exv10w2






Exhibit 10.2




CUSIP NO.                     




REVOLVING CREDIT AND TERM LOAN AGREEMENT




dated as of



October 25, 2010



among



DUNCAN ENERGY PARTNERS L.P.



The Lenders Party Hereto



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent



CITIBANK, N.A., DNB NOR BANK ASA and THE ROYAL BANK OF SCOTLAND PLC

as Co-Syndication Agents



SCOTIA CAPITAL, BARCLAYS BANK PLC and

MIZUHO CORPORATE BANK, LTD.



as Co-Documentation Agents



 





WELLS FARGO SECURITIES, LLC, CITIGROUP GLOBAL MARKETS INC.,

DNB NOR MARKETS, INC. and RBS SECURITIES, INC.

as Joint Lead Arrangers and Joint Book Runners



3-Year $850,000,000 Senior Unsecured Revolving Credit Facility



3-Year $400,000,000 Senior Unsecured Term Loan Facility


















 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I Definitions
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	22	 
	SECTION 1.03. Terms Generally
	 	 	22	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	23	 
	 
	 	 	 	 
	ARTICLE II The Credits
	 	 	23	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	23	 
	SECTION 2.02. Loans and Borrowings
	 	 	24	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	24	 
	SECTION 2.04. Reserved
	 	 	25	 
	SECTION 2.05. Swingline Loans
	 	 	25	 
	SECTION 2.06. Letters of Credit
	 	 	26	 
	SECTION 2.07. Funding of Borrowings
	 	 	31	 
	SECTION 2.08. Interest Elections
	 	 	31	 
	SECTION 2.09. Termination and Reduction of Commitments
	 	 	32	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	33	 
	SECTION 2.11. Prepayment of Loans
	 	 	34	 
	SECTION 2.12. Fees
	 	 	34	 
	SECTION 2.13. Interest
	 	 	35	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	37	 
	SECTION 2.15. Illegality; Increased Costs
	 	 	37	 
	SECTION 2.16. Break Funding Payments
	 	 	38	 
	SECTION 2.17. Taxes
	 	 	39	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	40	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	42	 
	SECTION 2.20. Separateness
	 	 	43	 
	SECTION 2.21. Defaulting Lenders
	 	 	43	 
	 
	 	 	 	 
	ARTICLE III Representations and Warranties
	 	 	45	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	45	 
	SECTION 3.02. Authorization; Enforceability
	 	 	46	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	46	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	46	 
	SECTION 3.05. Litigation and Environmental Matters
	 	 	46	 
	SECTION 3.06. Compliance with Laws
	 	 	47	 
	SECTION 3.07. Investment and Holding Company Status
	 	 	47	 
	SECTION 3.08. Taxes
	 	 	47	 
	SECTION 3.09. ERISA
	 	 	47	 
	SECTION 3.10. Disclosure
	 	 	47	 
	SECTION 3.11. Subsidiaries
	 	 	47	 
	SECTION 3.12. Margin Securities
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IV Conditions
	 	 	48	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	48	 
	SECTION 4.02. Each Credit Event
	 	 	49	 






i









 








	 	 	 	 	 
	ARTICLE V Affirmative Covenants
	 	 	49	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	50	 
	SECTION 5.02. Notices of Material Events
	 	 	50	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	51	 
	SECTION 5.04. Maintenance of Properties; Insurance
	 	 	51	 
	SECTION 5.05. Books and Records; Inspection Rights
	 	 	51	 
	SECTION 5.06. Compliance with Laws
	 	 	51	 
	SECTION 5.07. Use of Proceeds and Letters of Credit
	 	 	51	 
	SECTION 5.08. Environmental Matters
	 	 	51	 
	SECTION 5.09. ERISA Information
	 	 	52	 
	SECTION 5.10. Taxes
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VI Negative Covenants
	 	 	52	 
	 
	SECTION 6.01. Indebtedness
	 	 	52	 
	SECTION 6.02. Liens
	 	 	53	 
	SECTION 6.03. Fundamental Changes
	 	 	53	 
	SECTION 6.04. Investment Restriction
	 	 	54	 
	SECTION 6.05. Restricted Payments
	 	 	54	 
	SECTION 6.06. Restrictive Agreements
	 	 	54	 
	SECTION 6.07. Financial Condition Covenants
	 	 	55	 
	SECTION 6.08. Asset Dispositions
	 	 	56	 
	SECTION 6.09. Affiliate Transactions
	 	 	57	 
	 
	 	 	 	 
	ARTICLE VII Events of Default
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VIII The Administrative Agent
	 	 	60	 
	 
	 	 	 	 
	ARTICLE IX Miscellaneous
	 	 	62	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	62	 
	SECTION 9.02. Waivers; Amendments
	 	 	64	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	65	 
	SECTION 9.04. Successors and Assigns
	 	 	66	 
	SECTION 9.05. Survival
	 	 	69	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	69	 
	SECTION 9.07. Severability
	 	 	70	 
	SECTION 9.08. Right of Setoff
	 	 	70	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	70	 
	SECTION 9.10. Waiver of Jury Trial
	 	 	71	 
	SECTION 9.11. Headings
	 	 	71	 
	SECTION 9.12. Confidentiality
	 	 	71	 
	SECTION 9.13. Interest Rate Limitation
	 	 	72	 
	SECTION 9.14. Liability of General Partner
	 	 	72	 
	SECTION 9.15. USA Patriot Act Notice
	 	 	72	 
	SECTION 9.16. No Advisory or Fiduciary Responsibility
	 	 	72	 
	SECTION 9.17. Existing Credit Facility
	 	 	73	 






ii









 





SCHEDULES:




Schedule 2.01 — Revolving Credit Commitments and Term Loan Amounts

Schedule 3.05 — Disclosed Matters

Schedule 3.11 — Subsidiaries

Schedule 6.01 — Existing Indebtedness

Schedule 6.02 — Existing Liens

Schedule 6.09 — Affiliate Agreements




EXHIBITS:




Exhibit A — Form of Assignment and Acceptance

Exhibit B-1 — Form of Revolving Borrowing Request

Exhibit B-2 — Form of Term Loan Borrowing Request

Exhibit C — Form of Interest Election Request

Exhibit D-1 — Form of Opinion of Stephanie Hildebrandt, in-house counsel for Borrower

Exhibit D-2 — Form of Opinion of Bracewell & Giuliani LLP, Borrower’s Counsel

Exhibit E — Form of Compliance Certificate

Exhibit F-1 — Form of Revolving Loan Note

Exhibit F-2 — Form of Term Loan Note

Exhibit F-3 — Form of Swingline Loan Note




iii









 





     REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of October 25, 2010, among DUNCAN ENERGY
PARTNERS L.P., a Delaware limited partnership; the LENDERS party hereto; WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent and Swingline Lender; the ISSUING BANKS party hereto,
CITIBANK, N.A., DNB NOR BANK ASA and THE ROYAL BANK OF SCOTLAND PLC, as Co-Syndication Agents,
SCOTIA CAPITAL, BARCLAYS BANK PLC and MIZUHO CORPORATE BANK, LTD., as Co-Documentation Agents.



W I T N E S S E T H




     Borrower, Wells Fargo Bank, National Association, as administrative agent, and other agents
and lenders are parties to the Existing Credit Facility, and Borrower, Administrative Agent and
Lenders desire to amend and restate the Existing Credit Facility and renew and extend the
Indebtedness under the Existing Credit Facility as set forth herein.



     In consideration of the mutual covenants and agreements contained herein and in consideration
of the Loans which may hereafter be made by Lenders and the Letters of Credit which may be made
available by Issuing Banks to Borrower and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



ARTICLE I




Definitions



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



     “ABR”, when used in reference to any Loan or Borrowing, refers to a Loan, or Loans, in
the case of a Borrowing, which bear interest at a rate determined by reference to the Alternate
Base Rate.



     “Administrative Agent” means Wells Fargo Bank, National Association, in its capacity
as administrative agent for the Lenders hereunder.



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



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



     “Agreement” means this Revolving Credit and Term Loan Agreement dated October 25,
2010, among Duncan Energy Partners L.P., a Delaware limited partnership; the Lenders party
hereto; Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender;
the Issuing Banks party hereto, and the Co-Syndication Agents and Co-Documentation Agents, as
amended, extended or otherwise modified from time to time.



     “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such



1









 







day plus 1/2 of 1% and (c) the LIBO Market Index Rate in effect on such day plus 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
LIBO Market Index Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Federal Funds Effective Rate or the LIBO Market Index Rate, respectively.



     “Applicable Rate” means, for any day, with respect to any Eurodollar Revolving Loan,
or with respect to the facility fees payable hereunder, as the case may be:



     (a) Leverage Based. Prior to Moody’s, S&P or Fitch establishing a rating for the
Index Debt, the applicable rate per annum set forth below under the caption “Eurodollar Spread”,
“ABR Spread” or “Facility Fee Rate”, as the case may be, based upon the Leverage Ratio as set forth
in the most recent compliance certificate received by the Administrative Agent pursuant to Section
5.01(d):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolver	 	 	Term Loan	 
	 	 	Facility	 	 	Eurodollar	 	 	ABR	 	 	Eurodollar	 	 	ABR	 
	Leverage Ratio	 	Fee Rate	 	 	Spread	 	 	Spread	 	 	Spread	 	 	Spread	 
	≤ 3.50 to 1.00
	 	 	0.250	%	 	 	1.750	%	 	 	0.750	%	 	 	2.000	%	 	 	1.000	%
	> 3.50 to 1.00 but


≤ 4.25 to 1.00
	 	 	0.350	%	 	 	1.900	%	 	 	0.900	%	 	 	2.250	%	 	 	1.250	%
	> 4.25 to 1.00 but


≤ 5.00 to 1.00
	 	 	0.450	%	 	 	1.925	%	 	 	0.925	%	 	 	2.375	%	 	 	1.375	%
	> 5.00 to 1.00
	 	 	0.550	%	 	 	2.200	%	 	 	1.200	%	 	 	2.750	%	 	 	1.750	%





Any increase or decrease in the Applicable Rate resulting from a change in the Leverage Ratio shall
become effective as of the first Business Day immediately following the date a compliance
certificate is delivered pursuant to Section 5.01(d); provided, however, that if a
compliance certificate is not delivered when due in accordance with such Section, a Leverage Ratio
> 5.00 to 1.00 shall apply as of the first Business Day after the date on which such compliance
certificate was required to have been delivered.




     (b) Ratings Based. Upon Moody’s, S&P or Fitch establishing a rating for the Index
Debt (subject to the immediately following paragraph of this clause (b)), the applicable rate per
annum set forth below under the caption “Eurodollar Spread”, “ABR Spread” or “Facility Fee Rate”,
as the case may be, based upon the ratings by Moody’s, S&P and/or Fitch, respectively, applicable
on such date to the Index Debt:



2









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolver	 	 	Term Loan	 
	Index Debt Ratings:	 	Facility	 	 	Eurodollar	 	 	ABR	 	 	Eurodollar	 	 	ABR	 
	Moody’s/S&P/Fitch	 	Fee Rate	 	 	Spread	 	 	Spread	 	 	Spread	 	 	Spread	 
	Category
1


≥ BBB+ / Baa1 /
BBB+
	 	 	0.200	%	 	 	1.550	%	 	 	0.550	%	 	 	1.750	%	 	 	0.750	%
	Category
2


BBB / Baa2 / BBB
	 	 	0.250	%	 	 	1.750	%	 	 	0.750	%	 	 	2.000	%	 	 	1.000	%
	Category
3


BBB- / Baa3 / BBB-
	 	 	0.375	%	 	 	2.000	%	 	 	1.000	%	 	 	2.375	%	 	 	1.375	%
	Category
4


BB+ / Ba1 / BB+
	 	 	0.600	%	 	 	2.150	%	 	 	1.150	%	 	 	2.750	%	 	 	1.750	%





For purposes of the foregoing, (i) if only one of Moody’s, S&P and Fitch shall have in effect a
rating for the Index Debt, or if only two of Moody’s, S&P and Fitch shall have in effect a rating
for the Index Debt, and such ratings fall within the same Category, then the other two rating
agencies, or other rating agency, shall be deemed to have established a rating in the same Category
as such agency or agencies; (ii) if only two of Moody’s, S&P and Fitch shall have in effect a
rating for the Index Debt, and such ratings shall fall within different Categories, the Applicable
Rate shall be based on the higher of the two ratings; (iii) if each of Moody’s, S&P and Fitch shall
have in effect a rating for the Index Debt, and such ratings shall fall within different
Categories, the Applicable Rate shall be based on (x) the majority rating, if two of such ratings
fall within the same Category, or (y) the middle rating, if all three of such ratings fall within
different Categories, (iv) if the ratings established or deemed to have been established by
Moody’s, S&P and/or Fitch for the Index Debt shall be changed (other than as a result of a change
in the rating system of Moody’s, S&P or Fitch), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change.




     (c) Ratings Changes or Unavailability. If the rating system of Moody’s, S&P or Fitch
shall change, or if any such rating agency shall cease to be in the business of rating corporate
debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such change or cessation.



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



     “Applicable Term Loan Percentage” means, with respect to any Lender, the percentage of
the total outstanding principal amount of Term Loans represented by such Lender’s Term Loan.



3









 





     “Assignment and Acceptance” means an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, substantially in the form of Exhibit A or any other form
approved by the Administrative Agent.



     “Attributable Indebtedness” with respect to any Sale/Leaseback Transaction, means, as
at the time of determination, the present value (discounted at the rate set forth or implicit in
the terms of the lease included in such transaction) of the total obligations of the lessee for
rental payments (other than amounts required to be paid on account of property taxes, maintenance,
repairs, insurance, assessments, utilities, operating and labor costs and other items that do not
constitute payments for property rights) during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been extended). In the
case of any lease that is terminable by the lessee upon the payment of a penalty or other
termination payment, such amount shall be the lesser of the amount determined assuming termination
upon the first date such lease may be terminated (in which case the amount shall also include the
amount of the penalty or termination payment, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so terminated) or the
amount determined assuming no such termination.



     “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Revolving Credit Maturity Date and the date of termination of the
Revolving Credit Commitments.



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



     “Borrower” means Duncan Energy Partners L.P., a Delaware limited partnership.



     “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) Term Loans of the same Type, made, converted or continued on the same date and, in the
case of Eurodollar Loans, as to which a single Interest Period is in effect, or (c) a Swingline
Loan.



     “Borrowing Request” means (a) a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03, and being in the form of attached Exhibit B-1 or (b) the request by
the Borrower for the Term Loan Borrowing in accordance with Section 2.03, and being in the form of
attached Exhibit B-2.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term
“Business Day” shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.



     “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount



4









 




of such obligations shall be the capitalized amount thereof determined in accordance with
GAAP.




     “CERCLA” means the Comprehensive Environmental, Response, Compensation, and Liability
Act of 1980, as amended.



     “Change in Control” means the occurrence of any of the following events:



     (i) Enterprise Products Partners shall cease to own, directly or indirectly, all of the
membership interests (including all securities which are convertible into membership interests) of
General Partner;



     (ii) Continuing Directors cease for any reason to constitute collectively a majority of the
members of the board of directors of Enterprise Products GP then in office;



     (iii) any Person or related Persons constituting a group (as such term is used in Rule 13d-5
under the Securities Exchange Act of 1934, as amended) obtains direct or indirect beneficial
ownership interest in Enterprise Products GP greater than the direct or indirect beneficial
ownership interests of EPCO and its Affiliates in Enterprise Products GP; or



     (iv) Enterprise Products Partners and Enterprise Products OLPGP, Inc. shall cease to own,
directly or indirectly, all of the Equity Interests (including all securities which are convertible
into Equity Interests) of Enterprise Products OLLC.


As used herein, “Continuing Director” means any member of the board of directors of
Enterprise Products GP who (x) is a member of such board of directors as of the date hereof (or, if
EPE Holdings, LLC is the Enterprise Products GP, as of the date it became the Enterprise Products
GP) or (y) was nominated for election or elected to such board of directors with the approval of a
majority of the Continuing Directors who were members of such board at the time of such nomination
or election.




     “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or Swingline Loans.



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



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



     “Consolidated EBITDA” means for any period, the sum of (a) the consolidated net income
of the Borrower and its consolidated Subsidiaries (excluding Project Finance Subsidiaries) for such
period plus, to the extent deducted in determining consolidated net income



5









 




for such period, the aggregate amount of (i) interest expense of the Borrower and its
consolidated Subsidiaries (excluding Project Finance Subsidiaries), determined on a consolidated
basis for such period, excluding interest expense of each non-wholly owned Subsidiary to the extent
such interest expense is not attributable to the Borrower’s direct or indirect ownership interest
in such Subsidiary, unless the Borrower or another Subsidiary has given a Guarantee of the
obligations to which such interest expense relates, in which case all of such interest expense, to
the extent not eliminated in consolidation, shall be included in interest expense and none of such
interest expense, except to the extent eliminated in consolidation, shall be excluded, (ii) income
or gross receipts tax (or franchise tax or margin tax in the nature of an income or gross receipts
tax) expense, (iii) depreciation and amortization expense of the Borrower and its wholly-owned
Subsidiaries, (iv) depreciation and amortization expense of each non-wholly owned Subsidiary
multiplied by the Borrower’s direct or indirect ownership percentage of the Equity Interests in
each such Subsidiary, (v) parent interest associated with Enterprise Products OLLC’s (or its
successor’s) limited partnership and general partnership interest in the Borrower, (vi) any special
earnings or loss allocation from a non-wholly owned Subsidiary to Enterprise Products OLLC or its
Subsidiaries (or any of their respective successors) for which the Borrower does not have a payment
obligation and (vii) non-cash charges, minus (b) equity in earnings from unconsolidated
subsidiaries of the Borrower, plus (c) the amount of cash dividends actually received
during such period by the Borrower or a Subsidiary (other than a Project Finance Subsidiary) from a
Project Finance Subsidiary or unconsolidated subsidiaries, plus (d) the amount of all
payments during such period on leases of the type referred to in clause (d) of the definition
herein of Indebtedness and the amount of all payments during such period under other off-balance
sheet loans and financings of the type referred to in such clause (d), minus (e) the amount
of any cash dividends, repayments of loans or advances, releases or discharges of guarantees or
other obligations or other transfers of property or returns of capital previously received by the
Borrower or a Subsidiary (other than a Project Finance Subsidiary) from a Project Finance
Subsidiary that during such period were either (x) recovered pursuant to recourse provisions with
respect to a Project Financing at such Project Finance Subsidiary or (y) reinvested by the Borrower
or a Subsidiary in such Project Finance Subsidiary, minus (f) non-cash gains.




     “Consolidated Indebtedness” means the Indebtedness of the Borrower and its
consolidated Subsidiaries (excluding Project Finance Subsidiaries) including, without duplication,
guaranties of funded debt, determined on a consolidated basis as of such date.



     “Consolidated Interest Expense” means for any period, the interest expense of the
Borrower and its consolidated Subsidiaries (excluding Project Finance Subsidiaries), determined on
a consolidated basis for such period, excluding (i) amortization in accordance with GAAP of
transaction costs associated with the issuance of Indebtedness, (ii) interest expense of each
non-wholly owned Subsidiary in an amount equal to the aggregate ownership percentage of such
Subsidiary’s Equity Interests by owners other than the Borrower, unless the Borrower or another
Subsidiary has given a Guarantee of such Indebtedness, in which case all of such interest expense,
to the extent not eliminated in consolidation, shall be included in Consolidated Interest Expense
and none of such interest expense, except to the extent eliminated in consolidation, shall be
excluded, and (iii) any changes in the fair market value of interest rate hedges, determined on a
consolidated basis for such period.



     “Consolidated Net Tangible Assets” means, at any date of determination, the total
amount of assets of the Borrower and its consolidated subsidiaries after deducting therefrom:



6









 





     (a) all current liabilities (excluding (A) any current liabilities that by their terms are
extendable or renewable at the option of the obligor thereon to a time more than 12 months after
the time as of which the amount thereof is being computed, and (B) current maturities of long-term
debt); and



     (b) the value (net of any applicable reserves) of all goodwill, trade names, trademarks,
patents and other like intangible assets, all as set forth, or on a pro forma basis would be set
forth, on the consolidated balance sheet of the Borrower and its consolidated subsidiaries for the
Borrower’s most recently completed fiscal quarter, prepared in accordance with GAAP.



     “Consolidated Net Worth” means as to any Person, at any date of determination, the sum
of (i) preferred stock (if any), (ii) an amount equal to (a) the face amount of outstanding Hybrid
Securities not in excess of 15% of Consolidated Total Capitalization times (b) sixty-two
and one-half percent (62.5%), (iii) par value of common stock, (iv) capital in excess of par value
of common stock, (v) partners’ capital or equity, and (vi) retained earnings, less treasury stock
(if any), of such Person, all as determined on a consolidated basis.



     “Consolidated Total Capitalization” means the sum of (i) Consolidated Indebtedness and
(ii) Borrower’s Consolidated Net Worth.



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



     “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



     “Defaulting Lender” means, subject to Section 2.21(b), any Lender that (a) has failed
to perform any of its funding obligations hereunder, including in respect of its Revolving Loans or
participations in respect of Letters of Credit or Swingline Loans, within three Business Days of
the date required to be funded by it hereunder, (b) has notified the Borrower, or the
Administrative Agent that it does not intend to comply with its funding obligations or has made a
public statement to that effect with respect to its funding obligations hereunder or generally
under other agreements in which it commits to extend credit, (c) has failed, within three Business
Days after written request by the Administrative Agent, to confirm in writing that it will comply
with its funding obligations; provided that any such Lender shall cease to be a Defaulting
Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent, or (d)
has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) had a
receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or a custodian appointed for it,
or (iii) taken any action in furtherance of, or indicated its consent to, approval of or
acquiescence in any such proceeding or appointment; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that
Lender or any direct or indirect parent company thereof, or the exercise of control over such
Lender or direct or indirect parent company thereof, by a Governmental Authority.



7









 





     “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.05.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale/Leaseback Transaction) of any assets or property by the Borrower or
any Subsidiary (including the Equity Interests of any Subsidiary), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.



     “dollars” or “$” refers to lawful money of the United States of America.



     “Effective Date” means the date hereof.



     “Enterprise GP Holdings” means Enterprise GP Holdings L.P., a publicly traded Delaware
limited partnership that as of the Effective Date owns Enterprise Products GP.



     “Enterprise Products GP” means, as applicable, (i) Enterprise Products GP, LLC, a
Delaware limited liability company, which as of the Effective Date is the general partner of
Enterprise Products Partners or (ii) EPE Holdings, LLC, a Delaware limited liability company, which
is to become the general partner of Enterprise Products Partners after the Effective Date.



     “Enterprise Products OLLC” means Enterprise Products Operating LLC, a Texas limited
liability company, successor-in-interest to Enterprise Products Operating L.P., a Delaware limited
partnership, which as of the Effective Date is the operating entity of Enterprise Products Partners
and a wholly-owned subsidiary of Enterprise Products Partners.



     “Enterprise Products Partners” means Enterprise Products Partners L.P., a Delaware
limited partnership.



     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



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



     “EPCO” means EPCO, Inc., a Delaware corporation, which as of the Effective Date is an
Affiliate of Enterprise Products Partners.



     “Equity Interest” means shares of the capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in any Person, or any warrants, options or other rights to acquire such interests.



8









 





     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.



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



     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.



     “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of
the Board, as in effect from time to time.



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to a Loan, or
Loans, in the case of a Borrowing, which bear interest at a rate determined by reference to the
LIBO Rate.



     “Eurodollar Rate Reserve Percentage” of any Lender for any Interest Period for each
Eurodollar Revolving Borrowing or Eurodollar Term Loan Borrowing means the reserve percentage
applicable during such Interest Period (or if more than one such percentage shall be so applicable,
the daily average of such percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to time by the Board for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest
Period.



     “Evangeline” means Evangeline Gas Pipeline Company, L.P. and Evangeline Gas Corp.,
which as of the Effective Date are unconsolidated Affiliates of the Borrower.



     “Event of Default” has the meaning assigned to such term in Article VII.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any



9









 




obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, by any state thereof or the District of
Columbia or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America, any state thereof
or the District of Columbia or any similar tax imposed by any other jurisdiction in which the
Administrative Agent, such Lender or such other recipient is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Lender’s failure to comply with Section 2.17(e).




     “Existing Credit Facility” means the Revolving Credit Agreement dated January 5, 2007
among Wells Fargo Bank, National Association, successor-by-merger to Wachovia Bank, National
Association, as administrative agent, and the lenders named therein, as amended.



     “FATCA” means the Foreign Account Tax Compliance Act, sections 1471 through 1474 of
the Code, and any regulations or official interpretations thereof.



     “Federal Funds Effective Rate” means, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business Day, the average
of the quotations for such day for such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.



     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.



     “Fitch” means Fitch, Inc.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than the United States of America, any state thereof or the District of Columbia.



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the Issuing Banks, such Defaulting Lender’s LC Exposure other than LC Exposure as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders or secured by
cash collateral in accordance with the terms hereof, and (b) with respect to the Swingline Lender,
such Defaulting Lender’s Swingline Exposure other than Swingline Exposure as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders or secured by
cash collateral in accordance with the terms hereof.



     “GAAP” means generally accepted accounting principles in the United States of America.



     “General Partner” means DEP Holdings, LLC, a Delaware limited liability company, which
as of the Effective Date is the general partner of the Borrower and a wholly-owned Subsidiary of
Enterprise Products OLLC.



10









 





     “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.



     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the ordinary course of
business.



     “Haynesville Extension” means the expansion of the Acadian gas system extending
Borrower’s Louisiana intrastate natural gas pipeline system into northwest Louisiana and the
Haynesville shale production area, expected to be completed by September 30, 2011.



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



     “Hedging Agreement” means a financial instrument or security which is used as a cash
flow or fair value hedge to manage the risk associated with a change in interest rates, foreign
currency exchange rates or commodity prices.



     “Hybrid Securities” means any trust preferred securities, or deferrable interest
subordinated debt with a maturity of at least 20 years, which provides for the optional or
mandatory deferral of interest or distributions, issued by the Borrower, or any business trusts,
limited liability companies, limited partnerships or similar entities (i) substantially all of the
common equity, general partner or similar interests of which are owned (either directly or
indirectly through one or more wholly owned Subsidiaries) at all times by the Borrower or any of
its Subsidiaries, (ii) that have been formed for the purpose of issuing hybrid securities or
deferrable interest subordinated debt, and (iii) substantially all the assets of which consist of
(A) subordinated debt of the Borrower or a Subsidiary of the Borrower, and (B) payments made from
time to time on the subordinated debt.



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for the repayment of money borrowed which are or should be shown on a balance sheet as debt
in accordance with GAAP, (b) obligations of such Person as lessee under leases which, in accordance
with GAAP, are capital leases, (c) guaranties of such Person of payment or collection



11









 




of any obligations described in clauses (a) and (b) of other Persons; and (d) all obligations
of such Person under any synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing if the obligation under such synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing, as the case may be,
is considered indebtedness for borrowed money for tax purposes but is classified as an operating
lease in accordance with GAAP; provided, that (i) clauses (a) and (b) include, in the case
of obligations of the Borrower or any Subsidiary, only such obligations as are or should be shown
as debt or capital lease liabilities on a consolidated balance sheet of the Borrower in accordance
with GAAP, (ii) clause (c) includes, in the case of guaranties granted by the Borrower or any
Subsidiary, only such guaranties of obligations of another Person that are or should be shown as
debt or capital lease liabilities on a consolidated balance sheet of such Person in accordance with
GAAP, and (iii) the liability of any Person as a general partner of a partnership for Indebtedness
of such partnership, if such partnership is not a Subsidiary of such Person, shall not constitute
Indebtedness.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Index Debt” means senior, unsecured, non-credit enhanced Indebtedness of the
Borrower.



     “Information Memorandum” means the Confidential Information Memorandum dated October,
2010 relating to the Borrower and the Transactions.



     “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing or Term Loan Borrowing in accordance with Section 2.08, and being in the form
of attached Exhibit C.



     “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three (3) months’
duration, each day that occurs an integral multiple of three (3) months after the first day of such
Interest Period, and (c) with respect to any Swingline Loan, the day that such Loan is required to
be repaid.



     “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (and, if available to all Lenders, 12 months)
thereafter, as the Borrower may elect; provided, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar Borrowing
that commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes of this
definition, the date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing or Term Loan Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.



12









 





     “Issuing Bank” means each of Wells Fargo Bank, National Association, Citibank, N.A.,
DnB NOR Bank ASA and The Royal Bank of Scotland plc, in its capacity as an issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section 2.06(i);
provided, that, for purposes of the Existing Letters of Credit, the term “Issuing
Bank” shall mean Wells Fargo Bank, National Association, in its capacity as issuer of the Existing
Letters of Credit under the Existing Credit Facility. An Issuing Bank may arrange for one or more
Letters of Credit to be issued by Affiliates of such Issuing Bank if the Borrower (in its sole
discretion) approves such arrangement in writing, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
Administrative Agent may, with the consent of the Borrower and the Lender in question, appoint any
Lender hereunder as an Issuing Bank in place of or in addition to the initial Issuing Banks listed
above.



     “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.



     “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Revolving Credit Percentage of the total LC Exposure
at such time.



     “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Acceptance or pursuant to Section 2.01(b),
other than any such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance or pursuant to Section 2.01(c). Unless the context otherwise requires, the term
“Lenders” includes the Swingline Lender.



     “Letter of Credit” means, collectively, the Existing Letters of Credit and any letter
of credit issued pursuant to this Agreement.



     “Leverage Ratio” shall have the meaning given such term in Section 6.07(b).



     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
(a) the rate per annum appearing at Reuters Reference LIBOR01 page (or on any successor thereto or
substitute therefor provided by Reuters, providing rate quotations comparable to those currently
provided on such page, as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest
Period; (b) if for any reason the rate specified in clause (a) of this definition does not so
appear at Reuters Reference LIBOR01 page (or any successor thereto or substitute therefor provided
by Reuters), the rate per annum appearing on Bloomberg Financial Markets Service (or any successor
thereto) as the London interbank offered rate for deposits in dollars at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period for a maturity
comparable to such Interest Period; and (c) if the rate specified in clause (a) of this definition
does not so appear at Reuters Reference LIBOR01 page (or any successor thereto or substitute
therefor provided by Reuters) and if no rate specified in clause (b) of this definition so appears
on Bloomberg Financial Markets Service (or any successor thereto), the average of the interest
rates per annum at which dollar deposits of $5,000,000 and for a



13









 




maturity comparable to such Interest Period are offered by the respective principal London
offices of the Reference Banks in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period.




     “LIBO Market Index Rate” means, for any day, with respect to any LMIR Borrowing or
LMIR Loan (a) the rate per annum appearing at Reuters Reference LIBOR01 page (or on any successor
thereto or substitute therefor provided by Reuters, providing rate quotations comparable to those
currently provided on such page, as determined by the Administrative Agent (or, as to Swingline
Loans, the Swingline Lender) from time to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time for such day, provided, if such day is not a Business Day, the immediately preceding
Business Day, as the rate for dollar deposits with a one-month maturity; (b) if for any reason the
rate specified in clause (a) of this definition does not so appear at Reuters Reference LIBOR01
page (or any successor thereto or substitute therefor provided by Reuters), the rate per annum
appearing on Bloomberg Financial Markets Service (or any successor thereto) as the London interbank
offered rate for deposits in dollars at approximately 11:00 a.m., London time, for such day,
provided, if such day is not a Business Day, the immediately preceding Business Day, for a
one-month maturity; and (c) if the rate specified in clause (a) of this definition does not so
appear at Reuters Reference LIBOR01 page (or any successor thereto or substitute therefor provided
by Reuters) and if no rate specified in clause (b) of this definition so appears on Bloomberg
Financial Markets Service (or any successor thereto), the average of the interest rates per annum
at which dollar deposits of $5,000,000 and for a one-month maturity are offered by the respective
principal London offices of the Reference Banks in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, for such day.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities. For avoidance of doubt,
operating leases are not “Liens”.



     “LMIR”, when used in reference to any Loan or Borrowing, refers to a Loan, or Loans,
in the case of a Borrowing, which bear interest at a rate determined by reference to the LIBO
Market Index Rate.



     “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.



     “Material Adverse Change” means a material adverse change, from that in effect on June
30, 2010, in the financial condition or results of operations of the Borrower and its consolidated
Subsidiaries taken as a whole, as indicated in the most recent quarterly or annual financial
statements.



     “Material Adverse Effect” means a material adverse effect on the financial condition
or results of operations of the Borrower and its consolidated Subsidiaries taken as a whole, as
indicated in the most recent quarterly or annual financial statements.



14









 





     “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), of any one or more of the Borrower and its Subsidiaries (other than Project Finance
Subsidiaries) in an aggregate principal amount exceeding $25,000,000.



     “Material Project” means the construction or expansion of any capital project of the
Borrower or any of its Subsidiaries, the aggregate capital cost of which exceeds $25,000,000.



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



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



     (B) beginning with the first full fiscal quarter following the Commercial Operation Date of a
Material Project and for the two immediately succeeding fiscal quarters, an amount to be approved
by the Administrative Agent as the projected Consolidated EBITDA of Borrower and its Subsidiaries
attributable to such Material Project (determined in the same manner as set forth in clause (A)
above) for the balance of the four full fiscal quarter period following such Commercial Operation
Date, which may, at the Borrower’s option, be added to actual Consolidated EBITDA for the Borrower
and its Subsidiaries for such fiscal quarters.



     Notwithstanding the foregoing:



     (i) no such additions shall be allowed with respect to any Material Project unless:




     (a) not later than 30 days prior to the delivery of any certificate required by the
terms and provisions of Section 5.01(d) to the extent Material Project EBITDA



15









 







Adjustments will be made to Consolidated EBITDA in determining compliance with Section
6.07(b), the Borrower shall have delivered to the Administrative Agent written pro forma
projections of Consolidated EBITDA of the Borrower and its Subsidiaries attributable to such
Material Project and




     (b) prior to the date such certificate is required to be delivered, the Administrative
Agent shall have approved (such approval not to be unreasonably withheld) such projections
and shall have received such other information and documentation as the Administrative Agent
may reasonably request, all in form and substance satisfactory to the Administrative Agent,
and



     (ii) (a) Prior to the first full fiscal quarter following the Commercial Operations Date of
the Haynesville Extension, during any period that includes Material Project EBITDA Adjustments for
the Haynesville Extension, the aggregate amount of all Material Project EBITDA Adjustments shall be
limited to 35% of actual Consolidated EBITDA of the Borrower and its Subsidiaries for such period
(which total actual Consolidated EBITDA shall be determined without including any Material Project
EBITDA Adjustments);




     (b) for the 3 full fiscal quarters following the Commercial Operations Date of the
Haynesville Extension (1) any Material Project EBITDA Adjustments with respect to such
project shall be based solely on contracted volumes with long-term contracts, and (2) the
aggregate amount of all Material Project EBITDA Adjustments during such period, other than
Material Project EBITDA Adjustments with respect to such project as provided in clause (1),
shall be limited to 20% of actual Consolidated EBITDA (calculated excluding all Material
Project EBITDA Adjustments) for such period; and




     (c) thereafter, the aggregate amount of all Material Project EBITDA Adjustments during
any period shall be limited to 20% of actual Consolidated EBITDA (calculated excluding all
Material Project EBITDA Adjustments) for such period.



     “Material Subsidiary” means each Subsidiary of the Borrower that, as of the last day
of the fiscal year of the Borrower most recently ended prior to the relevant determination of
Material Subsidiaries, has a net worth determined in accordance with GAAP that is greater than 10%
of the Consolidated Net Worth of the Borrower as of such day.



     “Moody’s” means Moody’s Investors Service, Inc.



     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “Notes” means any promissory notes issued by Borrower pursuant to Section 2.10(e).



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



16









 





     “Partnership Agreement” means the Agreement of Limited Partnership of the Borrower
among the General Partner and limited partners substantially in the form provided to the Lenders,
as amended, modified and supplemented from time to time.



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



     “Permitted Liens” means:



     (a) liens upon rights-of-way for pipeline purposes;



     (b) any statutory or governmental lien or lien arising by operation of law, or any mechanics’,
repairmen’s, materialmen’s, suppliers’, carriers’, landlords’, warehousemen’s or similar lien
incurred in the ordinary course of business which is not yet due or which is being contested in
good faith by appropriate proceedings and any undetermined lien which is incidental to
construction, development, improvement or repair; or any right reserved to, or vested in, any
municipality or public authority by the terms of any right, power, franchise, grant, license,
permit or by any provision of law, to purchase or recapture or to designate a purchaser of, any
property;



     (c) liens for taxes and assessments which are (i) for the then current year, (ii) not at the
time delinquent, or (iii) delinquent but the validity or amount of which is being contested at the
time by the Borrower or any Subsidiary in good faith by appropriate proceedings;



     (d) liens of, or to secure performance of, leases, other than capital leases, or any lien
securing industrial development, pollution control or similar revenue bonds;



     (e) any lien upon property or assets acquired or sold by the Borrower or any Subsidiary
resulting from the exercise of any rights arising out of defaults on receivables;



     (f) any lien in favor of the Borrower or any wholly-owned Subsidiary;



     (g) any lien in favor of the United States of America or any state thereof, or any department,
agency or instrumentality or political subdivision of the United States of America or any state
thereof, to secure partial, progress, advance, or other payments pursuant to any contract or
statute, or any debt incurred by the Borrower or any Subsidiary for the purpose of financing all or
any part of the purchase price of, or the cost of constructing, developing, repairing or improving,
the property or assets subject to such lien;



     (h) any lien incurred in the ordinary course of business in connection with workmen’s
compensation, unemployment insurance, temporary disability, social security, retiree health or
similar laws or regulations or to secure obligations imposed by statute or governmental
regulations;



     (i) liens in favor of any Person to secure obligations under provisions of any letters of
credit, bank guarantees, bonds or surety obligations required or requested by any governmental
authority in connection with any contract or statute; or any lien upon or deposits of any assets to
secure performance of bids, trade contracts, leases or statutory obligations;



     (j) any lien upon any property or assets created at the time of acquisition of such property
or assets by the Borrower or any Subsidiary or within one year after such time to secure



17









 




all or a portion of the purchase price for such property or assets or debt incurred to finance
such purchase price, whether such debt was incurred prior to, at the time of or within one year
after the date of such acquisition; or any lien upon any property or assets to secure all or part
of the cost of construction, development, repair or improvements thereon or to secure debt incurred
prior to, at the time of, or within one year after completion of such construction, development,
repair or improvements or the commencement of full operations thereof (whichever is later), to
provide funds for any such purpose;




     (k) any lien upon any property or assets (i) existing thereon at the time of the acquisition
thereof by the Borrower or any Subsidiary, (ii) existing thereon at the time such Person becomes a
Subsidiary by acquisition, merger or otherwise, or (iii) acquired by any Person after the time such
Person becomes a Subsidiary by acquisition, merger or otherwise, to the extent such lien is created
by security documents existing at the time such Person becomes a Subsidiary and not added to such
security documents in contemplation thereof;



     (l) liens imposed by law or order as a result of any proceeding before any court or regulatory
body that is being contested in good faith, and liens which secure a judgment or other
court-ordered award or settlement as to which the Borrower or the applicable Subsidiary has not
exhausted its appellate rights;



     (m) any extension, renewal, refinancing, refunding or replacement (or successive extensions,
renewals, refinancing, refunding or replacements) of liens, in whole or in part, referred to in
clauses (a) through (l) above; provided, however, that any such extension, renewal, refinancing,
refunding or replacement lien shall be limited to the property or assets covered by the lien
extended, renewed, refinanced, refunded or replaced and that the obligations secured by any such
extension, renewal, refinancing, refunding or replacement lien shall be in an amount not greater
than the amount of the obligations secured by the lien extended, renewed, refinanced, refunded or
replaced and any expenses of the Borrower and its Subsidiaries (including any premium) incurred in
connection with such extension, renewal, refinancing, refunding or replacement;



     (n) any lien resulting from the deposit of moneys or evidence of indebtedness in trust for the
purpose of defeasing debt of the Borrower or any Subsidiary;



     (o) the liens upon the property and assets of Evangeline and other liens and encumbrances,
including any rights of first refusal, as set forth on Schedule 6.02; or



     (p) other liens incurred in the ordinary course of business securing up to $25,000,000 of
Indebtedness of the Borrower and its Subsidiaries in the aggregate at any time outstanding;
provided, such secured Indebtedness of the Borrower shall not exceed $10,000,000 in the
aggregate at any time outstanding.



     “Permitted Sale/Leaseback Transactions” means any Sale/Leaseback Transaction:



     (a) which occurs within one year from the date of completion of the acquisition of the
property subject thereto or the date of the completion of construction, development or substantial
repair or improvement, or commencement of full operations on such property, whichever is later; or



18









 





     (b) involves a lease for a period, including renewals, of not more than three years; or



     (c) the Borrower or any Subsidiary would be entitled to incur Indebtedness, in a principal
amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback Transaction,
secured by a Lien on the property subject to such Sale/Leaseback Transaction pursuant to Section
6.02 without equally and ratably securing the Indebtedness under this Agreement pursuant to such
Section; or



     (d) the Borrower or any Subsidiary, within a one-year period after such Sale/Leaseback
Transaction, applies or causes to be applied an amount not less than the Attributable Indebtedness
from such Sale/Leaseback Transaction to (a) the prepayment, repayment, redemption, reduction or
retirement of any Indebtedness of the Borrower or any Subsidiary that is not subordinated to the
Indebtedness under this Agreement, or (b) the expenditure or expenditures for Principal Property
used or to be used in the ordinary course of business of the Borrower or its Subsidiaries.


Notwithstanding the foregoing provisions of this definition, any Sale/Leaseback Transaction not
covered by clauses (a) through (d), inclusive, of this definition, shall nonetheless be a Permitted
Sale/Leaseback Transaction if the Attributable Indebtedness from such Sale/Leaseback Transaction,
together with the aggregate principal amount of outstanding Indebtedness (other than Indebtedness
under this Agreement) secured by Liens other than Permitted Liens, does not exceed 10% of
Consolidated Net Tangible Assets.




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



     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by Wells Fargo Bank, National Association as its prime rate in effect. Each change in the Prime
Rate shall be effective from and including the date such change is publicly announced as being
effective.



     “Principal Property” means whether owned or leased on the date hereof or thereafter
acquired:



     (a) any pipeline assets of the Borrower or any Subsidiary, including any related facilities
employed in the transportation, distribution, storage or marketing of refined petroleum products,
natural gas liquids, and petrochemicals, that are located in the United States of America or any
territory or political subdivision thereof; and



     (b) any processing or manufacturing plant or terminal owned or leased by the Borrower or any
Subsidiary that is located in the United States or any territory or
political subdivision thereof; except, in the case of either of the foregoing clauses (a) or (b):



19









 









     (i) any such assets consisting of inventories, furniture, office fixtures and equipment
(including data processing equipment), vehicles and equipment used on, or useful with,
vehicles; and




     (ii) any such assets, plant or terminal which, in the opinion of the board of
directors, is not material in relation to the activities of the Borrower and its
subsidiaries taken as a whole.



     “Project Financing” means Indebtedness incurred by a Project Finance Subsidiary to
finance the acquisition or construction of any asset or project which Indebtedness does not permit
or provide for recourse against the Borrower or any of its Subsidiaries (other than any Project
Finance Subsidiary) and other than recourse that consists of rights to recover dividends paid by
such Project Finance Subsidiary.



     “Project Finance Subsidiaries” means a Subsidiary that is (A) created principally to
(i) construct or acquire any asset or project that will be or is financed solely with Project
Financing for such asset or project, related equity investments and any loans to, or capital
contributions in, such Subsidiary that are not prohibited hereby, (ii) own an Equity Interest in a
Project Finance Subsidiary, and/or (iii) own an interest in any such asset or project and (B)
designated as a Project Finance Subsidiary by the Borrower in writing to Administrative Agent.



     “Reference Banks” means Wells Fargo Bank, National Association and Citibank, N.A.



     “Register” has the meaning set forth in Section 9.04(c).



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



     “Required Lenders” means, at any time, Lenders having (i) Revolving Credit Exposures
and unused Revolving Credit Commitments plus (ii) the outstanding principal amount of Term Loans
representing more than 50% of the sum of (i) the total Revolving Credit Exposures and unused
Revolving Credit Commitments at such time plus (ii) the total outstanding principal amount of all
Term Loans at such time.



     “Required Revolving Lenders” means, at any time, Lenders having Revolving Credit
Exposures and unused Revolving Credit Commitments representing more than 50% of the total Revolving
Credit Exposures and unused Revolving Credit Commitments at such time.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any class of Equity Interests of the Borrower, or any
payment (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Equity Interests of the Borrower or any option, warrant or other right to
acquire any Equity Interests of the Borrower.



     “Revolving Credit Commitment” means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit and




20











 




Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to Section
2.01 or assignments by or to such Lender pursuant to Section 9.04. The initial amount of each
Lender’s Revolving Credit Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving Credit Commitment, as
applicable. The initial aggregate amount of the Lenders’ Revolving Credit Commitments is
$850,000,000.




     “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.



     “Revolving Credit Maturity Date” means the third anniversary of the Effective Date, as
may be extended pursuant to Section 2.01(c).



     “Revolving Loan” means a revolving Loan made pursuant to a Revolving Borrowing
pursuant to Section 2.03.



     “Sale/Leaseback Transaction” means any arrangement with any Person providing for the
leasing, under a lease that is not a capital lease under GAAP, by the Borrower or a Subsidiary
(other than a Project Finance Subsidiary) of any Principal Property, which property has been or is
to be sold or transferred by the Borrower or such Subsidiary to such Person in contemplation of
such leasing.



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



     “SEC” has the meaning set forth in Section 5.01(a).



     “Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests, are, as of such date, owned, controlled or held by the parent and one or
more subsidiaries of the parent.



     “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Revolving Credit Percentage of the total Swingline Exposure at such time.



     “Swingline Lender” means Wells Fargo Bank, National Association, in its capacity as
lender of Swingline Loans hereunder.



     “Swingline Loan” means a Loan made pursuant to Section 2.05.



     “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



21









 





     “Term Loan” means the term Loan made pursuant to the Term Loan Borrowing pursuant to
Section 2.03.



     “Term Loan Commitment” means, with respect to each Lender, the commitment of such
Lender to make a Term Loan hereunder, expressed as an amount representing the amount of such
Lender’s Term Loan hereunder. The amount of each Lender’s Term Loan Commitment is set forth on
Schedule 2.01. The aggregate amount of the Lenders’ Term Loan Commitments is $400,000,000.



     “Term Loan Maturity Date” means the third anniversary of the Effective Date, as may be
extended pursuant to Section 2.01(c).



     “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder.



     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
LIBO Rate or the Alternate Base Rate.



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



     SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a
“Revolving Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type
(e.g., a “Eurodollar Revolving Borrowing”).



     SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



22









 





     SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with (i) except for
purposes of Section 6.07, GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith; and (ii) for purposes
of Section 6.07, GAAP, as in effect on December 31, 2009.



ARTICLE II




The Credits



     SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Revolving Credit Commitment or (ii) the sum of
the total Revolving Credit Exposures exceeding the total Revolving Credit Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender agrees to make a Term Loan to the Borrower on the Effective Date in an aggregate principal
amount equal to such Lender’s Term Loan Commitment. The Borrower may not borrow, prepay and
reborrow Term Loans.



     (b) The Borrower shall have the right, without the consent of the Lenders but with the prior
approval of the Administrative Agent, not to be unreasonably withheld, to cause from time to time
an increase in the total Revolving Credit Commitments of the Lenders by adding to this Agreement
one or more additional Lenders or by allowing one or more Lenders to increase their respective
Revolving Credit Commitments; provided however (i) no Event of Default shall have
occurred hereunder which is continuing, (ii) no such increase shall cause the aggregate Revolving
Credit Commitments hereunder to exceed $1,150,000,000, and (iii) no Lender’s Revolving Credit
Commitment shall be increased without such Lender’s consent.



     (c) The Borrower may make a single request for a joint one-year extension of the Revolving
Credit Maturity Date and Term Loan Maturity Date by delivering a written request for same to the
Administrative Agent no earlier than 30 days prior to the first anniversary of the Effective Date
and no later than 30 days prior to the Revolving Credit Maturity Date and Term
Loan Maturity Date. Any such extension shall be effective if (i) consented to by Required
Lenders within thirty (30) days after such request, (ii) on the Revolving Credit Maturity Date and
Term Loan Maturity Date as it existed immediately before such extension (A) the Revolving Credit
Commitments of the dissenting Lenders are terminated (which termination shall be effective
automatically), (B) all amounts owing to such dissenting Lenders are paid in full (which payments
shall not be subject to Section 2.11), and (C) the total Revolving Credit Commitments are
permanently reduced by an amount equal to such dissenting Lenders’ Revolving Credit Commitments so
terminated, except to the extent that the Revolving Credit



23









 




Commitments of the dissenting Lenders
are replaced pursuant to Section 2.19(b) and/or one or more Lenders agree(s) to increase their
respective Revolving Credit Commitment(s), (iii) all conditions precedent for a Borrowing set forth
in Section 4.02 have been satisfied, and (iv) the Borrower does not withdraw its request for such
extension before the Revolving Credit Maturity Date and Term Loan Maturity Date.




     SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Revolving Credit Commitments. The Term Loans shall be made by the Lenders as a single
Borrowing on the Effective Date in accordance with their respective Term Loan Commitments. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Revolving Credit Commitments and
Term Loan Commitments of the Lenders are several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required.



     (b) Subject to Section 2.14, each Revolving Borrowing and each Term Loan Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith. Each Swingline Loan shall be an LMIR Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan in accordance with the terms of this Agreement.



     (c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing or
Eurodollar Term Loan Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR Revolving Borrowing
or ABR Term Loan Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000; provided that an ABR
Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the
total Revolving Credit Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is
an integral multiple of $100,000 and not less than $1,000,000. Borrowings of more than one Type
and Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of eight Eurodollar Revolving Borrowings or five Eurodollar Term Loan
Borrowings outstanding.



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



     SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing and the
Term Loan Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand



24









 




delivery or telecopy
to the Administrative Agent of a written Borrowing Request signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




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




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




     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.


If no election as to the Type of Revolving Borrowing or Term Loan Borrowing is specified, then the
requested Revolving Borrowing or Term Loan Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar Revolving Borrowing or Eurodollar Term
Loan Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




     SECTION 2.04. Reserved.



     SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the Availability Period, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$75,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Revolving
Credit Commitments; provided that the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.



     (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.



25









 





     (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Revolving Credit Percentage of such
Swingline Loan or Swingline Loans, as the case may be. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender’s Applicable Revolving Credit
Percentage of such Swingline Loan or Swingline Loans, as the case may be. Each Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the Revolving
Credit Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from
the Lenders. The Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant
to this paragraph shall not relieve the Borrower of any default in the payment thereof.



     (d) At any time that there shall exist a Defaulting Lender, the Borrower shall, if the full
amount of the Fronting Exposure with respect to such Defaulting Lender has not been reallocated
pursuant to Section 2.21(a)(iv), deliver to the Swingline Lender cash collateral to secure such
unallocated Fronting Exposure with respect to such Defaulting Lender’s Swingline Exposure as
required pursuant to Section 2.06(j).



     SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.



     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an



26









 




outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent three Business Days (or such shorter period as may be acceptable to the
Issuing Bank) in advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the Borrower also
shall submit a letter of credit application on the Issuing Bank’s standard form in connection with
any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended if and only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $300,000,000, (ii)
the principal face amount of all Letters of Credit issued by any Issuing Bank shall not exceed
$75,000,000, and (iii) the sum of the total Revolving Credit Exposures shall not exceed the total
Revolving Credit Commitments; provided, in no event shall any Issuing Bank be required to
issue any Letter of Credit at any time a Lender is a Defaulting Lender, unless (i) the actual or
potential Fronting Exposure with respect to such Defaulting Lender arising from either the Letter
of Credit then proposed to be issued or that Letter of Credit and all other LC Exposure as to which
Issuing Banks have actual or potential Fronting Exposure, has been fully reallocated pursuant to
Section 2.21(a)(iv) or cash collateralized pursuant to Section 2.06(j), or (ii) such Issuing Bank
has entered into other arrangements satisfactory to the Issuing Bank (in its sole discretion) with
the Borrower or such Defaulting Lender to eliminate such actual or potential Fronting Exposure, as
such Issuing Bank may elect in its sole discretion.




     (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving Credit Maturity
Date; provided, if the Borrower so requests, the Issuing Bank may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an
“Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of
Credit must permit the Issuing Bank to prevent any such renewal at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to
the
beneficiary thereof not later than (A) thirty (30) days before the end of such twelve-month
period, or (B) such later date to be agreed upon at the time such Letter of Credit is issued (the
“Nonrenewal Notice Date”). Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the
renewal of such Letter of Credit at any time prior to the date set forth in clause (ii) of this
Section 2.06(c); provided that the expiry date of such Letter of Credit complies with clause (ii)
of this Section 2.06(c).



     (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby



27









 




acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the
Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each LC Disbursement made by
the Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.




     (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on the
date that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 12:00 noon, New York
City time, on the Business Day immediately following the day that the Borrower receives such
notice; provided that the Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 or 2.05 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the extent so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such payment when due,
the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lender’s Applicable Revolving Credit
Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Revolving Credit Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender
(and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing
Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment
made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.



     (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other



28









 




document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.




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



     (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after
the date of payment by any Lender pursuant to paragraph (e) of this Section



29









 




to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such payment.




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



     (j) Cash Collateralization. If any Event of Default shall occur and be continuing and
if the maturity of the Loans has been accelerated pursuant to Article VII, on the Business Day that
the Borrower receives notice from the Administrative Agent upon written request of the Required
Revolving Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower
shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (g) or (h) of Article VII.. In addition,
at any time that there shall exist a Defaulting Lender, if the Fronting Exposure with respect to
such Defaulting Lender has not been fully reallocated pursuant to Section 2.21(a)(iv), immediately
upon the request of the Administrative Agent, the Issuing Bank or the Swingline Lender with respect
to any such unallocated Fronting Exposure, deposit in an account with the Administrative Agent, in
the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to
such unallocated Fronting Exposure. Such deposits shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower under this Agreement.
The Administrative Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion of the Administrative
Agent and at
the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it
has not been reimbursed (or, as to cash collateral with respect to Fronting Exposure relating to a
Defaulting Lender’s Swingline Exposure, to reimburse the Swingline Lender for Swingline Loans which
have not been repaid) and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure (or such Fronting Exposure) at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders
with LC Exposure representing greater than 51% of the total LC



30









 




Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.




     SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 1:00 p.m., New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that Swingline
Loans shall be made as provided in Section 2.05. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like funds, to an
account designated by the Borrower in the applicable Borrowing Request; provided
that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to such Borrowing. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender’s Loan included in such Borrowing.



     SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing and the Term
Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing or Eurodollar Term Loan Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Revolving
Borrowing or Eurodollar Term Loan Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.



     (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing or Term Loan Borrowing of the
Type resulting from such election to be made on the effective date of



31









 




such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election Request signed by
the Borrower.




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




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




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




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




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


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




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



     (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing or Eurodollar Term Loan Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so
long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing or Term Loan Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing and each Eurodollar Term Loan Borrowing
shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.



     SECTION 2.09. Termination and Reduction of Revolving Credit Commitments. (a) Unless
previously terminated, the Revolving Credit Commitments shall terminate on the Revolving Credit
Maturity Date.



     (b) The Borrower may at any time terminate, or from time to time reduce, the Revolving Credit
Commitments; provided that (i) each reduction of the Revolving Credit



32









 




Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and
(ii) the Borrower shall not terminate or reduce the Revolving Credit Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section 2.11, the sum of the
Revolving Credit Exposures would exceed the total Revolving Credit Commitments.




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



     SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the Revolving Credit Maturity Date, (ii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the
Revolving Credit Maturity Date and a date that is not more than fourteen Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding and (iii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each Term Loan on the Term
Loan Maturity Date.



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



     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.



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



33









 





     (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and substantially in the form of (i) with respect to Revolving Loans, in the form of
revolving loan note attached hereto as Exhibit F-1, (ii) with respect to Term Loans, in the form of
term loan note attached hereto as Exhibit F-2 and (ii) with respect to Swingline Loans, in the form
of swingline loan note attached hereto as Exhibit F-3. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).



     SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.



     (b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, Eurodollar Term Loan
Borrower, ABR Revolving Borrowing or ABR Term Loan Borrowing, not later than 11:00 a.m., New York
City time, on the date of prepayment, or (ii) in the case of prepayment of a Swingline Loan, not
later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Revolving Credit Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.09. Promptly following receipt of any such
notice relating to a Revolving Borrowing or Term Loan Borrowing, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing or
Term Loan Borrowing shall be in an amount that is an integral multiple of $1,000,000 and not less
than $1,000,000 in the case of an ABR Revolving Borrowing or ABR Term Loan Borrowing, or $3,000,000
in the case of a Eurodollar Revolving Borrowing or Eurodollar Term Loan Borrowing. Each prepayment
of a Revolving Borrowing or Term Loan Borrowing shall be applied ratably to the Loans included in
the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.



     SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily
amount of the Revolving Credit Commitment of such Lender (whether used or unused) during the period
from and including the Effective Date to but excluding the date on which such Revolving Credit
Commitment terminates; provided that, if such Lender continues to have any
Revolving Credit Exposure after its Revolving Credit Commitment terminates, then such facility fee
shall continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure from and
including the date on which its Revolving Credit Commitment terminates to but excluding the date on
which such Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall be
payable in arrears on the last day of March, June, September and December of each year and on the
date on which the Revolving Credit Commitments terminate,



34









 




commencing on the first such date to
occur after the date hereof; provided that any facility fees accruing after the
date on which the Revolving Credit Commitments terminate shall be payable on demand. All facility
fees shall be computed on the basis of a year of 365 days (or 366 days in leap year) and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).




     (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but excluding the date on
which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, at a
rate per annum agreed to between the Borrower and each Issuing Bank, which shall accrue on the
average daily amount of the LC Exposure with respect to Letters of Credit issued by such Issuing
Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the date on which there ceases to be
any LC Exposure, as well as the Issuing Bank’s standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit issued by such Issuing Bank or processing
of drawings thereunder. Participation fees and fronting fees accrued through and including the
last day of March, June, September and December of each year shall be payable quarterly on the
third Business Day following the last day of March, June, September and December of each year,
commencing on the first such date to occur after the Effective Date; provided that
all such fees shall be payable on the date on which the Revolving Credit Commitments terminate and
any such fees accruing after the date on which the Revolving Credit Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees shall be computed on
the basis of a year of 365 days (or 366 days in leap year) and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).



     (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.



     (d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.



     (e) If any Lender shall become a Defaulting Lender, then no facility fee under subsection (a)
of this Section 2.12 with respect to any unfunded portion of such Lender’s Revolving Credit
Commitment, nor any letter of credit fee under subsection (b) of this Section 2.12 shall accrue for
the account of such Lender from and after the date upon which such Lender shall have become a
Defaulting Lender until such time as such Lender is no longer a Defaulting Lender.



     SECTION 2.13. Interest. (a) The Loans comprising each ABR Revolving Borrowing or
ABR Term Loan Borrowing shall bear interest on each day at the Alternate Base Rate for such day
plus an amount equal to the “ABR Spread” set forth in the pricing grid set forth in the



35









 




defined
term “Applicable Rate” that would be applicable to ABR Revolving Loans or ABR Term Loans,
respectively, on such day. The Loans comprising each Swingline Loan shall bear interest on each
day at the LIBO Market Index Rate for such day plus an amount equal to the “Eurodollar
Spread” set forth in the pricing grid set forth in the defined term “Applicable Rate” that would be
applicable to Eurodollar Revolving Loans on such day.




     (b) The Loans comprising each Eurodollar Borrowing shall bear interest in the case of a
Eurodollar Revolving Loan or Eurodollar Term Loan, at the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate for Eurodollar Revolving Loans or Eurodollar
Term Loans, respectively.



     (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Revolving Loans as
provided in paragraph (a) of this Section.



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



     (e) All interest determined by reference to the LIBO Rate or clause (b) of the definition of
Alternate Base Rate shall be computed on the basis of a year of 360 days, and all other interest
shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.



     (f) The Borrower shall pay to each Lender, so long as such Lender shall be required under
regulations of the Board to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each
Borrowing of such Lender during such periods as such Borrowing is a Eurodollar Revolving Borrowing
or Eurodollar Term Loan Borrowing, from the date of such Borrowing until such principal amount is
paid in full, at an interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the LIBO Rate for the Interest Period in effect for such Eurodollar Revolving
Borrowing or Eurodollar Term Loan Borrowing from (ii) the rate obtained by dividing such LIBO Rate
by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period. Such additional interest shall be determined by such Lender. The Borrower shall
from time to time, within 15 days after demand (which demand shall be accompanied by a certificate
comporting with the requirements set forth in



36









 




Section 2.15(d)) by such Lender (with a copy of such
demand and certificate to the Administrative Agent) pay to the Lender giving such notice such
additional interest; provided, however, that the Borrower shall not be required to
pay to such Lender any portion of such additional interest that accrued more than 90 days prior to
any such demand, unless such additional interest was not determinable on the date that is 90 days
prior to such demand.




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




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




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


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing or
Term Loan Borrowing to, or continuation of any Revolving Borrowing or Term Loan Borrowing as, a
Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar
Revolving Borrowing or Eurodollar Term Loan Borrowing, such Borrowing shall be made as an ABR
Borrowing; provided that if the circumstances giving rise to such notice affect
only one Type of Borrowings, then the other Type of Borrowings shall be permitted.




     SECTION 2.15. Illegality; Increased Costs. (a) If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund its Eurodollar Loans, such Lender
shall so notify the
Administrative Agent. Upon receipt of such notice, the Administrative Agent shall immediately
give notice thereof to the other Lenders and to the Borrower, whereupon until such Lender notifies
the Borrower and the Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Eurodollar Loans shall be suspended. If such
Lender shall determine that it may not lawfully continue to maintain and fund any of its
outstanding Eurodollar Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay (which prepayment shall not be subject to Section 2.11) in full the then
outstanding principal amount of such Eurodollar Loans, together with the accrued interest thereon.



     (b) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in Section 2.13(f)) or the Issuing
Bank; or



37









 






     (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;


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




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



     (d) A certificate of a Lender or the Issuing Bank setting forth, in reasonable detail showing
the computation thereof, the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (b) or (c) of this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. Such
certificate shall further certify that such Lender or the Issuing Bank is making similar demands of
its other similarly situated borrowers. The Borrower shall pay such Lender
or the Issuing Bank, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof, if such certificate complies herewith.



     (e) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 90 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 90-day period referred to above shall be extended to include
the period of retroactive effect thereof (to the extent that such period of retroactive effect is
not already included in such 90-day period).



     SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable



38









 




thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or Term Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(b)
and is revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense (excluding loss of anticipated profits) attributable to such event. A
certificate of any Lender setting forth, in reasonable detail showing the computation thereof, any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after receipt thereof,
if such certificate complies herewith.




     SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, any Lender or Issuing Bank
(as the case may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance with applicable law.



     (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.



     (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of any obligation
of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority;
provided that the Borrower shall not be required to indemnify or reimburse a Lender
pursuant to this Section for any Indemnified Taxes or Other Taxes imposed or asserted more than 90
days prior to the date that such Lender notifies the Borrower of the Indemnified Taxes or Other
Taxes imposed or asserted and of such Lender’s intention to claim compensation therefor;
provided further that, if the Indemnified Taxes or Other Taxes imposed or asserted
giving rise to such claims are retroactive, then the 90-day period referred to above shall be
extended to include the period of retroactive effect thereof (to the extent that such period of
retroactive effect is not already included in such 90-day period). A certificate setting forth, in
reasonable detail showing the computation thereof, the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.



39









 





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



     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at such
reduced rate. If a payment made to a Lender under this Agreement would not be subject (in whole or
in part) to U.S. federal withholding tax imposed by FATCA if such Lender were to comply with the
applicable reporting or disclosure requirements of FATCA (including those contained in Section
1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and
Administrative Agent, at the time or times prescribed by law and at such time or times reasonably
requested by the Borrower or Administrative Agent, such documentation or certifications prescribed
by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation or certifications reasonably requested by the Borrower or Administrative
Agent as may be necessary for the Borrower or Administrative Agent to comply with its obligations
to withhold or report under FATCA, to determine that such Lender has complied with such Lender’s
obligations under FATCA or to determine the amount (if any) to deduct and withhold from such
payment. Each Foreign Lender shall promptly notify the Borrower and the Administrative Agent at
any time it determines that it is no longer in a position to provide any previously delivered form,
certificate or other item to the Borrower (or any other form of certification adopted by the U.S.
taxing authorities for such purpose).



     (f) Should any Lender, the Administrative Agent or the Issuing Bank during the term of this
Agreement ever receive any refund, credit or deduction from any taxing authority to
which such Lender, the Administrative Agent or the Issuing Bank would not be entitled but for
the payment by the Borrower of Taxes (it being understood that the decision as to whether or not to
claim, and if claimed, as to the amount of any such refund, credit or deduction shall be made by
such Lender, the Administrative Agent or the Issuing Bank in its sole discretion), such Lender, the
Administrative Agent or the Issuing Bank, as the case may be, thereupon shall repay to the Borrower
an amount with respect to such refund, credit or deduction equal to any net reduction in taxes
actually obtained by such Lender, the Administrative Agent or the Issuing Bank, as the case may be,
and determined by such Lender, the Administrative Agent or the Issuing Bank, as the case may be, to
be attributable to such refund, credit or deduction.



     (g) Except for a request by the Borrower under Section 2.19(b), no Foreign Lender shall be
entitled to the benefits of Sections 2.17(a) or 2.17(c) if withholding tax is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement or
designates a new lending office.



     SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,



40









 




2.16 or 2.17, or otherwise) prior to 1:00 p.m., New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent at its offices at 301 South College Street, Charlotte, North
Carolina 28288-0608, except payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03
shall be made directly to the Persons entitled thereto); provided, if any Lender shall
become a Defaulting Lender, from and after the date upon which such Lender shall have become a
Defaulting Lender, any payment made on account of principal of or interest on the Revolving Loans
shall be applied as set forth in Section 2.21(a)(ii), provided, further, that the
application of such payments in accordance herewith shall not constitute an Event of Default or a
Default, and no payment of principal of or interest on the Revolving Loans of such Defaulting
Lender shall be considered to be overdue, if, had such payments been applied without regard hereto,
no such Event of Default or Default would have occurred and no such payment of principal of or
interest on the Revolving Loans of such Defaulting Lender would have been overdue. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
dollars.




     (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements
then due to such parties.



     (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment (other than any payment to a dissenting Lender pursuant to Section 2.01(c)) in
respect of any principal of or interest on any of its Revolving Loans or participations in LC
Disbursements, Term Loans or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements, Term Loans and Swingline Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans and participations in LC Disbursements,
Term Loans and Swingline Loans of other Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and participations in LC
Disbursements, Term Loans and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in



41









 




accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC Disbursements to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.




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



     (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.



     SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15 or Section 2.13(f), or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate
a different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.13(f), 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment. Subject to the foregoing, Lenders agree to
use reasonable efforts to select lending offices which will minimize taxes and other costs and
expenses for the Borrower.



     (b) If any Lender requests compensation under Section 2.13(f) or Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.17, or if any Lender refuses to consent to an
extension pursuant to Section 2.01(c), or if any Lender is a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights



42









 




and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, the Issuing Banks and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Revolving Loans and participations in LC Disbursements, Term Loans and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.13(f) or Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply. If
any Lender refuses to assign and delegate all its interests, rights and obligations under this
Agreement after the Borrower has required such Lender to do so as a result of a claim for
compensation under Section 2.13(f) or Section 2.15 or payments required to be made pursuant to
Section 2.17, such Lender shall not be entitled to receive such compensation or required payments.




     SECTION 2.20. Separateness. The Lenders acknowledge and affirm (i) their reliance on
the separateness of the Borrower and General Partner from each other and from other Persons,
including Enterprise Products OLLC, Enterprise Products Partners, EPCO and Enterprise GP Holdings,
(ii) that other creditors of the Borrower or the General Partner have likely advanced funds to such
Persons in reliance upon the separateness of the Borrower and General Partner from each other and
from other Persons, including Enterprise Products OLLC, Enterprise Products Partners, EPCO and
Enterprise GP Holdings, (iii) that each of the Borrower and General Partner have assets and
liabilities that are
separate from those of each other and from other Persons, including Enterprise Products OLLC,
Enterprise Products Partners, EPCO and Enterprise GP Holdings, (iv) that the Loans and other
obligations owing under this Agreement, the Notes and documents related hereto or thereto have not
been guaranteed by General Partner, Enterprise Products OLLC, Enterprise Products Partners, EPCO or
Enterprise GP Holdings, and (v) that, except as other Persons may expressly assume or guarantee
this Agreement, the Notes or any documents related hereto or thereto or any of the Loans or other
obligations thereunder, the Lenders shall look solely to the Borrower and its property and assets,
and any property pledged as collateral with respect hereto or thereto, for the repayment of any
amounts payable pursuant hereto or thereto and for satisfaction of any obligations owing to the
Lenders hereunder or thereunder.



     SECTION 2.21. Defaulting Lenders.



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




     (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 9.02(b).



43









 






     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 9.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Issuing
Banks or Swingline Lender hereunder; third, to be held as cash collateral, if any cash
collateral is required to be delivered pursuant to Section 2.06(j) with respect to any
Fronting Exposure of such Defaulting Lender not fully reallocated pursuant to clause (iv)
below, for future funding obligations of that Defaulting Lender as to its participation in
any Swingline Loan or Letter of Credit; fourth, as the Borrower may request (so long as no
Default or Event of Default exists), to the funding of any Revolving Loan in respect of
which that Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account
and released in order to satisfy obligations of that Defaulting Lender to fund Revolving
Loans under this Agreement; sixth, to the payment of any amounts then owing to the Lenders,
the Issuing Bank or Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, the Issuing Bank or Swingline Lender against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of
any amounts then owing to the Borrower as a result of any judgment of a court of competent
jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that
Defaulting Lender or as otherwise directed by a court
of competent jurisdiction; provided that if (x) such payment is a payment of the
principal amount of any Revolving Loans or LC Disbursements in respect of which that
Defaulting Lender has not fully funded its appropriate share and (y) such Revolving Loans or
LC Disbursements were made at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and
LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Revolving Loans of, or LC Disbursements owed to, that
Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or
to post cash collateral pursuant to this section shall be deemed paid to and redirected by
that Defaulting Lender, and each Lender irrevocably consents hereto. Upon making any
payment to the Administrative Agent or any Issuing Bank for the account of a Defaulting
Lender, the Borrower’s obligation to pay such amount to such Defaulting Lender shall be
fully discharged and such Defaulting Lender shall have no recourse to the Borrower for the
payment of such amount.




     (iii) Certain Fees. That Defaulting Lender shall not be entitled to receive
any facility fees with respect to its undrawn Revolving Credit Commitment pursuant to
Section 2.12(a) or fees with respect to its participation in Letters of Credit pursuant to
Section 2.12(b) for any period during which that Lender is a Defaulting Lender (and the



44









 






Borrower shall not be required to pay any such fee that otherwise would have been required
to have been paid to that Defaulting Lender).




     (iv) Reallocation of Applicable Revolving Credit Percentages to Reduce Fronting
Exposure. During any period in which there is a Defaulting Lender, for purposes of
computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance
or fund participations in Letters of Credit or Swingline Loans pursuant to Section 2.05(c)
and 2.06(d), the “Applicable Revolving Credit Percentage” of each non-Defaulting Lender
shall be computed without giving effect to the Revolving Credit Commitment of that
Defaulting Lender; provided, that, (i) each such reallocation shall be given effect only if,
at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of
Default exists; and (ii) the aggregate obligation of each non-Defaulting Lender to acquire,
refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed
the positive difference, if any, of (1) the Revolving Credit Commitment of that
non-Defaulting Lender minus (2) the Revolving Credit Exposure of that non-Defaulting
Lender.



     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swingline
Lender and the Issuing Banks agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any cash collateral),
that Lender will, to the extent applicable, purchase that portion of outstanding Revolving Loans of
the other Lenders or take such other actions as the Administrative Agent may determine to be
necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit
and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their
Applicable Revolving Credit Percentages (without giving effect to clause (a)(iv) above, whereupon
that Lender will cease to be a Defaulting Lender; provided that no adjustments will
be made retroactively with respect to fees accrued or payments made by or on behalf of the
Borrower while that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.



ARTICLE III




Representations and Warranties



     The Borrower represents and warrants to the Lenders that:



     SECTION 3.01. Organization; Powers. Each of the Borrower and its Subsidiaries is
duly formed, validly existing and (if applicable) in good standing (except, with respect to
Subsidiaries other than Material Subsidiaries, where the failure to be in good standing,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect) under the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business in all material respects as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and (if applicable) is in good standing
in, every jurisdiction where such qualification is required.



45









 





     SECTION 3.02. Authorization; Enforceability. The Transactions are within the
Borrower’s partnership powers and have been duly authorized by all necessary partnership and, if
required, partner action. This Agreement has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower
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 of whether considered in a proceeding in equity or at law.



     SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect
as of the Effective Date, other than filings after the Effective Date in the ordinary course of
business, (b) will not violate any law or regulation applicable to the Borrower or the limited
partnership agreement, charter, by-laws or other organizational documents of the Borrower or any of
its Subsidiaries or any order of any Governmental Authority to which the Borrower or any of its
Subsidiaries is subject, (c) will not violate or result in a default under any material indenture,
agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (d) will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries that is prohibited hereby.



     SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders the consolidated balance sheets of the Borrower and its
consolidated Subsidiaries and the related consolidated statements of income, equity and cash flow
of the Borrower and its consolidated Subsidiaries (i) as of and for the fiscal year ended December
31, 2009, such consolidated financial statements audited by an independent accounting firm of
national standing, and (ii) as of and for the fiscal quarter and the portion of the fiscal year
ended June 30, 2010, unaudited and certified by a Financial Officer. Such financial statements
present fairly, in all material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.



     (b) No Material Adverse Change exists; provided, on and after the date on which the
Borrower obtains an investment-grade rating on its Index Debt from any of Moody’s, S&P or Fitch,
Borrower makes no representation or warranty with respect to the foregoing.



     SECTION 3.05. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened in writing against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this
Agreement or the Transactions.



     (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval



46









 




required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.




     (c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in a Material Adverse Effect.



     SECTION 3.06. Compliance with Laws. Each of the Borrower and its Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.



     SECTION 3.07. Investment Company Status. Neither the Borrower nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.



     SECTION 3.08. Taxes. Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.09. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.10. Disclosure. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the negotiation of this
Agreement (as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to be reasonable at the
time.



     SECTION 3.11. Subsidiaries. As of the Effective Date the Borrower has no
Subsidiaries other than those listed on Schedule 3.11. As of the Effective Date Schedule 3.11 sets
forth the jurisdiction of incorporation or organization of each such Subsidiary, the percentage of
the Borrower’s ownership of the outstanding Equity Interests of each Subsidiary directly owned by
the Borrower, and the percentage of each Subsidiary’s ownership of the outstanding Equity Interests
of each other Subsidiary.



     SECTION 3.12. Margin Securities. Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending credit for the



47









 




purpose of purchasing or carrying margin stock (within the meaning of Regulations U or X of the
Board of Governors of the Federal Reserve System), and no part of the proceeds of any Loan will be
used to purchase or carry any margin stock in violation of said Regulations U or X or to extend
credit to others for the purpose of purchasing or carrying margin stock in violation of said
Regulations U or X.




ARTICLE IV




Conditions



     SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the
Effective Date which is scheduled to occur when each of the following conditions is satisfied:



     (a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.



     (b) The Administrative Agent shall have received favorable written opinions (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Stephanie Hildebrandt,
in-house counsel for Borrower, and Bracewell & Giuliani LLP, counsel for Borrower, substantially in
the forms of Exhibits D-1 and D-2 with respect to the Transactions.



     (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to (1) the organization and
existence of the Borrower, and (2) the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.



     (d) The Administrative Agent shall have received each promissory notes requested by a Lender
pursuant to Section 2.10(e), each duly completed and executed by the Borrower.



     (e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, an Executive Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.



     (f) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Effective Date, including, to the extent invoiced prior to closing, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.



     (g) As of the Effective Date, no Material Adverse Change exists.



     (h) Prior to the date hereof, there shall not have been any material disruption or material
adverse change in the financial, banking or capital markets generally or in the market



48









 




for loan
syndications in particular, which the Administrative Agent, in its reasonable judgment, determines
could materially impair the syndication hereof.




     (i) The Lenders shall have received (i) the audited financial statements for the Borrower and
its Subsidiaries for the period ended December 31, 2009 (ii) the unaudited financial statements for
the Borrower and its Subsidiaries for the fiscal quarter ending June 30, 2010, and (iii) copies of
financial statements for the Borrower and its Subsidiaries as of the Effective Date, taking into
pro forma account the Transactions, with a certificate from a Financial Officer of the Borrower
calculating the Leverage Ratio and reflecting pro forma compliance with Section 6.07 as of June 30,
2010, taking into pro forma account the Transactions, as if consummated on such date.



     (j) All necessary governmental and third-party approvals, if any, required to be obtained by
the Borrower in connection with the Transactions and otherwise referred to herein shall have been
obtained and remain in effect (except where failure to obtain such approvals will not have a
Material Adverse Effect), and all applicable waiting periods shall have expired without any action
being taken by any applicable authority.



     (k) The Existing Credit Facility shall be contemporaneously amended and restated hereby, and
all obligations and indebtedness under the Existing Credit Facility shall have been
contemporaneously renewed and extended pursuant hereto.



     SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing (exclusive of continuations and conversions of a Borrowing), and of the
Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction
of the following conditions:



     (a) The representations and warranties of the Borrower set forth in this Agreement shall be
true and correct in all material respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as applicable.



     (b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have
occurred and be continuing.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants



     Until the Revolving Credit Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in full
and all Letters of Credit shall have expired or terminated and all LC Disbursements shall have
been reimbursed, the Borrower covenants and agrees with the Lenders that:



49









 





     SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish,
or cause to be furnished, to the Administrative Agent and each Lender:



     (a) within 15 days after filing same with the Securities and Exchange Commission
(“SEC”), copies of each annual report on Form 10-K, quarterly report on Form 10-Q and
report on Form 8-K (or any successor or substitute forms) that the Borrower is required to file
with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
and any successor statute (the “Exchange Act”);



     (b) if the Borrower is not subject to the requirements of Section 13 or 15(d) of the Exchange
Act, promptly after becoming available and in any event within 105 days after the close of each
fiscal year of the Borrower (i) the audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such year and (ii) the audited consolidated statements
of income, equity and cash flow of the Borrower and its consolidated Subsidiaries for such year
setting forth in each case in comparative form the corresponding figures for the preceding fiscal
year, which report shall be to the effect that such statements have been prepared in accordance
with GAAP;



     (c) if the Borrower is not subject to Section 13 or 15(d) of the Exchange Act, promptly after
their becoming available and in any event within 60 days after the close of each of the first three
fiscal quarters of each fiscal year of the Borrower, (i) the unaudited consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as at the end of such quarter and (ii) the
unaudited consolidated statements of income, equity and cash flow of the Borrower for such quarter,
setting forth in each case in comparative form the corresponding figures for the preceding fiscal
year, all of the foregoing certified by a Financial Officer of the Borrower to have been prepared
in accordance with GAAP subject to normal changes resulting from year-end adjustment and
accompanied by a written discussion of the financial performance and operating results, including
the major assets, of the Borrower for such quarter; and



     (d) within 60 days after the end of each fiscal quarter of each fiscal year of the Borrower, a
certificate of a Financial Officer of the Borrower substantially in the form of Exhibit E (i)
certifying as to whether a Default has occurred that is then continuing and, if a Default has
occurred that is then continuing, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, and (ii) setting forth in reasonable detail calculations
demonstrating compliance with Section 6.07.



     SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:



     (a) the occurrence of any Event of Default; and



     (b) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.





50












 





     SECTION 5.03. Existence; Conduct of Business. The Borrower will do or cause to be
done all things necessary to preserve, renew and keep in full force and effect its legal existence
and the rights, licenses, permits, privileges and franchises material to the conduct of its
business; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution not prohibited under Section 6.03.



     SECTION 5.04. Maintenance of Properties; Insurance. The Borrower will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.



     SECTION 5.05. Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep in accordance with GAAP proper books of record and account
in which full, true and correct entries are made in all material respects of all dealings and
transactions in relation to its business and activities. The Borrower will, and will cause each of
its Subsidiaries to, permit any representatives designated by the Administrative Agent or any
Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often as reasonably
requested.



     SECTION 5.06. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.



     SECTION 5.07. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only (a) for the renewal and extension of the Indebtedness under the Existing Credit
Facility and refinancing of letters of credit thereunder, and for payment of transaction expenses
related to the Transactions, and (b) as a backstop for commercial paper and for working capital,
acquisitions, capital expenditures and other company purposes. Letters of Credit will be used for
the Borrower’s and its Subsidiaries’ company purposes. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.



     SECTION 5.08. Environmental Matters. The Borrower has established and implemented,
or will establish and implement, and will cause each of its Subsidiaries to establish and
implement, such procedures as may be necessary to assure that (except for any failure of the following that, individually or in the
aggregate, does not have a Material Adverse Effect): (i) all property of the Borrower and its
Subsidiaries and the operations conducted thereon are in compliance with and do not violate the
requirements of any Environmental Laws, (ii) no oil or solid wastes are disposed of or otherwise
released on or to any property owned by the Borrower or its Subsidiaries except in compliance with
Environmental Laws, (iii) no Hazardous Materials will be released on or to any such property in a
quantity equal to or exceeding that quantity which requires reporting pursuant to Section 103 of
CERCLA, and (iv) no oil or Hazardous Materials is released on or to any such property so as to pose
an imminent and substantial endangerment to public health or welfare or the environment.



51









 





     SECTION 5.09 ERISA Information. The Borrower will furnish to the Administrative
Agent:




     (a) within 15 Business Days after the institution of or the withdrawal or partial
withdrawal by the Borrower, any Subsidiary or any ERISA Affiliate from any Multiemployer
Plan which would cause the Borrower, any Subsidiary or any ERISA Affiliate to incur
withdrawal liability in excess of $25,000,000 (in the aggregate for all such withdrawals), a
written notice thereof signed by an executive officer of the Borrower stating the applicable
details; and




     (b) within 15 Business Days after an officer of the Borrower becomes aware of any
material action at law or at equity brought against the Borrower, any of its Subsidiaries,
any ERISA Affiliate, or any fiduciary of a Plan in connection with the administration of any
Plan or the investment of assets thereunder, a written notice signed by an executive officer
of the Borrower specifying the nature thereof and what action the Borrower is taking or
proposes to take with respect thereto.



     SECTION 5.10 Taxes. The Borrower will, and will cause each of its Subsidiaries to,
pay and discharge, or cause to be paid and discharged, promptly or make, or cause to be made,
timely deposit of all taxes (including Federal Insurance Contribution Act payments and withholding
taxes), assessments and governmental charges or levies imposed upon the Borrower or any Subsidiary
or upon the income or any property of the Borrower or any Subsidiary; provided,
however, that neither the Borrower nor any Subsidiary shall be required to pay any such
tax, assessment, charge, levy or claim if the amount, applicability or validity thereof shall
currently be contested in good faith by appropriate proceedings diligently conducted by or on
behalf of the Borrower or its Subsidiary, and if the Borrower or its Subsidiary shall have set up
reserves therefor adequate under GAAP or if no Material Adverse Effect shall be occasioned by all
such failures in the aggregate.



ARTICLE VI




Negative Covenants




     Until the Revolving Credit Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and all Letters of
Credit have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:



     SECTION 6.01. Indebtedness. The Borrower will not permit any Subsidiary to create,
incur or assume any Indebtedness, except:



     (a) Indebtedness of any Person that becomes a Subsidiary of the Borrower, to the extent such
Indebtedness is outstanding at the time such Person becomes a Subsidiary of the Borrower and was
not incurred in contemplation thereof and Indebtedness refinancing (but not increasing) such
Indebtedness, and Indebtedness assumed by any Subsidiary in connection with its acquisition
(whether by merger, consolidation, acquisition of all or substantially all of the assets or
acquisition that results in the ownership of greater than fifty percent (50%) of the Equity
Interests of a Person) of another Person and Indebtedness refinancing (but not increasing) such
Indebtedness, provided that at the time of and after giving effect to the
incurrence or



52









 




assumption of such Indebtedness or refinancing Indebtedness and the application of
the proceeds thereof, as the case may be, the aggregate principal amount of all such Indebtedness,
and of all Indebtedness previously incurred or assumed pursuant to this Section 6.01(a), and then
outstanding, shall not exceed 50% of Consolidated EBITDA for the period of four full fiscal
quarters of the Borrower and its Subsidiaries (and such Person on a pro forma basis) then most
recently ended;




     (b) Indebtedness of Project Finance Subsidiaries;



     (c) intercompany Indebtedness; provided any Subsidiary incurring intercompany
Indebtedness shall be required within five Business Days of such incurrence to incur Indebtedness
to its minority interest owners in an amount such that intercompany Indebtedness of such Subsidiary
owing to the Borrower or its Subsidiaries shall not exceed an amount equal to (i) the Borrower’s
percentage ownership of such Subsidiary times (ii) the amount of all Indebtedness of such
Subsidiary owing to its owners.



     (d) Indebtedness of Evangeline existing on the date hereof and set forth on Schedule 6.01;



     (e) guarantees of the obligations and Indebtedness hereunder; and



     (f) other Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time
outstanding;


provided, however, that no Subsidiary (other than a Project Finance Subsidiary)
shall create, incur or assume any Indebtedness pursuant to any provision of this Section 6.01 if an
Event of Default shall have occurred and be continuing or would result from such creation,
incurrence or assumption.




     SECTION 6.02. Liens. The Borrower shall not, and shall not permit any Subsidiary
(other than Project Finance Subsidiaries) to, create, assume, incur or suffer to exist any Lien,
other than a Permitted Lien, on any of its assets or property or upon any Equity Interests of any
Subsidiary (other than Project Finance Subsidiaries) which Equity Interests are now owned or
hereafter acquired by the Borrower or such Subsidiary to secure any Indebtedness of the Borrower or
any other Person (other than the Indebtedness under this Agreement). Prior to the date on which
the Borrower obtains an investment-grade rating on its Index Debt from any of Moody’s, S&P or
Fitch, no organizational document of the Borrower or any Subsidiary (other than Project Finance
Subsidiaries and joint ventures) shall limit, restrict or prohibit, and the Borrower shall not and
shall not permit any Subsidiary (other than a Project Finance Subsidiary or joint venture) to enter
into any contract or other agreement, or otherwise consent or approve, any limitation, restriction
or prohibition on its ability to create, incur, assume or suffer to exist Liens on the Equity
Interests of any Subsidiary (other than a Project Finance Subsidiary or joint venture) in favor of
Administrative Agent for the benefit of Lenders to secure the obligations and Indebtedness
hereunder and under the Notes.



     SECTION 6.03. Fundamental Changes. The Borrower will not merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the Equity Interests of any of its



53









 




Subsidiaries (other than Project Finance Subsidiaries) (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (i) any Person may
merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving
entity, (ii) any Subsidiary of the Borrower may be merged into or consolidated with another
Subsidiary, change its jurisdiction of organization, or change the type of business entity in which
it conducts its business, and (iii) the Borrower may sell or otherwise dispose of all or
substantially all of Equity Interests in any Subsidiary to the extent permitted under Section 6.08.




     SECTION 6.04. Investment Restriction. Neither the Borrower nor any Subsidiary (other
than a Project Finance Subsidiary) will make or suffer to exist investments in Project Finance
Subsidiaries, in the aggregate at any one time outstanding, in excess of the sum of (i) the amount
of investments existing as of the Effective Date in Project Finance Subsidiaries, (ii) $50,000,000,
and (iii) the amount of any portion of the investments permitted by this Section 6.04 repaid to the
Borrower or any Subsidiary as a dividend, repayment of a loan or advance, release or discharge of a
guarantee or other obligation or other transfer of property or return of capital, as the case may
be, occurring after the Effective Date. Computation of the amount of any investment shall be made
without any adjustment for increases or decreases in value, or write-ups, write-downs or write-offs
with respect to such investment or interest or other earnings on such investment.



     SECTION 6.05. Restricted Payments. Except for the distribution to Enterprise
Products OLLC or its Affiliates of certain proceeds of the initial Loans as provided in Section 5.07(a), the Borrower will not,
and will not permit any of its Subsidiaries (other than Project Finance Subsidiaries) to, declare
or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except as long as
no Event of Default has occurred and is continuing or would result therefrom, (i) the Borrower may
make Restricted Payments from Available Cash (as defined in the Partnership Agreement) from
Operating Surplus (as defined in the Partnership Agreement) cumulative from January 1, 2007 through
the date of such Restricted Payment, (ii) the Borrower may make additional Restricted Payments of
up to $20,000,000 during the term of this Agreement, (iii) subject to Section 6.09, any Subsidiary
may buy back any of its own Equity Interests, and (iv) the Borrower and its Subsidiaries may make
payments or other distributions to officers, directors or employees with respect to the exercise by
any such Persons of options, warrants or other rights to acquire Equity Interests in the Borrower
or such Subsidiary issued pursuant to an employment, equity award, equity option or equity
appreciation agreement or plans entered into by the Borrower or such Subsidiary in the ordinary
course of business; provided, that even if an Event of Default shall have occurred
and is continuing, no Subsidiary shall be prohibited from upstreaming dividends or other payments
to the Borrower or any Subsidiary (which is not a Project Finance Subsidiary) or making, in the
case of any Subsidiary that is not wholly-owned (directly or indirectly) by the Borrower, dividends
or payments, as the case may be, to the other owners of Equity Interests in such Subsidiary;
provided, any dividends or payments by any such Subsidiary that is not wholly-owned
(directly or indirectly) by the Borrower to the Borrower shall be not less than an amount equal to
(x) the Borrower’s direct or indirect percentage ownership of Equity Interests in such Subsidiary
times (y) the amount of all such dividends and payments made to all owners of Equity
Interests in such Subsidiary.



     SECTION 6.06. Restrictive Agreements. The Borrower will not, and will not permit any
of its Subsidiaries (other than Project Finance Subsidiaries) to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement with any Person, other than the



54









 




Lenders pursuant hereto, which prohibits, restricts or imposes any conditions upon the ability of
any Subsidiary (other than Project Finance Subsidiaries) to (a) pay dividends or make other
distributions or pay any Indebtedness owed to the Borrower or any Subsidiary, or (b) make
subordinate loans or advances to or make other investments in the Borrower or any Subsidiary in
each case, other than restrictions or conditions contained in, or existing by reasons of, any
agreement or instrument (i) relating to any Indebtedness of any Subsidiary permitted by Section
6.01, (ii) relating to property existing at the time of the acquisition thereof, so long as the
restriction or condition relates only to the property so acquired, (iii) relating to any
Indebtedness of, or otherwise to, any Subsidiary at the time such Subsidiary was merged or
consolidated with or into, or acquired by, the Borrower or a Subsidiary or became a Subsidiary and
not created in contemplation thereof, (iv) effecting a renewal, extension, refinancing, refund or
replacement (or successive extensions, renewals, refinancings, refunds or replacements) of
Indebtedness issued under an agreement referred to in clauses (i) through (iii) above, so long as
the restrictions and conditions contained in any such renewal, extension, refinancing, refund or
replacement agreement, taken as a whole, are not materially more restrictive than the restrictions
and conditions contained in the original agreement, as determined in good faith by the board of
directors of the General Partner, (v) constituting customary provisions restricting subletting or
assignment of any leases of the Borrower or any Subsidiary or provisions in agreements that
restrict the assignment of such agreement or any rights thereunder, (vi) constituting restrictions
on the sale or other disposition of any property securing Indebtedness as a result of a Lien on
such property permitted hereunder, (vii) constituting any temporary encumbrance or restriction with respect to a Subsidiary under
an agreement that has been entered into for the disposition of all or substantially all of the
outstanding Equity Interests of or assets of such Subsidiary, provided that such
disposition is otherwise permitted hereunder, (viii) constituting customary restrictions on cash,
other deposits or assets imposed by customers and other persons under contracts entered into in the
ordinary course of business, (ix) constituting provisions contained in agreements or instruments
relating to Indebtedness that prohibit the transfer of all or substantially all of the assets of
the obligor under that agreement or instrument unless the transferee assumes the obligations of the
obligor under such agreement or instrument or such assets may be transferred subject to such
prohibition, (x) constituting a requirement that a certain amount of Indebtedness be maintained
between a Subsidiary and the Borrower or another Subsidiary, (xi) constituting any restriction or
condition with respect to property under an agreement that has been entered into for the
disposition of such property, provided that such disposition is otherwise permitted
hereunder, (xii) constituting any restriction or condition with respect to property under a
charter, lease or other agreement that has been entered into for the employment of such property or
(xiii) that is a Hybrid Security or an indenture, document, agreement or security entered into or
issued in connection with a Hybrid Security or otherwise constituting a restriction or condition on
the payment of dividends or distributions by an issuer of a Hybrid Security.




     SECTION 6.07 Financial Condition Covenants.



     (a) Ratio of Consolidated EBITDA to Consolidated Interest Expense. Until the Borrower
obtains an investment-grade rating on its Index Debt from any of Moody’s, S&P or Fitch, the
Borrower shall not permit its ratio of Consolidated EBITDA to Consolidated Interest Expense in each
case for the four full fiscal quarters most recently ended to be less than 2.75 to 1.00 as of the
last day of any fiscal quarter.



55









 





     (b) Leverage Ratio. The Borrower shall not permit its ratio of Consolidated
Indebtedness to Consolidated EBITDA in each case for the four full fiscal quarters most recently
ended (the “Leverage Ratio”) to exceed 5.00 to 1.00 as of the last day of any fiscal
quarter; provided, following a Specified Acquisition (defined below), such ratio shall not
exceed




5.50 to 1.00 as of the last day of (i) the fiscal quarter in which the Specified Acquisition
occurred (the “Acquisition Quarter”), and (ii) the two fiscal quarters following the
Acquisition Quarter, and




     5.00 to 1.00 as of the last day of any fiscal quarter thereafter.


As used herein, “Specified Acquisition” means, at the election of Borrower, one or more
acquisitions of assets or entities or operating lines or divisions in any rolling 12-month period
for an aggregate purchase price of not less than $25,000,000; provided, in the event the
Leverage Ratio exceeds 4.75 to 1.00 at the end of any fiscal quarter in which one or more
acquisitions otherwise qualifying as a Specified Acquisition but for Borrower’s failure to so elect
shall have occurred, Borrower shall be deemed to have so elected a Specified Acquisition with
respect thereto; provided, further, following the election (or deemed election) of
a Specified Acquisition, Borrower may not elect (or be deemed to have elected) a subsequent
Specified Acquisition unless, at the time of such subsequent election, the Leverage Ratio does not
exceed 4.75 to 1.00.




     (c) Calculation Methodology. For purposes of calculating the financial covenant
ratios set forth in this Section 6.07, the Project Finance Subsidiaries shall be disregarded. For
purposes of this Section 6.07(b), if during any period of four fiscal quarters the Borrower or any
Subsidiary acquires any Person (or any interest in any Person) or all or substantially all of the
assets of any Person, the EBITDA attributable to such assets or an amount equal to the percentage
of ownership of the Borrower or a Subsidiary, as the case may be, in such Person times the EBITDA
of such Person, for such period determined on a pro forma basis (which determination, in each case,
shall be subject to approval of the Administrative Agent, not to be unreasonably withheld) may be
included as Consolidated EBITDA for such period as if such acquisition occurred on the first day of
such four fiscal quarter period; provided that during the portion of such period
that follows such acquisition, the computation in respect of the EBITDA of such Person or such
assets, as the case may be, shall be made on the basis of actual (rather than pro forma) results.


In addition, for purposes of this Section 6.07: (i) Hybrid Securities up to an aggregate amount of
15% of Consolidated Total Capitalization shall be excluded from Consolidated Indebtedness, and (ii)
Consolidated EBITDA may include, at Borrower’s option, any Material Project EBITDA Adjustments as
provided in the definition thereof.




     SECTION 6.08 Asset Dispositions. The Borrower will not, and will not permit any of
its Subsidiaries (other than Project Finance Subsidiaries) to Dispose of any assets or properties,
other than (a) Dispositions of inventory in the ordinary course of business, (b) Dispositions for
which the consideration received therefor is less than $50,000 and Dispositions of machinery and
equipment no longer used or useful in the conduct of business of the Borrower and its Subsidiaries
that are Disposed of in the ordinary course of business, (c) Dispositions of assets to the Borrower
or a Subsidiary (other than a Project Finance Subsidiary), (d) Dispositions of cash equivalents for
fair market value and Dispositions of investments permitted under Section 6.04, (e) Dispositions of
accounts receivable in connection with the collection or compromise thereof,



56









 




(f) Dispositions of licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries, (g) Dispositions in which: (i) the
assets being disposed are used simultaneously in exchange for replacement assets or (ii) the net
proceeds thereof are either (A) reinvested within 180 days from such Disposition in assets to be
used in the ordinary course of the business of the Borrower and its Subsidiaries and/or (B) used to
permanently reduce the aggregate Lenders’ Revolving Credit Commitments on a dollar for dollar
basis, (h) the sale of the Evangeline pipeline system pursuant to the exercise of the
previously-granted purchase option with respect thereto by the holder thereof, and (i) other
Dispositions not exceeding in the aggregate for the Borrower and its Subsidiaries, determined as of
the date of such Disposition (A) 10% of Consolidated Net Tangible Assets, in any fiscal year and
(B) 25% of Consolidated Net Tangible Assets during the term of this Agreement. For purposes of the
foregoing, prior to receipt by the Administrative Agent of the Borrower’s first quarterly financial
statements pursuant to Section 5.01(a), Consolidated Net Tangible Assets shall be determined based
upon the Borrower’s quarterly financial statements delivered pursuant to Section 4.01(i), and
thereafter, on the Borrower’s most recently delivered quarterly or annual financial statements.




     SECTION 6.09 Affiliate Transactions. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, pay any funds to or for the account of, make any investment in, lease, sell,
transfer or otherwise dispose of any assets, tangible or intangible, to, or participate in, or
effect, any transaction with, any officer, director, employee or Affiliate (other than the Borrower
or any Subsidiary) unless any and all such transactions between the Borrower and its Subsidiaries
on the one hand and any officer, director, employee or Affiliate (other than the Borrower or any
Subsidiary) on the other hand, shall be on an arms-length basis and on terms no less favorable to
the Borrower or such Subsidiary than could have been obtained from a third party who was not an
officer, director, employee or Affiliate (other than the Borrower or any Subsidiary);
provided, that the foregoing provisions of this Section shall not (a) prohibit the Borrower
or any Subsidiary from declaring or paying any lawful dividend or distribution otherwise permitted
hereunder, (b) prohibit the Borrower or any Subsidiary from providing credit support for its
Subsidiaries (other than Project Finance Subsidiaries) as it deems appropriate in the ordinary
course of business, (c) prohibit the Borrower or any Subsidiary from engaging in a transaction or
transactions that are not on an arms-length basis or are not on terms as favorable as could have
been obtained from a third party, provided that such transaction or transactions occurs within a
related series of transactions, which, in the aggregate, are on an arms-length basis and are on
terms as favorable as could have been obtained from a third party, (d) prohibit the Borrower or any
Subsidiary from engaging in non-material transactions with any officer, director, employee or
Affiliate of the Borrower or any Subsidiary that are not on an arms-length basis or are not on
terms as favorable as could have been obtained from a third party but are in the ordinary course of
the Borrower’s or such Subsidiary’s business, so long as, in each case, after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing, (e) prohibit any
agreements listed on Schedule 6.09 attached hereto, provided, any right of first refusal
with respect to the purchase of any assets of the Borrower or any Subsidiary (other than a Project
Finance Subsidiary) granted to any Affiliate shall by its terms automatically terminate upon the
occurrence of an Event of Default as described in Section 7(g), (h) or (i), or (f) prohibit the
Borrower or any Subsidiary from engaging in a transaction with an Affiliate if such transaction has
been approved by a majority of the General Partner’s independent directors.



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ARTICLE VII




Events of Default




     If any of the following events (“Events of Default”) shall occur:



     (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation
in respect of any LC Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;



     (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of five (5) Business Days;



     (c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary of the Borrower in or in connection with this Agreement or any amendment or modification
hereof or waiver hereunder, or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any amendment or modification hereof
or waiver hereunder, shall prove to have been incorrect in any material respect when made or deemed
made and such materiality is continuing;



     (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence) or 5.07 or in Article
VI;



     (e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article),
and such failure shall continue unremedied for a period of 30 days after written notice thereof
from the Administrative Agent to the Borrower (which notice will be given at the request of any
Lender);



     (f) the Borrower or any Material Subsidiary (other than Project Finance Subsidiaries) shall
(i) fail to pay (A) any principal of or premium or interest on any Material Indebtedness of the
Borrower or such Material Subsidiary (as the case may be), or (B) aggregate net obligations under
one or more Hedging Agreements (excluding amounts the validity of which are being contested in good
faith by appropriate proceedings, if necessary, and for which adequate reserves with respect
thereto are maintained on the books of the Borrower or such Material Subsidiary (as the case may
be)) in excess of $25,000,000, in each case when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement or instrument
relating to such Material Indebtedness or such Hedging Agreements; or (ii) default in the
observance or performance of any covenant or obligation contained in any agreement or instrument
relating to any such Material Indebtedness that in substance is customarily considered a default in
loan documents (in each case, other than a failure to pay specified in clause (i) of this
subsection (f)) and such default shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect thereof is to accelerate the maturity of
such Material Indebtedness or require such Material Indebtedness to be prepaid prior to the stated
maturity thereof; for the avoidance of doubt the parties acknowledge



58









 




and agree that any payment required to be made under a guaranty of payment or collection described in clause (c) of the
definition of Indebtedness shall be due and payable at the time such payment is due and payable
under the terms of such guaranty (taking into account any applicable grace period) and such payment
shall be deemed not to have been accelerated or required to be prepaid prior to its stated maturity
as a result of the obligation guaranteed having become due;




     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material
Subsidiary (other than Project Finance Subsidiaries) or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary (other than Project
Finance Subsidiaries) or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;



     (h) the Borrower or any Material Subsidiary (other than Project Finance Subsidiaries) shall
(i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary (other than Project
Finance Subsidiaries) or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;



     (i) the Borrower or any Material Subsidiary (other than Project Finance Subsidiaries) shall
become unable, admit in writing its inability or fail generally to pay its debts as they become
due;



     (j) one or more judgments for the payment of money in an aggregate uninsured amount equal to
or greater than $25,000,000 shall be rendered against the Borrower or any Material Subsidiary
(other than Project Finance Subsidiaries) or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any such Material Subsidiary to enforce any such judgment;



     (k) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $25,000,000 for all periods;



     (l) the General Partner takes, suffers or permits to exist any of the events or conditions
referred to in clauses (g), (h) or (i) of this Article; or



     (m) a Change in Control shall occur;



59









 




then, and in every such event (other than an event with respect to the Borrower described in clause
(g) or (h) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent at the request of the Required Lenders (or, as to clause (i) below, Required
Revolving Lenders) shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Revolving Credit Commitments, and thereupon the
Revolving Credit Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any principal not so declared
to be due and payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the Borrower described in
clause (g) or (h) of this Article, the Revolving Credit Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.




ARTICLE VIII



The Administrative Agent




     Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.



     The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing by
the Required Lenders or Required Revolving Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except
as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the Borrower or any of
its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders
for any action taken or not taken by it with the consent or at the request of the Required Lenders
or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to



60









 




have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent.




     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



     The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.
Anything herein to the contrary notwithstanding, neither the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents, the Joint Lead Arrangers nor the Joint Book
Runners listed on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement, the Notes or any documents related hereto or thereto, except in its capacity, as
applicable, as Administrative Agent, Issuing Bank, Swingline Lender or a Lender hereunder.



     Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the Borrower’s approval (which will not be unreasonably withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may, with the Borrower’s approval (which
will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if
an Event of Default has occurred which is continuing), on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank and such bank, or its Affiliate, as applicable, shall
have capital and surplus equal to or greater than $500,000,000. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such



61









 




successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article
and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as
Administrative Agent.




     Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.



ARTICLE IX




Miscellaneous




     SECTION 9.01. Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, and except as provided in Section 9.01(f), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as
follows:



     (a) if to the Borrower, to it at 1100 Louisiana Street, 10th Floor, Houston, Texas
77002 (for delivery), Attention of Treasurer; P. O. Box 4324, Houston Texas 77210 (for mail)
(Telecopy No. 713/381-8200);



     (b) if to the Administrative Agent, to Wells Fargo Bank, NA, 1525 W WT Harris Blvd.,
Charlotte, NC 28262, Attention of Syndication Agency Services (Telecopy No. 704/590-2706), with a
copy to Wells Fargo Corporate Banking, 301 S. College Street, TW 15, Charlotte, NC 28288, MAC
D1053-150, Attention of Shannan Townsend (Telecopy No. 919/742-7482);



     (c) if to an Issuing Bank, to such Issuing Bank as follows, as applicable:




	 	(1)	 	Wells Fargo Bank, NA, 1525 W WT Harris Blvd., Charlotte, NC
28262, Attention of Syndication Agency Services (Telecopy No. 704/590-2706),
with a copy to Wells Fargo Corporate Banking, 301 S. College Street, TW 15,
Charlotte, NC 28288, MAC D1053-150, Attention of Shannan Townsend (Telecopy No.
919/742-7482);
	 
	 	(2)	 	Citibank, N.A., c/o Citi Global Energy, 2800 Post Oak Blvd.,
Suite 400. Houston, TX 77056, Attention: Nan Dockal, Relationship Associate




62









 






	 	 	 	(Phone: 713/752-5325; Telecopy: 713/481-0245; E-Mail:
nannette.n.dockal@citi.com)
	 
	 	(3)	 	DnB NOR Bank ASA, 333 Clay St. Suite 3950, Houston, TX 77002,
Attention: Alberto Caceda (Phone: 832-214-5807; Telecopy: 832-214-5839; E-Mail:
alberto.Caceda@dnbnor.no, with a copy to DnB NOR Bank ASA, 200 Park
Avenue, 31st Floor, New York, NY 10166, Attention: Magdalena Brzostowska
(Phone: 212-681-3823; Telecopy: 212-681-3900; E-Mail:
Magdalena.Brzostowska@dnbnor.no).
	 
	 	(4)	 	The Royal Bank of Scotland plc, Letter of Credit Department,
600 Washington Boulevard, Stamford CT, 06901, Attention: Richard Emmich (Phone:
203 897 7619), Marchette Major (Phone: 203 897 7638) (Fax: No. 212 401 1494)





     (d) if to the Swingline Lender, to Wells Fargo Bank, NA, 1525 W WT Harris Blvd., Charlotte, NC
28262, Attention of Syndication Agency Services (Telecopy No. 704/590-2706), with a copy to Wells
Fargo Corporate Banking, 301 S. College Street, TW 15, Charlotte, NC 28288, MAC D1053-150,
Attention of Shannan Townsend (Telecopy No. 919/742-7482); and



     (e) if to any other Lender, to it at its address (or telecopy number) of record with the
Administrative Agent, which Administrative Agent shall provide to the Borrower or any Lender upon
request from time to time.



     (f) The Borrower will have the option to provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the Administrative Agent pursuant
to this Agreement or any other document executed in connection herewith, including, without
limitation, all notices, requests, financial statements, financial and other reports, certificates
and other information materials, but excluding any such communication that (i) relates to a request
for a new, or a conversion of an existing, Borrowing or other extension of credit (including any
election of an interest rate or Interest Period relating thereto) or relates to the issuance,
amendment, renewal or extension of any Letter of Credit, (ii) relates to the payment of any
principal or other amount due under this Agreement prior to the scheduled date therefor, (iii)
provides notice of any Default or Event of Default, or (iv) other than the requirements set forth
in Sections 3.04(a), 4.01(i) and 5.01, is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any Borrowing, any issuance, amendment,
renewal or extension of any Letter of Credit or any other extension of credit hereunder (all such
non-excluded communications being referred to herein collectively as “Communications”), by
transmitting the Communications in an electronic/soft medium in a format acceptable to the
Administrative Agent. The Borrower further agrees that the Administrative Agent may make the
Communications available to the Lenders and the Issuing Bank by posting the Communications on
SyndTrak or a substantially similar electronic transmission system (the “Platform”). The
Borrower acknowledges that the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks associated with such
distribution. The Platform is provided “as is” and “as available”. The Agent Parties (as
defined below) do not warrant the accuracy or completeness of the Communications, or the adequacy
of the Platform and expressly disclaim liability for errors or omissions in the Communications. No
warranty of any kind, express, implied or statutory, including, without limitation, any warranty of



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merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent Parties in connection with the
Communications or the Platform. In no event shall the Administrative Agent or 
any of its affiliates or any of their respective officers, directors, employees, agents,
advisors or representatives (collectively, “Agent Parties”) have any liability to the Borrower, any
Lender or any other Person or entity for damages of any kind, including, without limitation, direct
or indirect, special, incidental or consequential damages, losses or expenses (whether in tort,
contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of
Communications through the internet, except to the extent the liability of any Agent Party is found
in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily
from such Agent Party’s gross negligence or willful misconduct. The Administrative Agent
agrees that the receipt of the Communications by the Administrative Agent at its e-mail address as
specified by the Administrative Agent from time to time shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of this Agreement and any other documents
executed in connection herewith. Each of the Issuing Bank and the Lenders agrees that notice to it
(as provided in the next sentence) specifying that the Communications have been posted to the
Platform shall constitute effective delivery of the Communications to such Issuing Bank or Lender,
as the case may be, for purposes of this Agreement and any other documents executed in connection
herewith. Each of the Issuing Bank and the Lenders agrees to notify the Administrative Agent in
writing (including by electronic communication) from time to time of such Issuing Bank’s or
Lender’s, as the case may be, e-mail address to which the foregoing notice may be sent by
electronic transmission, and (ii) that the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant hereto or any other document executed in connection herewith
in any other manner specified herein or therein.



Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt.




     SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.



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     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders (or the Required Revolving Lenders, as applicable) or by the Borrower and the
Administrative Agent with the consent of the Required Lenders (or the Required Revolving Lenders, as applicable); provided that no such agreement shall (i)
increase or extend the Revolving Credit Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving
Credit Commitment, without the written consent of each Lender affected thereby, (iv) change Section
2.18(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, or (v) change any of the provisions of this Section or
the definition of “Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each Lender (or, as to
any change to the definition of “Required Revolving Lenders”, the written consent of each Revolving
Lender); provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be. Notwithstanding anything to the contrary herein, the
Revolving Commitment and outstanding Loans of a Defaulting Lender shall be disregarded for all
purposes of any determination of whether the requisite Lenders have taken or may take any action
hereunder, and any amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the applicable Lenders other
than Defaulting Lenders, except that (x) the Revolving Credit Commitment of any Defaulting Lender
may not be increased or extended, nor may the Term Loan Maturity Date be extended, nor may the
outstanding principal of any Loan owed to such Defaulting Lender be forgiven without the consent of
such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than
other affected Lenders shall require the consent of such Defaulting Lender.



     SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of one law firm as counsel for the
Administrative Agent, in connection with the syndication (prior to the Effective Date) of the
credit facilities provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses
reasonably incurred during the existence of an Event of Default by the Administrative Agent, the
Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit



65









 




issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.




     (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available (x) to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of such Indemnitee or any
Related Party of such Indemnitee, or (y) in connection with disputes among or between the
Administrative Agent, Lenders, Issuing Bank and/or their respective Related Parties.



     (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Revolving Credit Percentage and
Applicable Term Loan Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or the
Swingline Lender in its capacity as such.



     (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for indirect, special,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.



     (e) All amounts due under this Section shall be payable not later than 30 days after written
demand therefor, such demand to be in reasonable detail setting forth the basis for and method of
calculation of such amounts.



     SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that the Borrower may not assign or otherwise transfer any of its rights or



66









 




obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank
that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.




     (b) Any Lender may assign to one or more assignees (other than the Borrower or an Affiliate of
the Borrower or a Defaulting Lender) all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and Revolving Loans owing
to it and/or Term Loans at the time owing to it); provided that (i) except in the case of
an assignment to a Lender (or an Affiliate of a Lender with a rating of at least A from S&P or A2
from Moody’s), each of the Borrower and the Administrative Agent (and, in the case of an assignment
of all or a portion of a Revolving Credit Commitment or any Lender’s obligations in respect of its
LC Exposure or Swingline Exposure, each Issuing Bank and the Swingline Lender) must give their
prior written consent to such assignment (which consent shall not be unreasonably withheld or
delayed), (ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Revolving Credit Commitment and
Revolving Loans and/or Term Loan, as applicable, the amount of the Revolving Credit Commitment and
Revolving Loans and/or Term Loan, as applicable, of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect to such assignment
is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial assignment of a
Revolving Credit Commitment and Revolving Loans and/or Term Loan, as the case may be, shall result
in the assignor retaining a Revolving Credit Commitment and Revolving Loans and/or Term Loan, as
applicable, of not less than $10,000,000 and shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under this Agreement with respect to such
Revolving Credit Commitment and Revolving Loans and/or Term Loan, (iv) the parties (other than the
Borrower) to each assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, (v) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire
and (vi) no assignment to a foreign bank shall be made hereunder unless, at the time of such
assignment, there is no withholding tax applicable with respect to such foreign bank for which the
Borrower would be or become responsible under Section 2.17; and provided further that any
consent of the Borrower otherwise required under this paragraph shall not be required if an Event
of Default has occurred and is continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 as to matters occurring on or prior
to date of assignment). Any assignment or



67









 




transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.




     (c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York, the address of which shall be made
available to any party to this Agreement upon request: a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Revolving Credit Commitment of, and principal amount of the Loans and LC Disbursements owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive absent manifest error, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall
maintain on the Register information regarding the designation, and revocation of designation, of
any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrower,
the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.



     (d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.



     (e) Any Lender may, without the consent of the Borrower, the Administrative Agent, the Issuing
Bank or the Swingline Lender, sell participations to one or more banks or other entities, other
than a Defaulting Lender (a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and
the Loans owing to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant.



     (f) A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower is



68









 




notified of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) as though it were a Lender and has zero withholding at the
time of participation.




     (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender to a Federal Reserve Bank or
any central bank having jurisdiction over such Lender, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



     (h) In connection with any assignment of rights and obligations of any Defaulting Lender
hereunder, no such assignment shall be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignment shall make such additional
payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof
as appropriate (which may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the consent of the
Borrower and the Administrative Agent, the applicable pro rata share of Revolving Loans previously
requested but not funded by the Defaulting Lender, to each of which the applicable assignee and
assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest
accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Revolving
Loans and participations in Letters of Credit and Swingline Loans in accordance with its Applicable
Revolving Credit Percentage. Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall become effective under applicable
Law without compliance with the provisions of this paragraph, then the assignee of such interest
shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs.



     SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Revolving Credit Commitments have not expired or terminated. The provisions of Sections 2.15,
2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Revolving Credit Commitments or the
termination of this Agreement or any provision hereof.



     SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the



69









 




Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. This Agreement shall become effective on the
Effective Date, and thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.




     SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Without limiting the foregoing provisions of this Section, if and to the extent that the
enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited
by bankruptcy, insolvency, receivership or similar law, as determined in good faith by the
Administrative Agent, an Issuing Bank or the Swingline Lender, as applicable, then such provisions
shall be deemed to be in effect only to the extent not so limited.



     SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing and acceleration has occurred under Article VII, each Lender and each of its Affiliates
is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final)
at any time held and other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such obligations may be
unmatured; provided, that in the event that any Defaulting Lender shall exercise any such
right of setoff granted hereunder, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section 2.18 and,
pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed
held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable
detail the obligations under this Agreement owing to such Defaulting Lender as to which it
exercised such right of setoff. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender may have.



     SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.



     (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent



70









 




permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the Borrower or its properties
in the courts of any jurisdiction.




     (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.



     SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



     SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Co-Syndication
Agents, the Co-Documentation Agents, and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement (including any pledgee or assignee permitted under Section
9.04(g)), (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes



71









 




publicly available other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent, Co-Syndication Agents, the Co-Documentation Agents or any Lender on a
nonconfidential basis from a source other than the Borrower and its Related Parties. For the
purposes of this Section, “Information” means all information received from the Borrower relating
to the Borrower or its business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower.




     SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together (to the extent lawful) with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.



     SECTION 9.14. Liability of General Partner. It is hereby understood and agreed that
the General Partner shall have no personal liability, as general partner or otherwise, for the
payment of any amount owing or to be owing hereunder.



     SECTION 9.15. USA Patriot Act Notice. Each Lender and Agent (for itself and not on
behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2003)) (the “Act”), it is
required to obtain, verify and record information that identifies Borrower, which information
includes the name and address of Borrower and other information that will allow such Lender or the
Agent, as applicable, to identify Borrower in accordance with the Act. The Borrower
shall, following a request by the Agent or any Lender, provide all documentation and other
information that the Agent or such Lender reasonably requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.



     SECTION 9.16. No Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with any amendment, waiver
or other modification hereof or of any other Loan Document), Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by Administrative Agent, arrangers and Lenders are arm’s-length
commercial transactions between Borrower and its Affiliates, on the one hand, and Administrative Agent, arrangers and Lenders, on the other hand, (B) Borrower has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and
(C) Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions
of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) Administrative
Agent, each Lender and each arranger is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will



72









 




not be acting as an advisor, agent or fiduciary for Borrower or any of its Affiliates, or any other Person and
(B) neither Administrative Agent nor any arranger or Lender has any obligation to Borrower or any
of its Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) Administrative Agent,
arrangers and Lenders and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of Borrower and its Affiliates, and
neither Administrative Agent, any arranger or any Lender has any obligation to disclose any of such
interests to Borrower or its Affiliates. To the fullest extent permitted by law, Borrower hereby
waives and releases any claims that it may have against Administrative Agent, any arranger or any
Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with
any aspect of any transaction contemplated hereby.




     SECTION 9.17. Existing Credit Facility. Each Lender and Administrative Agent (for
the undersigned Lenders, to the extent a party to the Existing Credit Facility) agree and
acknowledge that in connection with the amendment and restatement of the Existing Credit Facility
pursuant hereto, Borrower, Administrative Agent and Lenders shall make adjustments to (i) the
outstanding principal amount of “Revolving Loans” (as defined in the Existing Credit Facility) (but
not any interest accrued thereon prior to the Effective Date or any accrued facility fees under the
Existing Credit Facility prior to the Effective Date), including the borrowing of such additional “
Revolving Loans” (which may include “Eurodollar Loans” (as defined in the Existing Credit Facility)
and the repayment of “Revolving Loans” (which may include the prepayment or conversion of
“Eurodollar Loans”) plus all applicable accrued interest, fees and expenses as shall be necessary
to provide for Revolving Loans by each Lender in the amount of its new Applicable Revolving Credit
Percentage of all Revolving Loans as of the Effective Date, and (ii) participations in Existing
Letters of Credit to provide for each Lender’s participation in each Existing Letter of Credit
equal to such Lender’s new Applicable Revolving Credit Percentage of the aggregate amount available
to be drawn under each such Existing Letter of Credit as of the Effective Date. In connection with
the foregoing, each Lender shall be deemed to have made an assignment of its outstanding Revolving
Loans and “Commitments” (as defined in the Existing Credit Facility) under the Existing Credit
Facility, and assumed outstanding Revolving Loans and Commitments of other Lenders under the
Existing Credit Facility, all at the request of the Borrower, as may be necessary to effect the
foregoing, and each such Lender shall be entitled to any reimbursement under Section 2.16 hereof
with respect thereto. Each of the undersigned Lenders, to the extent a party to the Existing Credit
Facility, waives any requirement under the Existing Credit Facility that notice with respect to any
such borrowing, prepayment or other transaction described in this Section 9.16 be given.



[Signature Pages to Follow]





73












 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.

 	 
	 	By:  	DEP Holdings, LLC, General Partner
 	 
	 	 	 
	 	By:  	            /s/ Bryan F. Bulawa
 	 
	 	 	Bryan F. Bulawa 	 
	 	 	Senior Vice President, Chief Financial Officer
and Treasurer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.,

Individually, as Administrative Agent,

as an Issuing Bank and as Swingline Lender

 	 
	 	By:  	/s/ Shannon Townsend 	 
	 	 	Name:  	Shannon Townsend 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIBANK, N.A.,

Individually, as Co-Syndication Agent and

an Issuing Bank

 	 
	 	By:  	/s/ Andrew Sidford 	 
	 	 	Name:  	Andrew Sidford 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	DNB NOR BANK ASA,

Individually, as Co-Syndication Agent and

an Issuing Bank

 	 
	 	By:  	/s/ Philip F. Kurpiewski 	 
	 	 	Name:  	Philip F. Kurpiewski 	 
	 	 	Title:  	Senior Vice President	 
	 
	 	 	 
	 	By:  	/s/ Cathleen Buckley 	 
	 	 	Name:  	Cathleen Buckley 	 
	 	 	Title:  	First Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC,

Individually, as Co-Syndication Agent and

an Issuing Bank

 	 
	 	By:  	/s/ Steve Ray 	 
	 	 	Name:  	Steve Ray 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BARCLAYS BANK PLC,

Individually and as Co-Documentation Agent

 	 
	 	By: 	/s/ Ann E. Sutton 	 
	 	 	Name:  	Ann E. Sutton 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.,

Individually and as Co-Documentation Agent

 	 
	 	By: 	/s/ Leon Mo 	 
	 	 	Name:  	Leon Mo 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, a Lender


 	 
	 	By: 	/s/ G. George 	 
	 	 	Name:  	G. George 	 
	 	 	Title:  	Managing Director 	 
	 
	 	SCOTIABANC INC., a Lender


	 
	 	By: 	/s/ J. F. Todd 	 
	 	 	Name:  	J. F. Todd 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., a Lender

 	 
	 	By:  	/s/ William W. Stevenson 	 
	 	 	Name:  	William W. Stevenson 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BNP PARIBAS, a Lender

 	 
	 	By:  	/s/
Greg Smothers 	 
	 	 	Name:  	Greg Smothers 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	/s/ Edward Pak 	 
	 	 	Name:  	Edward Pak 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

a Lender

 	 
	 	By:  	/s/ Philippe Sandmeier 	 
	 	 	Name:  	Philippe Sandmeier 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	/s/ Oliver Schwarz 	 
	 	 	Name:  	Oliver Schwarz 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., a Lender

 	 
	 	By:  	/s/ Stephanie Balette 	 
	 	 	Name:  	Stephanie Balette 	 
	 	 	Title:  	Authorized Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., a Lender

 	 
	 	By:  	/s/ Sherrese Clark 	 
	 	 	Name:  	Sherrese Clark 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NATIXIS, a Lender

 	 
	 	By:  	/s/ Timothy L. Polvado 	 
	 	 	Name:  	Timothy L. Polvado 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	 	 
	 	By:  	/s/ Carlos Quinteros 	 
	 	 	Name:  	Carlos Quinteros 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ROYAL BANK OF CANADA, a Lender

 	 
	 	By:  	/s/ Don J. McKinnerney 	 
	 	 	Name:  	Don J. McKinnerney 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	RBC BANK (USA), a Lender

 	 
	 	By:  	/s/ Richard Marshall 	 
	 	 	Name:  	Richard Marshall 	 
	 	 	Title:  	Market Executive - National Division 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	UBS AG, STAMFORD BRANCH, a Lender

 	 
	 	By:  	/s/ Irja R. Otsa 	 
	 	 	Name:  	 Irja R. Otsa 	 
	 	 	Title:  	Associate Director 	 
	 
	 	 	 
	 	By:  	/s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMPASS BANK, a Lender

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



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CREDIT SUISSE AG,

CAYMAN ISLANDS BRANCH, a Lender

 	 
	 	By:  	/s/ Nupur Kumar 	 
	 	 	Name:  	Nupur Kumar 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Rahul Parmar
 	 
	 	 	Name:  	Rahul Parmar 	 
	 	 	Title:  	Associate 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING CORP.,

NEW YORK, a Lender

 	 
	 	By:  	/s/ Masakazu Hasegawa 	 
	 	 	Name:  	Masakazu Hasegawa 	 
	 	 	Title:  	General Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

a Lender

 	 
	 	By:  	/s/ Bruce E. Hernandez 	 
	 	 	Name:  	Bruce E. Hernandez 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA, a Lender

 	 
	 	By:  	/s/ Mark Walton	 
	 	 	Name:  	Mark Walton	 
	 	 	Title:  	Authorized Signatory	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ING CAPITAL, LLC, a Lender

 	 
	 	By:  	/s/ Richard Ennis	 
	 	 	Name:  	Richard Ennis	 
	 	 	Title:  	Managing Director	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SOCIETE GENERALE, a Lender

 	 
	 	By:  	/s/ Stephen W. Warfel	 
	 	 	Name:  	Stephen W. Warfel	 
	 	 	Title:  	Managing Director	 
	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK, a Lender

 	 
	 	By:  	/s/ Carmen Malizia	 
	 	 	Name:  	Carmen Malizia	 
	 	 	Title:  	Vice President	 
	 




 











 





SCHEDULE 2.01




REVOLVING CREDIT COMMITMENTS




AND TERM LOAN AMOUNTS



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 	 	 	 	 	 	 	 
	 	 	Revolving	 	 	Revolving	 	 	 	 	 	 	Applicable	 
	 	 	Credit	 	 	Credit	 	 	Term Loan	 	 	Term Loan	 
	Lender	 	Commitment	 	 	Percentage	 	 	Amount	 	 	Percentage	 
	Wells Fargo Bank, National Association
	 	$	42,160,000	 	 	 	4.960000	%	 	$	19,840,000	 	 	 	4.960000	%
	Citibank, N.A.
	 	$	42,160,000	 	 	 	4.960000	%	 	$	19,840,000	 	 	 	4.960000	%
	DnB NOR Bank ASA
	 	$	42,160,000	 	 	 	4.960000	%	 	$	19,840,000	 	 	 	4.960000	%
	The Royal Bank of Scotland plc
	 	$	42,160,000	 	 	 	4.960000	%	 	$	19,840,000	 	 	 	4.960000	%
	Barclays Bank plc
	 	$	42,160,000	 	 	 	4.960000	%	 	$	19,840,000	 	 	 	4.960000	%
	Mizuho Corporate Bank, Ltd.
	 	$	42,160,000	 	 	 	4.960000	%	 	$	19,840,000	 	 	 	4.960000	%
	The Bank of Nova Scotia
	 	$	42,160,000	 	 	 	4.960000	%	 	 	—	 	 	 	—	 
	Scotiabanc Inc.
	 	 	—	 	 	 	—	 	 	$	19,840,000	 	 	 	4.960000	%
	Bank of America, N.A.
	 	$	37,400,000	 	 	 	4.400000	%	 	$	17,600,000	 	 	 	4.400000	%
	BNP Paribas
	 	$	37,400,000	 	 	 	4.400000	%	 	$	17,600,000	 	 	 	4.400000	%
	Deutsche Bank AG New York Branch
	 	$	37,400,000	 	 	 	4.400000	%	 	$	17,600,000	 	 	 	4.400000	%
	JPMorgan Chase Bank, N.A.
	 	$	37,400,000	 	 	 	4.400000	%	 	$	17,600,000	 	 	 	4.400000	%
	Morgan Stanley Bank, N.A.
	 	$	37,400,000	 	 	 	4.400000	%	 	$	17,600,000	 	 	 	4.400000	%
	Natixis
	 	$	37,400,000	 	 	 	4.400000	%	 	$	17,600,000	 	 	 	4.400000	%
	Royal Bank of Canada
	 	$	26,180,000	 	 	 	3.080000	%	 	$	12,320,000	 	 	 	3.080000	%
	RBC Bank (USA)
	 	$	11,220,000	 	 	 	1.320000	%	 	$	5,280,000	 	 	 	1.320000	%
	UBS AG, Stamford Branch
	 	$	37,400,000	 	 	 	4.400000	%	 	$	17,600,000	 	 	 	4.400000	%
	Compass Bank
	 	$	34,000,000	 	 	 	4.000000	%	 	$	16,000,000	 	 	 	4.000000	%
	Credit Suisse AG, Cayman Islands Branch
	 	$	34,000,000	 	 	 	4.000000	%	 	$	16,000,000	 	 	 	4.000000	%
	Sumitomo Mitsui Banking Corp., New York
	 	$	34,000,000	 	 	 	4.000000	%	 	$	16,000,000	 	 	 	4.000000	%
	U.S. Bank National Association
	 	$	34,000,000	 	 	 	4.000000	%	 	$	16,000,000	 	 	 	4.000000	%
	Goldman Sachs Bank USA
	 	$	29,920,000	 	 	 	3.520000	%	 	$	14,080,000	 	 	 	3.520000	%
	ING Capital, LLC
	 	$	29,920,000	 	 	 	3.520000	%	 	$	14,080,000	 	 	 	3.520000	%
	Société Générale
	 	$	29,920,000	 	 	 	3.520000	%	 	$	14,080,000	 	 	 	3.520000	%
	SunTrust Bank
	 	$	29,920,000	 	 	 	3.520000	%	 	$	14,080,000	 	 	 	3.520000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL
	 	$	850,000,000	 	 	 	100	%	 	$	400,000,000	 	 	 	100	%






 









 






Schedule 3.05




Disclosed Matters


(a) None.



(b) None.





 









 








Schedule 3.11




Subsidiaries



	 	 	 	 	 
	 	 	Jurisdiction of	 	Effective Ownership by the Borrower or a
	Name of Subsidiary	 	Formation	 	Subsidiary
	Acadian Gas, LLC

	 	Delaware
	 	DEP Operating Partnership, L.P.  — 66%
	 

	 	 	 	Enterprise Products Operating LLC — 34%
	 
	 	 	 	 
	Acadian Gas Pipeline System

	 	Texas
	 	MCN Acadian Gas Pipeline, LLC — 50%
	 

	 	 	 	TXO-Acadian Gas Pipeline, LLC — 50%
	 
	 	 	 	 
	Calcasieu Gas Gathering System

	 	Texas
	 	MCN Acadian Gas Pipeline, LLC — 50%
	 

	 	 	 	TXO-Acadian Gas Pipeline, LLC — 50%
	 
	Cypress Gas Marketing, LLC

	 	Delaware
	 	Acadian Gas, LLC — 100%
	 
	 	 	 	 
	Cypress Gas Pipeline, LLC

	 	Delaware
	 	Acadian Gas, LLC — 100%
	 
	 	 	 	 
	DEP Offshore Port System, LLC

	 	Texas
	 	DEP Operating Partnership, LLC — 100%
	 
	 	 	 	 
	DEP OLPGP, LLC

	 	Delaware
	 	Duncan Energy Partners L.P. — 100%
	 
	 	 	 	 
	DEP Operating Partnership, L.P.

	 	Delaware
	 	DEP OLPGP, LLC — 0.001%
	 

	 	 	 	Duncan Energy Partners L.P. — 99.999%
	 
	 	 	 	 
	Enterprise Big Thicket Pipeline System LLC

	 	Texas
	 	Enterprise GC, LP — 100%
	 
	 	 	 	 
	Enterprise GC, LP

	 	Delaware
	 	Enterprise Holding III, L.L.C. — 66%
	 
	 	 	 	 
	Enterprise Holding III, L.L.C.

	 	Delaware
	 	DEP Operating Partnership, LLC — 100%
	 
	 	 	 	 
	Enterprise Intrastate, L.P.

	 	Delaware
	 	Enterprise Holding III, L.L.C. — 51%
	 
	 	 	 	 
	Enterprise Lou-Tex Propylene Pipeline, L.P.

	 	Texas
	 	DEP Operating Partnership, L.P. — 66% general partner interest
	 

	 	 	 	Enterprise Products Operating LLC — 33% limited partner interest
	 

	 	 	 	Propylene Pipeline Partnership L.P. — 1% limited partner interest
	 
	 	 	 	 
	Enterprise Texas Pipeline LLC

	 	Texas
	 	Enterprise Holding III, L.L.C. — 51%
	 
	 	 	 	 
	Evangeline Gulf Coast Gas, LLC

	 	Delaware
	 	Acadian Gas, LLC — 100%
	 
	 	 	 	 
	MCN Acadian Gas Pipeline, LLC

	 	Delaware
	 	Acadian Gas, LLC — 100%
	 
	 	 	 	 
	MCN Pelican Interstate Gas, LLC

	 	Delaware
	 	Acadian Gas, LLC — 100%
	 
	 	 	 	 
	Mont Belvieu Caverns, LLC

	 	Delaware
	 	DEP Operating Partnership, L.P. — 66%
	 

	 	 	 	Enterprise Products Operating LLC — 33.365%
	 

	 	 	 	Enterprise Products OLPGP, Inc. — 0.635%
	 
	 	 	 	 
	Neches Pipeline System

	 	Texas
	 	MCN Acadian Gas Pipeline, LLC — 50%
	 

	 	 	 	TXO-Acadian Gas Pipeline, LLC — 50%
	 
	 	 	 	 
	Ponchartrain Natural Gas System

	 	Texas
	 	MCN Acadian Gas Pipeline, LLC — 50%
	 

	 	 	 	TXO-Acadian Gas Pipeline, LLC — 50%
	 
	 	 	 	 
	Sabine Propylene Pipeline, L.P.

	 	Texas
	 	DEP Operating Partnership, L.P. — 66% general partner interest
	 

	 	 	 	Enterprise Products Operating LLC — 33% limited partner interest
	 

	 	 	 	Propylene Pipeline Partnership L.P. — 1% limited partner interest






 









 






	 	 	 	 	 
	 	 	Jurisdiction of	 	Effective Ownership by the Borrower or a
	Name of Subsidiary	 	Formation	 	Subsidiary
	South Texas NGL Pipelines, LLC

	 	Delaware
	 	DEP Operating Partnership, L.P. — 66%
	 

	 	 	 	Enterprise Products Operating LLC — 34%
	 
	 	 	 	 
	Tejas-Magnolia Energy, LLC

	 	Delaware
	 	Ponchartrain Natural Gas System — 96.6%
	 

	 	 	 	MCN Pelican Interstate Gas, LLC — 3.4%
	 
	 	 	 	 
	TXO-Acadian Gas Pipeline, LLC

	 	Delaware
	 	Acadian Gas, LLC — 100%






 









 






Schedule 6.01




Existing Indebtedness


At June 30, 2010, long-term debt of Evangeline consisted of:





(i) $3.2 million in principal amount of 9.87% fixed-rate Series B Senior Secured Notes due
December 2010 pursuant to an Indenture dated February 11, 1992, by and among Evangeline Gas
Pipeline Company, L.P. and Bank of Montreal Trust Company, as Trustee, as amended and
supplemented. The current $3.2 million principal balance of the Series B Senior Secured
Notes is fully cash secured at June 30, 2010; and




(ii) a $7.5 million Subordinated Note Payable to The Louisiana Land and Exploration Company
(or any successor or assign), dated December 31, 1991, made by Evangeline Gas Pipeline
Company, L.P. pursuant to a Second Amended and Restated Promissory Note entered into on July
1, 1997. Accrued interest on this Subordinated Note Payable was $2.7 million at June 30,
2010. Management expects that the Subordinated Note Payable and related accrued interest
will be fully repaid during the first quarter of 2011.



 









 





Schedule 6.02




Existing Liens




	 	A.	 	The 9.87% Senior Secured Notes due December 31, 2010 issued by Evangeline Gas Pipeline
Company, L.P. disclosed in Schedule 6.01 are collateralized by Evangeline’s property, plant
and equipment; proceeds from a gas sales contract; and by a debt service reserve
requirement.
	 
	 	B.	 	Entergy has the option to purchase the Evangeline pipeline system or an equity interest
in Evangeline. In 1991, Evangeline Gas Pipeline Company, L.P. entered into an agreement
with Entergy whereby Entergy was granted the right to acquire Evangeline’s pipeline system
for a nominal price, plus the complete performance and compliance with the natural gas
sales contract. The option period terminates on December 31, 2012.
	 
	 	C.	 	Pursuant to the Omnibus Agreement dated                     , Enterprise Products Operating L.P.
has a right of first refusal to acquire any equity interests of the subsidiaries of DEP
Operating Partnership, L.P. or any assets owned by Duncan Energy Partners L.P. or its
subsidiaries.




 









 











Schedule 6.09




Affiliate Agreements


None





 









 








EXHIBIT A




FORM OF

ASSIGNMENT AND ACCEPTANCE




     Reference is made to the Revolving Credit and Term Loan Agreement dated as of October 25, 2010
(as amended and in effect on the date hereof, the “Credit Agreement”), among Duncan Energy Partners
L.P., the Lenders named therein and Wells Fargo Bank, National Association, as Administrative Agent
for the Lenders. Terms defined in the Credit Agreement are used herein with the same meanings.



     The Assignor named herein hereby sells and assigns, without recourse, to the Assignee named
herein, and the Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth herein the interests set forth herein (the “Assigned
Interest”) in the Assignor’s rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth herein in the Revolving Credit Commitment of the Assignor on
the Assignment Date and [Revolving/Term] Loans owing to the Assignor which are outstanding on the
Assignment Date, [together with the participations in Letters of Credit, LC Disbursements and
Swingline Loans held by the Assignor on the Assignment Date,] but excluding accrued interest and
fees to and excluding the Assignment Date. The Assignee hereby acknowledges receipt of a copy of
the Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and
be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
of the Assigned Interest, relinquish its rights and be released from its obligations under the
Credit Agreement.



     This Assignment and Acceptance is being delivered to the Administrative Agent together with
(i) if the Assignee is a Foreign Lender, any documentation required to be delivered by the Assignee
pursuant to Section 2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed by the Assignee.
The [Assignee/Assignor] shall pay the fee payable to the Administrative Agent pursuant to Section
9.04(b) of the Credit Agreement.



     This Assignment and Acceptance shall be governed by and construed in accordance with the laws
of the State of New York.


Date of Assignment:



Legal Name of Assignor:




Legal Name of Assignee:

Assignee’s Address for Notices:




Effective Date of Assignment

(“Assignment Date”):




1









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage Assigned of	 
	 	 	 	 	 	 	Facility/Revolving Credit	 
	 	 	 	 	 	 	Commitment (set forth, to at least 8	 
	 	 	 	 	 	 	decimals, as a percentage of the	 
	 	 	 	 	 	 	Facility and the aggregate	 
	 	 	Principal Amount	 	 	Revolving Credit Commitments of	 
	Facility	 	Assigned	 	 	all Lenders thereunder)	 
	Revolving Credit
Commitment Assigned:
	 	$	 	 	 	 	%	 
	Revolving Credit Loans:
	 	 	 	 	 	 	 	 
	Term Loans
	 	 	 	 	 	 	 	 





The terms set forth above are hereby agreed to:




	 	 	 	 	 
	 	[Name of Assignor], as Assignor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Name of Assignee], as Assignee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 







The undersigned hereby consent to the within assignment:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	Duncan Energy Partners L.P.	 	Wells Fargo Bank, National Association, as Administrative Agent
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	DEP Holdings, LLC, General Partner	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	Name:	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Wells Fargo Bank, National Association, as Swingline Lender	 	Wells Fargo Bank, National Association, as Issuing Bank
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	Name:	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 	 	 	 	 






3









 





EXHIBIT B-1




FORM OF REVOLVING BORROWING REQUEST

Dated                     




Wells Fargo Bank, National Association,
  
as Administrative Agent

301 South College Street, TW-10

Charlotte, North Carolina 28288-0608

Attn: Syndication Agency Services



Ladies and Gentlemen:




     This Revolving Borrowing Request is delivered to you by Duncan Energy Partners L.P. (the
“Borrower”), a Delaware limited partnership, under Section 2.03 of the Revolving Credit and Term
Loan Agreement dated as of October 25, 2010 (as restated, amended, modified, supplemented and in
effect, the “Credit Agreement”), by and among the Borrower, the Lenders party thereto, and Wells
Fargo Bank, National Association, as Administrative Agent.



     1. The Borrower hereby requests that the Lenders make a Loan or Loans in the aggregate
principal amount of $                     (the “Revolving Loan” or the “Revolving
Loans”).1/



     2. The Borrower hereby requests that the Revolving Loan or Revolving Loans be made on the
following Business Day: 2/



     3. The Borrower hereby requests that the Revolving Loan or Revolving Loans bear interest at
the following interest rate, plus the Applicable Rate, as set forth below:



	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	 	 	 	 	Maturity Date for
	Type of	 	Component of	 	Interest	 	Interest Period	 	Interest Period
	Revolving Loan	 	Revolving Loan	 	Rate	 	(if applicable)	 	(if applicable)
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 







 




			
	1.	 	Complete with an amount in accordance with Section 2.03 of the Credit Agreement.
	 
	2.	 	Complete with a Business Day in accordance with
Section 2.03 of the Credit Agreement.




1









 










     4. The Borrower hereby requests that the funds from the Revolving Loan or Revolving Loans be
disbursed to the following bank account:                                         .



     5. After giving effect to the requested Revolving Loan, the sum of the Revolving Credit
Exposures (including the requested Revolving Loans) does not exceed the maximum amount permitted to
be outstanding pursuant to the terms of the Credit Agreement.



     6. All of the conditions applicable to the Revolving Loans requested herein as set forth in
the Credit Agreement have been satisfied as of the date hereof and will remain satisfied to the
date of such Loans.



     7. All capitalized undefined terms used herein have the meanings assigned thereto in the
Credit Agreement.



     IN WITNESS WHEREOF, the undersigned have executed this Revolving Borrowing Request this _____
day of _______________, _____.



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.

 	 
	 	By:  	DEP Holdings, LLC, its General Partner
 	 
	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2








 





EXHIBIT B-2




FORM OF TERM LOAN BORROWING REQUEST




Dated October 25, 2010



Wells Fargo Bank, National Association,
 as
Administrative Agent

301 South College Street, TW-10

Charlotte, North Carolina 28288-0608

Attn: Syndication Agency Services



Ladies and Gentlemen:




     This Term Loan Borrowing Request is delivered to you by Duncan Energy Partners L.P. (the
“Borrower”), a Delaware limited partnership, under Section 2.03 of the Revolving Credit and Term
Loan Agreement dated as of October 25, 2010 (as restated, amended, modified, supplemented and in
effect, the “Credit Agreement”), by and among the Borrower, the Lenders party thereto, and Wells
Fargo Bank, National Association, as Administrative Agent.



     1. The Borrower hereby requests that the Lenders make a Term Loan or Term Loans in the
aggregate principal amount of $400,000,000.00 (the “Term Loan” or the “Term Loans”) on the date
hereof.



     2. The Borrower hereby requests that the Term Loan or Term Loans bear interest at the
following interest rate, plus the Applicable Rate, as set forth below:



	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	 	 	 	 	Maturity Date for
	Type of	 	Component of	 	Interest	 	Interest Period	 	Interest Period
	Term Loan	 	Term Loan	 	Rate	 	(if applicable)	 	(if applicable)
	 
	 	 
	 	 
	 	 
	 	 
	 
	 





     4. The Borrower hereby requests that the funds from the Term Loan or Term Loans be disbursed
to the following bank account: _____________________________.



     5. All of the conditions applicable to the Term Loans requested herein as set forth in the
Credit Agreement have been satisfied as of the date hereof and will remain satisfied to the date of
such Loans.



     6. All capitalized undefined terms used herein have the meanings assigned thereto in the
Credit Agreement.



1









 





     IN WITNESS WHEREOF, the undersigned have executed this Term Loan Borrowing Request this _____
day of _______________, _____.



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.

 	 
	 	By:  	DEP Holdings, LLC, its General Partner
 	 
	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 






	 	 	 	 	 



EXHIBIT C




FORM OF

INTEREST ELECTION REQUEST




Dated _____________



Wells Fargo Bank, National Association,
 as
Administrative Agent

301 South College Street, TW-10

Charlotte, North Carolina 28288-0608

Attn: Syndication Agency Services



Ladies and Gentlemen:





     This irrevocable Interest Election Request (the “Request”) is delivered to you under Section
2.07 of the Revolving Credit and Term Loan Agreement dated as of October 25, 2010 (as restated,
amended, modified, supplemented and in effect from time to time, the “Credit Agreement”), by and
among Duncan Energy Partners L.P., a Delaware limited partnership (the “Borrower”), the Lenders
party thereto (the “Lenders”), and Wells Fargo Bank, National Association, as Administrative Agent.



     1. This Interest Election Request is submitted for the purpose of:




     (a) [Converting] [Continuing] a ____________ [Revolving/Term] Loan [into] [as] a
____________ [Revolving/Term] Loan.1/




     (b) The aggregate outstanding principal balance of such [Revolving/Term] Loan is
$_____________.




     (c) The last day of the current Interest Period for such [Revolving/Term] Loan is
____________.2/




     (d) The principal amount of such [Revolving/Term] Loan to be [converted] [continued] is
$____________.3/




     (e) The requested effective date of the [conversion] [continuation] of such
[Revolving/Term] Loan is ______________.4/




     (f) The requested Interest Period applicable to the [converted] [continued]
[Revolving/Term] Loan is ___________________.5/





 




			
	1.	 	Delete the bracketed language and insert “ABR” or
“Eurodollar”, as applicable, in each blank.
	 
	2.	 	Insert applicable date for any Eurodollar Loan being
converted or continued.
	 
	3.	 	Complete with an amount in compliance with Section
2.08 of the Credit Agreement.
	 
	4.	 	Complete with a Business Day in compliance with
Section 2.08 of the Credit Agreement.




1









 










     2. With respect to a [Revolving/Term] Borrowing to be converted to or continued as a
Eurodollar Borrowing, no Event of Default exists, and none will exist upon the conversion or
continuation of the [Revolving/Term] Borrowing requested herein.



     3. All capitalized undefined terms used herein have the meanings assigned thereto in the
Credit Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this Interest Election Request this _____ day
of ___________________, ___.



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.

 	 
	 	By:  	DEP Holdings, LLC, its General Partner
 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	5.	 	Complete for each Eurodollar Loan in compliance with the definition of the term “Interest Period” specified in Section 1.01.




2









 










EXHIBIT D-1 and D-2




FORMS OF




OPINIONS OF COUNSEL FOR BORROWER













 






EXHIBIT E




FORM OF COMPLIANCE CERTIFICATE





     The undersigned hereby certifies that he is the _______________________ of DEP HOLDINGS, LLC,
a Delaware limited liability company, general partner of DUNCAN ENERGY PARTNERS L.P., a Delaware
limited partnership (the “Borrower”), and that as such he is authorized to execute this certificate
on behalf of the Borrower. With reference to the Revolving Credit and Term Loan Agreement dated as
of October 25, 2010 (as restated, amended, modified, supplemented and in effect from time to time,
the “Agreement”), among the Borrower, Wells Fargo Bank, National Association, as Administrative
Agent, for the lenders (the “Lenders”), which are or become a party thereto, and such Lenders, the
undersigned represents and warrants as follows (each capitalized term used herein having the same
meaning given to it in the Agreement unless otherwise specified);




(a) [There currently does not exist any Default under the Agreement.] [Attached hereto is a
schedule specifying the details of [a] certain Default[s] which exist under the Agreement
and the action taken or proposed to be taken with respect thereto.]




(b) Attached hereto are the detailed computations necessary to determine whether the
Borrower is in compliance with Sections 6.07(a) and (b) of the Agreement as of the end of
the [fiscal quarter][fiscal year] ending _______________.



EXECUTED
AND DELIVERED this ____ day of
_________________,
20_.









	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.	 
	 
	 	By:  	  DEP Holdings, LLC, its General Partner
 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 













 






	 	 	 	 	 



EXHIBIT F-1




FORM OF

REVOLVING LOAN NOTE




			
	 	 	 
	$_____________
	 	_______, 200__






     DUNCAN ENERGY PARTNERS L.P., a Delaware limited partnership (the “Borrower”), for
value received, promises and agrees to pay to ____________________ (the “Lender”), or
order, at the payment office of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, at
301 South College Street, Charlotte, North Carolina 28288-0608, the principal sum of
____________________ AND NO/100 DOLLARS ($_____________), or such lesser amount as shall equal the
aggregate unpaid principal amount of the Revolving Loans owed to the Lender under the Credit
Agreement, as hereafter defined, in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to
pay interest on the unpaid principal amount as provided in the Credit Agreement for such Revolving
Loans, at such office, in like money and funds, for the period commencing on the date of each such
Revolving Loan until such Revolving Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.



     This note evidences the Revolving Loans owed to the Lender under that certain Revolving Credit
and Term Loan Agreement dated as of October 25, 2010, by and among the Borrower, Wells Fargo Bank,
National Association, individually, as Administrative Agent, Issuing Bank and Swingline Lender, and
the other financial institutions parties thereto (including the Lender) (such Credit Agreement,
together with all amendments or supplements thereto, being the “Credit Agreement”), and
shall be governed by the Credit Agreement. Capitalized terms used in this note and not defined in
this note, but which are defined in the Credit Agreement, have the respective meanings herein as
are assigned to them in the Credit Agreement.



     The Lender is hereby authorized by the Borrower to endorse on Schedule A (or a continuation
thereof) attached to this note, the Type of each Revolving Loan owed to the Lender, the amount and
date of each payment or prepayment of principal of each such Revolving Loan received by the Lender
and the Interest Periods and interest rates applicable to each Revolving Loan, provided that any
failure by the Lender to make any such endorsement shall not affect the obligations of the Borrower
under the Credit Agreement or under this note in respect of such Revolving Loans.



     This note may be held by the Lender for the account of its applicable lending office and,
except as otherwise provided in the Credit Agreement, may be transferred from one lending office of
the Lender to another lending office of the Lender from time to time as the Lender may determine.



     Except only for any notices which are specifically required by the Credit Agreement, the
Borrower and any and all co-makers, endorsers, guarantors and sureties severally waive notice
(including but not limited to notice of intent to accelerate and notice of acceleration, notice of
protest and notice of dishonor), demand, presentment for payment, protest, diligence in collecting
and the filing of suit for the purpose of fixing liability, and consent that the time of payment
hereof may be extended and re-extended from time to time without notice to any of them. Each such
person agrees that its liability on or with respect to this note shall not be




1











 




affected by any release of or change in any guaranty or security at any time existing or by
any failure to perfect or maintain perfection of any lien against or security interest in any such
security or the partial or complete unenforceability of any guaranty or other surety obligation, in
each case in whole or in part, with or without notice and before or after maturity.




     The Credit Agreement provides for the acceleration of the maturity of this note upon the
occurrence of certain events and for prepayment of Revolving Loans upon the terms and conditions
specified therein. Reference is made to the Credit Agreement for all other pertinent purposes.



     This note is issued pursuant to and is entitled to the benefits of the Credit Agreement.



     It is hereby understood and agreed that DEP Holdings, LLC, the general partner of the
Borrower, shall have no personal liability, as general partner or otherwise, for the payment of any
amount owing or to be owing hereunder.



     This note shall be construed in accordance with and be governed by the law of the State of
New York and the United States of America from time to time in effect.



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.

 	 
	 	By:  	DEP Holdings, LLC, its General Partner
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 






	 	 	 	 	 



SCHEDULE A

TO

REVOLVING LOAN NOTE



This note evidences the Revolving Loans owed to the Lender under the Credit Agreement, in the
principal amount set forth below and the applicable Interest Periods and rates for each such
Revolving Loan, subject to the payments of principal set forth below:




SCHEDULE

OF

REVOLVING LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal	 	Amount of	 	 	 	Balance	 	 
	 	 	 	 	 	 	Amount of	 	Principal	 	 	 	of	 	Notation
	 	 	Interest	 	 	 	Revolving	 	Paid or	 	Interest	 	Revolving	 	Made
	Date	 	Period	 	Rate	 	Loan	 	Prepaid	 	Paid	 	Loans	 	by
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 





3









 






EXHIBIT F-2




FORM OF

TERM LOAN NOTE




			
	$                    
	 	___, 200___






     DUNCAN ENERGY PARTNERS L.P., a Delaware limited partnership (the “Borrower”), for
value received, promises and agrees to pay to                                          (the “Lender”), or
order, at the payment office of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, at
301 South College Street, Charlotte, North Carolina 28288-0608, the principal sum of
                                         AND NO/100 DOLLARS ($                    ), or such lesser amount as shall equal the
aggregate unpaid principal amount of the Term Loans owed to the Lender under the Credit Agreement,
as hereafter defined, in lawful money of the United States of America and in immediately available
funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount as provided in the Credit Agreement for such Term Loans, at
such office, in like money and funds, for the period commencing on the date of each such Term Loan
until such Term Loan shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.



     This note evidences the Term Loans owed to the Lender under that certain Revolving Credit and
Term Loan Agreement dated as of October 25, 2010, by and among the Borrower, Wells Fargo Bank,
National Association, individually, as Administrative Agent, Issuing Bank and Swingline Lender, and
the other financial institutions parties thereto (including the Lender) (such Credit Agreement,
together with all amendments or supplements thereto, being the “Credit Agreement”), and
shall be governed by the Credit Agreement. Capitalized terms used in this note and not defined in
this note, but which are defined in the Credit Agreement, have the respective meanings herein as
are assigned to them in the Credit Agreement.



     The Lender is hereby authorized by the Borrower to endorse on Schedule A (or a continuation
thereof) attached to this note, the Type of each Term Loan owed to the Lender, the amount and date
of each payment or prepayment of principal of each such Term Loan received by the Lender and the
Interest Periods and interest rates applicable to each Term Loan, provided that any failure by the
Lender to make any such endorsement shall not affect the obligations of the Borrower under the
Credit Agreement or under this note in respect of such Term Loans.



     This note may be held by the Lender for the account of its applicable lending office and,
except as otherwise provided in the Credit Agreement, may be transferred from one lending office of
the Lender to another lending office of the Lender from time to time as the Lender may determine.



     Except only for any notices which are specifically required by the Credit Agreement, the
Borrower and any and all co-makers, endorsers, guarantors and sureties severally waive notice
(including but not limited to notice of intent to accelerate and notice of acceleration, notice of
protest and notice of dishonor), demand, presentment for payment, protest, diligence in collecting
and the filing of suit for the purpose of fixing liability, and consent that the time of payment
hereof may be extended and re-extended from time to time without notice to any of them. Each such
person agrees that its liability on or with respect to this note shall not be affected by any
release of or change in any guaranty or security at any time existing or by any



1









 




failure to perfect or maintain perfection of any lien against or security interest in any such
security or the partial or complete unenforceability of any guaranty or other surety obligation, in
each case in whole or in part, with or without notice and before or after maturity.




     The Credit Agreement provides for the acceleration of the maturity of this note upon the
occurrence of certain events and for prepayment of Term Loans upon the terms and conditions
specified therein. Reference is made to the Credit Agreement for all other pertinent purposes.



     This note is issued pursuant to and is entitled to the benefits of the Credit Agreement.



     It is hereby understood and agreed that DEP Holdings, LLC, the general partner of the
Borrower, shall have no personal liability, as general partner or otherwise, for the payment of any
amount owing or to be owing hereunder.



     This note shall be construed in accordance with and be governed by the law of the State of
New York and the United States of America from time to time in effect.



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.

 	 
	 	By:  	DEP Holdings, LLC, its General Partner
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 






	 	 	 	 	 



SCHEDULE A

TO

TERM LOAN NOTE



This note evidences the Term Loans owed to the Lender under the Credit Agreement, in the principal
amount set forth below and the applicable Interest Periods and rates for each such Term Loan,
subject to the payments of principal set forth below:




SCHEDULE

OF

TERM LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal	 	Amount of	 	 	 	Balance	 	 
	 	 	 	 	 	 	Amount of	 	Principal	 	 	 	of	 	Notation
	 	 	Interest	 	 	 	Term	 	Paid or	 	Interest	 	Term	 	Made
	Date	 	Period	 	Rate	 	Loan	 	Prepaid	 	Paid	 	Loans	 	by
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 





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EXHIBIT F-3




FORM OF

SWINGLINE LOAN NOTE




			
	$75,000,000.00
	 	October 25, 2010






     DUNCAN ENERGY PARTNERS L.P., a Delaware limited partnership (the “Borrower”), for
value received, promises and agrees to pay to WELLS FARGO BANK, NATIONAL ASSOCIATION, as Swingline
Lender under the Credit Agreement, as hereafter defined (the “Swingline Lender”), or order,
at the payment office of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, at 301
South College Street, Charlotte, North Carolina 28288-0608, the principal sum of SEVENTY-FIVE
MILLION AND NO/100 DOLLARS ($75,000,000.00), or such lesser amount as shall equal the aggregate
unpaid principal amount of the Swingline Loans owed to the Swingline Lender under the Credit
Agreement, in lawful money of the United States of America and in immediately available funds, on
the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount as provided in the Credit Agreement for such Swingline Loans, at such
office, in like money and funds, for the period commencing on the date of each such Swingline Loan
until such Swingline Loan shall be paid in full, at the rates per annum and on the dates provided
in the Credit Agreement.



     This note evidences the Swingline Loans owed to the Swingline Lender under that certain
Revolving Credit and Term Loan Agreement dated as of October 25, 2010, by and among the Borrower,
Wells Fargo Bank, National Association, individually, as Administrative Agent, Issuing Bank and
Swingline Lender, and the other financial institutions parties thereto (such Credit Agreement,
together with all amendments or supplements thereto, being the “Credit Agreement”), and
shall be governed by the Credit Agreement. Capitalized terms used in this note and not defined in
this note, but which are defined in the Credit Agreement, have the respective meanings herein as
are assigned to them in the Credit Agreement.



     The Swingline Lender is hereby authorized by the Borrower to endorse on Schedule A (or a
continuation thereof) attached to this note, the amount and date of each payment or prepayment of
principal of each such Swingline Loan received by the Swingline Lender, provided that any failure
by the Swingline Lender to make any such endorsement shall not affect the obligations of the
Borrower under the Credit Agreement or under this note in respect of such Swingline Loans.



     This note may be held by the Swingline Lender for the account of its applicable lending office
and, except as otherwise provided in the Credit Agreement, may be transferred from one lending
office of the Swingline Lender to another lending office of the Swingline Lender from time to time
as the Swingline Lender may determine.



     Except only for any notices which are specifically required by the Credit Agreement, the
Borrower and any and all co-makers, endorsers, guarantors and sureties severally waive notice
(including but not limited to notice of intent to accelerate and notice of acceleration, notice of
protest and notice of dishonor), demand, presentment for payment, protest, diligence in collecting
and the filing of suit for the purpose of fixing liability, and consent that the time of payment
hereof may be extended and re-extended from time to time without notice to any of them. Each such
person agrees that its liability on or with respect to this note shall not be



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affected by any release of or change in any guaranty or security at any time existing or by
any failure to perfect or maintain perfection of any lien against or security interest in any such
security or the partial or complete unenforceability of any guaranty or other surety obligation, in
each case in whole or in part, with or without notice and before or after maturity.




     The Credit Agreement provides for the acceleration of the maturity of this note upon the
occurrence of certain events and for prepayment of Swingline Loans upon the terms and conditions
specified therein. Reference is made to the Credit Agreement for all other pertinent purposes.



     This note is issued pursuant to and is entitled to the benefits of the Credit Agreement.



     It is hereby understood and agreed that DEP Holdings, LLC, the general partner of the
Borrower, shall have no personal liability, as general partner or otherwise, for the payment of any
amount owing or to be owing hereunder.



     This note shall be construed in accordance with and be governed by the law of the State of
New York and the United States of America from time to time in effect.



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.

 	 
	 	By:  	DEP Holdings, LLC, its General Partner
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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SCHEDULE A

TO

SWINGLINE LOAN NOTE



This note evidences the Swingline Loans owed to the Lender under the Credit Agreement, in the
principal amount set forth below, subject to the payments of principal set forth below:




SCHEDULE

OF

SWINGLINE LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	Amount of	 	 	 	Balance	 	 
	 	 	Amount of	 	Principal	 	 	 	of	 	Notation
	 	 	Swingline	 	Paid or	 	Interest	 	Swingline	 	Made
	Date	 	Loan	 	Prepaid	 	Paid	 	Loans	 	by
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 






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