage in any material line of businesssubstantially different from those lines of business conducted by the Borrowerand its Restricted Subsidiaries on the date hereof or any business substantiallyrelated or incidental thereto.

 

**7.08****                        Transactionswith Affiliates.  **Enter into any transaction of any kind with anyAffiliate of the Borrower, whether or not in the ordinary course of business,other than on fair and reasonable terms substantially as favorable to theBorrower or such Restricted Subsidiary as would be obtainable by the Borroweror such Restricted Subsidiary at the time in a comparable arm’s lengthtransaction with a Person other than an Affiliate, provided that the foregoingrestriction shall not apply to (i) transactions between or among the Borrowerand any Guarantor or between and among any Guarantors or (ii) ScissorTail’sguarantee of the performance by Southern Dome of its obligations under thatcertain Gas Purchase and Processing Agreement effective May 1, 2005 by andbetween Southern Dome and New Dominion, L.L.C.

 

**7.09****                        BurdensomeAgreements.  **Enter into any Contractual Obligation (other thanthis Agreement or any other Loan Document) that (a) limits the ability (i) ofany Restricted Subsidiary to make Restricted Payments to the Borrower or anyGuarantor or to otherwise transfer property to the Borrower or any Guarantor,(ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the Borroweror (iii) of the Borrower or any Restricted Subsidiary to create, incur, assumeor suffer to exist Liens on property of such Person in favor of AdministrativeAgent and Lenders; provided, however, that this clause (iii)shall not prohibit any negative pledge incurred or provided in favor of anyholder of Indebtedness permitted under Section 7.03(g) solely tothe extent any such negative pledge relates to the property financed by or thesubject of such Indebtedness; or (b) requires the grant of a Lien to secure anobligation of such Person if a Lien is granted to secure another obligation ofsuch Person.

 

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

 

**7.11****                        ProhibitedContracts.**  Other than those listedon Schedule 7.11:

 

### (a)                           enter into any “take-or-pay”contract or other contract or arrangement for the purchase of goods or serviceswhich obligates it to pay for such goods or service regardless of whether theyare delivered or furnished to it, other than contracts for pipeline capacity orfor services in either case reasonably anticipated to be utilized in theordinary course of business;

###  

### (b)                           amend or permit anyamendment to any Material Contract which releases, qualifies, limits, makescontingent or otherwise could reasonably be expected to detrimentally affectthe rights and benefits of Administrative Agent or any Lender under or acquiredpursuant to any Security Documents; or

 

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### (c)                            incur any obligation tocontribute to any Multiemployer Plan or permit any ERISA Affiliate to do so.

###  

**7.12****                        HedgingContracts.**  Be a party to or in anymanner be liable on any Hedging Contract, except:

 

### (a)                           Hedging Contracts enteredinto by a Loan Party with the purpose and effect of fixing interest rates on aprincipal amount of Indebtedness of such Loan Party that is accruing interestat a variable rate, provided that (i) the aggregate notional amount of suchcontracts never exceeds one hundred percent (100%) of the anticipated outstandingprincipal balance of the Indebtedness to be hedged by such contracts or anaverage of such principal balances calculated using a generally accepted methodof matching interest swap contracts to declining principal balances, (ii) thefloating rate index of each such contract generally matches the index used todetermine the floating rates of interest on the corresponding Indebtedness tobe hedged by such contract and (iii) each such contract is with an Approved Counterparty;

###  

### (b)                           Hedging Contracts enteredinto with an Approved Counterparty and in compliance with the Risk ManagementPolicy.

###  

**7.13****                        Subsidiaries.**  Create or acquire any additional RestrictedSubsidiary or redesignate an Unrestricted Subsidiary as a Restricted Subsidiaryunless the Borrower gives written notice to the Administrative Agent of suchcreation or acquisition and complies with Sections6.12, 6.13,and 7.19.

 

**7.14****                        Limitationon Credit Extensions.**  Except forInvestments permitted under Section 7.02 and Hedging Contracts permitted hereunder,extend credit, make advances or make loans other than normal and prudentextensions of credit to customers buying goods and services in the ordinarycourse of business or to another Loan Party in the ordinary course of business,which extensions shall not be for longer periods than those extended by similarbusinesses operated in a normal and prudent manner.

 

**7.15****                        RiskManagement Compliance. **Enter into anyHedging Contract that is in violation of the Risk Management Policy.  The Borrower agrees that upon request by theAdministrative Agent, from time to time, the Borrower and the AdministrativeAgent will review and evaluate the Borrowers’ Risk Management Policy.

 

**7.16****                        SubordinatedDebt.  **Make any payments of principal or interest on theSubordinated Debt except in accordance with the terms and conditions thereof.

 

**7.17****                        MaterialContracts.**  (a) Cancel or terminateany Material Contract (or consent to or accept any cancellation or terminationthereof), or (b) amend or otherwise modify any provision of any MaterialContract or give any consent, waiver or approval thereunder, or waive any materialbreach of or material default under any Material Contract that could reasonablybe expected to detrimentally affect the rights and benefits of the AdministrativeAgent and/or the Lenders hereunder or under any other Loan Document.

 

**7.18****                        Designationand Conversion of Restricted and Unrestricted Subsidiaries; Debt ofUnrestricted Subsidiaries.**

 

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### (a)                           Unless designated as anUnrestricted Subsidiary on Schedule 5.13 as of the Closing Date, designateany Person that becomes a Subsidiary of the Borrower or any RestrictedSubsidiary as an Unrestricted Subsidiary, except the Borrower may designate bywritten notification thereof to the Administrative Agent, any RestrictedSubsidiary, including a newly formed or newly acquired Subsidiary, as anUnrestricted Subsidiary if (i) prior, and after giving effect, to suchdesignation, no Default would exist and (ii) such designation is deemed to bean Investment in an Unrestricted Subsidiary in an amount equal to the fairmarket value as of the date of such designation of the Borrower’s direct andindirect ownership interest in such Subsidiary and such Investment would bepermitted to be made at the time of such designation under Section 7.02(f).

###  

### (b)                           Designate any UnrestrictedSubsidiary to be a Restricted Subsidiary, except if after giving effect to suchdesignation, which shall be deemed to be a cash dividend in an amount equal tothe lesser of the fair market value of the Borrower’s direct and indirectownership interest in such Subsidiary or the amount of the Borrower’s cashinvestment previously made for purposes of the limitation on Investments under Section7.02(f), (i) the representations and warranties of the Borrower and itsRestricted Subsidiaries contained in each of the Loan Documents are true andcorrect in all material respects on and as of such date as if made on and as ofthe date of such redesignation (or, if stated to have been made expressly as ofan earlier date, were true and correct as of such date), (ii) no Default wouldexist, and (iii) the Borrower and such newly-designated Restricted Subsidiary complieswith the requirements of Sections 6.12 and 6.13.

###  

### (c)                            will not incur, assume,Guarantee or otherwise be or become liable for any Indebtedness of any of theUnrestricted Subsidiaries, except as described in Section 7.03(i).

###  

### (d)                           will not permit anyUnrestricted Subsidiary to hold any Equity Interest in, or any Indebtedness of,the Borrower or any Restricted Subsidiary.

###  

### (e)                            shall not permit theaggregate principal amount of all Non-Recourse Debt outstanding at any one timeto exceed $10,000,000.

###  

**7.19****                        CapitalExpenditures.**  Use the proceeds ofany Loans to make or commit to make Capital Expenditures in any fiscal year inexcess of 10% of the Aggregate Commitments in respect of Capital Expendituresrelating to acquisitions or construction (other than acquisitions orconstruction of natural gas, natural gas liquids and crude oil pipelines,processing, treating and gathering systems, including compression, metering,dehydrating and similar equipment, natural gas and natural gas liquids storagefacilities, and in each case, related facilities); provided such Personsmay make Capital Expenditures as are required by any Law (includingEnvironmental Laws).

 

**7.20****                        Amendmentsto Organizational Documents.**  (a)Amend or otherwise modify the definition of “Available Cash” as set forth inthe Borrower LLC Agreement, or (b) enter into or permit any other modificationof, or waive any material right or obligation of any Person under, itsOrganization Documents that could reasonably be expected to detrimentallyaffect the rights and benefits of Administrative Agent and/or Lenders hereunderor under any other Loan Document.

 

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**7.21****                        FinancialCovenants.**

 

### (a)                           Consolidated Fixed ChargeCoverage Ratio.  Permit the Consolidated Fixed Charge CoverageRatio as of the end of any fiscal quarter of the Borrower to be less than theratio set forth below opposite such quarter:

 
| **Four Fiscal Quarters Ending**                       | ** ** | **Minimum   Consolidated Fixed   Charge Coverage   Ratio** |   |
|-------------------------------------------------------|------------|------------------------------------------------------------|--------|
| Closing  Date through September 30, 2005              |       | 1.50 to 1.0                                                |   |
|                                                  |       |                                                       |   |
| December  31, 2005 and each fiscal quarter thereafter |       | 1.75 to 1.0                                                |   |

 

### (b)                           Consolidated InterestCoverage Ratio.  Permit the Consolidated Interest Coverage Ratioas of the end of any fiscal quarter of the Borrower to be less than the ratioset forth below opposite such fiscal quarter:

 
| **Four Fiscal Quarters Ending**                        | ** ** | **Minimum   Consolidated   Interest Coverage   Ratio** |   |
|--------------------------------------------------------|------------|--------------------------------------------------------|--------|
| Closing  Date through September 30, 2005               |       | 2.50 to 1.0                                            |   |
|                                                   |       |                                                   |   |
| December  31, 2005 through June 30, 2006               |       | 2.75 to 1.0                                            |   |
|                                                   |       |                                                   |   |
| September  30, 2006 and each fiscal quarter thereafter |       | 3.0 to 1.0                                             |   |

 

### (c)                            Consolidated Senior LeverageRatio.  Permit the Consolidated Senior Leverage Ratio at any timeduring any period of four fiscal quarters of the Borrower set forth below to begreater than the ratio set forth below opposite such period:

 

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| **Four Fiscal Quarters Ending**                       | ** ** | **Maximum   Consolidated   Senior Leverage   Ratio** |   |
|-------------------------------------------------------|------------|------------------------------------------------------|--------|
| Closing  Date through September 30, 2005              |       | 3.75 to 1.0                                          |   |
|                                                  |       |                                                 |   |
| December  31, 2005 and each fiscal quarter thereafter |       | 3.50 to 1.0                                          |   |

 

### (d)                           Consolidated TotalLeverage Ratio.  Permit the Consolidated Total Leverage Ratio atany time during any period of four fiscal quarters of the Borrower set forthbelow to be greater than the ratio set forth below opposite such period:

 
| **Four Fiscal Quarters Ending**                        | ** ** | **Maximum   Consolidated   Total Leverage   Ratio** |   |
|--------------------------------------------------------|------------|-----------------------------------------------------|--------|
| Closing  Date through September 30, 2005               |       | 5.50 to 1.0                                         |   |
|                                                   |       |                                                |   |
| December  31, 2005 through June 30, 2006               |       | 5.00 to 1.0                                         |   |
|                                                   |       |                                                |   |
| September  30, 2006 and each fiscal quarter thereafter |       | 4.75 to 1.0                                         |   |

 

### (e)                            Calculation of FinancialCovenants.  With respect to the calculation of the Fixed ChargeCoverage Ratio, the Consolidated Interest Coverage Ratio, the Senior LeverageRatio and the Consolidated Total Leverage Ratio in this Section 7.21 (andConsolidated EBITDA as used in Section 7.05(c)), Consolidated EBITDA,Consolidated Fixed Charges, Consolidated Interest Charges and Consolidated NetIncome of ScissorTail and its Restricted Subsidiaries (if any) (i) shall bedetermined for the quarter ended September 30, 2005 by grossing-up theapplicable  component results from theClosing Date through the last day of such quarter to a quarterly amount and(ii) shall, prior to June 30, 2006, be determined for the periods ending onSeptember 30, 2005, December 31, 2005 and March 31, 2005 on an annualized basis;e.g.: for the period ending September 30, 2005, results for the quarter will beannualized by multiplying such results by four; for the period ending December31, 2005, results for the two-quarter period will be annualized by multiplyingsuch results by two; and for the period ending March 31, 2006, results for thethree-quarter period will be annualized by multiplying such results by one andone-third.

 

**ARTICLE VIII.EVENTS OF DEFAULT AND REMEDIES**

 

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

 

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

###  

### (b)                           Specific Covenants.  TheBorrower fails to perform or observe any term, covenant or agreement containedin any of Sections 6.03, 6.05(a), 6.10, 6.11 or 6.12 or Article VII; or

###  

### (c)                            Other Defaults.  AnyLoan Party fails to perform or observe any other covenant or agreement (notspecified in subsection (a) or (b) above) contained in any Loan Document on itspart to be performed or observed and such failure continues for 30 days afterthe earlier of (i) the date on which the Administrative Agent notifies Borrowerof such failure or (ii) the date on which a Responsible Officer of any LoanParty first becomes aware of such failure; or

###  

### (d)                           Representations andWarranties.  Any representation, warranty, certification orstatement of fact made or deemed made by or on behalf of the Borrower or anyother Loan Party herein, in any other Loan Document, or in any documentdelivered in connection herewith or therewith shall be incorrect or misleading inany material respect when made or deemed made; or

###  

### (e)                            Cross-Default.  (i) TheBorrower or any Restricted Subsidiary (A) fails to make any payment whendue (whether by scheduled maturity, required prepayment, acceleration, demand,or otherwise) in respect of any Indebtedness or Guarantee (other thanIndebtedness hereunder and Indebtedness under Hedging Contracts) having anaggregate principal amount (including undrawn committed or available amountsand including amounts owing to all creditors under any combined or syndicatedcredit arrangement) of more than the Threshold Amount, or (B) fails toobserve or perform any other agreement or condition relating to any suchIndebtedness or Guarantee or contained in any instrument or agreementevidencing, securing or relating thereto, or any other event occurs, the effectof which default or other event is to cause, or to permit the holder or holdersof such Indebtedness or the beneficiary or beneficiaries of such Guarantee (ora trustee or agent on behalf of such holder or holders or beneficiary orbeneficiaries) to cause, with the giving of notice if required, suchIndebtedness to be demanded or to become due or to be repurchased, prepaid,defeased or redeemed (automatically or otherwise), or an offer to repurchase,prepay, defease or redeem such Indebtedness to be made, prior to its statedmaturity, or such Guarantee to become payable or cash collateral in respectthereof to be demanded; or (ii) there occurs under any Hedging Contract anEarly Termination Date (as defined in such Hedging Contract) resulting from (A) anyevent of default under such Hedging Contract as to which the Borrower or any Subsidiaryis the Defaulting Party (as defined in such Hedging Contract) or (B) anyTermination Event (as so defined) under such Hedging Contract as to which theBorrower or any Restricted Subsidiary is an Affected Party (as so defined) and,in either event, the Hedging Termination Value owed by the Borrower or such RestrictedSubsidiary as a result thereof is greater than the Threshold Amount; or

 

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

###  

### (g)                            Inability to Pay Debts;Attachment.  (i) The Borrower or any Subsidiary becomesunable or admits in writing its inability or fails generally to pay its debtsas they become due, or (ii) any writ or warrant of attachment or execution orsimilar process is issued or levied against all or any material part of theproperty of any such Person and is not released, vacated or fully bonded within30 days after its issue or levy; or

###  

### (h)                           Judgments.  Thereis entered against the Borrower or any Restricted Subsidiary (i) a finaljudgment or order for the payment of money in an aggregate amount exceeding theThreshold Amount (to the extent not covered by independent third-partyinsurance as to which the insurer does not dispute coverage), or (ii) any oneor more non-monetary final judgments that have, or could reasonably be expectedto have, individually or in the aggregate, a Material Adverse Effect and, ineither case, (A) enforcement proceedings are commenced by any creditor uponsuch judgment or order, or (B) there is a period of 30 consecutive days duringwhich a stay of enforcement of such judgment, by reason of a pending appeal orotherwise, is not in effect; or

###  

### (i)                               ERISA.  (i) AnERISA Event occurs with respect to a Pension Plan or Multiemployer Plan whichhas resulted or could reasonably be expected to result in liability of theBorrower under Title IV of ERISA to the Pension Plan, Multiemployer Planor the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii)the Borrower or any ERISA Affiliate fails to pay when due, after the expirationof any applicable grace period, any installment payment with respect to itswithdrawal liability under Section 4201 of ERISA under a Multiemployer Plan inan aggregate amount in excess of the Threshold Amount; or

###  

### (j)                              Invalidity of LoanDocuments.  Any provisionof any Loan Document, at any time after its execution and delivery andfor any reason other than as expressly permitted hereunder or thereunder orsatisfaction in full of all the Obligations, ceases to be in full force andeffect; or any Loan Party or any other Person contests in any manner thevalidity or enforceability of any provisionof any Loan Document; or any Loan Party denies that it has any orfurther liability or obligation under any Loan Document, or purports to revoke,terminate or rescind any provision ofany Loan Document; or

 

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

###  

**8.02****                        RemediesUpon Event of Default.  **If any Event of Default occurs and iscontinuing, the Administrative Agent shall, at the request of, or may, with theconsent of, the Required Lenders, take any or all of the following actions:

 

### (a)                           declare the Commitment ofeach Lender to make Loans and any obligation of the L/C Issuer to make L/CCredit Extensions to be terminated, whereupon such Commitments and obligationshall be terminated;

###  

### (b)                           declare the unpaid principalamount of all outstanding Loans, all interest accrued and unpaid thereon, andall other amounts owing or payable hereunder or under any other Loan Documentto be immediately due and payable, without presentment, demand, protest orother notice of any kind, all of which are hereby expressly waived by theBorrower;

###  

### (c)                            require that the BorrowerCash Collateralize the L/C Obligations (in an amount equal to the thenOutstanding Amount thereof); and

###  

### (d)                           exercise on behalf of itselfand the Lenders all rights and remedies available to it and the Lenders underthe Loan Documents;

###  

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

 

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

 

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

 

Second, to paymentof that portion of the Obligations constituting fees, indemnities and otheramounts (other than principal, interest and Letter of Credit Fees) payable tothe Lenders and the L/C Issuer (including fees, charges and disbursements ofcounsel to the respective Lenders and the L/C Issuer and amounts payable under ArticleIII), ratably among them in proportion to the respective amounts describedin this clause Second payable to them;

 

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

 

Fourth, to paymentof that portion of the Obligations constituting unpaid principal of the Loansand L/C Borrowings and to the Secured Hedging Obligations, ratably among theLenders, the L/C Issuer, the Lender Counterparties, and the ApprovedCounterparties in proportion to the respective amounts described in this clauseFourth held by them;

 

Fifth, to theAdministrative Agent for the account of the L/C Issuer, to Cash Collateralizethat portion of L/C Obligations comprised of the aggregate undrawn amount ofLetters of Credit; and

 

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

 

Subject to Section 2.03(c), amounts used to CashCollateralize the aggregate undrawn amount of Letters of Credit pursuant toclause Fifth above shall be applied to satisfy drawings under suchLetters of Credit as they occur.  If anyamount remains on deposit as Cash Collateral after all Letters of Credit haveeither been fully drawn or expired, such remaining amount shall be applied tothe other Obligations, if any, in the order set forth above.

 

**ARTICLEIX.ADMINISTRATIVE AGENT**

** **

**9.01****                        Appointmentand Authority.  **Each of the Lenders and the L/C Issuer herebyirrevocably appoints Bank of America to act on its behalf as the AdministrativeAgent hereunder and under the other Loan Documents and authorizes theAdministrative Agent to take such actions on its behalf and to exercise suchpowers as are delegated to the Administrative Agent by the terms hereof orthereof, together with such actions and powers as are reasonably incidentalthereto.  The provisions of this Articleare solely for the benefit of the Administrative Agent, the Lenders and the L/CIssuer, and neither the Borrower norany other Loan Party shall have rights as a third party beneficiary ofany of such provisions.

 

**9.02****                        Rights asa Lender.  **The Person serving as the Administrative Agenthereunder shall have the same rights and powers in its capacity as a Lender asany other Lender and may exercise the same as though it were not theAdministrative Agent and the term “Lender” or “Lenders” shall, unless otherwiseexpressly indicated or unless the context otherwise requires, include thePerson serving as the Administrative Agent hereunder in its individualcapacity.  Such Person and its Affiliatesmay accept deposits from, lend money to, act as the financial advisor or in anyother advisory capacity for and generally engage in any kind of business withthe Borrower or any Subsidiary or other Affiliate thereof as if such Personwere not the Administrative Agent hereunder and without any duty to accounttherefor to the Lenders.

 

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**9.03****                        ExculpatoryProvisions.  **The Administrative Agent shall not have any dutiesor obligations except those expressly set forth herein and in the other LoanDocuments.  Without limiting thegenerality of the foregoing, the Administrative Agent:

 

### (a)                           shall not be subject to anyfiduciary or other implied duties, regardless of whether a Default has occurredand is continuing;

###  

### (b)                           shall not have any duty totake any discretionary action or exercise any discretionary powers, exceptdiscretionary rights and powers expressly contemplated hereby or by the otherLoan Documents that the Administrative Agent is required to exercise asdirected in writing by the Required Lenders (or such other number or percentageof the Lenders as shall be expressly provided for herein or in the other LoanDocuments), provided that the Administrative Agent shall not be requiredto take any action that, in its opinion or the opinion of its counsel, mayexpose the Administrative Agent to liability or that is contrary to any LoanDocument or applicable Law; and

###  

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

###  

The Administrative Agent shall not be liablefor any action taken or not taken by it (i) with the consent or at the requestof the Required Lenders (or such other number or percentage of the Lenders asshall be necessary, or as the Administrative Agent shall believe in good faithshall be necessary, under the circumstances as provided in Sections 10.01and 8.02) or (ii) in the absence of its own gross negligence or willfulmisconduct.  The Administrative Agentshall be deemed not to have knowledge of any Default unless and until noticedescribing such Default is given to the Administrative Agent by the Borrower, aLender or the L/C Issuer.

 

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

 

**9.04****                        Relianceby Administrative Agent.  **The Administrative Agent shall beentitled to rely upon, and shall not incur any liability for relying upon, anynotice, request, certificate, consent, statement, instrument, document or otherwriting (including any electronic message, Internet or intranet website postingor other distribution) believed by it to be genuine and to have been signed, sentor otherwise authenticated by the proper Person.  The Administrative Agent also may rely uponany statement made to it orally or by telephone and believed by it to have beenmade by the proper Person, and shall not incur any liability for relying thereon.  In 

 

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determining compliance with any conditionhereunder to the making of a Loan, or the issuance of a Letter of Credit, thatby its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer,the Administrative Agent may presume that such condition is satisfactory tosuch Lender or the L/C Issuer unless the Administrative Agent shall havereceived notice to the contrary from such Lender or the L/C Issuer prior to themaking of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult withlegal counsel (who may be counsel for the Borrower), independent accountantsand other experts selected by it, and shall not be liable for any action takenor not taken by it in accordance with the advice of any such counsel,accountants or experts.

 

**9.05****                        Delegationof Duties.  **The Administrative Agent may perform any and all ofits duties and exercise its rights and powers hereunder or under any other LoanDocument by or through any one or more sub-agents appointed by theAdministrative Agent.  The AdministrativeAgent and any such sub-agent may perform any and all of its duties andexercise its rights and powers by or through their respective RelatedParties.  The exculpatory provisions ofthis Article shall apply to any such sub-agent and to the Related Partiesof the Administrative Agent and any such sub-agent, and shall apply totheir respective activities in connection with the syndication of the creditfacilities provided for herein as well as activities as Administrative Agent.

 

**9.06****                        Resignationof Administrative Agent.  **The Administrative Agent may at anytime give notice of its resignation to the Lenders, the L/C Issuer and theBorrower.  Upon receipt of any such noticeof resignation, the Required Lenders shall have the right, in consultation withthe Borrower, to appoint a successor, which shall be a bank with an office inthe United States, or an Affiliate of any such bank with an office in theUnited States.  If no such successorshall have been so appointed by the Required Lenders and shall have acceptedsuch appointment within 30 days after the retiring Administrative Agentgives notice of its resignation, then the retiring Administrative Agent may onbehalf of the Lenders and the L/C Issuer, appoint a successor AdministrativeAgent meeting the qualifications set forth above; provided that if theAdministrative Agent shall notify the Borrower and the Lenders that noqualifying Person has accepted such appointment, then such resignation shallnonetheless become effective in accordance with such notice and (1) theretiring Administrative Agent shall be discharged from its duties andobligations hereunder and under the other Loan Documents (except that in the case of any collateralsecurity held by the Administrative Agent on behalf of the Lenders or the L/CIssuer under any of the Loan Documents, the retiring Administrative Agent shallcontinue to hold such collateral security until such time as a successorAdministrative Agent is appointed) and (2) all payments,communications and determinations provided to be made by, to or through theAdministrative Agent shall instead be made by or to each Lender and the L/CIssuer directly, until such time as the Required Lenders appoint a successorAdministrative Agent as provided for above in this Section.  Upon the acceptance of a successor’sappointment as Administrative Agent hereunder, such successor shall succeed toand become vested with all of the rights, powers, privileges and duties of theretiring (or retired) Administrative Agent, and the retiring AdministrativeAgent shall be discharged from all of its duties and obligations hereunder orunder the other Loan Documents (if not already discharged therefrom as providedabove in this Section).  The fees payableby the Borrower to a successor Administrative Agent shall be the same as thosepayable to its predecessor unless otherwise agreed between the Borrower andsuch successor.  After the retiringAdministrative Agent’s resignation hereunder and under the other LoanDocuments, the provisions of this Article and Section 10.04 shallcontinue in effect for the 

 

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benefit of such retiring AdministrativeAgent, its sub-agents and their respective Related Parties in respect ofany actions taken or omitted to be taken by any of them while the retiringAdministrative Agent was acting as Administrative Agent.

 

Any resignation by Bank of America asAdministrative Agent pursuant to this Section shall also constitute itsresignation as L/C Issuer.  Upon theacceptance of a successor’s appointment as Administrative Agent hereunder, (a)such successor shall succeed to and become vested with all of the rights,powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/CIssuer shall be discharged from all of their respective duties and obligationshereunder or under the other Loan Documents, and (c) the successor L/C Issuershall issue letters of credit in substitution for the Letters of Credit, ifany, outstanding at the time of such succession or make other arrangementssatisfactory to the retiring L/C Issuer to effectively assume the obligationsof the retiring L/C Issuer with respect to such Letters of Credit.

 

**9.07****                        Non-Relianceon Administrative Agent and Other Lenders.  **Each Lender and theL/C Issuer acknowledges that it has, independently and without reliance uponthe Administrative Agent or any other Lender or any of their Related Partiesand based on such documents and information as it has deemed appropriate, madeits own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer alsoacknowledges that it will, independently and without reliance upon theAdministrative Agent or any other Lender or any of their Related Parties andbased on such documents and information as it shall from time to time deemappropriate, continue to make its own decisions in taking or not taking actionunder or based upon this Agreement, any other Loan Document or any relatedagreement or any document furnished hereunder or thereunder.

 

**9.08****                        No OtherDuties, Etc.  **Anything herein to the contrary notwithstanding,none of the bookrunners, arrangers, syndication agents or documentation agentslisted on the cover page hereof shall have any powers, duties orresponsibilities under this Agreement or any of the other Loan Documents,except in its capacity, as applicable, as the Administrative Agent, a Lender orthe L/C Issuer hereunder.

 

**9.09****                        AdministrativeAgent May File Proofs of Claim.  **In case of the pendency of anyreceivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,adjustment, composition or other judicial proceeding relative to any LoanParty, the Administrative Agent (irrespective of whether the principal of anyLoan or L/C Obligation shall then be due and payable as herein expressed or bydeclaration or otherwise and irrespective of whether the Administrative Agentshall have made any demand on the Borrower) shall be entitled and empowered, byintervention in such proceeding or otherwise

 

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

 

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### (b)                           to collect and receive anymonies or other property payable or deliverable on any such claims and todistribute the same;

###  

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

 

Nothingcontained herein shall be deemed to authorize the Administrative Agent toauthorize or consent to or accept or adopt on behalf of any Lender or the L/CIssuer any plan of reorganization, arrangement, adjustment or compositionaffecting the Obligations or the rights of any Lender or to authorize theAdministrative Agent to vote in respect of the claim of any Lender in any suchproceeding.

 

**9.10****                        Collateraland Guaranty Matters.  **The Lenders and the L/C Issuer irrevocablyauthorize the Administrative Agent, at its option and in its discretion,

 

### (a)                           to release any Lien on anyproperty granted to or held by the Administrative Agent under any Loan Document(i) upon termination of the Aggregate Commitments and payment in full of allObligations (other than contingent indemnification obligations) and theexpiration or termination of all Letters of Credit, (ii) that is sold or to besold as part of or in connection with any sale permitted hereunder or under anyother Loan Document, or (iii) subject to Section 10.01, if approved, authorizedor ratified in writing by the Required Lenders;

###  

### (b)                           to subordinate any Lien onany property granted to or held by the Administrative Agent under any LoanDocument to the holder of any Lien on such property that is permitted by Section 7.01(i);and

###  

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

###  

Upon request by the Administrative Agent atany time, the Required Lenders will confirm in writing the Administrative Agent’sauthority to release or subordinate its interest in particular types or itemsof property, or to release any Guarantor from its obligations under theGuaranty pursuant to this Section 9.10.

 

**ARTICLE X.MISCELLANEOUS**

** **

**10.01****                 Amendments, Etc.  **Noamendment or waiver of any provision of this Agreement or any other LoanDocument, and no consent to any departure by the Borrower or any other LoanParty therefrom, shall be effective unless in writing signed by the RequiredLenders and the Borrower or the applicable Loan Party, as the case may be, andacknowledged by the Administrative Agent, and each such waiver or consent shallbe effective only in the specific 

 

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instance andfor the specific purpose for which given; provided, however, thatno such amendment, waiver or consent shall:

 

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

###  

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

###  

### (c)                            postpone any date fixed bythis Agreement or any other Loan Document for any scheduled payment orprepayment of principal, interest, fees or other amounts due to the Lenders (orany of them) or any mandatory reduction of the Aggregate Commitments hereunderor under any other Loan Document without the written consent of each Lenderdirectly affected thereby;

###  

### (d)                           reduce the principal of, orthe rate of interest specified herein on, any Loan or L/C Borrowing, or(subject to clause (v) of the second proviso to this Section 10.01)any fees or other amounts payable hereunder or under any other Loan Document,or change the manner of computation of the Consolidated Senior Leverage Ratio (includingany change in any applicable defined term) that would result in a reduction ofany interest rate on any Loan or any fee payable hereunder without the writtenconsent of each Lender directly affected thereby; provided, however,that only the consent of the Required Lenders shall be necessary (i) to amendthe definition of “Default Rate” or to waive any obligation of the Borrower topay interest or Letter of Credit Fees at the Default Rate or (ii) to amend anyfinancial covenant hereunder (or any defined term used therein) even if theeffect of such amendment would be to reduce the rate of interest on any Loan orL/C Borrowing or to reduce any fee payable hereunder;

###  

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

###  

### (f)                             change any provision ofthis Section or the definition of “Required Lenders” or any other provisionhereof specifying the number or percentage of Lenders required to amend, waiveor otherwise modify any rights hereunder or make any determination or grant anyconsent hereunder, without the written consent of each Lender;

###  

### (g)                            release all orsubstantially all of the value of the Guaranty without the written consent ofeach Lender, except as provided in Section 9.10; or

###  

### (h)                           release all or substantiallyall of the Collateral in any transaction or series of related transactionswithout the written consent of each Lender, except as provided in Section9.10;

###  

and, providedfurther, that (i) no amendment, waiver orconsent shall, unless in writing and signed by the L/C Issuer in addition tothe Lenders required above, affect the rights or duties of the L/C Issuer underthis Agreement or any Issuer Document relating to any Letter of Credit issuedor to be issued by it; (ii) no amendment, waiver or consent shall, unless inwriting and signed by the Administrative Agent in addition to the Lendersrequired above, affect the rights or 

 

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duties of the Administrative Agent under this Agreement or any otherLoan Document; (iii)Section 10.06(h) may not be amended, waived or otherwise modifiedwithout the consent of each Granting Lender all or any part of whose Loans arebeing funded by an SPC at the time of such amendment, waiver or othermodification; (iv) no amendment, waiver or consent shall, unless inwriting and signed by each Approved Counterparty and each Lender Counterpartyin addition to the Lenders required above, amend the provisions of ClauseFOURTH of Section 8.03; and(v) the Fee Letter may be amended, or rights or privileges thereunderwaived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contraryherein, no Defaulting Lender shall have any right to approve or disapprove anyamendment, waiver or consent hereunder, except that the Commitment of suchLender may not be increased or extended without the consent of such Lender.

 

**10.02****                 Notices;Effectiveness; Electronic Communication.**

 

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

###  

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

####  

#### (ii)                                        if to any otherLender, to the address, telecopier number, electronic mail address or telephonenumber specified in its Administrative Questionnaire.

####  

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

 

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

 

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Unless the Administrative Agent otherwiseprescribes, (i) notices and other communications sent to an e-mail addressshall be deemed received upon the sender’s receipt of an acknowledgement fromthe intended recipient (such as by the “return receipt requested” function, asavailable, return e-mail or other written acknowledgement), providedthat if such notice or other communication is not sent during the normalbusiness hours of the recipient, such notice or communication shall be deemedto have been sent at the opening of business on the next business day for therecipient, and (ii) notices or communications posted to an Internet orintranet website shall be deemed received upon the deemed receipt by theintended recipient at its e-mail address as described in the foregoingclause (i) of notification that such notice or communication is availableand identifying the website address therefor.

 

### (c)                            The Platform.  THEPLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOTWARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACYOF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONSFROM THE BORROWER MATERIALS.  NO WARRANTYOR ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTYRIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENTPARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent orany of its Related Parties (collectively, the “Agent Parties”) have anyliability to the Borrower, any Lender, the L/C Issuer or any other Person forlosses, claims, damages, liabilities or expenses of any kind (whether in tort,contract or otherwise) arising out of the Borrower’s or the AdministrativeAgent’s transmission of Borrower Materials through the Internet, except to theextent that such losses, claims, damages, liabilities or expenses aredetermined by a court of competent jurisdiction by a final and nonappealablejudgment to have resulted from the gross negligence or willful misconduct ofsuch Agent Party; provided, however, that in no event shall anyAgent Party have any liability to the Borrower, any Lender, the L/C Issuer orany other Person for indirect, special, incidental, consequential or punitivedamages (as opposed to direct or actual damages).

###  

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

###  

### (e)                            Reliance byAdministrative Agent, L/C Issuer and Lenders.  The AdministrativeAgent, the L/C Issuer and the Lenders shall be entitled to rely and act uponany notices (including telephonic Loan Notices) purportedly given by or onbehalf of the Borrower even if (i) such notices were not made in a mannerspecified herein, were incomplete or were not preceded or followed by any otherform of notice specified herein, or (ii) the terms thereof, as 

 

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### understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify theAdministrative Agent, the L/C Issuer, each Lender and the Related Parties ofeach of them from all losses, costs, expenses and liabilities resulting fromthe reliance by such Person on each notice purportedly given by or on behalf ofthe Borrower.  All telephonic notices toand other telephonic communications with the Administrative Agent may berecorded by the Administrative Agent, and each of the parties hereto herebyconsents to such recording.

###  

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

 

**10.04****                 Expenses;Indemnity; Damage Waiver.**

 

### (a)                           Costs and Expenses.  TheBorrower shall pay (i) all reasonable out-of-pocket expensesincurred by the Administrative Agent and its Affiliates (including thereasonable fees, charges and disbursements of counsel for the AdministrativeAgent), in connection with the syndication of the credit facilities providedfor herein, the preparation, negotiation, execution, delivery andadministration of this Agreement and the other Loan Documents or anyamendments, modifications or waivers of the provisions hereof or thereof (whetheror not the transactions contemplated hereby or thereby shall be consummated),(ii) all reasonable out-of-pocket expenses incurred by the L/CIssuer in connection with the issuance, amendment, renewal or extension of anyLetter of Credit or any demand for payment thereunder and (iii) all out-of-pocketexpenses incurred by the Administrative Agent, any Lender or the L/C Issuer(including the fees, charges and disbursements of any counsel for theAdministrative Agent, any Lender or the L/C Issuer), in connection with theenforcement or protection of its rights (A) in connection with thisAgreement and the other Loan Documents, including its rights under thisSection, or (B) in connection with the Loans made or Letters of Creditissued hereunder, including all such out-of-pocket expensesincurred during any workout, restructuring or negotiations in respect of suchLoans or Letters of Credit.

###  

### (b)                           Indemnification by theBorrower.  The Borrower shall indemnify the Administrative Agent(and any sub-agent thereof), each Lender and the L/C Issuer, and each RelatedParty of any of the foregoing Persons (each such Person being called an “Indemnitee”)against, and hold each Indemnitee harmless from, any and all losses, claims,damages, liabilities and related expenses (including the fees, charges anddisbursements of any counsel for any Indemnitee), incurred by any Indemnitee orasserted against any Indemnitee by any third party or by the Borrower or anyother Loan Party arising out of, in connection with, or as a result of(i) the execution or delivery of this Agreement, any other Loan Documentor any agreement or instrument contemplated hereby or thereby, the performanceby the parties hereto of their respective obligations hereunder or thereunder,or the consummation of the transactions contemplated hereby or thereby, or inthe case of the Administrative Agent (and any sub-agent thereof) and itsRelated Parties only, the administration of this Agreement and the other LoanDocuments, (ii) any Loan or Letter of Credit or the use or proposed use ofthe proceeds 

 

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### therefrom (including any refusal by the L/C Issuer to honor a demandfor payment under a Letter of Credit if the documents presented in connectionwith such demand do not strictly comply with the terms of such Letter ofCredit), (iii) any actual or alleged presence or release of HazardousMaterials on or from any property owned or operated by the Borrower or any ofits Subsidiaries, or any Environmental Liability related in any way to theBorrower or any of its Subsidiaries, or (iv) any actual or prospectiveclaim, litigation, investigation or proceeding relating to any of theforegoing, whether based on contract, tort or any other theory, whether broughtby a third party or by the Borrower or any other Loan Party, and regardless ofwhether any Indemnitee is a party thereto,**in all cases, whether or not causedby or arising, in whole or in part, out of the comparative, contributory orsole negligence of the Indemnitee**; provided that suchindemnity shall not, as to any Indemnitee, be available to the extent that suchlosses, claims, damages, liabilities or related expenses (x) aredetermined by a court of competent jurisdiction by final and nonappealablejudgment to have resulted from the gross negligence or willful misconduct ofsuch Indemnitee or (y) result from a claim brought by the Borrower or anyother Loan Party against an Indemnitee for breach in bad faith of suchIndemnitee’s obligations hereunder or under any other Loan Document, if theBorrower or such Loan Party has obtained a final and nonappealable judgment inits favor on such claim as determined by a court of competent jurisdiction.

###  

### (c)                            Reimbursement by Lenders.  Tothe extent that the Borrower for any reason fails to indefeasibly pay anyamount required under subsection (a) or (b) of this Section to bepaid by it to the Administrative Agent (or any sub-agent thereof), the L/CIssuer or any Related Party of any of the foregoing, each Lender severallyagrees to pay to the Administrative Agent (or any such sub-agent), the L/CIssuer or such Related Party, as the case may be, such Lender’s ApplicablePercentage (determined as of the time that the applicable unreimbursed expenseor indemnity payment is sought) of such unpaid amount, provided that theunreimbursed expense or indemnified loss, claim, damage, liability or relatedexpense, as the case may be, was incurred by or asserted against theAdministrative Agent (or any such sub-agent) or the L/C Issuer in its capacityas such, or against any Related Party of any of the foregoing acting for the AdministrativeAgent (or any such sub-agent) or L/C Issuer in connection with suchcapacity.  The obligations of the Lendersunder this subsection (c) are subject to the provisions of Section 2.12(c).

###  

### (d)                           Waiver of ConsequentialDamages, Etc.  To the fullest extent permitted by applicable Law,the Borrower shall not assert, and hereby waives, any claim against anyIndemnitee, on any theory of liability, for special, indirect, consequential orpunitive damages (as opposed to direct or actual damages) arising out of, inconnection with, or as a result of, this Agreement, any other Loan Document orany agreement or instrument contemplated hereby, the transactions contemplatedhereby or thereby, any Loan or Letter of Credit or the use of the proceedsthereof.  No Indemnitee referred to insubsection (b) above shall be liable for any damages arising from the useby unintended recipients of any information or other materials distributed byit through telecommunications, electronic or other information transmission systemsin connection with this Agreement or the other Loan Documents or thetransactions contemplated hereby or thereby in the absence of its own grossnegligence or willful misconduct.

 

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### (e)                            Payments.  Allamounts due under this Section shall be payable not later than ten BusinessDays after demand therefor; provided such demand shall be accompanied bya reasonably detailed invoice outlining the costs and expenses to be reimbursed.

###  

### (f)                             Survival.  Theagreements in this Section shall survive the resignation of the AdministrativeAgent and the L/C Issuer, thereplacement of any Lender, the termination of the Aggregate Commitments and therepayment, satisfaction or discharge of all the other Obligations and Secured HedgingObligations.

###  

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

 

**10.06****                 Successors andAssigns.**

 

### (a)                           Successors and AssignsGenerally.  The provisions of this Agreement shall be bindingupon and inure to the benefit of the parties hereto and their respectivesuccessors and assigns permitted hereby, except that (other than pursuant to atransaction permitted by Section 7.04) neitherthe Borrower nor any other Loan Party may assign or otherwise transferany of its rights or obligations hereunder without the prior written consent ofthe Administrative Agent and each Lender and no Lender may assign or otherwisetransfer any of its rights or obligations hereunder except (i) to an EligibleAssignee in accordance with the provisions of subsection (b) of this Section,(ii) by way of participation in accordance with the provisions of subsection(d) of this Section, (iii) by way of pledge or assignment of a securityinterest subject to the restrictions of subsection (f) of this Section, or (iv)to an SPC in accordance with the provisions of subsection (h) of this Section (andany other attempted assignment or transfer by any party hereto shall be nulland void).  Nothing in this Agreement,expressed or implied, shall be construed to confer upon any Person (other thanthe parties hereto, their respective successors and assigns permitted hereby,Participants to the extent provided in subsection (d) of this Section and, tothe extent expressly contemplated hereby, the Related Parties of each of theAdministrative Agent, the L/C Issuer and the Lenders) any legal or equitableright, remedy or claim under or by reason of this Agreement.

 

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### (b)                           Assignments by Lenders.  Any Lender may at any time assign to one ormore Eligible Assignees all or a portion of its rights and obligations underthis Agreement (including all or a portion of its Commitment and the Loans(including for purposes of this subsection (b), participations in L/CObligations) at the time owing to it); provided that

###  

#### (i)                                           except inthe case of an assignment of the entire remaining amount of the assigningLender’s Commitment and the Loans at the time owing to it or in the case of anassignment to a Lender or an Affiliate of a Lender or an Approved Fund withrespect to a Lender, the aggregate amount of the Commitment (which for thispurpose includes Loans outstanding thereunder) or, if the Commitment is notthen in effect, the principal outstanding balance of the Loans of the assigningLender subject to each such assignment, determined as of the date theAssignment and Assumption with respect to such assignment is delivered to theAdministrative Agent or, if “Trade Date” is specified in the Assignment andAssumption, as of the Trade Date, shall not be less than $5,000,000****unless each of the Administrative Agent and, so long as noEvent of Default has occurred and is continuing, the Borrower otherwiseconsents (each such consent not to be unreasonably withheld or delayed); provided,however, that concurrent assignments to members of an Assignee Group andconcurrent assignments from members of an Assignee Group to a single EligibleAssignee (or to an Eligible Assignee and members of its Assignee Group) will betreated as a single assignment for purposes of determining whether such minimumamount has been met;

####  

#### (ii)                                        each partialassignment shall be made as an assignment of a proportionate part of all theassigning Lender’s rights and obligations under this Agreement with respect tothe Loans or the Commitment assigned;

####  

#### (iii)                                     any assignment ofa Commitment must be approved by the Administrative Agent and the L/C Issuer (eachsuch approval not to be unreasonably withheld), unless the Person that is theproposed assignee is itself a Lender (whether or not the proposed assigneewould otherwise qualify as an Eligible Assignee); and

####  

#### (iv)                                    the parties to eachassignment shall execute and deliver to the Administrative Agent an Assignmentand Assumption, together with a processing and recordation fee in the amount,if any, required as set forth in Schedule 10.06 and the Eligible Assignee, ifit shall not be a Lender, shall deliver to the Administrative Agent anAdministrative Questionnaire.

####  

Subject to acceptance and recording thereof by the Administrative Agentpursuant to subsection (c) of this Section, from and after the effective datespecified in each Assignment and Assumption, the Eligible Assignee thereundershall be a party to this Agreement and, to the extent of the interest assignedby such Assignment and Assumption, have the rights and obligations of a Lenderunder this Agreement, and the assigning Lender thereunder shall, to the extentof the interest assigned by such Assignment and Assumption, be released fromits obligations under this Agreement (and, in the case of an Assignment andAssumption covering all of the assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto) but shallcontinue to be entitled to the benefits of Sections 3.01, 3.04,3.05, and 10.04 with respect to facts and circumstancesoccurring prior to the effective date of

 

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such assignment.  Upon request,the Borrower (at its expense) shall execute and deliver a Note to the assigneeLender.  Any assignment or transfer by aLender of rights or obligations under this Agreement that does not comply withthis subsection shall be treated for purposes of this Agreement as a sale bysuch Lender of a participation in such rights and obligations in accordancewith subsection (d) of this Section.

 

### (c)                            Register.  TheAdministrative Agent, acting solely for this purpose as an agent of theBorrower, shall maintain at the Administrative Agent’s Office a copy of eachAssignment and Assumption delivered to it and a register for the recordation ofthe names and addresses of the Lenders, and the Commitments of, and principal amountsof the Loans and L/C Obligations owing to, each Lender pursuant to the termshereof from time to time (the “Register”).  The entries in the Register shall beconclusive, and the Borrower, the Administrative Agent and the Lenders maytreat each Person whose name is recorded in the Register pursuant to the termshereof as a Lender hereunder for all purposes of this Agreement,notwithstanding notice to the contrary. The Register shall be available for inspection by each of the Borrowerand the L/C Issuer at any reasonable time and from time to time upon reasonableprior notice.  In addition, at any timethat a request for a consent for a material or substantive change to the LoanDocuments is pending, any Lender may request and receive from the AdministrativeAgent a copy of the Register.

###  

### (d)                           Participations.  AnyLender may at any time, without the consent of, or notice to, the Borrower orthe Administrative Agent, sell participations to any Person (other than anatural person or the Borrower or any of the Borrower’s Affiliates orSubsidiaries) (each, a “Participant”) in all or a portion of such Lender’srights and/or obligations under this Agreement (including all or a portion ofits Commitment and/or the Loans (including such Lender’s participations in L/CObligations) owing to it); provided that (i) such Lender’sobligations under this Agreement shall remain unchanged, (ii) such Lendershall remain solely responsible to the other parties hereto for the performanceof such obligations and (iii) the Borrower, the Administrative Agent, theLenders and the L/C Issuer shall continue to deal solely and directly with suchLender in connection with such Lender’s rights and obligations under thisAgreement.

###  

Any agreement or instrument pursuant to whicha Lender sells such a participation shall provide that such Lender shall retainthe sole right to enforce this Agreement and to approve any amendment,modification or waiver of any  provisionof this Agreement; provided that such agreement or instrument may providethat such Lender will not, without the consent of the Participant, agree to anyamendment, waiver or other modification described in the first proviso to Section 10.01that affects such Participant.  Subjectto subsection (e) of this Section, the Borrower agrees that each Participantshall be entitled to the benefits of Sections 3.01, 3.04 and3.05**to the same extent as if it were aLender and had acquired its interest by assignment pursuant to subsection (b)of this Section.  To the extent permittedby law, each Participant also shall be entitled to the benefits of Section 10.08**as though it were a Lender, provided suchParticipant agrees to be subject to Section 2.13 as though it werea Lender.

 

### (e)                            Limitations uponParticipant Rights.  A Participant shall not be entitled toreceive any greater payment under Section 3.01 or 3.04**than the applicable Lender would have been entitled toreceive with respect to the participation sold to such Participant, unless thesale 

 

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### of the participation to such Participant is made with the Borrower’sprior written consent.  A Participantthat would be a Foreign Lender if it were a Lender shall not be entitled to thebenefits of Section 3.01 unless the Borrower is notified of theparticipation sold to such Participant and provided with all informationrequired to be included in the Register and such Participant agrees, for thebenefit of the Borrower, to comply with Section 3.01(e) as thoughit were a Lender.

###  

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

###  

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

###  

### (h)                           Special Purpose FundingVehicles.  Notwithstanding anything to the contrary containedherein, any Lender (a “Granting Lender”) may grant to a special purposefunding vehicle identified as such in writing from time to time by the GrantingLender to the Administrative Agent and the Borrower (an “SPC”) theoption to provide all or any part of any Loan that such Granting Lender wouldotherwise be obligated to make pursuant to this Agreement; provided that(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,and (ii) if an SPC elects not to exercise such option or otherwise fails tomake all or any part of such Loan, the Granting Lender shall be obligated tomake such Loan pursuant to the terms hereof or, if it fails to do so, to makesuch payment to the Administrative Agent as is required under Section 2.12(b)(ii).  Each party hereto hereby agrees that (i)neither the grant to any SPC nor the exercise by any SPC of such option shallincrease the costs or expenses or otherwise increase or change the obligationsof the Borrower under this Agreement (including its obligations under Section 3.04),(ii) no SPC shall be liable for any indemnity or similar payment obligationunder this Agreement for which a Lender would be liable, and (iii) the GrantingLender shall for all purposes, including the approval of any amendment, waiveror other modification of any provision of any Loan Document, remain the lenderof record hereunder.  The making of a Loanby an SPC hereunder shall utilize the Commitment of the Granting Lender to thesame extent, and as if, such Loan were made by such Granting Lender.  In furtherance of the foregoing, each partyhereto hereby agrees (which agreement shall survive the termination of thisAgreement) that, prior to the date that is one year and one day after thepayment in full of all outstanding commercial paper or other senior debt of anySPC, it will not institute against, or join any other Person in institutingagainst, such SPC any bankruptcy, reorganization, arrangement, insolvency, orliquidation proceeding under the laws of the United States or any Statethereof.  Notwithstanding anything to thecontrary contained herein, any SPC 

 

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### may (i) with notice to, but without prior consent of the Borrower andthe Administrative Agent and with the payment of a processing fee in the amountof $3,500, assign all or any portion of its right to receive payment withrespect to any Loan to the Granting Lender and (ii) disclose on a confidentialbasis any non-public information relating to its funding of Loans to any ratingagency, commercial paper dealer or provider of any surety or guarantee orcredit or liquidity enhancement to such SPC.

###  

### (i)                               Resignation as L/CIssuer after Assignment.  Notwithstandinganything to the contrary contained herein, if at any time Bank of Americaassigns all of its Commitment and Loans pursuant to subsection (b) above, Bankof America may, upon 30 days’ notice to the Borrower and the Lenders, resign asL/C Issuer.  In the event of any suchresignation as L/C Issuer, the Borrower shall be entitled to appoint from amongthe Lenders a successor L/C Issuer hereunder; provided, however,that no failure by the Borrower to appoint any such successor shall affect theresignation of Bank of America as L/C Issuer. If Bank of America resigns as L/C Issuer, it shall retain all the rights,powers, privileges and duties of the L/C Issuer hereunder with respect to allLetters of Credit outstanding as of the effective date of its resignation asL/C Issuer and all L/C Obligations with respect thereto (including the right torequire the Lenders to make Base Rate Loans or fund risk participations inUnreimbursed Amounts pursuant to Section 2.03(c)).  Upon the appointment of a successor L/CIssuer, (a) such successor shall succeed to and become vested with all of therights, powers, privileges and duties of the retiring L/C Issuer, and (b) thesuccessor L/C Issuer shall issue letters of credit in substitution for theLetters of Credit, if any, outstanding at the time of such succession or makeother arrangements satisfactory to Bank of America to effectively assume theobligations of Bank of America with respect to such Letters of Credit.

###  

**10.07****                 Treatment ofCertain Information; Confidentiality.  **Each of the AdministrativeAgent, the Lenders and the L/C Issuer agrees to maintain the confidentiality ofthe Information (as defined below), except that Information may be disclosed(a) to its Affiliates and to its and its Affiliates’ respective partners,directors, officers, employees, agents, advisors and representatives (it beingunderstood that the Persons to whom such disclosure is made will be informed ofthe confidential nature of such Information and instructed to keep suchInformation confidential), (b) to the extent requested by any regulatoryauthority purporting to have jurisdiction over it (including anyself-regulatory authority, such as the National Association of InsuranceCommissioners), (c) to the extent required by applicable Laws orregulations or by any subpoena or similar legal process, (d) to any otherparty hereto, (e) in connection with the exercise of any remedieshereunder or under any other Loan Document or any action or proceeding relatingto this Agreement or any other Loan Document or the enforcement of rightshereunder or thereunder, (f) subject to an agreement containing provisionssubstantially the same as those of this Section, to (i) any assignee of orParticipant in, or any prospective assignee of or Participant in, any of itsrights or obligations under this Agreement or (ii) any actual orprospective counterparty (or its advisors) to any Hedging Contract relating tothe Borrower and its obligations, (g) with the consent of the Borrower or(h) to the extent such Information (x) becomes publicly availableother than as a result of a breach of this Section or (y) becomesavailable to the Administrative Agent, any Lender, the L/C Issuer or any oftheir respective Affiliates on a nonconfidential basis from a source other thanthe Borrower.

 

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

 

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

 

**10.08****                 Right of Setoff.  **Ifan Event of Default shall have occurred and be continuing, each Lender, the L/CIssuer and each of their respective Affiliates is hereby authorized at any timeand from time to time, to the fullest extent permitted by applicable Law, toset off and apply any and all deposits (general or special, time or demand,provisional or final, in whatever currency) at any time held and otherobligations (in whatever currency) at any time owing by such Lender, the L/CIssuer or any such Affiliate to or for the credit or the account of theBorrower or any other Loan Partyagainst any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement orany other Loan Document to such Lender or the L/C Issuer, irrespective ofwhether or not such Lender or the L/C Issuer shall have made any demand underthis Agreement or any other Loan Document and although such obligations of theBorrower or such Loan Party maybe contingent or unmatured or are owed to a branch or office of such Lender orthe L/C Issuer different from the branch or office holding such deposit orobligated on such indebtedness.  Therights of each Lender, the L/C Issuer and their respective Affiliates underthis Section are in addition to other rights and remedies (including otherrights of setoff) that such Lender, the L/C Issuer or their respectiveAffiliates may have.  Each Lender and theL/C Issuer agrees to notify the Borrower and the Administrative Agent promptlyafter any such setoff and application, provided that the failure to givesuch notice shall not affect the validity of such setoff and application.

 

The Administrative Agent hereby appoints eachof the L/C Issuer and Lenders to serve as its bailee to perfect theAdministrative Agent’s Liens in any Collateral in the possession of such L/CIssuer and Lender.  L/C Issuer and eachLender possessing any Collateral agrees to so act as bailee for theAdministrative Agent in accordance with the terms and provisions hereof.  In furtherance of the forgoing, L/C Issuerand each Lender acknowledges that certain of the Loan Parties maintain depositaccounts, securities accounts and commodities accounts with one or more of theAdministrative Agent, L/C Issuer and Lenders (all such accounts maintained byLoan Parties with one or more of the Administrative Agent, L/C Issuer andLenders being herein collectively called the “Lender Party Accounts” andindividually a “Lender Party Account”). L/C Issuer and each Lender agrees to hold its Lender Party Accounts asbailee for the Administrative Agent to perfect the security interest held forthe benefit of the L/C Issuer or a 

 

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Lender therein.  Prior to the receipt by L/C Issuer or aLender of notice from the Administrative Agent that it is exercising exclusivecontrol over any Lender Party Account (a “Notice of Exclusive Control”),the Loan Parties are entitled to make withdrawals from the Lender PartyAccounts and make deposits into and give entitlement orders with respect to theLender Party Accounts.  Once L/C Issueror a Lender has a Notice of Exclusive Control, which such notice shall not begiven until an Event of Default has occurred and is continuing, theAdministrative Agent shall be the only party entitled to make withdrawals fromor otherwise give any entitlement order or other direction with respect to theLender Party Accounts.  To the extent notalready occurring, L/C Issuer and each Lender agrees to transfer, inimmediately available funds by wire transfer to the Administrative Agent, theamount of the collected funds credited to the deposit accounts which are LenderParty Accounts held by such L/C Issuer or Lender, and deliver to the AdministrativeAgent all moneys or instruments relating thereto or held therein and any otherCollateral at any time the Administrative Agent demands payment or deliverythereof after a Notice of Exclusive Control has been delivered to such L/CIssuer or Lender.  Each Loan Party agreesthat L/C Issuer and each Lender is authorized to immediately deliver all theCollateral to the Administrative Agent upon the L/C Issuer’s or Lender’sreceipt of a Notice of Exclusive Control from the Administrative Agent.

 

**10.09****                 Interest RateLimitation.  **Notwithstanding anything to the contrary containedin any Loan Document, the interest paid or agreed to be paid under the LoanDocuments shall not exceed the maximum rate of non-usurious interest permittedby applicable Law (the “Maximum Rate”). If the Administrative Agent, L/C Issuer, or any Lender shall receiveinterest in an amount that exceeds the Maximum Rate, the excess interest shallbe applied to the principal of the Loans or, if it exceeds such unpaidprincipal, refunded to the Borrower.  Indetermining whether the interest contracted for, charged, or received by theAdministrative Agent, L/C Issuer or a Lender exceeds the Maximum Rate, suchPerson may, to the extent permitted by applicable Law, (a) characterize anypayment that is not principal as an expense, fee, or premium rather thaninterest, (b) exclude voluntary prepayments and the effects thereof, and (c)amortize, prorate, allocate, and spread in equal or unequal parts the totalamount of interest throughout the contemplated term of the Obligationshereunder.

 

**10.10****                 Counterparts;Integration; Effectiveness.  **This Agreement may be executed incounterparts (and by different parties hereto in different counterparts), eachof which shall constitute an original, but all of which when taken togethershall constitute a single contract.  ThisAgreement and the other Loan Documents constitute the entire contract among theparties relating to the subject matter hereof and supersede any and allprevious agreements and understandings, oral or written, relating to thesubject matter hereof.  Except asprovided in Section 4.01, this Agreement shall become effectivewhen it shall have been executed by the Administrative Agent and when theAdministrative Agent shall have received counterparts hereof that, when takentogether, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of asignature page of this Agreement by telecopy shall be effective as delivery ofa manually executed counterpart of this Agreement.

 

**10.11****                 Survival ofRepresentations and Warranties.  **All representations andwarranties made hereunder and in any other Loan Document or other documentdelivered pursuant hereto or thereto or in connection herewith or therewithshall survive the execution and delivery hereof and thereof.  Such representations and warranties have beenor will be relied upon by the 

 

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Administrative Agent and each Lender,regardless of any investigation made by the Administrative Agent or any Lenderor on their behalf and notwithstanding that the Administrative Agent or anyLender may have had notice or knowledge of any Default at the time of anyCredit Extension, and shall continue in full force and effect as long as anyLoan or any other Obligation hereunder shall remain unpaid or unsatisfied orany Letter of Credit shall remain outstanding.

 

**10.12****                 Severability.  **Ifany provision of this Agreement or the other Loan Documents is held to beillegal, invalid or unenforceable, (a) the legality, validity andenforceability of the remaining provisions of this Agreement and the other LoanDocuments shall not be affected or impaired thereby and (b) the parties shallendeavor in good faith negotiations to replace the illegal, invalid orunenforceable provisions with valid provisions the economic effect of whichcomes as close as possible to that of the illegal, invalid or unenforceableprovisions.  The invalidity of aprovision in a particular jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.

 

**10.13****                 Replacement ofLenders.  **If (a) any Lender requests compensation under Section 3.04or gives notice pursuant to Section 3.02, (b) the Borrower is requiredto pay any additional amount to any Lender or any Governmental Authority forthe account of any Lender pursuant to Section 3.01, (c) any Lenderis a Defaulting Lender, (d) any Lender fails to consent to an election,consent, amendment, waiver or other modification to this Agreement or any otherLoan Document that requires the consent of a greater percentage of the Lendersthan the Required Lenders and such election, consent, amendment, waiver orother modification is otherwise consented to by the Required Lenders, or (e) if any other circumstance existshereunder that gives the Borrower the right to replace a Lender as a partyhereto, then the Borrower may, at its sole expense and effort, uponnotice to such Lender and the Administrative Agent, require such Lender toassign and delegate, without recourse (in accordance with and subject to therestrictions contained in, and consents required by, Section 10.06),all of its interests, rights and obligations under this Agreement and therelated Loan Documents to an assignee that shall assume such obligations (whichassignee may be another Lender, if a Lender accepts such assignment), providedthat:

 

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

###  

### (b)                           such Lender shall havereceived payment of an amount equal to the outstanding principal of its Loansand L/C Advances, accrued interest thereon, accrued fees and all other amountspayable to it hereunder and under the other Loan Documents (including anyamounts under Section 3.05) from the assignee (to the extent ofsuch outstanding principal and accrued interest and fees) or the Borrower (inthe case of all other amounts);

###  

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

###  

### (d)                           such assignment does notconflict with applicable Laws.

 

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

 

**10.14****                 Governing Law;Jurisdiction; Etc.**

 

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

###  

### (b)                           SUBMISSION TOJURISDICTION.  THE ADMINISTRATIVE AGENT, EACH LENDER, THE L/CISSUER, THE BORROWER AND EACH OTHERLOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITSPROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEWYORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERNDISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTIONOR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOANDOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THEPARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS INRESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEWYORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCHFEDERAL COURT.  EACH OF THE PARTIESHERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BECONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENTOR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANYRIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISEHAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHERLOAN DOCUMENT AGAINST THE BORROWER ORANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANYJURISDICTION.

###  

### (c)                            WAIVER OF VENUE.  THEADMINISTRATIVE AGENT, EACH LENDER, THE L/C ISSUER, THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLYAND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANYACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHERLOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THISSECTION.  EACH OF THE PARTIES HERETOHEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION ORPROCEEDING IN ANY SUCH COURT.

###  

### (d)                           SERVICE OF PROCESS.  EACHPARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDEDFOR NOTICES 

 

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### IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TOSERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

###  

**10.15****                 Waiver of JuryTrial.  **EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BYJURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATINGTO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATEDHEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NOREPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OFLITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THATIT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENTAND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS ANDCERTIFICATIONS IN THIS SECTION.

 

**10.16****                 USA PATRIOT ActNotice.  **Each Lender that is subject to the Act (as hereinafterdefined) and the Administrative Agent (for itself and not on behalf of anyLender) hereby notifies the Borrower that pursuant to the requirements of theUSA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,2001)) (the “Act”), it is required to obtain, verify and recordinformation that identifies the Borrower, which information includes the nameand address of the Borrower and other information that will allow such Lenderor the Administrative Agent, as applicable, to identify the Borrower inaccordance with the Act.

 

**10.17****                 Amendment andRestatement.**  This Agreement amendsand restates in its entirety the Existing Credit Agreement and amends,restates, renews and extends the obligations and Indebtedness under theComerica Credit Facility and the ScissorTail Credit Facility.  The Borrower hereby agrees that (a) theIndebtedness outstanding under the Existing Credit Agreement and all LoanDocuments (as defined in the Existing Credit Agreement) and all accrued andunpaid interest thereon, (b) all accrued and unpaid fees under the ExistingCredit Agreement or such other Loan Documents, and (c) the Indebtedness outstandingunder the Comerica Credit Facility and the ScissorTail Credit Facility, shallbe deemed to be outstanding under and governed by this Agreement.  The Borrower hereby acknowledges, represents,warrants, and agrees that this Agreement is not intended to be, and shall notbe deemed or construed to be, a novation or release of the Existing CreditAgreement or such other Loan Documents or a novation or release of obligationsand Indebtedness under the Comerica Credit Facility or the ScissorTail CreditFacility.

 

**10.18****                 ENTIRE AGREEMENT.  THISAGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THEPARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, ORSUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.**

 

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[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]

 

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*IN WITNESSWHEREOF,*the parties hereto have caused this Agreementto be duly executed as of the date first above written.

 
| ** ** | **COPANO  ENERGY, L.L.C.**, |
|------------|-----------------------------|
|       | as Borrower                 |   |
|       |                        |
|       |                        |
|       | By:                         |   |   |
|       | Name:                       | John R. Eckel, Jr. |
|       | Title:                      | Chairman of the Board and |
|       |                        | Chief Executive Officer |
|            |                             |  |  |  |  |

 

S-1

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| ** ** | **BANK OF  AMERICA, N.A.,** |
|------------|-----------------------------|
|       | as Administrative Agent     |   |
|       |                        |
|       |                        |
|       | By:                         |   |   |
|       | Name:                       |   |
|       | Title:                      |   |
|            |                             |  |  |  |  |

 

S-2

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| ** ** | **BANK OF  AMERICA, N.A.,** |
|------------|-----------------------------|
|       | as a Lender and L/C Issuer  |
|       |                        |
|       |                        |
|       | By:                         |   |   |
|       | Name:                       |   |
|       | Title:                      |   |
|            |                             |  |  |  |

 

S-3

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| ** ** | **COMERICA  BANK**,                  |
|------------|--------------------------------------|
|       | as a Lender and Co-Syndication Agent |
|       |                                 |
|       |                                 |
|       | By:                                  |   |   |
|       | Name:                                |   |
|       | Title:                               |   |
|            |                                      |  |  |  |

 

S-4

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| ** ** | **U.S. BANK NATIONAL ASSOCIATION**,  |
|------------|--------------------------------------|
|       | as a Lender and Co-Syndication Agent |
|       |                                 |
|       |                                 |
|       | By:                                  |   |   |
|       | Name:                                |   |
|       | Title:                               |   |
|            |                                      |  |  |  |

 

S-5

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| ** ** | **BANK OF SCOTLAND**,                  |
|------------|----------------------------------------|
|       | as a Lender and Co-Documentation Agent |
|       |                                   |
|       |                                   |
|       | By:                                    |   |   |
|       | Name:                                  |   |
|       | Title:                                 |   |
|            |                                        |  |  |  |

 

S-6

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| ** ** | **FORTIS CAPITAL CORP.**,              |
|------------|----------------------------------------|
|       | as a Lender and Co-Documentation Agent |
|       |                                   |
|       |                                   |
|       | By:                                    |   |   |
|       | Name:                                  |   |
|       | Title:                                 |   |
|       |                                   |
|       |                                   |
|       | By:                                    |   |   |
|       | Name:                                  |   |
|       | Title:                                 |   |
|            |                                        |  |  |  |

 

S-7

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| ** ** | **ROYAL BANK OF CANADA**, as a Lender |
|------------|---------------------------------------|
|       |                                  |
|       |                                  |
|       | By:                                   |   |   |
|       | Name:                                 |   |
|       | Title:                                |   |
|            |                                       |  |  |  |

 

S-8

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| ** ** | **HARRIS NESBITT FINANCING, INC.**, |
|------------|-------------------------------------|
|       | as a Lender                         |
|       |                                |
|       |                                |
|       | By:                                 |   |   |
|       | Name:                               |   |
|       | Title:                              |   |
|            |                                     |  |  |  |

 

S-9

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| ** ** | **AMEGY BANK NATIONAL ASSOCIATION**, |
|------------|--------------------------------------|
|       | as a Lender                          |
|       |                                 |
|       |                                 |
|       | By:                                  |   |   |
|       | Name:                                |   |
|       | Title:                               |   |
|            |                                      |  |  |  |

 

S-10

----

 
| ** ** | **COMPASS BANK**, as a Lender |
|------------|-------------------------------|
|       |                          |
|       |                          |
|       | By:                           |   |   |
|       | Name:                         |   |
|       | Title:                        |   |
|            |                               |  |  |  |

 

S-11

----

 
| ** ** | **GUARANTY BANK**, as a Lender |
|------------|--------------------------------|
|       |                           |
|       |                           |
|       | By:                            |   |   |
|       | Name:                          |   |
|       | Title:                         |   |
|            |                                |  |  |  |

 

S-12

----

 
| ** ** | **BNP PARIBAS**, as a Lender |
|------------|------------------------------|
|       |                         |
|       |                         |
|       | By                           |   |   |
|       | Name:                        |   |
|       | Title:                       |   |
|       |                         |
|       |                         |
|       | By:                          |   |   |
|       | Name:                        |   |
|       | Title:                       |   |
|            |                              |  |  |  |

 

S-13

----

 
| ** ** | **DEUTSCHE BANK TRUST COMPANY   AMERICAS**, as a  Lender |
|------------|----------------------------------------------------------|
|       |                                                     |
|       |                                                     |
|       | By:                                                      |   |   |
|       | Name:                                                    |   |
|       | Title:                                                   |   |
|       |                                                     |
|       |                                                     |
|       | By:                                                      |   |   |
|       | Name:                                                    |   |
|       | Title:                                                   |   |
|            |                                                          |  |  |  |

 

S-14

----

 
| ** ** | **KEYBANK, NATIONAL ASSOCIATION**, |
|------------|------------------------------------|
|       | as a Lender                        |
|       |                               |
|       |                               |
|       | By:                                |   |   |
|       | Name:                              |   |
|       | Title:                             |   |
|            |                                    |  |  |  |

 

S-15

----

 
| ** ** | **SUNTRUST BANK**, as a Lender |
|------------|--------------------------------|
|       |                           |
|       |                           |
|       | By:                            |   |   |
|       | Name:                          |   |
|       | Title:                         |   |
|            |                                |  |  |  |

 

S-16

----

 
| ** ** | **BANK OF TEXAS, N.A.**, as a Lender |
|------------|--------------------------------------|
|       |                                 |
|       |                                 |
|       | By:                                  |   |   |
|       | Name:                                |   |
|       | Title:                               |   |
|            |                                      |  |  |  |

 

S-17

----

 
| ** ** | **NATEXIS BANQUES POPULAIRES**, |
|------------|---------------------------------|
|       | as a Lender                     |
|       |                            |
|       |                            |
|       | By:                             |   |   |
|       | Name:                           |   |
|       | Title:                          |   |
|       |                            |
|       |                            |
|       | By:                             |   |   |
|       | Name:                           |   |
|       | Title:                          |   |
|            |                                 |  |  |  |

 

S-18

----

 
|   | **STERLING BANK,**as a Lender |
|--------|-------------------------------|
|   |                          |
|   |                          |
|   | By:                           |   |   |
|   | Name:                         |   |
|   | Title:                        |   |
|        |                               |  |  |  |

 

S-19

----

 
|   | **WELLS FARGO BANK, N.A.**, as a Lender |
|--------|-----------------------------------------|
|   |                                    |
|   |                                    |
|   | **By:**                                 |   |   |
|   | **Name:**                               |   |
|   | **Title:**                              |   |
|        |                                         |  |  |  |

 

S-20

----

 

***SCHEDULE 1.01***

 

**SECURITY SCHEDULE**

 

1.       GuarantyAgreement by each Restricted Subsidiary in favor of Administrative Agent, forthe benefit of itself and the Lenders.

 

2.       Pledgeand Security Agreement.

 

3.       Amendedand Restated Mortgage, Assignment, Security Agreement, Financing Statement andFixture Filing by ScissorTail in favor of Administrative Agent, for the benefitof itself and the Lenders.

 

4.       Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Processing, L.P., in favor ofAdministrative Agent, for the benefit of itself and the Lenders.

 

5.       Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano NGL Services, L.P. in favor ofAdministrative Agent, for the benefit of itself and the Lenders.

 

6.       Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Field Services/Agua Dulce, L.P. in favorof Administrative Agent, for the benefit of itself and the Lenders.

 

7.       ThirdAmended and Restated Mortgage, Deed of Trust, Assignment, Security Agreement,Financing Statement and Fixture Filing by Copano Field Services/Central GulfCoast, L.P. in favor of Administrative Agent, for the benefit of itself and theLenders.

 

8.       Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Field Services/Copano Bay, L.P. in favorof Administrative Agent, for the benefit of itself and the Lenders.

 

9.       Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Field Services/Live Oak, L.P. in favorof Administrative Agent, for the benefit of itself and the Lenders.

 

10.    Mortgage,Deed of Trust, Assignment, Security Agreement, Financing Statement and FixtureFiling by Copano Field Services/Karnes, L.P. in favor of Administrative Agent,for the benefit of itself and the Lenders.

 

11.    Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Field Services/South Texas, L.P. infavor of Administrative Agent, for the benefit of itself and the Lenders.

 

12.    Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Field Services/Upper Gulf Coast, L.P. infavor of Administrative Agent, for the benefit of itself and the Lenders.

 

----

 

13.    Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Pipelines/Hebbronville, L.P. in favor ofAdministrative Agent, for the benefit of itself and the Lenders.

 

14.    Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Pipelines/South Texas, L.P. in favor ofAdministrative Agent, for the benefit of itself and the Lenders.

 

15.    Amendedand Restated Mortgage, Deed of Trust, Assignment, Security Agreement, FinancingStatement and Fixture Filing by Copano Pipelines/Upper Gulf Coast, L.P. infavor of Administrative Agent, for the benefit of itself and the Lenders.

 

16.    UCC-1Financing Statements naming the Borrower and each Restricted Subsidiary, asdebtors, and Administrative Agent, as secured party, covering all assets andproperties.

 

----

 

***SCHEDULE 2.01***

 

**COMMITMENTSAND APPLICABLE PERCENTAGES**

 
| **Lender**                           | ** ** | **Commitment** | ** **  | **Applicable   Percentage*** | ** ** |
|--------------------------------------|------------|----------------|-------------|------------------------------|------------|
| ** **                           | ** ** | ** **     | ** **  | ** **                   | ** ** |
| Bank of America, N.A.                |       | $              | 27,000,000  |                         | 7.714286   | % |
|                                 |       |           |        |                         |       |
| Comerica Bank                        |       | $              | 26,000,000  |                         | 7.428571   | % |
|                                 |       |           |        |                         |       |
| U.S. Bank National Association       |       | $              | 26,000,000  |                         | 7.428571   | % |
|                                 |       |           |        |                         |       |
| Bank of Scotland                     |       | $              | 26,000,000  |                         | 7.428571   | % |
|                                 |       |           |        |                         |       |
| Fortis Capital Corp.                 |       | $              | 26,000,000  |                         | 7.428571   | % |
|                                 |       |           |        |                         |       |
| Royal Bank of Canada                 |       | $              | 26,000,000  |                         | 7.428571   | % |
|                                 |       |           |        |                         |       |
| Harris Nesbitt Financing, Inc.       |       | $              | 22,000,000  |                         | 6.285714   | % |
|                                 |       |           |        |                         |       |
| Amegy Bank National Association      |       | $              | 20,000,000  |                         | 5.714286   | % |
|                                 |       |           |        |                         |       |
| Compass Bank                         |       | $              | 20,000,000  |                         | 5.714286   | % |
|                                 |       |           |        |                         |       |
| Guaranty Bank                        |       | $              | 20,000,000  |                         | 5.714286   | % |
|                                 |       |           |        |                         |       |
| BNP Paribas                          |       | $              | 17,000,000  |                         | 4.857143   | % |
|                                 |       |           |        |                         |       |
| Deutsche Bank Trust Company Americas |       | $              | 17,000,000  |                         | 4.857143   | % |
|                                 |       |           |        |                         |       |
| Keybank, National Association        |       | $              | 17,000,000  |                         | 4.857143   | % |
|                                 |       |           |        |                         |       |
| SunTrust Bank                        |       | $              | 17,000,000  |                         | 4.857143   | % |
|                                 |       |           |        |                         |       |
| Bank of Texas, N.A.                  |       | $              | 15,000,000  |                         | 4.285714   | % |
|                                 |       |           |        |                         |       |
| Natexis Banques Populaires           |       | $              | 10,000,000  |                         | 2.857143   | % |
|                                 |       |           |        |                         |       |
| Sterling Bank                        |       | $              | 9,000,000   |                         | 2.571429   | % |
|                                 |       |           |        |                         |       |
| Wells Fargo Bank, N.A.               |       | $              | 9,000,000   |                         | 2.571429   | % |
|                                 |       |           |        |                         |       |
| Total                                |       | $              | 350,000,000 |                         | 100.000000 | % |

 

----

*Rounded to six decimal places

 

----

 

***SCHEDULE 5.05***

 

**SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS**

 

----

 

***SCHEDULE 5.09***

 

**ENVIRONMENTAL MATTERS**

 

----

 

***SCHEDULE 5.13***

 

**SUBSIDIARIES ANDOTHER EQUITY INVESTMENTS**

 

Part (a).          Subsidiaries.

 

Part (b).          OtherEquity Investments.

 

----

 

***SCHEDULE 7.01***

 

**EXISTING LIENS**

 

----

 

***SCHEDULE 7.03***

 

**EXISTING INDEBTEDNESS**

 

----

 

***SCHEDULE 10.02***

 

**ADMINISTRATIVE AGENT’S OFFICE;CERTAIN ADDRESSES FOR NOTICES**

 

**BORROWER:**

 

2727Allen Parkway, Suite 1200Houston, Texas 77019

Attention:Matt AssiffTelephone: 713-621-9547Telecopier: 713-621-9545Electronic Mail: matt.assiff@copanoenergy.comWebsite Address:www.copanoenergy.com

 

 

**ADMINISTRATIVEAGENT:**

 

*Administrative Agent’s Office(daily borrowing/repaying activity):*Bank of America, N.A.

Charlotte, NCAttention:  Duane LathanTelephone:  (704) 388-9102Telecopier:  (704) 409-0111

 

*Wire Instructions:*

Bank of America, N.A.

ABA# 026-009-593Account No.:  136-621-225-0600

Attn: Credit Services

Ref:  Copano EnergyABA# 026-009-593

 

*Agengy Management (financial reporting/bank group communication):*Bank of America, N.A.100 Federal StreetMail Code: MA5-100-11-02Boston, Massachusetts  02110Attention:  Todd Mac NeillTelephone:  (617) 434-6842Telecopier:  (617) 790-1361Electronic Mail:  todd.g.macneill@BankofAmerica.com

 

----

 

L/C ISSUER:

Bank of America, N.A.Trade Operations – Scranton1 Fleet WayMail Code: PA6-580-02-30Scranton, PA  18507Attention:              Al MalaveTelephone:  (570) 330-4210Telecopier:  (570) 330-4186Electronic Mail:  alfonso.malave@bankofamerica.com

 

2

----

 

***SCHEDULE 10.06***

 

**PROCESSING AND RECORDATION FEES**

 

The Administrative Agent will charge aprocessing and recordation fee (an “Assignment Fee”) in the amount of $3,500for each assignment; provided, however, that in the event of two or moreconcurrent assignments to members of the same Assignee Group (which may beeffected by a suballocation of an assigned amount among members of the sameAssignee Group) or two or more concurrent assignments by members of the same AssigneeGroup to a single Eligible Assignee (or to an Eligible Assignee and members ofits Assignee Group), the Assignee Fee will be $3,500 plus the amount set forthbelow:  

** **
| **Transaction**                                                                                                                                      | ** ** | **Assignment Fee** | ** ** |
|------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------|------------|
| ** **                                                                                                                                           | ** ** | ** **         | ** ** |
| First four concurrent assignments or  suballocations to members of an Assignee Group (or from members of an  Assignee Group, as applicable)          |       | -0-                |       |
| Each additional concurrent assignment or  suballocation to a member of such Assignee Group (or from a member of such  Assignee Group, as applicable) |       | $                  | 500        |   |
|                                                                                                                                                      |            |                    |            |  |

 

----

 

***EXHIBIT A***

 

**FORM OF COMMITTED LOAN NOTICE**

 

Date:                      ,       

 

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

 

Ladies and Gentlemen:

 

Reference is made to that certain CreditAgreement, dated as of August 1, 2005 (as amended, restated, extended,supplemented or otherwise modified in writing from time to time, the “Agreement;”the terms defined therein being used herein as therein defined), among CopanoEnergy, L.L.C., a Delaware limited liability company (the “Borrower”),the Lenders from time to time party thereto, and Bank of America, N.A., asAdministrative Agent and L/C Issuer.

 

The undersigned hereby requests (select one):

 

o  A Borrowing of Loans                  o  A conversion or continuation of Loans

 

1.             On                                                    (a Business Day).

 

2.             Inthe amount of $                                                    .

 

3.             Comprisedof                                                     [Type of Loan requested]

 

4.             ForEurodollar Rate Loans:  with an InterestPeriod of                   months.

 

The Borrowing, if any, requested hereincomplies with the provisos to the first sentence of Section 2.01 ofthe Agreement.

 
| ** ** | COPANO  ENERGY, L.L.C. |
|------------|------------------------|
|       |                   |
|       |                   |
|       | By:                    |   |   |
|       | Name:                  |   |
|       | Title:                 |   |
|            |                        |  |  |  |

 

----

 

***EXHIBIT C***

 

**FORM OF NOTE**

 

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”)hereby promises to pay to                                                  or registered assigns (the “Lender”), in accordance with the provisionsof the Agreement (as hereinafter defined), the principal amount of each Loanfrom time to time made by the Lender to the Borrower under that certain CreditAgreement, dated as of August 1, 2005 (as amended, restated, extended,supplemented or otherwise modified in writing from time to time, the “Agreement;”the terms defined therein being used herein as therein defined), among theBorrower, the Lenders and other agents from time to time party thereto, andBank of America, N.A., as Administrative Agent and L/C Issuer.

 

The Borrower promises to pay interest on theunpaid principal amount of each Loan from the date of such Loan until suchprincipal amount is paid in full, at such interest rates and at such times asprovided in the Agreement.  All paymentsof principal and interest shall be made to the Administrative Agent for theaccount of the Lender in Dollars in immediately available funds at theAdministrative Agent’s Office.  If anyamount is not paid in full when due hereunder, such unpaid amount shall bearinterest, to be paid upon demand, from the due date thereof until the date ofactual payment (and before as well as after judgment) computed at the per annumrate set forth in the Agreement.

 

This Note is one of the Notes referred to inthe Agreement, is entitled to the benefits thereof and may be prepaid in wholeor in part subject to the terms and conditions provided therein.  This Note is also entitled to the benefits ofthe Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events ofDefault specified in the Agreement, all amounts then remaining unpaid on thisNote shall become, or may be declared to be, immediately due and payable all asprovided in the Agreement.  Loans made bythe Lender shall be evidenced by one or more loan accounts or records maintainedby the Lender in the ordinary course of business. The Lender may also attachschedules to this Note and endorse thereon the date, amount and maturity of itsLoans and payments with respect thereto.

 

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

 

----

 

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

 

 
| ** ** | COPANO  ENERGY, L.L.C. |
|------------|------------------------|
|       |                   |
|       |                   |
|       | By:                    |   |   |
|       | Name:                  |   |
|       | Title:                 |   |
|            |                        |  |  |  |

 

2

----

 

**LOANS AND PAYMENTS WITH RESPECT THERETO**

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

 

3

----

 

***EXHIBIT D***

 

**FORM OF COMPLIANCE CERTIFICATE**

 

FinancialStatement Date:              ,

 

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

 

Ladies and Gentlemen:

 

Reference is made to that certain CreditAgreement, dated as of August 1, 2005 (as amended, restated, extended,supplemented or otherwise modified in writing from time to time, the “Agreement;”the terms defined therein being used herein as therein defined), among COPANOENERGY, L.L.C., a Delaware limited liability company (the “Borrower”),the Lenders from time to time party thereto, and Bank of America, N.A., asAdministrative Agent and L/C Issuer.

 

The undersigned Responsible Officer herebycertifies as of the date hereof that he/she is the                                              of the Borrower, and that, as such, he/she is authorized to execute and deliverthis Certificate to the Administrative Agent on the behalf of the Borrower, andthat:

 

*[Usefollowing paragraph 1 for fiscal **year-end**financial statements]*

 

1.             Attachedhereto as Schedule 1 are the year-end audited financial statementsrequired by Section 6.01(a) of the Agreement for the fiscal year ofthe Borrower ended as of the above date, together with the report and opinionof a Registered Public Accounting Firm required by such section.

 

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

 

1.             Attached hereto as Schedule1 are the unaudited financial statements required by Section 6.01(b)of the Agreement for the fiscal quarter of the Borrower ended as of the abovedate.  Such financial statements fairlypresent in all material respects the financial condition, results of operationsand cash flows of the Borrower and its Subsidiaries in accordance with GAAP asat such date and for such period, subject only to normal year-end auditadjustments and the absence of footnotes.

 

2.             The undersigned hasreviewed and is familiar with the terms of the Agreement and has made, or hascaused to be made under his/her supervision, a detailed review of thetransactions and condition (financial or otherwise) of the Borrower during theaccounting period covered by the attached financial statements.

 

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

 

----

 

***[select one:]***

**[to the knowledge of the undersigned afterdue inquiry during such fiscal period, the Borrower performed and observed eachcovenant and condition of the Loan Documents applicable to it, and no Defaulthas occurred and is continuing.]**

 

**—*or—***

**[the following covenants or conditions havenot been performed or observed and the following is a list of each such Defaultand its nature and status:]**

 

1.             The representationsand warranties of the Borrower contained in Article V of the Agreement,and any representations and warranties of the Borrower that are contained in any document furnished at any time underor in connection with the Loan Documents, are true and correct in all materialrespects on and as of the date hereof, except to the extent that suchrepresentations and warranties specifically refer to an earlier date, in whichcase they are true and correct in all material respects as of such earlierdate, and except that for purposes of this Compliance Certificate, therepresentations and warranties contained in subsections (a) and (b) of Section 5.05of the Agreement shall be deemed to refer to the most recent statementsfurnished pursuant to clauses (a) and (b), respectively, of Section 6.01of the Agreement, including the statements in connection with which thisCompliance Certificate is delivered.

 

2.             The financialcovenant analyses and information set forth on Schedule 2 attachedhereto are true and accurate in all material respects on and as of the date ofthis Certificate.

 

*IN WITNESS WHEREOF,*the undersigned has executed this Certificate as of                                                                           ,                         .

 
| ** ** | COPANO  ENERGY, L.L.C. |
|------------|------------------------|
|       |                   |
|       |                   |
|       | By:                    |   |   |
|       | Name:                  |   |
|       | Title:                 |   |
|            |                        |  |  |  |

 

2

----

 

 

For theQuarter/Year ended                                   (“StatementDate”)

 

**SCHEDULE 2**to the Compliance Certificate($ in 000’s)

 
| I.         | ** ** | **Section 7.21(a) – Fixed Charge Coverage Ratio.**          |
|------------|------------|-----------------------------------------------------------------------|
| ** ** | ** ** | ** **                                                            |
| II.        | ** ** | **Section 7.21(b) – Consolidated Interest Coverage Ratio.** |
| ** ** | ** ** | ** **                                                            |
| III.       | ** ** | **Section 7.21(c) – Consolidated Senior Leverage Ratio.**   |
| ** ** | ** ** | ** **                                                            |
| IV.        | ** ** | **Section 7.21(d) – Consolidated Total Leverage Ratio.**    |

 

3

----

 

For theQuarter/Year ended                                   (“StatementDate”)

 

**SCHEDULE 3**to the Compliance Certificate($ in 000’s)

 

**ConsolidatedEBITDA**(in accordance with the definition of ConsolidatedEBITDAas set forth in the Agreement)

 
| **Consolidated   EBITDA**               | ** ** | **Quarter   Ended** | ** ** | **Quarter   Ended** | ** ** | **Quarter   Ended** | ** ** | **Quarter   Ended** | ** ** | **Twelve   Months   Ended** | ** ** |
|-----------------------------------------|------------|---------------------|------------|---------------------|------------|---------------------|------------|---------------------|------------|-----------------------------|------------|
| Net Income                              |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| + distributions received                |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| - equity earnings                       |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| + equity losses                         |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| = Consolidated Net Income               |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| + Consolidated Interest Charges         |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| + income taxes                          |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| + depreciation and amortization expense |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| + non-cash expenses                     |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| - income tax credits                    |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| - non-cash income                       |       |                |       |                |       |                |       |                |       |                        |       |
|                                    |       |                |       |                |       |                |       |                |       |                        |       |
| = Consolidated EBITDA                   |       |                |       |                |       |                |       |                |       |                        |       |

 

4

----

 

***EXHIBIT E***

 

**ASSIGNMENT AND ASSUMPTION**

 

This Assignment and Assumption (this “Assignmentand Assumption”) is dated as of the Effective Date set forth below and isentered into by and between [*Insert name of Assignor*](the “Assignor”) and [*Insert name of Assignee*](the “Assignee”).  Capitalizedterms used but not defined herein shall have the meanings given to them in theCredit Agreement identified below (the “Credit Agreement”), receipt of acopy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forthin Annex 1 attached hereto are hereby agreed to and incorporated herein byreference and made a part of this Assignment and Assumption as if set forthherein in full.

 

For an agreed consideration, the Assignorhereby irrevocably sells and assigns to the Assignee, and the Assignee herebyirrevocably purchases and assumes from the Assignor, subject to and inaccordance with the Standard Terms and Conditions and the Credit Agreement, asof the Effective Date inserted by the Administrative Agent as contemplatedbelow (i) all of the Assignor’s rights and obligations as a Lender under theCredit Agreement and any other documents or instruments delivered pursuantthereto to the extent related to the amount and percentage interest identifiedbelow of all of such outstanding rights and obligations of the Assignor underthe respective facilities identified below (including, without limitation, theLetters of Credit included in such facilities) and (ii) to the extent permittedto be assigned under applicable law, all claims, suits, causes of action andany other right of the Assignor (in its capacity as a Lender) against anyPerson, whether known or unknown, arising under or in connection with theCredit Agreement, any other documents or instruments delivered pursuant theretoor the loan transactions governed thereby or in any way based on or related toany of the foregoing, including, but not limited to, contract claims, tortclaims, malpractice claims, statutory claims and all other claims at law or inequity related to the rights and obligations sold and assigned pursuant toclause (i) above (the rights and obligations sold and assigned pursuant to clauses(i) and (ii) above being referred to herein collectively as, the “AssignedInterest”).  Such sale and assignmentis without recourse to the Assignor and, except as expressly provided in thisAssignment and Assumption, without representation or warranty by the Assignor.

 

1.             Assignor:                                                                          

 

2.             Assignee:                                                                          [and is an Affiliate/Approved Fund of [*identify Lender*]]

 

3.             Borrower:              CopanoEnergy, L.L.C.

 

4.             AdministrativeAgent: Bank of America, N.A., as the administrative agent under the CreditAgreement

 

5.             CreditAgreement:               Credit Agreement,dated as of August 1, 2005, among Copano Energy, L.L.C., the Lenders from timeto time party thereto, and Bankof America, N.A., as Administrative Agent and L/C Issuer

 

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6.             AssignedInterest:

 
| **Facility Assigned** | ** ** | **Aggregate   Amount of  Commitment/Loans   for all Lenders*** | ** ** | **Amount of   Commitment/Loans  Assigned*** | ** ** | **Percentage   Assigned of   Commitment/Loans** | ** ** | **CUSIP Number** | ** ** |
|-----------------------|------------|----------------------------------------------------------------|------------|---------------------------------------------|------------|-------------------------------------------------|------------|------------------|------------|
|                  |       |                                                           |       |                                        |       |                                            |       |             |       |
|                  |       | $                                                              |       |                                        | $          |                                            |       |             |       |   |   |
|                  |       | $                                                              |       |                                        | $          |                                            |       |             |       |   |   |
|                  |       | $                                                              |       |                                        | $          |                                            |       |             |       |   |   |

 

[7.           TradeDate:                                                    ]

 

Effective Date:                                  ,20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICHSHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTERTHEREFOR.]

 

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

 

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|   | ASSIGNOR           |   |
|--------|--------------------|--------|
|   | [NAME OF ASSIGNOR] |   |
|   |               |   |
|   |               |   |
|   | By:                |   |   |
|   |               | Title: |   |

 

 
|   | ASSIGNEE           |   |
|--------|--------------------|--------|
|   | [NAME OF ASSIGNEE] |   |
|   |               |   |
|   |               |   |
|   | By:                |   |   |
|   |               | Title: |   |

 

[Consented to and] Accepted:

 

BANK OFAMERICA, N.A., asAdministrative Agent

 

 
| By:    |   |   |   |
|--------|--------|--------|--------|
|   | Title: |   |   |

 

[Consented to:]

 

COPANO ENERGY, L.L.C.

 

 
| By:    |   |   |   |
|--------|--------|--------|--------|
|   | Title: |   |   |

 

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***ANNEX 1 TO ASSIGNMENT AND ASSUMPTION***

 

STANDARD TERMSAND CONDITIONS FOR

 

ASSIGNMENT ANDASSUMPTION

 

1.             Representationsand Warranties.

 

1.1.         Assignor.  The Assignor (a) represents and warrants that(i) it is the legal and beneficial owner of the Assigned Interest, (ii) theAssigned Interest is free and clear of any lien, encumbrance or other adverseclaim and (iii) it has full power and authority, and has taken all actionnecessary, to execute and deliver this Assignment and Assumption and toconsummate the transactions contemplated hereby; and (b) assumes noresponsibility with respect to (i) any statements, warranties orrepresentations made in or in connection with the Credit Agreement or any otherLoan Document, (ii) the execution, legality, validity, enforceability,genuineness, sufficiency or value of the Loan Documents or any collateralthereunder, (iii) the financial condition of the Borrower, any of itsSubsidiaries or Affiliates or any other Person obligated in respect of any LoanDocument or (iv) the performance or observance by the Borrower, any of itsSubsidiaries or Affiliates or any other Person of any of their respectiveobligations under any Loan Document.

 

1.2.         Assignee.  The Assignee (a) represents and warrants that(i) it has full power and authority, and has taken all action necessary, toexecute and deliver this Assignment and Assumption and to consummate thetransactions contemplated hereby and to become a Lender under the CreditAgreement, (ii) it meets all requirements of an Eligible Assignee under theCredit Agreement (subject to receipt of such consents as may be required underthe Credit Agreement), (iii) from and after the Effective Date, it shall bebound by the provisions of the Credit Agreement as a Lender thereunder and, tothe extent of the Assigned Interest, shall have the obligations of a Lenderthereunder, (iv) it has received a copy of the Credit Agreement, together withcopies of the most recent financial statements delivered pursuant to Section      thereof, as applicable, and such other documents and information as it hasdeemed appropriate to make its own credit analysis and decision to enter intothis Assignment and Assumption and to purchase the Assigned Interest on thebasis of which it has made such analysis and decision independently and withoutreliance on the Administrative Agent or any other Lender, and (v) if it is aForeign Lender, attached hereto is any documentation required to be deliveredby it pursuant to the terms of the Credit Agreement, duly completed andexecuted by the Assignee; and (b) agrees that (i) it will, independently andwithout reliance on the Administrative Agent, the Assignor or any other Lender,and based on such documents and information as it shall deem appropriate at thetime, continue to make its own credit decisions in taking or not taking actionunder the Loan Documents, and (ii) it will perform in accordance with theirterms all of the obligations which by the terms of the Loan Documents arerequired to be performed by it as a Lender.

 

2.             Payments.  From and after the Effective Date, theAdministrative Agent shall make all payments in respect of the AssignedInterest (including payments of principal, interest, fees and other amounts) tothe Assignor for amounts which have accrued to but excluding the Effective Dateand to the Assignee for amounts which have accrued from and after the EffectiveDate.

 

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3.             GeneralProvisions.  This Assignment andAssumption shall be binding upon, and inure to the benefit of, the partieshereto and their respective successors and assigns.  This Assignment and Assumption may beexecuted in any number of counterparts, which together shall constitute oneinstrument.  Delivery of an executed counterpartof a signature page of this Assignment and Assumption by telecopy shall beeffective as delivery of a manually executed counterpart of this Assignment andAssumption.  This Assignment andAssumption shall be governed by, and construed in accordance with, the law ofthe State of New York.

 

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***EXHIBIT F***

 

**FORM OF GUARANTY**

 

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***EXHIBIT G***

 

**FORM OF PLEDGE AND SECURITY AGREEMENT**

 

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***EXHIBIT H***

 

**OPINION MATTERS**

 

The matters contained in the followingSections of the Credit Agreement should be covered by the legal opinion:

 
| • | Section  5.01(a), (b) and (c) |
|--------|-------------------------------|
|   |                          |
| • | Section 5.02             |
|   |                          |
| • | Section 5.03             |
|   |                          |
| • | Section 5.04             |
|   |                          |
| • | Section 5.06             |
|   |                          |
| • | Section 5.14(b)          |

 

In addition, matters with respect to lien andsecurity interest creation and perfection should be covered by the legalopinion.

 

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***EXHIBIT I***

 

**SOLVENCY CERTIFICATE**

 

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***EXHIBIT J***

**COLLATERAL SHARINGAGREEMENT**

 

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