Exhibit 10.2





Exhibit 10.2




Published CUSIP Number: 03075FAF7

Revolving Credit CUSIP Number: 03075FAG5




$325,000,000




CREDIT AGREEMENT

dated as of June 21, 2011




by and among




AMERIGAS PROPANE, L.P.,

as Borrower,




AMERIGAS PROPANE, INC.,

as a Guarantor,




the Lenders referred to herein,

as Lenders,




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,

Swingline Lender and Issuing Lender




WELLS FARGO SECURITIES, LLC

as Sole Lead Arranger and Sole Book Manager




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.1 Definitions
	 	 	1	 
	SECTION 1.2 Other Definitions and Provisions
	 	 	27	 
	SECTION 1.3 Accounting Terms
	 	 	28	 
	SECTION 1.4 [Intentionally Omitted]
	 	 	28	 
	SECTION 1.5 Rounding
	 	 	28	 
	SECTION 1.6 References to Agreement and Laws
	 	 	28	 
	SECTION 1.7 Times of Day
	 	 	29	 
	SECTION 1.8 Letter of Credit Amounts
	 	 	29	 
	 
	 	 	 	 
	ARTICLE II REVOLVING CREDIT FACILITY
	 	 	29	 
	 
	 	 	 	 
	SECTION 2.1 Revolving Credit Loans
	 	 	29	 
	SECTION 2.2 Swingline Loans
	 	 	29	 
	SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans
	 	 	31	 
	SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans
	 	 	32	 
	SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment
	 	 	33	 
	SECTION 2.6 Termination of Revolving Credit Facility
	 	 	33	 
	 
	 	 	 	 
	ARTICLE III LETTER OF CREDIT FACILITY
	 	 	33	 
	 
	 	 	 	 
	SECTION 3.1 L/C Commitment
	 	 	33	 
	SECTION 3.2 Procedure for Issuance of Letters of Credit
	 	 	35	 
	SECTION 3.3 Commissions and Other Charges
	 	 	35	 
	SECTION 3.4 L/C Participations
	 	 	36	 
	SECTION 3.5 Reimbursement Obligation of the Borrower
	 	 	37	 
	SECTION 3.6 Obligations Absolute
	 	 	37	 
	SECTION 3.7 Effect of Letter of Credit Application
	 	 	38	 
	 
	 	 	 	 
	ARTICLE IV [INTENTIONALLY OMITTED]
	 	 	38	 
	 
	 	 	 	 
	ARTICLE V GENERAL LOAN PROVISIONS
	 	 	38	 
	 
	 	 	 	 
	SECTION 5.1 Interest
	 	 	38	 
	SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans
	 	 	40	 
	SECTION 5.3 Fees
	 	 	40	 
	SECTION 5.4 Sharing of Payments
	 	 	41	 
	SECTION 5.5 Evidence of Indebtedness
	 	 	41	 
	SECTION 5.6 Adjustments
	 	 	42	 
	SECTION 5.7 Obligations of Lenders
	 	 	42	 
	SECTION 5.8 Changed Circumstances
	 	 	43	 





 


i









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 5.9 Indemnity
	 	 	44	 
	SECTION 5.10 Increased Costs
	 	 	45	 
	SECTION 5.11 Taxes
	 	 	46	 
	SECTION 5.12 Mitigation Obligations; Replacement of Lenders
	 	 	49	 
	SECTION 5.13 [Intentionally Omitted]
	 	 	50	 
	SECTION 5.14 Incremental Loans
	 	 	50	 
	SECTION 5.15 Defaulting Lenders
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VI CONDITIONS OF CLOSING AND BORROWING
	 	 	55	 
	 
	 	 	 	 
	SECTION 6.1 Conditions to Closing and Initial Extensions of Credit
	 	 	55	 
	SECTION 6.2 Conditions to All Extensions of Credit
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
	 	 	59	 
	 
	 	 	 	 
	SECTION 7.1 Organization; Power; Qualification
	 	 	59	 
	SECTION 7.2 Ownership
	 	 	59	 
	SECTION 7.3 Authorization Enforceability
	 	 	59	 
	SECTION 7.4
Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.
	 	 	60	 
	SECTION 7.5 Compliance with Law; Governmental Approvals
	 	 	60	 
	SECTION 7.6 Tax Returns and Payments
	 	 	60	 
	SECTION 7.7 Intellectual Property Matters
	 	 	61	 
	SECTION 7.8 Environmental Matters
	 	 	61	 
	SECTION 7.9 Employee Benefit Matters
	 	 	62	 
	SECTION 7.10 Margin Stock
	 	 	63	 
	SECTION 7.11 Investment Company Act; Government Regulation
	 	 	63	 
	SECTION 7.12 [Intentionally Omitted]
	 	 	63	 
	SECTION 7.13 [Intentionally Omitted]
	 	 	63	 
	SECTION 7.14 Burdensome Provisions
	 	 	63	 
	SECTION 7.15 Financial Statements
	 	 	64	 
	SECTION 7.16 No Material Adverse Change
	 	 	64	 
	SECTION 7.17 Solvency
	 	 	64	 
	SECTION 7.18 Titles to Properties
	 	 	64	 
	SECTION 7.19 Insurance
	 	 	64	 
	SECTION 7.20 Liens
	 	 	64	 
	SECTION 7.21 Indebtedness and Guaranty Obligations
	 	 	64	 
	SECTION 7.22 Litigation
	 	 	65	 
	SECTION 7.23 Absence of Defaults
	 	 	65	 
	SECTION 7.24 Senior Indebtedness Status
	 	 	65	 
	SECTION 7.25 OFAC
	 	 	65	 
	SECTION 7.26 [Intentionally Omitted]
	 	 	65	 
	SECTION 7.27 Disclosure
	 	 	65	 
	SECTION 7.28 Matters Relating to the General Partner
	 	 	66	 





 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VIII FINANCIAL INFORMATION AND NOTICES
	 	 	68	 
	 
	 	 	 	 
	SECTION 8.1 Financial Statements and Projections
	 	 	67	 
	SECTION 8.2 Officer’s Compliance Certificate
	 	 	67	 
	SECTION 8.3 Accountants’ Certificate
	 	 	68	 
	SECTION 8.4 Other Reports
	 	 	68	 
	SECTION 8.5 Notice of Litigation and Other Matters
	 	 	68	 
	SECTION 8.6 Accuracy of Information
	 	 	70	 
	 
	 	 	 	 
	ARTICLE IX AFFIRMATIVE COVENANTS
	 	 	71	 
	 
	 	 	 	 
	SECTION 9.1 Preservation of Corporate Existence and Related Matters
	 	 	71	 
	SECTION 9.2 Maintenance of Property and Licenses
	 	 	71	 
	SECTION 9.3 Insurance
	 	 	71	 
	SECTION 9.4 Accounting Methods and Financial Records
	 	 	71	 
	SECTION 9.5 Payment of Taxes and Other Obligations
	 	 	72	 
	SECTION 9.6 Compliance With Laws and Approvals
	 	 	72	 
	SECTION 9.7 Environmental Laws
	 	 	72	 
	SECTION 9.8 Compliance with ERISA
	 	 	72	 
	SECTION 9.9 Compliance with Agreements
	 	 	73	 
	SECTION 9.10 Visits and Inspections; Lender Meetings
	 	 	73	 
	SECTION 9.11 Additional Subsidiaries
	 	 	73	 
	SECTION 9.12 [Intentionally Omitted]
	 	 	74	 
	SECTION 9.13 Use of Proceeds
	 	 	74	 
	SECTION 9.14 [Intentionally Omitted]
	 	 	74	 
	SECTION 9.15 Further Assurances
	 	 	74	 
	SECTION 9.16 Non-Consolidation
	 	 	74	 
	SECTION 9.17 Covenants of the General Partner
	 	 	74	 
	 
	 	 	 	 
	ARTICLE X FINANCIAL COVENANTS
	 	 	75	 
	 
	 	 	 	 
	SECTION 10.1 Consolidated MLP Total Leverage Ratio
	 	 	75	 
	SECTION 10.2 Consolidated Borrower Total Leverage Ratio
	 	 	75	 
	SECTION 10.3 Interest Coverage Ratio
	 	 	75	 
	 
	 	 	 	 
	ARTICLE XI NEGATIVE COVENANTS
	 	 	75	 
	 
	 	 	 	 
	SECTION 11.1 Limitations on Indebtedness
	 	 	76	 
	SECTION 11.2 Limitations on Liens
	 	 	77	 
	SECTION 11.3 Limitations on Investments
	 	 	79	 
	SECTION 11.4 Limitations on Fundamental Changes
	 	 	81	 
	SECTION 11.5 Limitations on Asset Dispositions
	 	 	82	 
	SECTION 11.6 Limitations on Restricted Payments
	 	 	83	 
	SECTION 11.7 Transactions with Affiliates
	 	 	83	 
	SECTION 11.8 Certain Accounting Changes; Organizational Documents
	 	 	84	 
	SECTION 11.9 [Intentionally Omitted]
	 	 	84	 
	SECTION 11.10 No Further Negative Pledges; Restrictive Agreements
	 	 	84	 
	SECTION 11.11 Nature of Business
	 	 	85	 
	SECTION 11.12 [Intentionally Omitted]
	 	 	85	 
	SECTION 11.13 Sale Leasebacks
	 	 	85	 
	SECTION 11.14 Hedge Agreements
	 	 	85	 
	SECTION 11.15 Disposal of Subsidiary Interests
	 	 	85	 
	SECTION 11.16 Covenant of the General Partner
	 	 	86	 





 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE XII DEFAULT AND REMEDIES
	 	 	86	 
	 
	 	 	 	 
	SECTION 12.1 Events of Default
	 	 	86	 
	SECTION 12.2 Remedies
	 	 	88	 
	SECTION 12.3
Rights and Remedies Cumulative; Non-Waiver; etc.
	 	 	89	 
	SECTION 12.4 Crediting of Payments and Proceeds
	 	 	89	 
	SECTION 12.5 Administrative Agent May File Proofs of Claim
	 	 	90	 
	 
	 	 	 	 
	ARTICLE XIII THE ADMINISTRATIVE AGENT
	 	 	91	 
	 
	 	 	 	 
	SECTION 13.1 Appointment and Authority
	 	 	91	 
	SECTION 13.2 Rights as a Lender
	 	 	91	 
	SECTION 13.3 Exculpatory Provisions
	 	 	91	 
	SECTION 13.4 Reliance by the Administrative Agent
	 	 	92	 
	SECTION 13.5 Delegation of Duties
	 	 	93	 
	SECTION 13.6 Resignation of Administrative Agent
	 	 	93	 
	SECTION 13.7 Non-Reliance on Administrative Agent and Other Lenders
	 	 	94	 
	SECTION 13.8
No Other Duties, etc.
	 	 	94	 
	SECTION 13.9 Guaranty Matters
	 	 	94	 
	SECTION 13.10 Release of Guarantees of Subsidiaries
	 	 	95	 
	SECTION 13.11 Specified Hedge Agreements
	 	 	95	 
	 
	 	 	 	 
	ARTICLE XIV MISCELLANEOUS
	 	 	95	 
	 
	 	 	 	 
	SECTION 14.1 Notices
	 	 	95	 
	SECTION 14.2 Amendments, Waivers and Consents
	 	 	98	 
	SECTION 14.3 Expenses; Indemnity
	 	 	100	 
	SECTION 14.4 Right of Set Off
	 	 	101	 
	SECTION 14.5
Governing Law; Jurisdiction, Etc.
	 	 	102	 
	SECTION 14.6 Waiver of Jury Trial
	 	 	103	 
	SECTION 14.7 Reversal of Payments
	 	 	103	 
	SECTION 14.8 Injunctive Relief; Punitive Damages
	 	 	103	 
	SECTION 14.9 Accounting Matters
	 	 	104	 
	SECTION 14.10 Successors and Assigns; Participations
	 	 	104	 
	SECTION 14.11 Confidentiality
	 	 	108	 
	SECTION 14.12 Performance of Duties
	 	 	109	 
	SECTION 14.13 All Powers Coupled with Interest
	 	 	109	 
	SECTION 14.14 Survival
	 	 	109	 
	SECTION 14.15 Titles and Captions
	 	 	109	 
	SECTION 14.16 Severability of Provisions
	 	 	109	 
	SECTION 14.17 Counterparts; Integration; Effectiveness; Electronic Execution
	 	 	110	 
	SECTION 14.18 Term of Agreement
	 	 	110	 
	SECTION 14.19 USA Patriot Act
	 	 	110	 
	SECTION 14.20 [Intentionally Omitted]
	 	 	110	 
	SECTION 14.21 [Intentionally Omitted]
	 	 	110	 
	SECTION 14.22 [Intentionally Omitted]
	 	 	110	 
	SECTION 14.23 Inconsistencies with Other Documents
	 	 	111	 





 


iv









 





	 	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	Exhibit A-1

	 	—
	 	Form of Revolving Credit Note
	Exhibit A-2

	 	—
	 	Form of Swingline Note
	Exhibit B

	 	—
	 	Form of Notice of Borrowing
	Exhibit C

	 	—
	 	Form of Notice of Account Designation
	Exhibit D

	 	—
	 	Form of Notice of Prepayment
	Exhibit E

	 	—
	 	Form of Notice of Conversion/Continuation
	Exhibit F

	 	—
	 	Form of Officer’s Compliance Certificate
	Exhibit G

	 	—
	 	Form of Assignment and Assumption
	Exhibit H

	 	—
	 	Form of Guaranty Agreement
	Exhibit I

	 	—
	 	Form of Joinder Agreement
	 
	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	Schedule 1.1-1

	 	—
	 	Existing Letters of Credit
	Schedule 1.1-2

	 	—
	 	Revolving Credit Commitments
	Schedule 7.1

	 	—
	 	Jurisdictions of Organization and Qualification
	Schedule 7.2

	 	—
	 	Subsidiaries and Capitalization
	Schedule 7.8

	 	—
	 	Environmental Matters
	Schedule 7.9

	 	—
	 	ERISA Plans
	Schedule 7.21

	 	—
	 	Indebtedness and Guaranty Obligations
	Schedule 11.2

	 	—
	 	Existing Liens
	Schedule 11.3

	 	—
	 	Existing Loans, Advances and Investments
	Schedule 11.7

	 	—
	 	Transactions with Affiliates





 


v









 





CREDIT AGREEMENT, dated as of June 21, 2011, by and among AMERIGAS PROPANE, L.P., a Delaware
limited partnership (the “Borrower”), AMERIGAS PROPANE, INC., a Pennsylvania corporation
(the “General Partner”), the lenders who are party to this Agreement from time to time (the
“Lenders”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent for the Lenders.



STATEMENT OF PURPOSE




The Borrower has requested, and, subject to the terms and conditions hereof, the
Administrative Agent and the Lenders have agreed, to extend certain credit facilities to the
Borrower on the terms and conditions of this Agreement.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:



ARTICLE I




DEFINITIONS




SECTION 1.1 Definitions. The following terms when used in this Agreement shall have
the meanings assigned to them below:



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



“Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent
hereunder, and any successor thereto appointed pursuant to Section 13.6.



“Administrative Agent’s Office” means the office of the Administrative Agent specified
in or determined in accordance with the provisions of Section 14.1(c).



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



“Affiliate” means, with respect to any Person, any other Person (other than a
Subsidiary of the Borrower) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first Person or any of its
Subsidiaries. The term “control” means (a) the power to vote 20% or more of the securities or
other equity interests of a Person having ordinary voting power, or (b) the possession, directly or
indirectly, of any other power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or otherwise. The terms
“controlling” and “controlled” have meanings correlative thereto.




“Agreement” means this Credit Agreement.



“Applicable Law” means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.


 


 









 





“Applicable Margin” means the corresponding percentages per annum as set forth below
based on the Consolidated MLP Total Leverage Ratio:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing	 	Consolidated MLP Total	 	Commitment	 	 	 	 	 	 	 
	Level	 	Leverage Ratio	 	Fee	 	 	LIBOR Rate +	 	 	Base Rate +	 
	I
	 	Less than or equal to 2.75 to 1.00	 	 	0.300	%	 	 	1.75	%	 	 	0.75	%
	II
	 	Greater than 2.75 to 1.00, but less than or equal to 3.25 to 1.00	 	 	0.375	%	 	 	2.00	%	 	 	1.00	%
	III
	 	Greater than 3.25 to 1.00, but less than or equal to 3.75 to 1.00	 	 	0.375	%	 	 	2.25	%	 	 	1.25	%
	IV
	 	Greater than 3.75 to 1.00, but less than or equal to 4.25 to 1.00	 	 	0.500	%	 	 	2.50	%	 	 	1.50	%
	V
	 	Greater than 4.25 to 1.00	 	 	0.500	%	 	 	2.75	%	 	 	1.75	%






The Applicable Margin shall be determined and adjusted quarterly on the date (each a
“Calculation Date”) ten (10) Business Days after the day by which the Borrower is required
to provide an Officer’s Compliance Certificate pursuant to Section 8.2 for the most
recently ended fiscal quarter of the Borrower; provided that (a) the Applicable Margin
shall be based on Pricing Level II until the first Calculation Date occurring after the Closing
Date and, thereafter the Pricing Level shall be determined by reference to the Consolidated MLP
Total Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower
preceding the applicable Calculation Date, and (b) if the Borrower fails to provide the Officer’s
Compliance Certificate as required by Section 8.2 for the most recently ended fiscal
quarter of the Borrower preceding the applicable Calculation Date, the Applicable Margin from such
Calculation Date shall be based on Pricing Level V until such time as an appropriate Officer’s
Compliance Certificate is provided, at which time the Pricing Level shall be determined by
reference to the Consolidated MLP Total Leverage Ratio as of the last day of the most recently
ended fiscal quarter of the Borrower preceding such Calculation Date. The Applicable Margin shall
be effective from one Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Margin shall be applicable to all Extensions of Credit then existing or subsequently
made or issued.



Notwithstanding the foregoing, in the event that any financial statement or Officer’s Compliance
Certificate delivered pursuant to Section 8.1 or 8.2 is shown to be inaccurate
(regardless of whether (i) this Agreement is in effect, (ii) the Revolving Credit Commitments are
in effect, or (iii) any Extension of Credit is outstanding when such inaccuracy is discovered or
such financial statement or Officer’s Compliance Certificate was delivered), and such inaccuracy,
if corrected, would have led to the application of a higher Applicable Margin for any period (an
“Applicable Period”) than the Applicable Margin applied for such Applicable Period, then
(x) the Borrower shall immediately deliver to the Administrative Agent a corrected Officer’s
Compliance Certificate for such Applicable Period, (y) the Applicable Margin for such Applicable
Period shall be determined as if the Consolidated MLP Total Leverage Ratio in the corrected
Officer’s Compliance Certificate were applicable for such Applicable Period, and (z) the Borrower
shall immediately and retroactively be obligated to pay to the Administrative Agent the accrued
additional interest and fees owing as a result of such increased Applicable Margin for such
Applicable Period, which payment shall be promptly applied by the Administrative Agent in
accordance with Section 5.4. Nothing in this paragraph shall limit the rights of the
Administrative Agent and Lenders with respect to Sections 5.1(c) and 12.2 nor any
of their other rights under this Agreement. The Borrower’s obligations under this paragraph shall
survive the
termination of the Revolving Credit Commitments and the repayment of all other Obligations
hereunder.


 


2









 





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



“Arranger” means Wells Fargo Securities, LLC, in its capacity as sole lead arranger
and sole book manager, and its successors.



“Asset Disposition” means the disposition of any or all of the assets (including any
Capital Stock owned thereby) of any Credit Party or any Subsidiary thereof whether by sale, lease,
transfer or otherwise. The term “Asset Disposition” shall not include any Equity Issuance but
shall include any Subsidiary Disposition. The term “Asset Disposition” shall not include any
transfer of assets or issuance or sale of Capital Stock by the Borrower or any Subsidiary to any
other Person in exchange for other assets used in a line of business permitted by Section
11.11 and having a fair market value (as determined in good faith by the General Partner) of
not less than that of the assets so transferred or the Capital Stock so issued or sold.



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
14.10), and accepted by the Administrative Agent, in substantially the form attached as Exhibit
G or any other form approved by the Administrative Agent.



“Attributable Indebtedness” means, on any date of determination, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease, the capitalized amount or principal amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease.




“Available Cash” means, as to any calendar quarter:



(a) the sum of (i) all cash of the Borrower and its Subsidiaries on hand at the end of such
quarter and (ii) all additional cash of the Borrower and its Subsidiaries on hand on the date of
determination of Available Cash with respect to such quarter resulting from borrowings subsequent
to the end of such quarter, less



(b) the amount of cash reserves that is necessary or appropriate in the reasonable discretion
of the General Partner to (i) provide for the proper conduct of the business of the Borrower and
its Subsidiaries (including reserves for future capital expenditures) subsequent to such quarter,
(ii) provide funds for distributions under Section 5.3(a), 5.3(b), 5.3(c) or 5.4(a) of the
partnership agreement of MLP (such Sections as in effect on the Closing Date, together with all
related definitions, being hereby incorporated herein in the form included in such partnership
agreement on the Closing Date and without regard to any subsequent amendments or waivers of the
provisions of, or any termination of, such partnership agreement) in respect of any one or more of
the next four quarters, or (iii) comply with applicable law or any debt instrument or other
agreement or obligation to which the Borrower or any Subsidiary is a party or its assets are
subject; provided that Available Cash attributable to any Subsidiary shall be excluded
to the extent dividends or distributions of such Available Cash by such Subsidiary are not at the
date of determination permitted by the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or other regulation.


 


3









 





“Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal
Funds Rate plus 0.50% and (c) except during any period of time during which a notice
delivered to the Borrower under Section 5.8 shall remain in effect, the LIBOR Rate
plus 1%; each change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate, the Federal Funds Rate or LIBOR.



“Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as
provided in Section 5.1(a).




“Borrower” has the meaning assigned thereto in the introductory paragraph hereto.




“Borrower Materials” has the meaning assigned thereto in Section 8.5.



“Business Day” means (a) for all purposes other than as set forth in clause
(b) below, any day other than a Saturday, Sunday or legal holiday on which banks in Charlotte,
North Carolina and New York, New York, are open for the conduct of their commercial banking
business, and (b) with respect to all notices and determinations in connection with, and payments
of principal and interest on, any LIBOR Rate Loan, or any Base Rate Loan as to which the interest
rate is determined by reference to LIBOR, any day that is a Business Day described in clause
(a) and that is also a day for trading by and between banks in Dollar deposits in the London
interbank market.



“Calculation Date” has the meaning assigned thereto in the definition of “Applicable
Margin”.



“Capital Lease” means any lease of any property by the Borrower or any of its
Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and accounted for as a
capital lease on a Consolidated balance sheet of the Borrower and its Subsidiaries.



“Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case
of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company,
membership interests, (e) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the issuing Person and
(f) any and all warrants, rights or options to purchase any of the foregoing.


 


4









 





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



“Cash Equivalents” means, collectively, (a) marketable direct obligations issued or
unconditionally guaranteed by the United States or any agency thereof maturing within three hundred
sixty-five (365) days from the date of acquisition thereof, (b) commercial paper maturing no more
than three hundred sixty five (365) days from the date of creation thereof and currently having the
highest rating obtainable from either S&P or Moody’s, (c) certificates of deposit maturing one (1)
year or less from the date of acquisition thereof issued by commercial banks incorporated under the
laws of the United States or any state thereof or the District of Columbia or Canada (A) the
commercial paper or other short term unsecured debt obligations of which are as at such date rated
either “A-2” or better (or comparably if the rating system is changed) by S&P or “Prime-2” or
better (or comparably if the rating system is changed) by Moody’s or (B) the long-term debt
obligations of which are as at such date rated “A” or better (or comparably if the rating system is
changed) by either S&P or Moody’s, (d) time deposits maturing no more than thirty (30) days from
the date of creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the deposits of which are insured by the
FDIC and in amounts not exceeding the maximum amounts of insurance thereunder, (e) money market
deposit accounts issued or offered by any domestic office of any commercial bank organized under
the laws of the United States of America or any State thereof which has a combined capital and
surplus and undivided profits of not less than $500,000,000 or (f) money market mutual funds having
as at such date one of the two highest ratings obtainable from either S&P or Moody’s.



“Change in Control” means (a) UGI shall fail to own directly or indirectly 51% of the
general partnership interests in the Borrower, or, if the Borrower shall have been converted to a
corporate form, at least 51% of the voting shares of the Borrower; or (b) UGI shall fail to own
directly or indirectly at least a 20% ownership interest in the Borrower.



“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law”, regardless of the date enacted, adopted or issued.


 


5









 





“Closing Date” means the date of this Agreement or such later Business Day upon which
each condition described in Section 6.1 shall be satisfied or waived in all respects in a
manner acceptable to the Administrative Agent, in its sole discretion.



“Code” means the Internal Revenue Code of 1986, and the rules and regulations
thereunder, each as amended or modified from time to time.




“Commitment Fee” has the meaning assigned thereto in Section 5.3(a).



“Consolidated” means, when used with reference to financial statements or financial
statement items of any Person, such statements or items on a consolidated basis in accordance with
applicable principles of consolidation under GAAP.



“Consolidated Borrower Total Leverage Ratio” means, as of any date of determination,
the ratio of (a) Consolidated Total Indebtedness of the Borrower and its Subsidiaries on such date
to (b) Consolidated EBITDA of the Borrower and its Subsidiaries for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date.



“Consolidated EBITDA” means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for any Person and its Subsidiaries in accordance with
GAAP: (a) Consolidated Net Income for such period plus (b) the sum of the following,
without duplication, to the extent deducted in determining Consolidated Net Income: (i)
Consolidated Interest Expense and (ii) Consolidated Income Tax Expense plus (iii)
depreciation and amortization of property, plant and equipment and intangible assets, in each case
for such period. For purposes of the Consolidated MLP Total Leverage Ratio and the Consolidated
Borrower Total Leverage Ratio, Consolidated EBITDA (x) shall be adjusted on a Pro Forma Basis for
(1) any Permitted Acquisition which is in excess of $25,000,000 or (2) Asset Dispositions which,
individually or in the aggregate, are in excess of $25,000,000 and (y) may be adjusted on a Pro
Forma Basis for any Permitted Acquisition which individually is less than $25,000,000 but, when
taken together with all other Permitted Acquisitions, is in excess of $25,000,000.



“Consolidated Income Tax Expense” means the following determined on a Consolidated
basis, without duplication, for any Person and its Subsidiaries in accordance with GAAP, the
provision for federal, state, local and foreign income taxes of such Person and its Subsidiaries
for such period.



“Consolidated Interest Expense” means, for any period, the interest expense for such
period determined on a Consolidated basis for any Person and its Subsidiaries in accordance with
GAAP.



“Consolidated MLP Total Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Total Indebtedness of MLP and its Subsidiaries on such date to (b)
Consolidated EBITDA of MLP and its Subsidiaries for the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date.



“Consolidated Net Income” means, for any period, the net income of any Person and its
Subsidiaries for such period, determined on a Consolidated basis, without duplication, in
accordance with GAAP; provided, in calculating Consolidated Net Income of any Person (the
“CNI Person”) and its Subsidiaries for any period, there shall be excluded (i) net
after-tax extraordinary gains or losses, (ii) net after-tax gains or losses attributable to Asset
Dispositions, (iii) the net income or loss of any Person which is not a Subsidiary of such CNI
Person and which is accounted for by the equity method of accounting; provided, that
Consolidated Net
Income shall include the amount of dividends or distributions actually paid to such CNI Person
or any Subsidiary of such CNI Person, (iv) the net income of any Subsidiary of such CNI Person to
the extent that dividends or distributions of such net income are not at the date of determination
permitted by the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or other regulation, (v) the net after-tax gains or losses attributable to the early
extinguishment of Indebtedness, (vi) the net after-tax gains or losses attributable to the early
termination of any Hedge Agreement and (vii) the cumulative effect of any changes in accounting
principles.


 


6









 





“Consolidated Net Tangible Assets” means, as of any date of determination, the sum of
the following determined on a Consolidated basis, without duplication, in accordance with GAAP, (i)
the Total Assets, as of such date, minus (ii) all current liabilities of the Borrower and
its Subsidiaries, as of such date (other than (A) any current liabilities which are by their terms
extendible or renewable at the option of the obligor thereon to a time more than twelve (12) months
after the time as of which the amount thereof is being computed and (B) current maturities of long
term debt), minus (iii) all goodwill, trade names, trademarks, patents, licenses, purchased
technology, unamortized debt discount and expenses and other like intangible assets of the Borrower
and its Subsidiaries, as of such date.



“Consolidated Total Indebtedness” means, as of any date of determination with respect
to any Person and its Subsidiaries on a Consolidated basis without duplication, the sum of all
Indebtedness of such Person and its Subsidiaries; provided that Consolidated Total
Indebtedness shall not include Indebtedness of the type described in clause (f) or
(h) of the definition of such term.



“Credit Facility” means, collectively, the Revolving Credit Facility, the Swingline
Facility and the L/C Facility.




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



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



“Default” means any of the events specified in Section 12.1 which with the
passage of time, the giving of notice or any other condition, would constitute an Event of Default.



“Defaulting Lender” means, subject to Section 5.15(b), any Lender that (a) has
failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such
Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and
the Borrower in writing that such failure is the result of such Lender’s determination that one or
more conditions precedent to funding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in such writing) has not been satisfied, or
(ii) pay to the Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender
any other amount required to be paid by it hereunder (including in respect of its participation in
Letters of Credit or


 


7









 






Swingline
Loans) within two (2) Business Days of the date when due, (b) has
notified the Borrower, the Administrative Agent, the Issuing Lender or the Swingline Lender in
writing that it does not intend to comply with its funding obligations hereunder, or has made a
public statement to that effect (unless such writing or public statement relates to such Lender’s
obligation to fund a Loan hereunder and states that such position is based on such Lender’s
determination that a condition precedent to funding (which condition precedent, together with any
applicable default, shall be specifically identified in such writing or public statement) cannot be
satisfied), (c) has failed, within three (3) Business Days after written request by the
Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the
Borrower that it will comply with its prospective funding obligations hereunder (provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of
such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a
direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor
Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or
any other state or federal regulatory authority acting in such a capacity; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
equity interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under
clauses (a) through (d) above shall be conclusive and binding absent manifest
error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section
5.15(b)) upon delivery of written notice of such determination to the Borrower, the Issuing
Lender, the Swingline Lender and each Lender.



“Dispute” means any dispute, claim or controversy arising out of, connected with or
relating to this Agreement or any other Loan Document, between or among parties hereto and to the
other Loan Documents.



“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the
terms of any security or other Capital Stock into which it is convertible or for which it is
exchangeable) or upon the happening of any event or condition, (a) matures or is mandatorily
redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation
or otherwise (except as a result of a change of control or asset sale so long as any rights of the
holders thereof upon the occurrence of a change of control or asset sale event shall be subject to
the prior repayment in full of the Loans and all other Obligations that are accrued and payable and
the termination of the Revolving Credit Commitments), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Capital Stock) (except as a result of a change of control
or asset sale so long as any rights of the holders thereof upon the occurrence of a change of
control or asset sale event shall be subject to the prior repayment in full of the Loans and all
other Obligations that are accrued and payable and the termination of the Revolving Credit
Commitments), in whole or in part, (c) provides for the scheduled payment of dividends in cash or
(d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that
would constitute Disqualified Capital Stock, in each case, prior to the date that is 91 days
after the Revolving Credit Maturity Date; provided, that if such Capital Stock is
issued pursuant to a plan for the benefit of the Borrower or its Subsidiaries or by any such plan
to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely
because it may be required to be repurchased by the Borrower or its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations.


 


8









 





“Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency
of the United States.



“Domestic Subsidiary” means any Subsidiary organized under the laws of any political
subdivision of the United States.



“Employee Benefit Plan” means any employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower sponsors, maintains or has any obligation under or to which the Borrower
makes, is making or is obligated to make contributions and includes any Pension Plan.



“Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, fines, settlements, liens, accusations,
allegations, notices of noncompliance or violation, proceedings, or investigations (other than
internal reports prepared by any Person in the ordinary course of business and not in response to
any third party action or request of any kind) relating in any way to (i) the presence of Hazardous
Materials, (ii) any actual or alleged violation of or liability under any Environmental Law, or
(iii) any permit issued, or any approval given, under any such Environmental Law. Environmental
Claims shall include any and all claims by Governmental Authorities or third parties for
enforcement, cleanup, removal, response, remedial or other actions or damages, contribution,
indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials
or arising from alleged injury or threat of injury to human health or the environment.



“Environmental Laws” means any and all federal, foreign, state, provincial and local
laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to the protection of
human health or the environment, including, but not limited to, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous Materials.



“Equity Issuance” means (a) any issuance by any Credit Party or any Subsidiary thereof
to any Person that is not a Credit Party of (i) shares of its Capital Stock, (ii) any shares of its
Capital Stock pursuant to the exercise of options or warrants or (iii) any shares of its Capital
Stock pursuant to the conversion of any debt securities to equity and (b) any capital contribution
from any Person that is not a Credit Party into any Credit Party or any Subsidiary thereof.



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


 


9









 





“ERISA Affiliate” means any Person who together with any Credit Party or any of its
Subsidiaries is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o)
of the Code or Section 4001(b) of ERISA.



“Eurodollar Reserve Percentage” means, for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including any basic, supplemental or emergency
reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.



“Event of Default” means any of the events specified in Section 12.1;
provided that any requirement for passage of time, giving of notice, or any other
condition, has been satisfied.




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



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by (i) the
jurisdiction (or any political subdivision thereof) 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, or (ii) reason of a present or former connection between the
recipient and the jurisdiction imposing such tax (other than such connection arising from such
recipient having executed, delivered or performed its obligations under any Loan Document, or
enforced any Loan Document), (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup
withholding tax that is required by the Code to be withheld from amounts payable to a recipient
that is a “United States person” within the meaning of Section 7701(a)(30) of the Code, (d) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 5.12(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office)
or is attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 5.11(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office
(or assignment), to receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 5.11(a) and (e) Taxes imposed by FATCA.



“Existing Letters of Credit” means those letters of credit existing on the Closing
Date and identified on Schedule 1.1-1.



“Existing Credit Agreements” means (a) that certain Credit Agreement, dated as of
November 6, 2006 among the Borrower, the General Partner and Petrolane Incorporated, as guarantors,
the lenders party thereto and Wells Fargo (as successor by merger to Wachovia Bank, National
Association), as agent, Issuing Lender and swing line bank, as amended, restated, supplemented or
otherwise modified from time to time prior to the date hereof and (b) that certain Credit
Agreement, dated as of April 17, 2009 among the Borrower, the General Partner and Petrolane
Incorporated, as guarantors, the lenders party thereto and Wells Fargo (as successor by merger to
Wachovia Bank, National Association), as administrative agent, as amended, restated, supplemented
or otherwise modified from time to time prior to the date hereof.


 


10









 





“Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the
sum of (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (ii) such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding and (iii) such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans
then outstanding, or (b) the making of any Loan or participation in any Letter of Credit by such
Lender, as the context requires.



“FATCA” means Sections 1471 through 1474 of the Code and any regulations or
interpretations thereof.




“FDIC” means the Federal Deposit Insurance Corporation, or any successor thereto.



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



“Fee Letter” means the separate fee letter agreement dated April 14, 2011 among the
Borrower, the Administrative Agent and the Arranger.



“Fiscal Year” means the fiscal year of the Borrower and its Subsidiaries ending on
September 30.



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




“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the Issuing Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of the
outstanding L/C Obligations with respect to Letters of Credit issued by the Issuing Lender other
than L/C Obligations as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b)
with respect to the Swingline Lender, such Defaulting Lender’s Revolving Credit Commitment
Percentage of outstanding Swingline Loans made by the Swingline Lender other than Swingline Loans
as to which such Defaulting Lender’s participation obligation has been reallocated to other
Lenders.


 


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



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



“General Partner” has the meaning assigned thereto in the introductory paragraph
hereto.



“Governmental Approvals” means all authorizations, consents, approvals, permits,
licenses and exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.



“Governmental Authority” means the government of the United States or any other
nation, or of 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 (including any supra-national bodies such as the European Union or the European Central
Bank) and any group or body charged with setting financial accounting or regulatory capital rules
or standards (including the Financial Accounting Standards Board, the Bank for International
Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to
any of the foregoing).



“Guaranteed Parties” mean collectively, the Lenders, the Administrative Agent, the
Swingline Lender, the Issuing Lender, any counterparty to a Specified Hedge Agreement, any other
holder from time to time of any of the Obligations and, in each case, their respective successors
and permitted assigns.




“Guarantors” means, collectively, the General Partner and each Subsidiary Guarantor.



“Guaranty Agreement” means the guaranty agreement of even date herewith executed by
the General Partner and each Material Subsidiary party thereto in favor of the Administrative
Agent, for the ratable benefit of the Guaranteed Parties, substantially in the form attached as
Exhibit H.



“Guaranty Obligation” means, with respect to the General Partner, the Borrower and
their respective Subsidiaries, without duplication, any obligation, contingent or otherwise, of any
such Person pursuant to which such Person has directly or indirectly guaranteed any Indebtedness or
other obligation of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of any such Person (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial statement condition
or otherwise), (b) entered into for the purpose of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part) or (c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or such services are ever
performed or tendered; provided, that the term Guaranty Obligation shall not include
endorsements for collection or deposit in the ordinary course of business.


 


12









 





“Hazardous Materials” means any substances or materials (a) which are or become
defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or
mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to
human health or the environment and are or become regulated by any Governmental Authority under any
Environmental Laws, (c) the presence of which require investigation or remediation under any
Environmental Law or common law, (d) the discharge or emission or release of which requires a
permit or license under any Environmental Law or other Governmental Approval, or (e) which contain,
without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation,
petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas
or synthetic gas.



“Hedge Agreement” means any agreement with respect to any Interest Rate Contract,
forward rate agreement, commodity swap, forward foreign exchange agreement, currency swap
agreement, cross-currency rate swap agreement, currency option agreement or other agreement or
arrangement designed to alter the risks of any Person arising from fluctuations in interest rates,
currency values or commodity prices.




“Increased Amount Date” has the meaning assigned thereto in Section 5.14.



“Indebtedness” means, with respect to any Person at any date and without duplication,
the sum of the following calculated in accordance with GAAP:



(a) all liabilities, obligations and indebtedness for borrowed money including, but not
limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any
such Person;



(b) all obligations to pay the deferred purchase price of property or services of any such
Person (including all obligations under non-competition, earn-out or similar agreements), except
(i) trade payables arising in the ordinary course of business not more than ninety (90) days past
due, or (ii) that are currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided for on the books of such
Person;



(c) the Attributable Indebtedness of such Person with respect to such Person’s obligations in
respect of Capital Leases and Synthetic Leases (regardless of whether accounted for as indebtedness
under GAAP);


 


13









 





(d) all obligations of such Person under conditional sale or other title retention agreements
relating to property purchased by such Person to the extent of the value of such property (other
than customary reservations or retentions of title under agreements with suppliers entered into in
the ordinary course of business);



(e) all Indebtedness of any other Person secured by a Lien on any asset owned or being
purchased by such Person (including indebtedness arising under conditional sales or other title
retention agreements except trade payables arising in the ordinary course of business), whether or
not such indebtedness shall have been assumed by such Person or is limited in recourse;



(f) all obligations, contingent or otherwise, of any such Person relative to the face amount
of letters of credit, whether or not drawn, including any Reimbursement Obligation, and banker’s
acceptances issued for the account of any such Person;




(g) all obligations of any such Person in respect of Disqualified Capital Stock;




(h) all Net Hedging Obligations of any such Person;



(i) the outstanding attributed principal amount under any asset securitization program of any
such Person; and




(j) all Guaranty Obligations of any such Person with respect to any of the foregoing.



For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person.




“Indemnified Taxes” means Taxes and Other Taxes other than Excluded Taxes.



“Insurance and Condemnation Event” means the receipt by any Credit Party or any of its
Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss,
physical destruction or damage, taking or similar event with respect to any of their respective
Property.




“Interest Period” has the meaning assigned thereto in Section 5.1(b).



“Interest Rate Contract” means any interest rate swap agreement, interest rate cap
agreement, interest rate floor agreement, interest rate collar agreement, interest rate option or
any other agreement regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of any Person and any confirming letter executed pursuant
to such agreement.




“Investments” has the meaning assigned thereto in Section 11.3.



“ISP98” means the International Standby Practices (1998 Revision, effective January 1,
1999), International Chamber of Commerce Publication No. 590.


 


14









 





“Issuing Lender” means Wells Fargo, in its capacity as issuer of the Letters of
Credit, or any successor thereto.



“Joinder Agreement” means an agreement substantially in the form attached as Exhibit
I.



“L/C Commitment” means the lesser of (a) ONE HUNDRED MILLION DOLLARS ($100,000,000)
and (b) the Revolving Credit Commitment.



“L/C Facility” means the letter of credit facility established pursuant to Article
III.



“L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit which have not then been reimbursed pursuant to Section
3.5.



“L/C Participants” means the collective reference to all the Revolving Credit Lenders
other than the Issuing Lender.




“Lender” has the meaning assigned thereto in the introductory paragraph hereof



“Lending Office” means, with respect to any Lender, the office of such Lender
maintaining such Lender’s Extensions of Credit.



“Letter of Credit Application” means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a Letter of Credit.



“Letters of Credit” means the collective reference to letters of credit issued
pursuant to Section 3.1 and the Existing Letters of Credit.




“LIBOR” means,




(a) for any interest rate calculation with respect to a LIBOR Rate Loan, the rate of
interest per annum determined on the basis of the rate for deposits in Dollars for a period
equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period (rounded upward, if necessary, to the nearest 1/100th of 1%).
If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page, then “LIBOR”
shall be determined by the Administrative Agent to be the arithmetic average of the rate per
annum at which deposits in Dollars in minimum amounts of at least $5,000,000 would be
offered by first class banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period, and




(b) for any interest rate calculation with respect to a Base Rate Loan, the rate of
interest per annum determined on the basis of the rate for deposits in Dollars in minimum
amounts of at least $5,000,000 for a period equal to one month (commencing on the date of
determination of such interest rate) which appears on the Reuters Screen LIBOR01 Page (or
any successor page) at approximately 11:00 a.m. (London time) on such date of determination,
or, if such date is not a Business Day, then the immediately preceding Business Day (rounded
upward, if necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does not
appear on Reuters Screen LIBOR01 Page (or any successor page) then “LIBOR” for such Base
Rate Loan shall be determined by the
Administrative Agent to be the arithmetic average of the rate per annum at which
deposits in Dollars in minimum amounts of at least $5,000,000 would be offered by first
class banks in the London interbank market to the Administrative Agent at approximately
11:00 a.m. (London time) on such date of determination for a period equal to one (1) month
commencing on such date of determination.


 


15









 





Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all
purposes, absent manifest error.



“LIBOR Market Index Rate” means for any day, the rate for one (1) month Dollar
deposits as reported on Reuters Page LIBOR01, or its successor page, as of 11:00 a.m. (London
time), on such day, or if such day is not a Business Day, then the immediately preceding Business
Day (or if not so reported, then as determined by the Administrative Agent from another recognized
source or interbank quotation).



“LIBOR Rate” means a rate per annum (rounded upwards, if necessary, to the next higher
1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:



	 	 	 
	LIBOR Rate =
	 	LIBOR
	 
	 	 
	 
	 	1.00-Eurodollar Reserve Percentage






“LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR Rate
as provided in Section 5.1(a).



“Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien,
pledge, charge, security interest, hypothecation or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement relating to such
asset.



“Loan Documents” means, collectively, this Agreement, each Note, the Letter of Credit
Applications, the Guaranty Agreement and each other document, instrument, certificate and agreement
executed and delivered by the Credit Parties or any of their respective Subsidiaries in favor of or
provided to the Administrative Agent in connection with this Agreement or otherwise referred to
herein or contemplated hereby (excluding any Specified Hedge Agreement).



“Loans” means the collective reference to the Revolving Credit Loans and the Swingline
Loans, and “Loan” means any of such Loans.



“Material Adverse Effect” means, (a) with respect to the Borrower and its
Subsidiaries, taken as a whole, a material adverse effect on the properties, business, operations
or condition (financial or otherwise) of any such Person or (b) a material adverse effect on the
ability of the Borrower or any of its Subsidiaries to perform its obligations under the Loan
Documents to which it is a party.


 


16









 





“Material Contract” means any contract or other agreement, written or oral, of any
Credit Party the failure to comply with which could reasonably be expected to have a Material
Adverse Effect.




“Material Subsidiary” means any direct or indirect Domestic Subsidiary which:



(i)(A) the Borrower’s and its other Subsidiaries’ Investments in and advances to such Domestic
Subsidiary exceeds 10% of the Total Assets, as of the end of the most recently completed Fiscal
Year (for a proposed combination between entities under common control, this condition is also met
when the number of common shares exchanged or to be exchanged by the Borrower exceeds 10% of its
total common shares outstanding at the date the combination is initiated);



(B) the Borrower’s and its other Subsidiaries’ proportionate share of the Total Assets (after
intercompany eliminations) of such Domestic Subsidiary exceeds 10% of the Total Assets, as of the
end of the most recently completed Fiscal Year; or



(C) the Borrower’s and its other Subsidiaries’ equity in the income from continuing operations
before income taxes, extraordinary items and cumulative effect of a change in accounting principle
of such Domestic Subsidiary (exclusive of amounts attributable to any noncontrolling interests)
exceeds 10% of such income of the Borrower and its Subsidiaries, determined on a Consolidated
basis, for the most recently completed Fiscal Year; or




(ii) is designated by the Borrower as a “Material Subsidiary” such that:



(A) the Borrower’s and its other Subsidiaries’ Investments in and advances to the Material
Subsidiaries in the aggregate exceeds 90% of the Total Assets, as of the end of the most recently
completed Fiscal Year (for a proposed combination between entities under common control, this
condition is also met when the number of common shares exchanged or to be exchanged by the Borrower
exceeds 90% of its total common shares outstanding at the date the combination is initiated);



(B) the Borrower’s and its other Subsidiaries’ proportionate share of the Total Assets (after
intercompany eliminations) of the Material Subsidiaries in the aggregate exceeds 90% of the Total
Assets, as of the end of the most recently completed Fiscal Year; or



(C) the Borrower’s and its other Subsidiaries’ equity in the income from continuing operations
before income taxes, extraordinary items and cumulative effect of a change in accounting principle
of the Material Subsidiaries exclusive of amounts attributable to any noncontrolling interests in
the aggregate exceeds 90% of such income of the Borrower and its Subsidiaries, determined on a
Consolidated basis, for the most recently completed Fiscal Year;



provided that in no event shall any Domestic Subsidiary of a Person organized under the
laws of a Governmental Authority other than a political subdivision of the United States be a
Material Subsidiary.


 


17









 





“Midstream Business” means the business of storage, processing, marketing and/or
transmission of gas, oil or products thereof, including owning and operating pipelines, storage
facilities, processing plants and facilities and gathering systems and other assets related
thereto.



“Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral
consisting of cash or deposit account balances, an amount equal to 100% of the Fronting
Exposure of the Issuing Lender with respect to Letters of Credit issued and outstanding at
such time plus reasonable fees and expenses related to such Letters of Credit and (ii)
otherwise, an amount determined by the Administrative Agent and the Issuing Lender in their sole
discretion.




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




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



“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which any Credit Party or any ERISA Affiliate is making, or is accruing an obligation to
make, or has accrued an obligation to make contributions within the preceding six (6) years.



“Net Hedging Obligations” means, as of any date, the Termination Value of any Hedge
Agreement on such date.




“New Lender” has the meaning assigned thereto in Section 5.14.



“New Loan Revolving Credit Commitments” has the meaning assigned thereto in
Section 5.14.




“New Loans” has the meaning assigned thereto in Section 5.14.



“Non-Consenting Lender” means any Lender that has not consented to any proposed
amendment, modification, waiver or termination of any Loan Document which, pursuant to Section
14.2, requires the consent of all Lenders or all affected Lenders and with respect to which the
Required Lenders shall have granted their consent.



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



“Non-Guarantor Subsidiary” means any Subsidiary of the Borrower that is not a
Subsidiary Guarantor.



“Non-Material Subsidiary” means any Domestic Subsidiary that is not a Material
Subsidiary.



“Notes” means the collective reference to the Revolving Credit Notes and the Swingline
Note.



“Notice of Account Designation” has the meaning assigned thereto in Section
2.3(b).




“Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).


 


18









 





“Notice of Conversion/Continuation” has the meaning assigned thereto in Section
5.2.




“Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).



“Obligations” means, in each case, whether now in existence or hereafter arising: (a)
the principal of and interest on (including interest accruing after the filing of any bankruptcy or
similar petition) the Loans, (b) the L/C Obligations, (c) all Specified Hedge Obligations and
(d) all other fees and commissions (including attorneys’ fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing by the Credit
Parties and each of their respective Subsidiaries to the Administrative Agent or any other
Guaranteed Party, in each case under any Loan Document or otherwise, with respect to any Loan or
Letter of Credit of every kind, nature and description, direct or indirect, absolute or contingent,
due or to become due, contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note; provided that (i) the Specified Hedge Obligations shall be
guaranteed pursuant to the Guaranty Agreement only to the extent that, and for so long as, the
other Obligations are so guaranteed and (ii) any release of Guarantors effected in the manner
permitted by this Agreement shall not require the consent of holders of the Specified Hedge
Obligations.




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



“Officer’s Certificate” means a certificate executed by the Chairman of the Board of
Directors (if an officer), the president or one of the vice presidents, and the treasurer, or
controller, or one of the assistant treasurers or assistant controllers of the General Partner.



“Officer’s Compliance Certificate” means a certificate of the chief financial officer
or the treasurer of the General Partner substantially in the form attached as Exhibit F.



“Operating Lease” means, as to any Person as determined in accordance with GAAP, any
lease of Property (whether real, personal or mixed) by such Person as lessee which is not a Capital
Lease.



“Other Taxes” means 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
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.




“Participant” has the meaning assigned thereto in Section 14.10(d).



“Partnership Agreement” means the Amended and Restated Agreement of Limited
Partnership of the Borrower.




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



“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which
is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is
maintained for the employees of any Credit Party or any ERISA Affiliate or (b) has at any time
within the preceding six (6) years been maintained for the employees of any Credit Party or any
current or former ERISA Affiliates.


 


19









 





“Permitted Acquisition” means any acquisition by the Borrower or any Subsidiary
Guarantor in the form of acquisitions of more than fifty-one percent (51%) of the business or a
line of business (whether by the acquisition of Capital Stock, assets or any combination thereof)
of any other Person if each such acquisition meets all of the following requirements:



(a) the Person or assets to be acquired shall be in a line of business of the Borrower and the
Subsidiary Guarantors permitted pursuant to Section 11.11;



(b) if required by Section 9.11, the Borrower shall have delivered to the
Administrative Agent such documents reasonably requested by the Administrative Agent or the
Required Lenders (through the Administrative Agent) pursuant to Section 9.11 (to be
delivered at the time required pursuant to Section 9.11);



(c) with respect to any Permitted Acquisition in excess of $25,000,000, no later than five (5)
Business Days following the closing date of such acquisition, the Borrower shall deliver to the
Administrative Agent an Officer’s Compliance Certificate for the most recent fiscal quarter end
preceding such acquisition for which financial statements are available demonstrating, in form and
substance reasonably satisfactory thereto, compliance on a Pro Forma Basis (as of the date of the
acquisition and after giving effect thereto and any Indebtedness incurred in connection therewith)
with each covenant contained in Article X;



(d) with respect to any Permitted Acquisition in excess of $25,000,000, if requested by the
Administrative Agent, the Borrower shall have delivered to the Administrative Agent promptly upon
the finalization thereof copies of substantially final Permitted Acquisition Documents; and



(e) no Event of Default shall have occurred and be continuing both before and after giving
effect to such acquisition and any Indebtedness incurred in connection therewith.



“Permitted Acquisition Documents” means with respect to any acquisition proposed by
the Borrower or any Subsidiary Guarantor, final copies or substantially final drafts if not
executed at the required time of delivery of the purchase agreement, sale agreement, merger
agreement or other agreement evidencing such acquisition and any amendment, modification or
supplement to any of the foregoing.




“Permitted Liens” means the Liens permitted pursuant to Section 11.2.



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




“Platform” has the meaning assigned thereto in Section 8.5.



“Prime Rate” means, at any time, the rate of interest per annum publicly announced
from time to time by Wells Fargo as its prime rate. Each change in the Prime Rate shall be
effective as of the opening of business on the day such change in such prime rate occurs. The
parties hereto acknowledge that the rate announced publicly by Wells Fargo as its prime rate is an
index or base rate and shall not necessarily be its lowest or best rate charged to its customers or
other banks.


 


20









 





“Pro Forma Basis” means, for purposes of calculating certain definitions and
compliance with any test or financial covenant under this Agreement for any period, that such
Specified Transaction (and all other Specified Transactions that have been consummated during the
applicable period) and the following transactions in connection therewith shall be deemed to
have occurred as of the first day of the applicable period of measurement in such test or
covenant: (a) income statement items (whether positive or negative) attributable to the Property or
Person subject to such Specified Transaction, (i) in the case of a disposition of all or
substantially all of the Capital Stock of a Subsidiary or any division, business unit, product line
or line of business, shall be excluded and (ii) in the case of a Permitted Acquisition, shall be
included, (b) any retirement of Indebtedness and (c) any Indebtedness incurred or assumed by MLP or
the Borrower, as applicable, or any of its Subsidiaries in connection therewith and if such
Indebtedness has a floating or formula rate, shall have an implied rate of interest for the
applicable period for purposes of this definition determined by utilizing the rate that is or would
be in effect with respect to such Indebtedness as at the relevant date of determination;
provided, that the foregoing pro forma adjustments may be applied to any such definition,
test or financial covenant solely to the extent that such adjustments (y) are reasonably expected
to be realized within twelve (12) months of such Specified Transaction as set forth in reasonable
detail on a certificate of a Responsible Officer of the General Partner delivered to the
Administrative Agent and (z) are calculated on a basis consistent with GAAP.



“Property” means any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including Capital Stock.




“Public Lenders” has the meaning assigned thereto in Section 8.5.



“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.




“Register” has the meaning assigned thereto in Section 14.10(c).



“Reimbursement Obligation” means the obligation of the Borrower to reimburse the
Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.



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



“Required Lenders” means, at any date, any combination of Lenders holding more than
50% of the aggregate amount of the Revolving Credit Commitment or, if the Revolving Credit
Commitment has been terminated, any combination of Lenders holding more than 50% of the aggregate
Extensions of Credit; provided that the Revolving Credit Commitment of, and the portion of
the Extensions of Credit, as applicable, held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.


 


21









 





“Responsible Officer” means, as to any Person, the chief executive officer, president,
chief financial officer, chief operating officer, controller, treasurer or assistant treasurer of
such Person or any other officer or authorized agent of such Person reasonably acceptable to the
Administrative Agent. Any document delivered hereunder or under any other Loan Document that is
signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of such Person and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.



“Revolving Credit Commitment” means (a) as to any Revolving Credit Lender, the
obligation of such Revolving Credit Lender to make Revolving Credit Loans to the account of the
Borrower hereunder in an aggregate principal amount at any time outstanding not to exceed the
amount set forth opposite such Revolving Credit Lender’s name on Schedule 1.1-2, as such
Schedule may be amended pursuant to Section 5.14 or in the case of a Person becoming a
Revolving Credit Lender after the Closing Date through an assignment of an existing Revolving
Credit Commitment, the amount of the assigned “Revolving Credit Commitment” as provided in the
Assignment and Acceptance executed by such Person as an assignee, as such amount may be modified at
any time or from time to time pursuant to the terms hereof (including Section 5.14) and (b)
as to all Revolving Credit Lenders, the aggregate commitment of all Revolving Credit Lenders to
make Revolving Credit Loans, as such amount may be modified at any time or from time to time
pursuant to the terms hereof (including Section 5.14). The Revolving Credit Commitment of
all the Revolving Credit Lenders on the Closing Date shall be $325,000,000.



“Revolving Credit Commitment Percentage” means, as to any Revolving Credit Lender at
any time, the ratio of (a) the amount of the Revolving Credit Commitment of such Revolving Credit
Lender to (b) the Revolving Credit Commitment of all the Revolving Credit Lenders.



“Revolving Credit Facility” means the revolving credit facility established pursuant
to Article II (including any increase in such revolving credit facility in connection with
any incremental revolving credit facilities established pursuant to Section 5.14).



“Revolving Credit Lenders” means Lenders with a Revolving Credit Commitment (including
New Lenders with a New Loan Revolving Credit Commitment).



“Revolving Credit Loan” means any revolving loan made to the Borrower pursuant to
Section 2.1 (including any New Loan made to the Borrower pursuant to Section 5.14),
and all such revolving loans collectively as the context requires.



“Revolving Credit Maturity Date” means the earliest to occur of (a) October 15, 2015,
(b) the date of termination of the entire Revolving Credit Commitment by the Borrower pursuant to
Section 2.5, or (c) the date of termination of the Revolving Credit Commitment pursuant to
Section 12.2(a).



“Revolving Credit Note” means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing the Revolving Credit Loans made by such Revolving Credit Lender,
substantially in the form attached as Exhibit A-1, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or
extension thereof, in whole or in part.


 


22









 





“Revolving Credit Outstandings” means the sum of (a) with respect to Revolving Credit
Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and
Swingline Loans, as the case may be, occurring on such date; plus (b) with respect to any
L/C Obligations on any date, the aggregate outstanding amount thereof on such date after giving
effect to any Extensions of Credit occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum
amount available for drawing under Letters of Credit taking effect on such date.



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



“Sanctioned Entity” shall mean (a) an agency of the government of, (b) an organization
directly or indirectly controlled by, or (c) a person resident in, a country that is subject to a
sanctions program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time
to time as such program may be applicable to such agency, organization or person.



“Sanctioned Person” shall mean a person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published
from time to time.



“Significant Subsidiary Group” means any Subsidiary of the Borrower which is, or any
group of Subsidiaries of the Borrower all of which are, at any time of determination, subject to
one or more of the proceedings or conditions described in Section 12.1(i) or
12.1(j) and which Subsidiary or group of Subsidiaries accounted for (or in the case of a
recently formed or acquired Subsidiary would have so accounted for on a Pro Forma Basis) more than
1% of consolidated operating revenues of the Borrower for the Fiscal Year most recently ended or
more than 1% of consolidated Total Assets as of the end of the most recently ended fiscal quarter,
in each case computed in accordance with GAAP.



“Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.


 


23









 





“Specified Hedge Agreement” means any Hedge Agreement (a) entered into by (i) the
Borrower or any of its Subsidiaries and (ii) any Lender or any Affiliate thereof at the time such
Hedge Agreement was entered into, as counterparty and (b) that has been designated by such Lender
or such Affiliate and the Borrower, by notice to the Administrative Agent not later than thirty
(30) days after the execution and delivery by the Borrower or such Subsidiary, as a Specified Hedge
Agreement. No Lender or Affiliate thereof that is a party to a Specified Hedge Agreement shall
have any rights in connection with the management or release of the
Obligations of any Credit Party under any Loan Document. For the avoidance of doubt, (i) all
Hedge Agreements provided by the Administrative Agent or any of its Affiliates and (ii) all Hedge
Agreements in existence on the Closing Date between the Borrower or any of its Subsidiaries and any
Lender, shall constitute Specified Hedge Agreements.



“Specified Hedge Obligations” means all existing or future payment and other
obligations owing by the Borrower or any of its Subsidiaries under any Specified Hedge Agreement.



“Specified Transactions” means (a) any disposition of all or substantially all of the
assets or Capital Stock of any Subsidiary of the Borrower or any division, business unit, product
line or line of business, (b) any Permitted Acquisition, (c) any incurrence of Indebtedness, (d)
the classification of any asset, business unit, division or line of business as a discontinued
operation and (e) the Transactions, in each case, to the extent GAAP requires a Person to treat the
impact of such transaction on a pro forma basis.



“Subsidiary” means as to any Person, any corporation, partnership, limited liability
company or other entity of which more than 50% of the outstanding Capital Stock having ordinary
voting power to elect a majority of the board of directors or other managers of such corporation,
partnership, limited liability company or other entity is at the time owned by (directly or
indirectly) or the management is otherwise controlled by (directly or indirectly) such Person
(irrespective of whether, at the time, Capital Stock of any other class or classes of such
corporation, partnership, limited liability company or other entity shall have or might have voting
power by reason of the happening of any contingency). Unless otherwise qualified, references to
“Subsidiary” or “Subsidiaries” herein shall refer to those of the Borrower.




“Subsidiary Disposition” means:



(a) the Borrower directly or indirectly selling, assigning, pledging or otherwise disposing of
any Indebtedness of or any shares of Capital Stock of any Subsidiary Guarantor, except to a
Wholly-Owned Subsidiary Guarantor;



(b) any Subsidiary Guarantor directly or indirectly selling, assigning, pledging or otherwise
disposing of any Indebtedness of the Borrower or any other Subsidiary Guarantor, or any shares of
Capital Stock of any other Subsidiary Guarantor, except to the Borrower or a Wholly-Owned
Subsidiary Guarantor;


 


24









 





(c) any Subsidiary Guarantor having outstanding any shares of Capital Stock which are
preferred over any other shares of Capital Stock in such Subsidiary Guarantor owned by the Borrower
or a Wholly-Owned Subsidiary Guarantor unless such shares of preferred Capital Stock are also owned
by the Borrower or a Wholly-Owned Subsidiary Guarantor; or



(d) any Subsidiary Guarantor directly or indirectly issuing or selling (including in
connection with a merger or consolidation of such Subsidiary Guarantor otherwise permitted by
Section 11.4(a)) any shares of its Capital Stock except to the Borrower or a Wholly-Owned
Subsidiary Guarantor;



provided, that a Subsidiary Disposition shall not include (i) the sale, assignment or other
disposition of Indebtedness of the Borrower by a Subsidiary Guarantor if, assuming such
Indebtedness were incurred immediately after such sale, assignment or disposition, such
Indebtedness would be permitted under Section 11.1 (other than Section 11.1(h)) (in
which case such Indebtedness need not be subject to the subordination provisions required by
Section 11.1(h)), and (ii) subject to compliance with Section 11.5, all
Indebtedness and Capital Stock of any Subsidiary Guarantor owned by the Borrower or any other
Subsidiary Guarantor may be simultaneously sold as an entirety for an aggregate consideration at
least equal to the fair value thereof (as determined in good faith by the General Partner) at the
time of such sale if such Subsidiary Guarantor does not at the time own any Indebtedness of the
Borrower or any other Subsidiary Guarantor (other than Indebtedness which, if incurred immediately
after such transaction, would be permitted under Section 11.1, other than Section
11.1(h)) (in which case such Indebtedness need not be subject to the subordination provisions
required by Section 11.1(h)).



“Subsidiary Guarantors” means, collectively, all Material Subsidiaries in existence on
the Closing Date or which become a party to the Guaranty Agreement pursuant to Section
9.11.



“Swingline Commitment” means the lesser of (a) THIRTY MILLION DOLLARS ($30,000,000)
and (b) the Revolving Credit Commitment.



“Swingline Facility” means the swingline facility established pursuant to Section
2.2.



“Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or
any successor thereto.



“Swingline Loan” means any swingline loan made by the Swingline Lender to the Borrower
pursuant to Section 2.2, and all such swingline loans collectively as the context requires.



“Swingline Note” means a promissory note made by the Borrower in favor of the
Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the
form attached as Exhibit A-2, and any amendments, supplements and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole
or in part.



“Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in
accordance with GAAP.


 


25









 





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



“Termination Event” means except for any such event or condition that could not
reasonably be expected to have a Material Adverse Effect: (a) a “Reportable Event” described in
Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, or
(b) the withdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan during a
plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, or
(c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan
or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the
plan assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings
to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e)
any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the
partial or complete withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer Plan
if withdrawal liability is asserted by such plan, or (h) any event or condition which results in
the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or
(i) any event or condition which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.



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




“Threshold Amount” means $35,000,000.



“Total Assets” means as of any date of determination, the total assets of the Borrower
and its Subsidiaries determined on a Consolidated basis as of that date.



“Transaction Costs” means all transaction fees, charges and other amounts related to
this Agreement and any Permitted Acquisitions (including any financing fees, merger and acquisition
fees, legal fees and expenses, due diligence fees or any other fees and expenses in connection
therewith), such transaction fees approved by the Administrative Agent.


 


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“Transactions” means, collectively, (a) the repayment in full of all Indebtedness
under the Existing Credit Agreements, (b) the initial Extensions of Credit, and (c) the payment of
the Transaction Costs in connection with clauses (a) and (b) above.




“UGI” means UGI Corporation, a Pennsylvania corporation.



“Unfunded Pension Liability” means the excess of an Employee Benefit Plan’s benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that plan’s assets,
determined in accordance with the assumptions used for funding the Employee Benefit Plan pursuant
to Section 412 of the Code for the applicable plan year.



“United States” means the United States of America.



“Wells Fargo” means Wells Fargo Bank, National Association, a national banking
association, and its successors.



“Wholly-Owned” means, with respect to a Subsidiary, that all of the shares of Capital
Stock of such Subsidiary are, directly or indirectly, owned or controlled by the Borrower and/or
one or more of its Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other
shares required by Applicable Law to be owned by a Person other than the Borrower and/or one or
more of its Wholly-Owned Subsidiaries).



SECTION 1.2 Other Definitions and Provisions. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the
definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined, (b) whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms, (c) the words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”, (d) the word “will” shall be construed to
have the same meaning and effect as the word “shall”, (e) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (f) 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, (g) 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, (h) 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, (i) the term “documents”
includes any and all instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or electronic form, (j) in
the computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word
“through” means “to and including” and (k) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.


 


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SECTION 1.3 Accounting Terms.



(a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with GAAP, applied on a consistent basis, as in effect from time to time and in a manner consistent
with that used in preparing the audited financial statements required by Section 8.1(b),
except as otherwise specifically prescribed herein; provided that if the Borrower notifies
the Administrative Agent that the Borrower wishes to amend any covenant in Article X to
eliminate the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article
X for such purpose), then the Borrower’s compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower, the Administrative Agent and the Required Lenders (and the Borrower, the Administrative
Agent and the Required Lenders shall negotiate in good faith to amend such
provision to preserve the original intent thereof in light of such change in GAAP) and the
Borrower shall provide to the Administrative Agent and the Lenders, when it delivers its financial
statements pursuant to Sections 8.1(a) and 8.1(b) such reconciliation statements as
shall be reasonably requested by the Administrative Agent. Notwithstanding the foregoing, all
financial statements delivered hereunder shall be prepared, and all financial covenants contained
herein shall be calculated, without giving effect to any election under the Financial Accounting
Standards Board Accounting Statements Codification No. 825 (or any similar accounting principle)
permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof.



(b) Notwithstanding anything to the contrary in this Agreement, for purposes of determining
compliance with any test or financial covenant contained in this Agreement (including for purposes
of determining the Applicable Margin) with respect to any period during which any Specified
Transaction occurs, such test or financial covenant shall be calculated with respect to such period
and such Specified Transaction (and all other Specified Transactions that have been consummated
during such period) on a Pro Forma Basis.




SECTION 1.4 [Intentionally Omitted].



SECTION 1.5 Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio or
percentage is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).



SECTION 1.6 References to Agreement and Laws. Unless otherwise expressly provided
herein, (a) references to formation documents, governing documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Applicable Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
Applicable Law.


 


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SECTION 1.7 Times of Day. Unless otherwise specified, all references herein to times
of day shall be references to Eastern time (daylight or standard, as applicable).



SECTION 1.8 Letter of Credit Amounts. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face
amount of such Letter of Credit after giving effect to all increases thereof contemplated by such
Letter of Credit or the Letter of Credit Application therefor (at the time specified therefor in
such applicable Letter of Credit or Letter of Credit Application and as such amount may be reduced
by (a) any permanent reduction of such Letter of Credit or (b) any amount which is drawn,
reimbursed and no longer available under such Letter of Credit).



ARTICLE II




REVOLVING CREDIT FACILITY




SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions of this
Agreement and the other Loan Documents, and in reliance upon the representations and warranties set
forth herein, each Revolving Credit Lender severally agrees to make Revolving Credit Loans to the
Borrower from time to time from the Closing Date through, but not including, the Revolving Credit
Maturity Date as requested by the Borrower in accordance with the terms of Section 2.3;
provided, that (a) the Revolving Credit Outstandings shall not exceed the Revolving Credit
Commitment and (b) the principal amount of outstanding Revolving Credit Loans from any Revolving
Credit Lender plus such Revolving Credit Lender’s Revolving Credit Commitment Percentage of
outstanding L/C Obligations and outstanding Swingline Loans shall not at any time exceed such
Revolving Credit Lender’s Revolving Credit Commitment. Each Revolving Credit Loan by a Revolving
Credit Lender shall be in a principal amount equal to such Revolving Lender’s Revolving Credit
Commitment Percentage of the aggregate principal amount of Revolving Credit Loans requested on such
occasion. Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow
Revolving Credit Loans hereunder until the Revolving Credit Maturity Date.




SECTION 2.2 Swingline Loans.



(a) Availability. Subject to the terms and conditions of this Agreement, the
Swingline Lender agrees to make Swingline Loans to the Borrower from time to time from the Closing
Date through, but not including, the Revolving Credit Maturity Date; provided, that (a)
after giving effect to any amount requested, the Revolving Credit Outstandings shall not exceed the
Revolving Credit Commitment and (b) the aggregate principal amount of all outstanding Swingline
Loans (after giving effect to any amount requested), shall not exceed the lesser of (i) the
Revolving Credit Commitment less the sum of all outstanding Revolving Credit Loans and the L/C
Obligations and (ii) the Swingline Commitment.




(b) Refunding.




(i) Swingline Loans shall be refunded by the Revolving Credit Lenders on demand by the
Swingline Lender. Such refundings shall be made by the Revolving Credit Lenders in
accordance with their respective Revolving Credit Commitment Percentages and shall
thereafter be reflected as Revolving Credit Loans of the Revolving Credit Lenders on the
books and records of the Administrative Agent. Each Revolving Credit Lender shall fund its
respective Revolving Credit Commitment Percentage of Revolving Credit Loans as required to
repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline
Lender but in no event later than 12:00 p.m. on the next succeeding Business Day after such
demand is made. No Revolving Credit Lender’s obligation to fund its respective Revolving
Credit Commitment Percentage of a Swingline Loan shall be affected by any other Revolving
Credit Lender’s failure to fund its Revolving Credit Commitment Percentage of a Swingline
Loan, nor shall any Revolving Credit Lender’s Revolving Credit Commitment Percentage be
increased as a result of any such failure of any other Revolving Credit Lender to fund
its Revolving Credit Commitment Percentage of a Swingline Loan.


 


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(ii) The Borrower shall pay to the Swingline Lender on demand the amount of such
Swingline Loans to the extent amounts received from the Revolving Credit Lenders are not
sufficient to repay in full the outstanding Swingline Loans requested or required to be
refunded. In addition, the Borrower hereby authorizes the Administrative Agent to charge
any account maintained by the Borrower with the Swingline Lender (up to the amount available
therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans
to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay
in full the outstanding Swingline Loans requested or required to be refunded. If any
portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf
of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount
so recovered shall be ratably shared among all the Revolving Credit Lenders in accordance
with their respective Revolving Credit Commitment Percentages (unless the amounts so
recovered by or on behalf of the Borrower pertain to a Swingline Loan extended after the
occurrence and during the continuance of an Event of Default of which the Administrative
Agent has received notice in the manner required pursuant to Section 13.3 and which
such Event of Default has not been waived by the Required Lenders or the Lenders, as
applicable).




(iii) Each Revolving Credit Lender acknowledges and agrees that its obligation to
refund Swingline Loans in accordance with the terms of this Section is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including
non-satisfaction of the conditions set forth in Article VI. Further, each Revolving
Credit Lender agrees and acknowledges that if prior to the refunding of any outstanding
Swingline Loans pursuant to this Section, one of the events described in Section
12.1(j) or (k) shall have occurred, each Revolving Credit Lender will, on the
date the applicable Revolving Credit Loan would have been made, purchase an undivided
participating interest in the Swingline Loan to be refunded in an amount equal to its
Revolving Credit Commitment Percentage of the aggregate amount of such Swingline Loan. Each
Revolving Credit Lender will immediately transfer to the Swingline Lender, in immediately
available funds, the amount of its participation and upon receipt thereof the Swingline
Lender will deliver to such Revolving Credit Lender a certificate evidencing such
participation dated the date of receipt of such funds and for such amount. Whenever, at any
time after the Swingline Lender has received from any Revolving Credit Lender such Revolving
Credit Lender’s participating interest in a Swingline Loan, the Swingline Lender receives
any payment on account thereof, the Swingline Lender will distribute to such Revolving
Credit Lender its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Revolving Credit
Lender’s participating interest was outstanding and funded).


 


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SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans.



(a) Requests for Borrowing. The Borrower shall give the Administrative Agent
irrevocable prior written notice substantially in the form of Exhibit B (a “Notice of
Borrowing”) not later than 1:00 p.m. (i) on the same Business Day as each Base Rate Loan and
each Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of its
intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B)
the amount of such borrowing, which shall be, (x) with respect to Base Rate Loans in an aggregate
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof, (y) with
respect to LIBOR Rate Loans in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (z) with respect to Swingline Loans in an aggregate principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof, (C) whether such Loan is to
be a Revolving Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit Loan whether
the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a LIBOR Rate Loan,
the duration of the Interest Period applicable thereto. A Notice of Borrowing received after 1:00
p.m. shall be deemed received on the next Business Day. The Administrative Agent shall promptly
notify the Revolving Credit Lenders of each Notice of Borrowing.



(b) Disbursement of Revolving Credit and Swingline Loans. Not later than 2:00 p.m. on
the proposed borrowing date, (i) each Revolving Credit Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the Administrative Agent in
funds immediately available to the Administrative Agent, such Revolving Credit Lender’s Revolving
Credit Commitment Percentage of the Revolving Credit Loans to be made on such borrowing date and
(ii) the Swingline Lender will make available to the Administrative Agent, for the account of the
Borrower, at the office of the Administrative Agent in funds immediately available to the
Administrative Agent, the Swingline Loans to be made on such borrowing date. The Borrower hereby
irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing
requested pursuant to this Section no later than 4:00 p.m. on the proposed borrowing date in
immediately available funds by crediting or wiring such proceeds to the deposit account of the
Borrower identified in the most recent notice substantially in the form attached as Exhibit C (a
“Notice of Account Designation”) delivered by the Borrower to the Administrative Agent or
as may be otherwise agreed upon by the Borrower and the Administrative Agent from time to time.
Subject to Section 5.7, the Administrative Agent shall not be obligated to disburse the
portion of the proceeds of any Revolving Credit Loan requested pursuant to this Section to the
extent that any Revolving Credit Lender has not made available to the Administrative Agent its
Revolving Credit Commitment Percentage of such Loan. Revolving Credit Loans to be made for the
purpose of refunding Swingline Loans shall be made by the Revolving Credit Lenders as provided in
Section 2.2(b).


 


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SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans.



(a) Repayment on Termination Date. The Borrower hereby agrees to repay the
outstanding principal amount of (i) all Revolving Credit Loans in full on the Revolving Credit
Maturity Date, and (ii) all Swingline Loans in accordance with Section 2.2(b) (but, in any
event,
no later than the Revolving Credit Maturity Date), together, in each case, with all accrued
but unpaid interest thereon.



(b) Mandatory Prepayments. If at any time the Revolving Credit Outstandings exceed
the Revolving Credit Commitment, the Borrower agrees to repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for the account of the Revolving
Credit Lenders, Extensions of Credit in an amount equal to such excess with each such repayment
applied first, to the principal amount of outstanding Swingline Loans, second, to
the principal amount of outstanding Revolving Credit Loans and third, with respect to any
Letters of Credit then outstanding, a payment of cash collateral into a cash collateral account
opened by the Administrative Agent, for the benefit of the Revolving Credit Lenders, in an amount
equal to the aggregate L/C Obligations then outstanding (such cash collateral to be applied in
accordance with Section 12.2(b)).



(c) Optional Prepayments. The Borrower may at any time and from time to time prepay
Revolving Credit Loans and Swingline Loans, in whole or in part, with irrevocable prior written
notice to the Administrative Agent substantially in the form attached as Exhibit D (a “Notice
of Prepayment”) given not later than 1:00 p.m. (i) on the same Business Day as each Base Rate
Loan and each Swingline Loan and (ii) at least two (2) Business Days before each LIBOR Rate Loan,
specifying the date and amount of prepayment and whether the prepayment is of LIBOR Rate Loans,
Base Rate Loans, Swingline Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each; provided that a Notice of Prepayment may state that such notice
is conditioned upon the effectiveness of debt or equity issuances, in which case, such notice may
be revoked by the Borrower by notice to the Administrative Agent prior to the date of such proposed
prepayment if such issuance is not consummated. Upon receipt of such notice, the Administrative
Agent shall promptly notify each Revolving Credit Lender. If any such notice is given, the amount
specified in such notice shall be due and payable on the date set forth in such notice. Partial
prepayments shall be in an aggregate amount of $1,000,000 or a whole multiple of $1,000,000 in
excess thereof with respect to Base Rate Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof with respect to LIBOR Rate Loans and $100,000 or a whole multiple of $100,000 in
excess thereof with respect to Swingline Loans. A Notice of Prepayment received after 1:00 p.m.
shall be deemed received on the next Business Day. Each such repayment shall be accompanied by any
amount required to be paid pursuant to Section 5.9.




(d) [Intentionally Omitted].




(e) [Intentionally Omitted].



(f) Hedge Agreements. No repayment or prepayment pursuant to this Section shall
affect any of the Borrower’s obligations under any Hedge Agreement.


 


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SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment.



(a) Voluntary Reduction. The Borrower shall have the right at any time and from time
to time, upon at least three (3) Business Days prior written notice to the Administrative Agent, to
permanently reduce, without premium or penalty, (i) the entire Revolving Credit Commitment at any
time or (ii) portions of the Revolving Credit Commitment, from time to
time, in an aggregate principal amount not less than $3,000,000 or any whole multiple of
$1,000,000 in excess thereof. Any reduction of the Revolving Credit Commitment shall be applied to
the Revolving Credit Commitment of each Revolving Credit Lender according to its Revolving Credit
Commitment Percentage. All Commitment Fees accrued until the effective date of any termination of
the Revolving Credit Commitment shall be paid on the effective date of such termination.




(b) [Intentionally Omitted].




(c) [Intentionally Omitted].



(d) Corresponding Payment. Each permanent reduction permitted pursuant to this
Section shall be accompanied by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans, Swingline Loans and L/C Obligations, as applicable, after such
reduction to the Revolving Credit Commitment as so reduced and if the Revolving Credit Commitment
as so reduced is less than the aggregate amount of all outstanding Letters of Credit, the Borrower
shall be required to deposit cash collateral in a cash collateral account opened by the
Administrative Agent in an amount equal to the aggregate L/C Obligations then outstanding. Such
cash collateral shall be applied in accordance with Section 12.2(b). Any reduction of the
Revolving Credit Commitment to zero shall be accompanied by payment of all outstanding Revolving
Credit Loans and Swingline Loans (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the termination of the Revolving
Credit Commitment and the Swingline Commitment and the Revolving Credit Facility. If the reduction
of the Revolving Credit Commitment requires the repayment of any LIBOR Rate Loan, such repayment
shall be accompanied by any amount required to be paid pursuant to Section 5.9.



SECTION 2.6 Termination of Revolving Credit Facility. The Revolving Credit Facility
and the Revolving Credit Commitments shall terminate on the Revolving Credit Maturity Date.



ARTICLE III




LETTER OF CREDIT FACILITY





SECTION 3.1 L/C Commitment.



(a) Availability. Subject to the terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 3.4(a), agrees to
issue standby letters of credit (the “Letters of Credit”) for the account of the Borrower
on any Business Day from the Closing Date through but not including the fifth (5th) Business Day
prior to the Revolving Credit Maturity Date in such form as may be approved from time to time by
the Issuing Lender; provided, that the Issuing Lender shall have no obligation to issue any
Letter of Credit if, after giving effect to such issuance, (a) the L/C Obligations would exceed the
L/C Commitment or (b) the Revolving Credit Outstandings would exceed the Revolving Credit
Commitment. Each Letter of Credit shall (i) be denominated in Dollars in a minimum amount of
$500,000 (or such lesser amount as agreed to by the Issuing Lender), (ii) be a


 


33









 






standby
letter of credit issued to support obligations of the Borrower or any of its Subsidiaries, contingent or
otherwise, incurred in the ordinary course of business, (iii) expire on a date no more than twelve
(12) months after the date of issuance or last renewal of such Letter of Credit (subject to
automatic renewal for additional one (1) year periods pursuant to the terms of the Letter of Credit
Application or other documentation acceptable to the Issuing Lender), which date shall be no later
than the fifth (5th) Business Day prior to the Revolving Credit Maturity Date and (iv) be subject
to the ISP98 and, to the extent not inconsistent therewith, the laws of the State of New York. The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any Applicable Law. References herein to “issue” and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of any outstanding
Letters of Credit, unless the context otherwise requires. As of the Closing Date, each of the
Existing Letters of Credit shall constitute, for all purposes of this Agreement and the other Loan
Documents, a Letter of Credit issued and outstanding hereunder.



(b) Defaulting Lenders. At any time that there shall exist a Defaulting Lender,
within one (1) Business Day following the written request of the Administrative Agent or the
Issuing Lender (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the
Issuing Lenders’ Fronting Exposure with respect to such Defaulting Lender (determined after giving
effect to Section 5.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender)
in an amount not less than the Minimum Collateral Amount.




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




(ii) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under this Section 3.1(b) or 5.15 in
respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s
obligation to fund participations in respect of L/C Obligations (including, as to Cash
Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for
which the Cash Collateral was so provided, prior to any other application of such property
as may otherwise be provided for herein.


 


34









 






(iii) Termination of Requirement. Cash Collateral (or the appropriate portion
thereof) provided to reduce the Issuing Lender’s Fronting Exposure shall no longer be
required to be held as Cash Collateral pursuant to this Section 3.1(b) following (x)
the elimination of the applicable Fronting Exposure (including by the termination of
Defaulting Lender status of the applicable Lender), or (y) the determination by the
Administrative Agent and the Issuing Lender that there exists excess Cash Collateral;
provided that, subject to Section 5.15 the Person providing Cash Collateral
and the Issuing Lender may agree that Cash Collateral shall be held to support future
anticipated Fronting Exposure or other obligations.



SECTION 3.2 Procedure for Issuance of Letters of Credit. The Borrower may from time
to time request that the Issuing Lender issue a Letter of Credit by delivering to the Issuing
Lender at the Administrative Agent’s Office a Letter of Credit Application therefor, completed to
the satisfaction of the Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Letter of Credit Application,
the Issuing Lender shall process such Letter of Credit Application and the certificates, documents
and other papers and information delivered to it in connection therewith in accordance with its
customary procedures and shall, subject to Section 3.1 and Article VI, promptly
issue the Letter of Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three (3) Business Days after its receipt of the Letter
of Credit Application therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing Lender
shall promptly furnish to the Borrower a copy of such Letter of Credit and promptly notify each
Revolving Credit Lender of the issuance and upon request by any Revolving Credit Lender, furnish to
such Lender a copy of such Revolving Credit Letter of Credit and the amount of such Revolving
Credit Lender’s participation therein.




SECTION 3.3 Commissions and Other Charges.



(a) Letter of Credit Commissions. The Borrower shall pay to the Administrative Agent,
for the account of the Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit in the amount equal to the face amount of such Letter of Credit
multiplied by the Applicable Margin with respect to Revolving Credit Loans that are
LIBOR Rate Loans (determined on a per annum basis). Such commission shall be accrued quarterly in
arrears on the last Business Day of each calendar quarter and shall be payable on the third
Business Day of the immediately following calendar quarter, on the Revolving Credit Maturity Date
and thereafter on demand of the Administrative Agent. The Administrative Agent shall, promptly
following its receipt thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received pursuant to this Section in accordance with their respective Revolving Credit
Commitment Percentages.



(b) Fronting Fee. In addition to the foregoing commission, the Borrower shall pay to
the Administrative Agent, for the account of the Issuing Lender, a fronting fee with respect to
each Letter of Credit as set forth in the Fee Letter. Such issuance fee shall be accrued quarterly
in arrears on the last Business Day of each calendar quarter and shall be payable on the third
Business Day of the immediately following calendar quarter, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Revolving Credit Maturity Date and
thereafter on demand of the Administrative Agent.


 


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(c) Other Costs. In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such standard and customary costs and expenses as are
incurred or charged by the Issuing Lender in issuing, effecting payment under, amending or
otherwise administering any Letter of Credit.




SECTION 3.4 L/C Participations.



(a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender,
on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk an
undivided interest equal to such L/C Participant’s Revolving Credit Commitment Percentage in the
Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower through a
Revolving Credit Loan or otherwise in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for notices
specified herein an amount equal to such L/C Participant’s Revolving Credit Commitment Percentage
of the amount of such draft, or any part thereof, which is not so reimbursed.



(b) Upon becoming aware of any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
payment made by the Issuing Lender under any Letter of Credit, the Issuing Lender shall notify each
L/C Participant of the amount and due date of such required payment and such L/C Participant shall
pay to the Issuing Lender the amount specified on the applicable due date. If any such amount is
paid to the Issuing Lender after the date such payment is due, such L/C Participant shall pay to
the Issuing Lender on demand, in addition to such amount, the product of (i) such amount,
multiplied by (ii) the daily average Federal Funds Rate as determined by the
Administrative Agent during the period from and including the date such payment is due to the date
on which such payment is immediately available to the Issuing Lender, multiplied by
(iii) a fraction the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of the Issuing Lender with respect to any amounts
owing under this Section shall be conclusive in the absence of manifest error. With respect to
payment to the Issuing Lender of the unreimbursed amounts described in this Section, if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m. on any Business
Day, such payment shall be due that Business Day, and (B) after 1:00 p.m. on any Business Day, such
payment shall be due on the following Business Day.



(c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its Revolving Credit Commitment Percentage of such
payment in accordance with this Section, the Issuing Lender receives any payment related to such
Letter of Credit (whether directly from the Borrower or otherwise), or any payment of interest on
account thereof, the Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously distributed by
the Issuing Lender to it.


 


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SECTION 3.5 Reimbursement Obligation of the Borrower. In the event of any drawing
under any Letter of Credit, the Borrower agrees to reimburse (either with the proceeds of a
Revolving Credit Loan as provided for in this Section or with immediately available funds from
other sources), the Issuing Lender on each date on which the Issuing Lender has provided notice to
the Borrower of the date and amount of a draft paid under any Letter of Credit for the amount of
(a) such draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by the
Issuing Lender in connection with such payment. Such payment shall be made not later than 2:00
p.m. on (i) the Business Day that the Borrower receives such notice, if such notice is received
prior to 10:00 a.m. on such day or (ii) the Business Day after the Borrower receives such notice,
if such notice is received after 10:00 a.m. on such day. If the Borrower does not make such
payment when due, the Borrower shall be deemed to have timely given a Notice of Borrowing to the
Administrative Agent requesting that the Revolving Credit Lenders make a Revolving Credit Loan
bearing interest at the Base Rate on such date in the amount of (a) such draft so paid and (b) any
amounts referred to in Section 3.3(c) incurred by the Issuing Lender in connection with
such payment, and the Revolving Credit Lenders shall make a Revolving Credit Loan bearing interest
at the Base Rate in such amount, the proceeds of which shall be applied to reimburse the Issuing
Lender for the amount of the related drawing and costs and expenses. Each Revolving Credit Lender
acknowledges and agrees that its obligation to fund a Revolving Credit Loan in accordance with this
Section to reimburse the Issuing Lender for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including non-satisfaction
of the conditions set forth in Section 2.3(a) or Article VI. If the Borrower has
elected to pay the amount of such drawing with funds from other sources and shall fail to reimburse
the Issuing Lender as provided above, the unreimbursed amount of such drawing shall bear interest
at the rate which would be payable on any outstanding Base Rate Loans which were then overdue from
the date such amounts become payable (whether at stated maturity, by acceleration or otherwise)
until payment in full.



SECTION 3.6 Obligations Absolute. The Borrower’s obligations under this Article
III (including the Reimbursement Obligation) shall be absolute and unconditional under any and
all circumstances and irrespective of any set off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of a Letter of Credit
or any other Person. The Borrower also agrees that the Issuing Lender and the L/C Participants
shall not be responsible for, and the Borrower’s Reimbursement Obligation under Section 3.5
shall not be affected by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or
any other party to which such Letter of Credit may be transferred or any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by the Issuing Lender’s gross negligence, bad faith or
willful misconduct, as determined by a court of competent jurisdiction by final nonappealable
judgment. The Borrower agrees that any action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence, bad faith or willful
misconduct shall be binding on the Borrower and shall not result in any liability of the Issuing
Lender or any L/C Participant to the Borrower. The responsibility of the Issuing Lender to the
Borrower in connection with any draft presented for payment under any Letter of Credit shall, in
addition to any payment obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.


 


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SECTION 3.7 Effect of Letter of Credit Application. To the extent that any provision
of any Letter of Credit Application related to any Letter of Credit is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.



ARTICLE IV




[INTENTIONALLY OMITTED]




ARTICLE V




GENERAL LOAN PROVISIONS





SECTION 5.1 Interest.



(a) Interest Rate Options. Subject to the provisions of this Section, at the election
of the Borrower, (i) Revolving Credit Loans shall bear interest at (A) the Base Rate plus
the Applicable Margin or (B) the LIBOR Rate plus the Applicable Margin (provided
that the LIBOR Rate shall not be available until three (3) Business Days after the Closing Date
unless the Borrower has delivered to the Administrative Agent a letter in form and substance
reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set
forth in Section 5.9 of this Agreement) and (ii) any Swingline Loan shall bear interest at
the LIBOR Market Index Rate plus the Applicable Margin. The Borrower shall select the rate
of interest and Interest Period, if any, applicable to any Loan at the time a Notice of Borrowing
is given or at the time a Notice of Conversion/Continuation is given pursuant to Section
5.2. Any Loan or any portion thereof as to which the Borrower has not duly specified an
interest rate as provided herein shall be deemed a Base Rate Loan.



(b) Interest Periods. In connection with each LIBOR Rate Loan, the Borrower, by
giving notice at the times described in Section 2.3 or 5.2, as applicable, shall
elect an interest period (each, an “Interest Period”) to be applicable to such Loan, which
Interest Period shall be a period of two (2) weeks or one (1), two (2), three (3), or six (6)
months; provided that:




(i) the Interest Period shall commence on the date of advance of or conversion to any
LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each successive
Interest Period shall commence on the date on which the immediately preceding Interest
Period expires;


 


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(ii) if any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day; provided, that if any
Interest Period with respect to a LIBOR Rate Loan would otherwise
expire on a day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire on the
immediately preceding Business Day;




(iii) any Interest Period with respect to a LIBOR Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of the relevant calendar month at the end of such Interest Period;




(iv) no Interest Period shall extend beyond the Revolving Credit Maturity Date; and




(v) there shall be no more than ten (10) Interest Periods in effect at any time.



(c) Default Rate. Subject to Section 12.3, (i) immediately upon the
occurrence and during the continuance of an Event of Default under Section 12.1(a),
(b), (i) or (j), or (ii) at the election of the Required Lenders, upon the
occurrence and during the continuance of any other Event of Default, (A) the Borrower shall no
longer have the option to request LIBOR Rate Loans, Swingline Loans or Letters of Credit, (B) all
outstanding LIBOR Rate Loans shall bear interest at a rate per annum of 2% in excess of the rate
(including the Applicable Margin) then applicable to Base Rate Loans, and (C) all outstanding Base
Rate Loans and other Obligations arising hereunder or under any other Loan Document shall bear
interest at a rate per annum equal to 2% in excess of the rate (including the Applicable Margin)
then applicable to Base Rate Loans or such other Obligations arising hereunder or under any other
Loan Document. Interest shall continue to accrue on the Obligations after the filing by or against
the Borrower of any petition seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.



(d) Interest Payment and Computation. Interest on each Base Rate Loan shall accrue in
arrears on the last Business Day of each calendar quarter and shall be due and payable on the third
Business Day of the immediately following calendar quarter commencing September 30, 2011; and
interest on each LIBOR Rate Loan shall be due and payable on the last day of each Interest Period
applicable thereto, and if such Interest Period extends over three (3) months, at the end of each
three (3) month interval during such Interest Period. All computations of interest for Base Rate
Loans when the Base Rate is determined by the Prime Rate and the Commitment Fee shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees (other than the Commitment Fee) and interest provided hereunder shall be made
on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365/366-day year).



(e) Maximum Rate. In no contingency or event whatsoever shall the aggregate of all
amounts deemed interest under this Agreement charged or collected pursuant to the terms of this
Agreement exceed the highest rate permissible under any Applicable Law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a
court determines that the Lenders have charged or received interest hereunder in excess of the
highest applicable rate, the rate in effect hereunder shall automatically be reduced to the
maximum rate permitted by Applicable Law and the Lenders shall at the Administrative Agent’s
option (i) promptly refund to the Borrower any interest received by the Lenders in excess of the
maximum lawful rate or (ii) apply such excess to the principal balance of the Obligations on a
pro rata basis. It is the intent hereof that the Borrower not pay or contract to
pay, and that neither the Administrative Agent nor any Lender receive or contract to receive,
directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by
the Borrower under Applicable Law.


 


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SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans. Provided that
no Default or Event of Default has occurred and is then continuing, the Borrower shall have the
option to (a) convert at any time following the third (3rd) Business Day after the
Closing Date all or any portion of any outstanding Base Rate Loans in a principal amount equal to
$1,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate Loans
and (b) upon the expiration of any Interest Period, (i) convert all or any part of its outstanding
LIBOR Rate Loans in a principal amount equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof into Base Rate Loans or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans.
Whenever the Borrower desires to convert or continue Loans as provided above, the Borrower shall
give the Administrative Agent irrevocable prior written notice in the form attached as Exhibit E (a
“Notice of Conversion/Continuation”) not later than 1:00 p.m. three (3) Business Days
before the day on which a proposed conversion or continuation of such Loan is to be effective
specifying (A) the Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to
be converted or continued, the last day of the Interest Period therefor, (B) the effective date of
such conversion or continuation (which shall be a Business Day), (C) the principal amount of such
Loans to be converted or continued, and (D) the Interest Period to be applicable to such converted
or continued LIBOR Rate Loan. The Administrative Agent shall promptly notify the affected Lenders
of such Notice of Conversion/Continuation.




SECTION 5.3 Fees.



(a) Commitment Fee. Commencing on the Closing Date, subject to Section
5.15(a)(iii), the Borrower shall pay to the Administrative Agent, for the account of the
Revolving Credit Lenders, a non-refundable commitment fee (the “Commitment Fee”) at a rate
per annum equal to the Applicable Margin on the average daily unused portion of the Revolving
Credit Commitment of the Revolving Credit Lenders; provided, that the amount of outstanding
Swingline Loans shall not be considered usage of the Revolving Credit Commitment for the purpose of
calculating the Commitment Fee. The Commitment Fee shall accrue in arrears on the last Business
Day of each calendar quarter during the term of this Agreement and shall be payable on the third
Business Day of the immediately following calendar quarter commencing September 30, 2011 and ending
on the Revolving Credit Maturity Date. Such Commitment Fee shall be distributed by the
Administrative Agent to the Revolving Credit Lenders pro rata in accordance with
such Revolving Credit Lenders’ respective Revolving Credit Commitment Percentages.




(b) [Intentionally Omitted].


 


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(c) Other Fees. The Borrower shall pay to the Arranger and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the Fee
Letter. The Borrower shall pay to the Lenders such fees as shall have been separately agreed
upon in writing in the amounts and at the times so specified.



SECTION 5.4 Sharing of Payments. Each payment by the Borrower on account of the
principal of or interest on the Loans or of any fee, commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this Agreement (or any of them) shall be
made not later than 3:00 p.m. on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent’s Office for the account of the Lenders entitled
to such payment in Dollars, in immediately available funds and shall be made without any set off,
counterclaim or deduction whatsoever. Any payment received after 3:00 p.m. shall be deemed to have
been made on the next succeeding Business Day for all purposes. Upon receipt by the Administrative
Agent of each such payment, the Administrative Agent shall distribute to each such Lender at its
address for notices set forth herein its pro rata share of such payment in accordance with the
amounts then due and payable to such Lenders, (except as specified below) and shall wire advice of
the amount of such credit to each Lender. Each payment to the Administrative Agent on account of
the principal of or interest on the Swingline Loans or of any fee, commission or other amounts
payable to the Swingline Lender shall be made in like manner, but for the account of the Swingline
Lender. Each payment to the Administrative Agent of the Issuing Lender’s fees or L/C Participants’
commissions shall be made in like manner, but for the account of the Issuing Lender or the L/C
Participants, as the case may be. Each payment to the Administrative Agent of Administrative
Agent’s fees or expenses shall be made for the account of the Administrative Agent and any amount
payable to any Lender under Section 5.9, 5.10, 5.11 or 14.3 shall be paid to the Administrative
Agent for the account of the applicable Lender. Subject to Section 5.1(b)(ii), if any payment
under this Agreement shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day and such extension of time shall in such
case be included in computing any interest if payable along with such payment.




SECTION 5.5 Evidence of Indebtedness.



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


 


41









 





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



SECTION 5.6 Adjustments. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its
Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of
the aggregate amount of its Loans and accrued interest thereon or other such obligations (other
than pursuant to Section 5.9, 5.10, 5.11 or 14.3) greater than its
pro rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at
face value) participations in the Loans and such other obligations of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans and other amounts owing them; 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 (A) any
payment made by the Borrower pursuant to and in accordance with the express terms of this
Agreement (including the application of funds arising from the existence of a Defaulting
Lender) or (B) 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 Swingline Loans and Letters
of Credit to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this paragraph shall apply).



Each Credit Party 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 each Credit Party rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of each Credit Party in the
amount of such participation.




SECTION 5.7 Obligations of Lenders.



(a) Funding by Lenders; Presumption by Administrative Agent. 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 Section 2.3(b) 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,


 


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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 a payment to be made by such Lender, the
greater of the daily average Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation and (ii) in the case of a
payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the
Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of
such interest paid by the Borrower for such period. If such Lender pays its share of the
applicable borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such borrowing. Any payment by the Borrower shall be without prejudice
to any claim the Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.



(b) Nature of Obligations of Lenders Regarding Extensions of Credit. The obligations
of the Lenders under this Agreement to make the Loans and issue or participate in Letters of Credit
are several and are not joint or joint and several. The failure of any Lender to make available
its Revolving Credit Commitment Percentage of any Loan requested by the Borrower shall not relieve
it or any other Lender of its obligation, if any, hereunder to make its Revolving Credit Commitment
Percentage of such Loan available on the borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Revolving Credit Commitment Percentage of such Loan
available on the borrowing date.




SECTION 5.8 Changed Circumstances. 



(a) Circumstances Affecting LIBOR Rate Availability. In connection with any request
for a LIBOR Rate Loan or a Base Rate Loan as to which the interest rate is determined with
reference to LIBOR or a conversion to or continuation thereof, if for any reason (i) the
Administrative Agent shall determine (which determination shall be conclusive and binding absent
manifest error) that Dollar deposits are not being offered to banks in the London interbank
Eurodollar market for the applicable amount and Interest Period of such Loan, (ii) the
Administrative Agent shall determine (which determination shall be conclusive and binding absent
manifest error) that reasonable and adequate means do not exist for the ascertaining the LIBOR Rate
for such Interest Period with respect to a proposed LIBOR Rate Loan or any Base Rate Loan as to
which the interest rate is determined with reference to LIBOR or (iii) the Required Lenders shall
determine (which determination shall be conclusive and binding absent manifest error) that the
LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining
such Loans during such Interest Period, then the Administrative Agent shall promptly give notice
thereof to the Borrower. Thereafter, until the Administrative Agent notifies the Borrower that
such circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate Loans or Base
Rate Loan as to which the interest rate is determined with reference to LIBOR and the right of the
Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan or a Base Rate Loan as to
which the interest rate is determined with reference to LIBOR shall be suspended, and (i) in the
case of LIBOR Rate Loans, the Borrower shall either (A) repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such LIBOR Rate Loan together with accrued
interest
thereon (subject to Section 5.1(d)), on the last day of the then current Interest
Period applicable to such LIBOR Rate Loan; or (B) convert the then outstanding principal amount of
each such LIBOR Rate Loan to a Base Rate Loan as to which the interest rate is not determined by
reference to LIBOR as of the last day of such Interest Period; or (ii) in the case of Base Rate
Loans as to which the interest rate is determined by reference to LIBOR, the Borrower shall convert
the then outstanding principal amount of each such Loan to a Base Rate Loan as to which the
interest rate is not determined by reference to LIBOR as of the last day of such Interest Period.


 


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(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof, the
introduction of, or any change in, any Applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the Lenders (or any of
their respective Lending Offices) with any request or directive (whether or not having the force of
law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any LIBOR Rate Loan or any Base Rate Loan as to which the
interest rate is determined by reference to LIBOR, such Lender shall promptly give notice thereof
to the Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower
and the other Lenders. Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans or Base
Rate Loans as to which the interest rate is determined by reference to LIBOR, and the right of the
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan or a Base Rate Loan as to
which the interest rate is determined by reference to LIBOR shall be suspended and thereafter the
Borrower may select only Base Rate Loans as to which the interest rate is not determined by
reference to LIBOR hereunder, (ii) all Base Rate Loans shall cease to be determined by reference to
LIBOR and (iii) if any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to
the end of the then current Interest Period applicable thereto, the applicable Loan shall
immediately be converted to a Base Rate Loan as to which the interest rate is not determined by
reference to LIBOR for the remainder of such Interest Period.



SECTION 5.9 Indemnity. The Borrower hereby indemnifies each of the Lenders against
any loss or expense which may arise or be attributable to each Lender’s obtaining, liquidating or
employing deposits or other funds acquired to effect, fund or maintain any Loan (a) as a
consequence of any failure by the Borrower to make any payment when due of any amount due hereunder
in connection with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow, continue or
convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation
or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the
last day of the Interest Period therefor. The amount of such loss or expense shall be determined,
in the applicable Lender’s sole discretion, based upon the assumption that such Lender funded its
Revolving Credit Commitment Percentage of the LIBOR Rate Loans in the London interbank market and
using any reasonable attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining such amount or
amounts necessary to compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save for manifest error.


 


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SECTION 5.10 Increased Costs. 




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




(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or advances, loans or other credit extended or participated in by, any Lender (except
any reserve requirement reflected in the LIBOR Rate) or the Issuing Lender;




(ii) subject any Lender or the Issuing Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Lender
or the Issuing Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 5.11 and the imposition of, or any change in the rate of any
Excluded Tax payable by such Lender or the Issuing Lender); or




(iii) impose on any Lender or the Issuing Lender or the London interbank market any
other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such
Lender or any Letter of Credit or participation therein;




and the result of any of the foregoing shall be to increase the cost to such Lender of
making, converting into or maintaining any LIBOR Rate Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the Issuing Lender of
participating in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the amount of
any sum received or receivable by such Lender or the Issuing Lender hereunder (whether of
principal, interest or any other amount) then, upon written request of such Lender or the
Issuing Lender, the Borrower shall promptly pay to any such Lender or the Issuing Lender, as
the case may be, such additional amount or amounts as will compensate such Lender or the
Issuing Lender, as the case may be, for such additional costs incurred or reduction
suffered.



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


 


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(c) Certificates for Reimbursement. A certificate of a Lender or the Issuing Lender
setting forth the amount or amounts necessary to compensate such Lender or the Issuing Lender or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Lender, as the case may be, the amount shown as due on any
such certificate within ten (10) Business Days after receipt thereof.



(d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing
Lender to demand compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or the Issuing Lender’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or the Issuing Lender pursuant to this
Section for any increased costs incurred or reductions suffered more than nine (9) months prior to
the date that such Lender or the Issuing Lender, 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
Lender’s intention to claim compensation therefor (except that if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the nine-month period referred to above
shall be extended to include the period of retroactive effect thereof).




SECTION 5.11 Taxes. 



(a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall, to the extent permitted by
Applicable Law, be made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required by Applicable Law to
deduct any Indemnified Taxes (including any 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, the
applicable Lender or the Issuing Lender, 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 timely pay the full amount deducted to the relevant Governmental
Authority in accordance with Applicable Law.



(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with Applicable Law.



(c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Lender, within ten (10) Business Days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, 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. A certificate as to the amount of
such payment or liability delivered to the Borrower by a Lender or the Issuing Lender (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Lender, setting forth in reasonable detail the amount or amounts necessary to
compensate the Administrative Agent, such Lender or the Issuing Lender, as the case may be, the
changes as a result of which such amounts are due and the manner of computing such amounts, shall
be conclusive absent manifest error.


 


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(d) Evidence of Payments. 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) Status of Lenders.




(i) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the
time or times prescribed by Applicable Law or when reasonably requested by the Borrower or
the Administrative Agent, such properly completed and executed documentation prescribed by
Applicable Law or by the taxing authorities of any jurisdiction and such other reasonably
requested information as will permit the Borrower or the Administrative Agent, as the case
may be, to determine (A) whether or not payments made hereunder or under any other Loan
Document are subject to Taxes, (B) if applicable, the required rate of withholding or
deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction
of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding
tax purposes in the applicable jurisdiction.




(ii) Without limiting the generality of the foregoing:




(A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent executed
originals of Internal Revenue Service Form W-9 or such other documentation or information
prescribed by Applicable Laws or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent, as the case may be, to
determine whether or not such Lender is subject to backup withholding or information
reporting requirements; and


 


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(B) 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 resident for tax
purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by Applicable Law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by Applicable Law as will permit such payments to be made without
withholding or at a reduced rate of withholding.
Without limiting the generality of the foregoing, any Foreign Lender shall deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do so),
whichever of the following is applicable:




(1) a duly completed original Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,




(2) a duly completed original Internal Revenue Service Form W-8ECI,




(3) a duly completed original Internal Revenue Service Form W-8IMY and all
required supporting documentation,




(4) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) a duly completed
original Internal Revenue Service Form W-8BEN, or




(5) any other form prescribed by Applicable Law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
Applicable Law to permit the Borrower to determine the withholding or deduction
required to be made.




(iii) If a payment made to a Lender under any Loan Document would be subject to United
States federal withholding Tax imposed by FATCA if such Lender were to fail to comply with
the applicable reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the
Administrative Agent, at the time or times prescribed by Applicable Law and at such time or
times reasonably requested by the Borrower and the Administrative Agent, such documentation
prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the
Code) and such additional documentation reasonably requested by the Borrower and the
Administrative Agent as may be necessary for the Borrower and the Administrative Agent to
comply with its obligations under FATCA, to determine that such Lender has or has not
complied with its obligations under FATCA or to determine the amount to deduct and withhold
from such payment.


 


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(f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or the
Issuing Lender determines, in its sole discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or
the Issuing Lender, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that the Borrower,
upon the request of the Administrative Agent, such Lender or the Issuing Lender, agrees to repay
the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or the Issuing Lender in
the event the Administrative Agent, such Lender or the Issuing Lender is required to repay such
refund to such Governmental Authority. This paragraph shall not be construed to require the
Administrative Agent, any Lender or the Issuing Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the Borrower or any other
Person.



(g) Survival. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in this Section shall
survive the payment in full of the Obligations and the termination of the Revolving Credit
Commitment.




SECTION 5.12 Mitigation Obligations; Replacement of Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 5.10, or requires the Borrower to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 5.11, then
such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 5.10 or 5.11, 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.



(b) Replacement of Lenders. If any Lender requests compensation under Section
5.10, or if the Borrower is required to pay additional amounts to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 5.11 and, in each
case, such Lender has declined or is unable to designate a different lending office in accordance
with Section 5.12(a), or if any Lender is a Defaulting Lender hereunder or becomes a
Non-Consenting 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, and consents required by,
Section 14.10), all of its interests, rights and obligations under this Agreement and the
related Loan Documents 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 paid to the Administrative Agent the assignment fee (if
any) specified in Section 14.10;


 


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(ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in Letters of Credit, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 5.9) 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);




(iii) in the case of any such assignment resulting from a claim for compensation under
Section 5.10 or payments required to be made pursuant to Section 5.11, such
assignment will result in a reduction in such compensation or payments thereafter;




(iv) such assignment does not conflict with Applicable Law; and




(v) in the case of any assignment resulting from a Lender becoming a Non-Consenting
Lender, the applicable assignee shall have consented to the applicable amendment, waiver or
consent.



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



SECTION 5.13 [Intentionally Omitted].



SECTION 5.14 Incremental Loans.



(a) At any time prior to the date that is six (6) months prior to the Revolving Credit
Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request the
establishment of one or more incremental Revolving Credit Commitments (any such incremental
Revolving Credit Commitment, a “New Loan Revolving Credit Commitment”) to make incremental
revolving credit loans (any such incremental revolving credit loans, the “New Loans”);
provided that (1) the total aggregate amount for all such New Loan Revolving Credit
Commitments shall not (as of any date of incurrence thereof) exceed $150,000,000 and (2) the total
aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder)
shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount
permitted pursuant to the foregoing clause (1). Each such notice shall specify the date
(each, an “Increased Amount Date”) on which the Borrower proposes that any New Loan
Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10)
Business Days after the date on which such notice is delivered to Administrative Agent. The
Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person
reasonably satisfactory to the Administrative Agent, to provide a New Loan Revolving Credit
Commitment (any such Person, a “New Lender”). Any Lender or any New Lender offered or
approached to provide all or a portion of any New Loan Revolving Credit Commitment may elect or
decline, in its sole discretion, to provide such New Loan Revolving Credit Commitment.
Any New Loan Revolving Credit Commitment shall become effective as of such Increased Amount
Date; provided that:




(A) no Default or Event of Default shall exist on such Increased Amount Date before or
after giving effect to (1) any New Loan Revolving Credit Commitment, and (2) the making of
any New Loans pursuant thereto;


 


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(B) [Intentionally Omitted];




(C) the proceeds of any New Loans shall be used for the purposes permitted by
Section 9.13(b);




(D) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall
constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of
Credit on a pari passu basis;




(E) (x) the terms of each New Loan shall be set forth the relevant Joinder Agreement;




(y) (i) [intentionally omitted], (ii) the Applicable Margin and pricing grid,
if applicable, for such New Loans shall be determined on the applicable Increased
Amount Date; provided that if such Applicable Margin would exceed the
current Applicable Margin for the existing Revolving Credit Loans, the Applicable
Margin for the existing Revolving Credit Loans shall be automatically increased to
equal the Applicable Margin for the New Loans and (iii) such New Loans shall be
subject to the same terms and conditions as the Revolving Credit Loans (except with
respect to the Revolving Credit Maturity Date); and




(z) the outstanding Revolving Credit Loans and Revolving Credit Commitment
Percentages of Swingline Loans and L/C Obligations will be reallocated by the
Administrative Agent on the applicable Increased Amount Date among the Revolving
Credit Lenders (including the New Lenders providing such New Loans) in accordance
with their revised Revolving Credit Commitment Percentages (and the Revolving Credit
Lenders (including the New Lenders providing such New Loans) agree to make all
payments and adjustments necessary to effect such reallocation and the Borrower
shall pay any and all costs required pursuant to Section 5.9 in connection
with such reallocation as if such reallocation were a repayment);




(F) any New Lender shall be entitled to the same voting rights as the existing
Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit
made in connection with each New Loan Revolving Credit Commitment shall receive proceeds of
prepayments on the same basis as the other Revolving Credit Loans made hereunder;


 


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(G) such New Loan Revolving Credit Commitments shall be effected pursuant to one or
more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and
the applicable New Lenders (which Joinder Agreement may,
without the consent of any other Lenders, effect such amendments to this Agreement and
the other Loan Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent, to effect the provisions of this Section 5.14); and




(H) the Borrower shall deliver or cause to be delivered any customary legal opinions or
other documents (including a resolution duly adopted by the board of directors (or
equivalent governing body) of each Credit Party authorizing such New Loan) reasonably
requested by Administrative Agent in connection with any such transaction.



(b) The New Lenders shall be included in any determination of the Required Lenders and the New
Lenders will not constitute a separate voting class for any purposes under this Agreement.



(c) On any Increased Amount Date on which any New Loan Revolving Credit Commitment becomes
effective, subject to the foregoing terms and conditions, each New Lender with a New Loan Revolving
Credit Commitment shall become a Revolving Credit Lender hereunder with respect to such New Loan
Revolving Credit Commitment and Schedule 1.1-2 shall automatically be deemed amended to
reflect the New Loan Revolving Credit Commitments of all Lenders after giving effect to the
addition of such New Loan Revolving Credit Commitments.




SECTION 5.15 Defaulting Lenders.



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




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




(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article XII or otherwise)
or received by the Administrative Agent from a Defaulting Lender pursuant to Section
14.4 shall be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by such Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by such Defaulting Lender to the Issuing
Lender or the Swingline Lender hereunder; third, to Cash Collateralize the Issuing
Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with
Section 3.1(b); fourth, as the Borrower may request (so long as no Default
or Event of Default exists), to the funding of any Loan in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so determined by the Administrative Agent and
the Borrower, to be held in a deposit account and released pro rata in order
to


 


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(x) satisfy
such Defaulting Lender’s potential future funding obligations with respect to Loans under
this Agreement and (y) Cash Collateralize the Issuing Lender’s future Fronting Exposure with
respect to such Defaulting Lender with respect to future Letters of Credit issued under this
Agreement, in accordance with Section 3.1(b); sixth, to the payment of any
amounts owing to the Lenders, the Issuing Lender or the Swingline Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lender or
the Swingline Lender against such Defaulting Lender as a result of such 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 owing to the Borrower as a result of
any judgment of a court of competent jurisdiction obtained by the Borrower against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided that if (x) such payment is a payment of
the principal amount of any Loans or L/C Obligations in respect of which such Defaulting
Lender has not fully funded its appropriate share, and (y) such Loans were made or the
related Letters of Credit were issued at a time when the conditions set forth in Section
6.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of,
and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis
prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such
Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C
Obligations and Swingline Loans are held by the Lenders pro rata in
accordance with the Revolving Credit Commitments under the applicable Facility without
giving effect to Section 5.15(a)(iv). Any payments, prepayments or other amounts
paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this Section 5.15(a)(ii)
shall be deemed paid to and redirected by such Defaulting Lender, and each Lender
irrevocably consents hereto.




(iii) Certain Fees.




(A) No Defaulting Lender shall be entitled to receive any Commitment Fee for any period
during which that Lender is a Defaulting Lender (and the Borrower shall not be required to
pay any such fee that otherwise would have been required to have been paid to that
Defaulting Lender).




(B) No Defaulting Lender shall be entitled to receive fees payable pursuant to
Section 3.3(a) for any period during which that Lender is a Defaulting Lender unless
it has provided Cash Collateral pursuant to Section 3.1(b) but then, only to the
extent allocable to its Revolving Credit Commitment Percentage of the stated amount of
Letters of Credit for which it has provided such Cash Collateral.




(C) With respect to any fees payable pursuant to Section 3.3(a) not required to
be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the
Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise
payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in
L/C Obligations or Swingline Loans that has been reallocated to such Non-Defaulting Lender
pursuant to clause (iv) below, (y) pay to the Issuing Lender and the Swingline
Lender, as
applicable, the amount of any such fee otherwise payable to such Defaulting Lender to
the extent allocable to the Issuing Lender’s or the Swingline Lender’s Fronting Exposure to
such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.


 


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(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall
be reallocated among the Non-Defaulting Lenders in accordance with their respective
Revolving Credit Commitment Percentages (calculated without regard to such Defaulting
Lender’s Revolving Credit Commitment) but only to the extent that such reallocation does not
cause the aggregate Revolving Credit Outstandings of any Non-Defaulting Lender to exceed
such Non-Defaulting Lender’s Revolving Credit Commitment. No reallocation hereunder shall
constitute a waiver or release of any claim of any party hereunder against a Defaulting
Lender arising from that Lender having become a Defaulting Lender, including any claim of a
Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure
following such reallocation.




(v) Cash Collateral, Repayment of Swingline Loans. If the reallocation
described in clause (iv) above cannot, or can only partially, be effected, the
Borrower shall, without prejudice to any right or remedy available to it hereunder or under
law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s
Fronting Exposure and (y) second, Cash Collateralize the Issuing Lender’s Fronting
Exposure in accordance with the procedures set forth in Section 3.1(b).



(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline
Lender and the Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable,
purchase at par that portion of outstanding Loans of the other Lenders or take such other actions
as the Administrative Agent may determine to be necessary to cause the Loans and funded and
unfunded participations in Letters of Credit and Swingline Loans to be held pro
rata by the Lenders in accordance with their Revolving Credit Commitments (without giving
effect to Section 5.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
provided that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.



(c) New Swingline Loans/Letters of Credit. So long as any Lender is a Defaulting
Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is
satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and
(ii) the Issuing Lender shall not be required to issue, extend, renew or increase any Letter of
Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.


 


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ARTICLE VI




CONDITIONS OF CLOSING AND BORROWING




SECTION 6.1 Conditions to Closing and Initial Extensions of Credit. The obligation of
the Lenders to close this Agreement and to make the initial Loan or issue or participate in the
initial Letter of Credit, if any, is subject to the satisfaction of each of the following
conditions:



(a) Executed Loan Documents. This Agreement, a Revolving Credit Note in favor of each
Lender requesting a Revolving Credit Note, a Swingline Note in favor of the Swingline Lender (if
requested thereby) and the Guaranty Agreement, together with any other applicable Loan Documents,
shall have been duly authorized, executed and delivered to the Administrative Agent by the parties
thereto, shall be in full force and effect and no Default or Event of Default shall exist hereunder
or thereunder.



(b) Closing Certificates; Etc. The Administrative Agent shall have received each of
the following in form and substance reasonably satisfactory to the Administrative Agent:




(i) Officer’s Certificate. A certificate from a Responsible Officer of the
General Partner to the effect that (A) all representations and warranties of the Credit
Parties contained in this Agreement and the other Loan Documents are true, correct and
complete in all material respects (except for those representations and warranties that are
already qualified by materiality or Material Adverse Effect, which shall be true, correct
and complete in all respects); (B) none of the Credit Parties is in violation of any of the
covenants contained in this Agreement and the other Loan Documents; (C) after giving effect
to the transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and (D) that each of the Credit Parties, as applicable, has
satisfied each of the conditions set forth in Sections 6.1 and 6.2.




(ii) Certificate of Secretary of each Credit Party. A certificate of the
Secretary or Assistant Secretary of the General Partner certifying as to the incumbency and
genuineness of the signature of each officer of the General Partner executing (or other
Person authorized by the General Partner to execute) Loan Documents to which it or the
Borrower is a party and certifying that attached thereto is a true, correct and complete
copy of (A) the articles or certificate of incorporation or formation of the General Partner
and the Borrower and all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in their respective jurisdictions of incorporation or
formation, (B) the bylaws or other governing document of the General Partner and the
Borrower as in effect on the Closing Date, (C) resolutions duly adopted by the board of
directors (or other governing body) of the General Partner authorizing the transactions
contemplated hereunder and the execution, delivery and performance of this Agreement and the
other Loan Documents to which the General Partner and the Borrower are a party, and (D) each
certificate required to be delivered pursuant to Section 6.1(b)(iii).


 


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(iii) Certificates of Good Standing. Certificates as of a recent date of the
good standing of each Credit Party under the laws of its jurisdiction of organization and,
to the extent requested by the Administrative Agent, each other jurisdiction where such
Credit
Party is qualified to do business to the extent the failure to be so qualified could
reasonably be expected to have a Material Adverse Effect.




(iv) Opinions of Counsel. A favorable opinion of Morgan, Lewis & Bockius, LLP
addressed to the Administrative Agent and the Lenders with respect to the Credit Parties,
the Loan Documents and such other matters as the Administrative Agent or its counsel shall
request.




(v) Tax Forms. Copies of the United States Internal Revenue Service forms
required by Section 5.11(e), if any.




(vi) Ownership of the General Partner and the Borrower. The organizational and
capital structure of the General Partner, the Borrower and their respective Subsidiaries
shall be as previously disclosed to the Administrative Agent as set forth on Schedule
7.2.




(c) [Intentionally Omitted].



(d) No Material Adverse Effect. Since September 30, 2010, there shall have been no
change which has had or could reasonably be expected to have a Material Adverse Effect.




(e) Consents; Defaults.




(i) Governmental and Third Party Approvals. The Credit Parties shall have
received all material governmental, shareholder and third party consents and approvals
necessary (or any other material consents as determined in the reasonable discretion of the
Administrative Agent) in connection with the transactions contemplated by this Agreement and
the other Loan Documents and the other transactions contemplated hereby and all applicable
waiting periods shall have expired without any action being taken by any Person that could
reasonably be expected to restrain, prevent or impose any material adverse conditions on any
of the Credit Parties or such other transactions or that could seek or threaten any of the
foregoing, and no law or regulation shall be applicable which in the reasonable judgment of
the Administrative Agent could reasonably be expected to have such effect.




(ii) No Injunction, Etc. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any Governmental
Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of,
or which is related to or arises out of this Agreement or the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby, or which, in the
Administrative Agent’s sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or the other Loan Documents or the consummation
of the transactions contemplated hereby or thereby.


 


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(f) Financial Matters.




(i) Financial Statements. The Administrative Agent shall have received the
unaudited Consolidated balance sheet of MLP, the Borrower and their respective
Subsidiaries as of March 31, 2011 and related unaudited interim statements of income
and cash flows.




(ii) [Intentionally Omitted].




(iii) Financial Projections. The Administrative Agent shall have received
projections prepared by management of the General Partner, of balance sheets, income
statements and cash flow statements of MLP and its Subsidiaries on an annual basis for
Fiscal Year 2011, Fiscal Year 2012, Fiscal Year 2013 and Fiscal Year 2014.




(iv) [Intentionally Omitted].




(v) [Intentionally Omitted].




(vi) Payment at Closing. The Borrower shall have paid (A) to the
Administrative Agent, the Arranger and the Lenders the fees set forth or referenced in
Section 5.3 and any other invoiced, accrued and unpaid fees or commissions due
hereunder (including CUSIP fees) and (B) all fees, charges and disbursements of counsel to
the Administrative Agent (directly to such counsel if requested by the Administrative Agent)
to the extent invoiced, accrued and unpaid prior to or on the Closing Date.




(g) [Intentionally Omitted].




(h) Miscellaneous.




(i) Notice of Borrowing. The Administrative Agent shall have received a Notice
of Borrowing from the Borrower in accordance with Section 2.3(a), and a Notice of
Account Designation specifying the account or accounts to which the proceeds of any Loans
made on or after the Closing Date are to be disbursed.




(ii) Due Diligence. The Administrative Agent shall have completed, to its
satisfaction, all legal, tax, business and other due diligence with respect to the business,
assets, liabilities, operations and condition (financial or otherwise) of the Borrower and
its Subsidiaries in scope and determination satisfactory to the Administrative Agent in its
sole discretion.




(iii) Existing Indebtedness. All Indebtedness under the Existing Credit
Agreements shall be repaid in full and terminated prior to or contemporaneously with the
initial funding of the Loans hereunder, and the Administrative Agent shall have received
pay-off letters in form and substance satisfactory to it evidencing such repayment and
termination.




(iv) [Intentionally Omitted].


 


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(v) Patriot Act. MLP, the General Partner, the Borrower and each of the
Subsidiary Guarantors shall have provided to the Administrative Agent and the Lenders the
documentation and other information requested by the Administrative Agent in order
to comply with requirements of the Act and any other “know your customer” or similar
laws or regulations.




(vi) Other Documents. All opinions, certificates and other instruments and all
proceedings in connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent. The
Administrative Agent shall have received copies of all other documents, certificates and
instruments reasonably requested thereby, with respect to the transactions contemplated by
this Agreement.



SECTION 6.2 Conditions to All Extensions of Credit. The obligations of the Lenders to
make or participate in any Extensions of Credit (including the initial Extension of Credit),
convert or continue any Loan and/or the Issuing Lender to issue or extend any Letter of Credit are
subject to the satisfaction of the following conditions precedent on the relevant borrowing,
continuation, conversion, issuance or extension date:



(a) Continuation of Representations and Warranties. The representations and
warranties contained in Article VII shall be true and correct in all material respects
(except for those representations and warranties that are already qualified by materiality or
Material Adverse Effect, which shall be true, correct and complete in all respects) on and as of
such borrowing, continuation, conversion, issuance or extension date with the same effect as if
made on and as of such date, except for any representation and warranty made as of an earlier date,
which representation and warranty shall remain true and correct in all material respects (except
for those representations and warranties that are already qualified by materiality or Material
Adverse Effect, which shall be true, correct and complete in all respects) as of such earlier date.



(b) No Existing Default. No Default or Event of Default shall have occurred and be
continuing (i) on the borrowing, continuation or conversion date with respect to such Loan or after
giving effect to the Loans to be made, continued or converted on such date or (ii) on the issuance
or extension date with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.



(c) Notices. The Administrative Agent shall have received a Notice of Borrowing or
Notice of Conversion/Continuation, as applicable, from the Borrower in accordance with Section
2.3(a) or 5.2, as applicable.



(d) Additional Documents. The Administrative Agent shall have received each
additional document, instrument, legal opinion or other item reasonably requested by it.



 


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ARTICLE VII




REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES




To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Extensions of Credit, (i) in the case of Sections 7.1 through 7.27,
the Borrower and the Subsidiary Guarantors, and, (ii) in the case of Sections 7.1 through
7.6, 7.9 through 7.11, 7.21, 7.22, 7.23,
7.25, 7.27 and 7.28, the General Partner, hereby represent and warrant to
the Administrative Agent and the Lenders both before and after giving effect to the
transactions contemplated hereunder, which representations and warranties shall be deemed made
on the Closing Date and as otherwise set forth in Section 6.2, that:



SECTION 7.1 Organization; Power; Qualification. Each Credit Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or
formation, has the power and authority to own its Properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and authorized to do business in
each jurisdiction in which the character of its Properties or the nature of its business requires
such qualification and authorization except in jurisdictions where the failure to be so qualified
or in good standing could not reasonably be expected to result in a Material Adverse Effect. The
jurisdictions in which each Credit Party thereof are organized and qualified to do business as of
the Closing Date are described on Schedule 7.1.



SECTION 7.2 Ownership. Each Subsidiary of each Credit Party as of the Closing Date is
listed on Schedule 7.2. As of the Closing Date, the capitalization of each Credit Party
and its Subsidiaries consists of the number of shares (or interests), authorized, issued and
outstanding, of such classes and series, with or without par value, described on Schedule
7.2. All outstanding shares (or interests) have been duly authorized and validly issued and
are fully paid and nonassessable, with no personal liability attaching to the ownership thereof,
and not subject to any preemptive or similar rights, except as described in Schedule 7.2.
The shareholders, partners or other owners, as applicable, of each Credit Party and its
Subsidiaries and the number of shares (or interests) owned by each as of the Closing Date are
described on Schedule 7.2. As of the Closing Date, there are no outstanding stock purchase
warrants, subscriptions, options, securities, instruments or other rights of any type or nature
whatsoever, which are convertible into, exchangeable for or otherwise provide for or permit the
issuance of Capital Stock of any Credit Party or any Subsidiary thereof, except as described on
Schedule 7.2.



SECTION 7.3 Authorization Enforceability. Each Credit Party has the right, power and
authority and has taken all necessary corporate (or partnership or other analogous type) and other
action to authorize the execution, delivery and performance of this Agreement and each of the other
Loan Documents to which it is a party in accordance with their respective terms. This Agreement
and each of the other Loan Documents have been duly executed and delivered by the duly authorized
officers of each Credit Party (or, in the case of the Borrower, the duly authorized officers of the
General Partner) that is a party thereto, and each such document constitutes the legal, valid and
binding obligation of each Credit Party that is a party thereto, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in effect which affect
the enforcement of creditors’ rights in general and the availability of equitable remedies.


 


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SECTION 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc. The
execution, delivery and performance by each Credit Party of the Loan Documents to which each such
Person is a party, in accordance with their respective terms, the Extensions of Credit hereunder
and the transactions contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval, (ii) violate any Applicable Law
relating to any Credit Party except for such violations which could, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect, (iii) conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other analogous organizational documents of any Credit Party, (iv)
conflict with, result in a breach of or constitute a default under any indenture, agreement or
other instrument to which such Person is a party or by which any of its properties may be bound or
any Governmental Approval relating to such Person, which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such
Person other than Liens arising under the Loan Documents, if any, or (vi) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority
and no consent of any other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.



SECTION 7.5 Compliance with Law; Governmental Approvals. Each Credit Party (i) has
all Governmental Approvals required by any Applicable Law for it to conduct its business, each of
which is in full force and effect, is final and not subject to review on appeal and is not the
subject of any pending or, to the best of its knowledge, threatened attack by direct or collateral
proceeding, (ii) is in compliance with each Governmental Approval applicable to it and in
compliance with all other Applicable Laws relating to it or any of its respective properties and
(iii) has timely filed all material reports, documents and other materials required to be filed by
it under all Applicable Laws with any Governmental Authority and has retained all material records
and documents required to be retained by it under Applicable Law except in each of clause
(i), (ii) or (iii) where the failure to have, comply or file could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.



SECTION 7.6 Tax Returns and Payments. Each Credit Party has (i) duly filed or caused
to be filed all federal and all material state, local and other tax returns required by Applicable
Law to be filed or has properly filed for extensions of time for the filing thereof, and (ii) paid,
or made adequate provision for the payment of, all federal and material state, local and other
taxes, assessments and governmental charges or levies upon it and its property, income, profits and
assets which are due and payable (other than any amount the validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided for on the books of the relevant Credit Party). Such returns
accurately reflect in all material respects all liability for taxes of any Credit Party for the
periods covered thereby. There is no ongoing audit or examination or, to the knowledge of any
Credit Party, other investigation by any Governmental Authority of the tax liability of any Credit
Party that could reasonably be expected to result in a material tax liability. No Governmental
Authority has asserted any Lien or other claim against any Credit Party with respect to unpaid
taxes which has not been discharged or resolved (other than (i) any amount the validity of which is
currently being contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided for on the books of the relevant Credit Party
and (ii) Permitted Liens). The Borrower is a limited partnership and so long as it is a limited
partnership it will be treated as a pass-through entity for U.S. federal income tax purposes and as
of the Closing Date is not subject to taxation with respect to its income or gross receipts under
applicable state (other than Michigan, New Hampshire, Tennessee, Texas and Wisconsin) laws.


 


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SECTION 7.7 Intellectual Property Matters. The Borrower and each Subsidiary Guarantor
owns or possesses rights to use all material franchises, licenses, copyrights, copyright
applications, patents, patent rights or licenses, patent applications, trademarks, trademark
rights, service mark, service mark rights, trade names, trade name rights, copyrights and other
rights with respect to the foregoing which are reasonably necessary to conduct its business except
as could not reasonably be expected to have a Material Adverse Effect. No event has occurred which
permits, or after notice or lapse of time or both would permit, the revocation or termination of
any such rights, and neither the Borrower nor any Subsidiary Guarantor is liable to any Person for
infringement under Applicable Law with respect to any such rights as a result of its business
operations except as could not reasonably be expected to have a Material Adverse Effect.




SECTION 7.8 Environmental Matters.



(a) Except as set forth on Schedule 7.8 or as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, the properties owned, leased
or operated by the Borrower and each Subsidiary Guarantor do not contain, and to their knowledge
have not previously contained, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws or (B) could give rise to
liability to Borrower or a Subsidiary Guarantor under applicable Environmental Laws.



(b) Except as set forth on Schedule 7.8 or as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, the Borrower and each
Subsidiary Guarantor and such properties and all operations conducted in connection therewith are
in compliance with all applicable Environmental Laws, and there is no contamination at, under or
about such properties or such operations which could reasonably be expected to interfere with the
continued operation of such properties.



(c) Except as set forth on Schedule 7.8 or as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, neither the Borrower nor any
Subsidiary Guarantor has received any written notice of violation, alleged violation,
non-compliance, liability or potential liability under Environmental Laws with respect to Hazardous
Materials, or non-compliance with Environmental Laws, nor does the Borrower or any Subsidiary
Guarantor have knowledge or reason to believe that any such notice will be received or is being
threatened.



(d) Except as set forth on Schedule 7.8 or as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect (i) Hazardous Materials have
not been transported or disposed of by the Borrower to or from the properties owned, leased or
operated by the Borrower or any Subsidiary Guarantor in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability under, Environmental Laws;
and (ii) to the Borrower’s knowledge, Hazardous Materials have not been generated, treated, stored
or disposed of at, on or under any of such properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable Environmental Laws.


 


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(e) Except as set forth on Schedule 7.8 or as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, (i) no judicial proceedings or
governmental or administrative action is pending, or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary Guarantor is or will be named
as a potentially responsible party with respect to such properties or operations conducted in
connection therewith; and (ii) there are no consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Borrower or any Subsidiary Guarantor or such
properties or such operations.



(f) Except as set forth on Schedule 7.8 or as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, there has been no release, or
to the best of the Borrower’s knowledge, threat of release, of Hazardous Materials at or from
properties owned, leased or operated by the Borrower or any Subsidiary Guarantor, now or in the
past, in violation of or in amounts or in a manner that could reasonably be expected to give rise
to liability under Environmental Laws.




SECTION 7.9 Employee Benefit Matters. To the Borrower’s knowledge:



(a) as of the Closing Date, no Credit Party nor any ERISA Affiliate maintains or contributes
to, or has any obligation under, any Employee Benefit Plans other than those identified on
Schedule 7.9;



(b) each Credit Party and each ERISA Affiliate is in compliance with all applicable provisions
of ERISA and the regulations and published interpretations thereunder with respect to all Employee
Benefit Plans except where a failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Each Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has received a determination letter from the Internal Revenue Service to be so
qualified except for such Employee Benefit Plans that have not yet received determination letters
but for which the remedial amendment period for submitting a determination letter has not yet
expired. No liability has been incurred by any Credit Party or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan except for a liability that could not reasonably be expected to have a Material
Adverse Effect;



(c) as of the Closing Date, except where the failure of any of the following to be true and
correct could not reasonably be expected to have a Material Adverse Effect, (i) no Pension Plan has
been terminated, (ii) no Pension Plan has any Unfunded Pension Liability, (iii) no funding waiver
from the Internal Revenue Service been received or requested with respect to any Pension Plan, (iv)
no Credit Party nor any ERISA Affiliate has failed to make any contributions or to pay any amounts
due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any
Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section
302 of ERISA, or (v) there has been no event requiring any disclosure under Section 4041(c)(3)(C)
or 4063(a) of ERISA with respect to any Pension Plan;


 


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(d) except where the failure of any of the following representations to be correct could not
reasonably be expected to have a Material Adverse Effect, no Credit Party nor any
ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section
406 of the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no premium payments which are due and
unpaid, or (C) failed to make a required contribution or payment to a Multiemployer Plan;




(e) no Termination Event has occurred or is reasonably expected to occur; and



(f) except where the failure of any of the following representations to be correct in all
material respects could not reasonably be expected to have a Material Adverse Effect, no
proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or
investigation is existing or, to the best of the knowledge of the Borrower after due inquiry,
threatened concerning or involving any Employee Benefit Plan or Multiemployer Plan.



SECTION 7.10 Margin Stock. No Credit Party is engaged principally or as one of its
activities in the business of extending credit for the purpose of “purchasing” or “carrying” any
“margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U of
the Board of Governors of the Federal Reserve System). No part of the proceeds of any of the Loans
or Letters of Credit will be used for purchasing or carrying margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation T, U or X of such Board
of Governors. If requested by any Lender (through the Administrative Agent) or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U 1 referred to in
Regulation U.



SECTION 7.11 Investment Company Act; Government Regulation. No Credit Party is an
“investment company” or a company “controlled” by an “investment company” (as each such term is
defined or used in the Investment Company Act of 1940, as amended) and no Credit Party is, or after
giving effect to any Extension of Credit will be, subject to regulation under any Applicable Law
which limits its ability to incur or consummate the transactions contemplated hereby.



SECTION 7.12 [Intentionally Omitted].



SECTION 7.13 [Intentionally Omitted].



SECTION 7.14 Burdensome Provisions. Neither the Borrower nor any Subsidiary Guarantor
is a party to any indenture, agreement, lease or other instrument, or subject to any corporate or
partnership restriction, Governmental Approval or Applicable Law which is so unusual or burdensome
as could be reasonably expected to have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary Guarantor presently anticipates that future expenditures needed to meet the provisions
of any statutes, orders, rules or regulations of a Governmental Authority will be so burdensome as
to have a Material Adverse Effect. No Subsidiary Guarantor is party to any agreement or instrument
or otherwise subject to any restriction or encumbrance that restricts or limits its ability to make
dividend payments or other distributions in respect of its Capital Stock to the Borrower or any
other Subsidiary Guarantor or to transfer any of its assets or
properties to the Borrower or any other Subsidiary Guarantor in each case other than existing
under or by reason of the Loan Documents or Applicable Law.


 


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SECTION 7.15 Financial Statements. The unaudited financial statements delivered
pursuant to Section 6.1(f)(i) are complete and correct and fairly present, in all material
respects, on a Consolidated basis the assets, liabilities and financial position of MLP, the
Borrower and their respective Subsidiaries or the Borrower and its Subsidiaries, as applicable, as
at such dates, and the results of the operations and changes of financial position for the periods
then ended (except for the absence of footnotes and subject to customary year-end adjustments).
All such financial statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP. Such financial statements show all material indebtedness and
other material liabilities, direct or contingent, of Persons covered thereby as of the date
thereof, including material liabilities for taxes, material commitments, and Indebtedness, in each
case, to the extent required to be disclosed under GAAP. The projections delivered pursuant to
Section 6.1(f)(iii) were prepared in good faith based upon assumptions believed to be
reasonable at the time made, in light of then existing conditions; provided that (i) such
financial projections are not to be viewed as facts and are subject to uncertainties, many of which
are beyond the Borrower’s control and that actual results may differ and such differences may be
material and (ii) such financial projections and statements shall be subject to normal year end
closing and audit adjustments.



SECTION 7.16 No Material Adverse Change. Since September 30, 2010, there has been no
material adverse change in the properties, business, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries and no event has occurred or condition arisen,
either individually or in the aggregate, that could reasonably be expected to have a Material
Adverse Effect.



SECTION 7.17 Solvency. As of the Closing Date and after giving effect to the
Transactions, the Borrower and its Subsidiaries, on a Consolidated basis will be Solvent.



SECTION 7.18 Titles to Properties. The Borrower and each Subsidiary Guarantor has
such title to the real property owned or leased by it as is necessary or desirable to the conduct
of its business and valid and legal title to all of its personal property and assets.



SECTION 7.19 Insurance. The Borrower and each Subsidiary Guarantor are in compliance
with the requirements of Section 9.3.



SECTION 7.20 Liens. None of the properties and assets of the Borrower or any
Subsidiary is subject to any Lien, except Permitted Liens. Neither the Borrower nor any Subsidiary
has signed any security agreement authorizing any secured party thereunder to file any financing
statement, except to perfect Permitted Liens.



SECTION 7.21 Indebtedness and Guaranty Obligations. Schedule 7.21 is a
complete and correct listing of all Indebtedness and Guaranty Obligations of the Credit Parties as
of the Closing Date in excess of $2,000,000. The Credit Parties have performed and are in
compliance with all of the material terms of such Indebtedness and Guaranty Obligations and all
instruments and agreements relating thereto, and no default or event of default, or event or
condition which
with notice or lapse of time or both would constitute such a default or event of default on
the part of any of the Credit Parties exists with respect to any such Indebtedness or Guaranty
Obligation. As of the Closing Date, no instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or by which the Borrower or any such Subsidiary is bound (other than this
Agreement and other than as indicated in Schedule 7.21) contains any restriction on the
incurrence by the Borrower or any Subsidiary Guarantor of additional Indebtedness.


 


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SECTION 7.22 Litigation. Except for matters disclosed by the Borrower in any filing
made with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the
Borrower after due inquiry, threatened against or in any other way relating adversely to or
affecting any Credit Party or any of their respective properties in any court or before any
arbitrator of any kind or before or by any Governmental Authority (a) which questions the validity
or enforceability of this Agreement, the other Loan Documents or any action taken or to be taken
pursuant to this Agreement or the other Loan Documents, or (b) which could, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.



SECTION 7.23 Absence of Defaults. No event has occurred or is continuing (i) which
constitutes a Default or an Event of Default, or (ii) which constitutes, or which with the passage
of time or giving of notice or both would constitute, a default or event of default by any Credit
Party under any Material Contract or judgment, decree or order to which any Credit Party is a party
or by which any Credit Party or any of their respective properties may be bound or which, in any
case under this clause (ii), could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.



SECTION 7.24 Senior Indebtedness Status. The Obligations of the Borrower and each
Subsidiary Guarantor under this Agreement and each of the other Loan Documents ranks and shall
continue to rank at least pari passu to all other senior unsecured Indebtedness of each such
Person.



SECTION 7.25 OFAC. None of the General Partner, the Borrower, any Subsidiary of the
Borrower or any Affiliate of the Borrower or any Guarantor: (i) is a Sanctioned Person, (ii) has
more than 10% of its assets in Sanctioned Entities, or (iii) derives more than 10% of its operating
income from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. The
proceeds of any Loan will not be used and have not been used to fund any operations in, finance any
investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity.




SECTION 7.26 [Intentionally Omitted].



SECTION 7.27 Disclosure. The Borrower and/or the other Credit Parties have disclosed
to the Administrative Agent and the Lenders (i) all agreements, instruments and corporate or other
restrictions to which any Credit Party are subject, and (ii) all other matters that would be
required to be disclosed by such Person on Form 8-K, that, in each case, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect. No financial
statement, material report, material certificate or other material information furnished in writing
by or on behalf of any Credit Party to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished), taken
together as a whole, contains any untrue statement of a material 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 (i) such financial projections are not
to be viewed as facts and are subject to uncertainties, many of which are beyond the Borrower’s
control and that actual results may differ and such differences may be material and (ii) such
financial projections and statements shall be subject to normal year end closing and audit
adjustments.


 


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SECTION 7.28 Matters Relating to the General Partner.



(a) As of the Closing Date, the General Partner is a Wholly Owned Subsidiary of AmeriGas,
Inc., a Pennsylvania corporation, and owns, in addition to the interest in the Borrower described
on Schedule 7.2, (i) a 1% general partnership interest in MLP, (ii) all of the outstanding
shares of Capital Stock of Petrolane Incorporated, a Pennsylvania corporation, and (iii) an
approximate 30% limited partnership interest in MLP. Other than AmeriGas Technology Group, Inc.
and Petrolane Incorporated, the General Partner has no other direct Subsidiaries as of the Closing
Date.



(b) The General Partner is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and has all requisite corporate power and
authority to own and operate its properties, to act as the sole general partner of the Borrower and
to execute and deliver in its individual capacity and in its capacity as the sole general partner
of the Borrower this Agreement and such other Loan Documents to which the General Partner is a
party and to carry out the terms of this Agreement and such other Loan Documents.



ARTICLE VIII




FINANCIAL INFORMATION AND NOTICES




Until all the Obligations (other than (a) contingent indemnification obligations not then due
and (b) the Specified Hedge Obligations) have been paid and satisfied in full in cash and the
Revolving Credit Commitments terminated, unless consent has been obtained in the manner set forth
in Section 14.2, (i) the Borrower and the Subsidiary Guarantors will, in the case of
Sections 8.1 through 8.6, and (ii) the General Partner will, in the case of
Section 8.6, furnish or cause to be furnished to the Administrative Agent at the
Administrative Agent’s Office at the address set forth in Section 14.1 and to the Lenders
at their respective addresses as set forth on the Register, or such other office as may be
designated by the Administrative Agent and Lenders from time to time:


 


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SECTION 8.1 Financial Statements and Projections.



(a) Quarterly Financial Statements. As soon as practicable, but in any event within
forty-five (45) days after the end of each of the first three quarterly fiscal periods in each
Fiscal Year, consolidated and consolidating balance sheets of the Borrower and its Subsidiaries
(except, as to consolidating balance sheets only, for inactive Subsidiaries) as at the end of such
period and
the related consolidated (and, as to statements of income, consolidating, except for inactive
Subsidiaries) statements of income, partners’ capital and cash flows of the Borrower and its
Subsidiaries for such period and (in the case of the second and third quarterly periods) for the
period from the beginning of the current Fiscal Year to the end of such quarterly period, setting
forth in each case in comparative form the consolidated and, where applicable, consolidating
figures for the corresponding periods of the previous fiscal year, all in reasonable detail and
certified by the principal financial officer of the General Partner as presenting fairly, in all
material respects, the information contained therein (except for the absence of footnotes and
subject to changes resulting from normal year-end adjustments), in accordance with GAAP applied on
a basis consistent with prior fiscal periods except for inconsistencies resulting from changes in
accounting principles and methods agreed to by the Borrower’s independent accountants.



(b) Annual Financial Statements. As soon as practicable, but in any event within
ninety (90) days after the end of each Fiscal Year of the Borrower, consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries (except, as to consolidating balance sheets
only, for inactive Subsidiaries) as at the end of such year and the related consolidated (and, as
to statements of income, consolidating except for inactive Subsidiaries) statements of income,
partners’ capital and cash flows of the Borrower and its Subsidiaries for such Fiscal Year, setting
forth in each case in comparative form the consolidated and, where applicable, consolidating
figures for the previous fiscal year, all in reasonable detail and (A) in the case of such
consolidated financial statements, accompanied by a report thereon of PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing selected by the Borrower,
which report shall not be qualified with respect to scope limitations imposed by the Borrower or
any of its Subsidiaries or with respect to accounting principles followed by the Borrower or any of
its Subsidiaries not in accordance with GAAP and shall state that such consolidated financial
statements present fairly, in all material respects, the financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of their operations and cash flows for the
periods indicated in conformity with GAAP unless otherwise disclosed, applied on a basis consistent
with prior years, and that the audit by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted auditing standards then in
effect in the United States, and (B) in the case of such consolidated and consolidating financial
statements, certified by the principal financial officer of the General Partner as presenting
fairly, in all material respects, the information contained therein (except, in the case of such
consolidating financial statements, for the absence of footnotes), in accordance with GAAP.



(c) Annual Business Plan and Financial Projections. As soon as practicable and in any
event within fifteen (15) days after being approved by the governing body of the Borrower, and in
any event, no later than November 15th of each Fiscal Year, an annual operating forecast
for the next Fiscal Year including annual statements of cash flow, balance sheets and income
statements.



SECTION 8.2 Officer’s Compliance Certificate. At each time financial statements are
delivered pursuant to Sections 8.1(a) or (b) and at such other times as the
Administrative Agent shall reasonably request, an Officer’s Compliance Certificate.


 


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SECTION 8.3 Accountants’ Certificate. At each time financial statements are delivered
pursuant to Section 8.1(b), a written statement by the independent public accountants
giving the report thereon stating that they have reviewed the terms of this Agreement and the other
Loan Documents and that, in making the audit necessary for the certification of such financial
statements, they have obtained no knowledge of the existence and continuance as at the date of such
written statement of any Default or Event of Default, or, if they have obtained knowledge that any
Default or Event of Default then exists, specifying, to the extent possible, the nature and
approximate period of the existence thereof (such accountants, however, shall not be liable to
anyone by reason of their failure to obtain knowledge of any Default or Event of Default which
would not be disclosed in the course of an audit conducted in accordance with generally accepted
auditing standards then in effect in the United States).




SECTION 8.4 Other Reports. Promptly:




(a) [Intentionally Omitted];



(b) upon the request thereof, such other information and documentation required by bank
regulatory authorities under applicable “know your customer” and Anti-Money Laundering rules and
regulations (including the Act), as from time to time reasonably requested by the Administrative
Agent or any Lender;




(c) [Intentionally Omitted]; and



(d) upon the request thereof, such other information regarding the operations, business
affairs and financial condition of any Credit Party as the Administrative Agent or any Lender may
reasonably request.



SECTION 8.5 Notice of Litigation and Other Matters. Prompt (but in no event later
than five (5) Business Days after any Responsible Officer of any Credit Party obtains knowledge
thereof) telephonic and written notice of:



(a) (i) the occurrence of an adverse development with respect to any litigation or proceeding
involving the Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or (ii) the commencement of any litigation or proceeding involving the
Borrower or any of its Subsidiaries which in the reasonable judgment of the Borrower could result
in a Material Adverse Effect, together with a description in reasonable detail of such commencement
of, or adverse development with respect to, such litigation or proceeding;



(b) (i) any notice of any violation received by the Borrower or any Subsidiary Guarantor from
any Governmental Authority including any notice of violation or alleged violation of Environmental
Laws, or (ii) any knowledge of the presence or release of any Hazardous Material within, on, from,
relating to or affecting any property, which in any such case could reasonably be expected to have
a Material Adverse Effect;



(c) [Intentionally Omitted];


 


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(d) any attachment, judgment (net of any amounts paid or fully covered by independent third
party insurance as to which the relevant insurance company does not dispute coverage), lien, levy
or order exceeding the Threshold Amount that may reasonably be expected to be assessed against the
Borrower or any Subsidiary Guarantor;



(e) (i) any Default or Event of Default or (ii) any event which constitutes or which with the
passage of time or giving of notice or both would constitute a default or event of default under
any Material Contract to which the Borrower or any of its Subsidiaries is a party or by which the
Borrower or any Subsidiary thereof or any of their respective properties may be bound;



(f) (i) the institution of any steps by any Credit Party or any other Person to terminate any
Pension Plan, (ii) the failure to make a required contribution to any Pension Plan sponsored or
maintained by any Credit Party if such failure is sufficient to give rise to a Lien under Section
303(k) of ERISA or Section 430(k) of the Code or (iii) if any of the subsequently listed events
have occurred with respect to any Pension Plan sponsored or maintained by any Credit Party, or any
ERISA Affiliate: the occurrence of termination of such Pension Plan, the failure to make a required
contribution to such Pension Plan, the failure to satisfy the minimum funding standard for a year,
the request for a waiver of the minimum funding standard for any year, the withdrawal from a
Multiemployer Plan, the adoption of an amendment which results in a funded current liability
percentage of less than 60%, the engaging in one or more prohibited transactions, the failure to
comply with reporting and disclosure requirements or engaging in any breach of fiduciary
responsibility, which, in each of clause (i), (ii) or (iii), could
reasonably be expected to result in, a Material Adverse Effect, together with copies of all
documentation relating thereto;



(g) any event or development that results in, or could reasonably be expected to result in a
Material Adverse Effect; and



(h) promptly upon their becoming publicly available, copies of (i) all financial statements,
reports, notices and proxy statements sent or made available by the Borrower or MLP to any of its
security holders in compliance with the Exchange Act, or any comparable Federal or state laws
relating to the disclosure by any Person of information to its security holders, (ii) all regular
and periodic reports and all registration statements and prospectuses filed by the Borrower or MLP
with any securities exchange or with the Securities and Exchange Commission or any governmental
authority succeeding to any of its functions (other than registration statements on Form S-8 and
Annual Reports on Form 10-K), and (iii) all press releases and other similar written statements
made available by the Borrower or MLP to the public concerning material developments in the
business of the Borrower or MLP, as the case may be.



Documents required to be delivered pursuant to this Article may be delivered electronically
and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower
posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the
website address listed in Section 14.1; or (ii) on which such documents are posted on the
Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that the Borrower shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any such documents
and provide to the Administrative Agent, if requested, by electronic mail electronic versions
(i.e., soft copies) of such documents. Except for such Officer’s Compliance Certificates,
the Administrative Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such documents.


 


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



The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do
not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions
in the Borrower Materials. No warranty of any kind, express, implied or statutory, including any
warranty of merchantability, fitness for a particular purpose, non-infringement of third-party
rights or freedom from viruses or other code defects, is made by any Agent Party in connection with
the Borrower Materials or the Platform. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower or
the other Credit Parties, any Lender or any other Person or entity for damages of any kind,
including direct or indirect, special, incidental or consequential damages, losses or expenses
(whether in tort, contract or otherwise) arising out of the Borrower’s, any Credit Party’s or the
Administrative Agent’s transmission of communications through the Platform.



SECTION 8.6 Accuracy of Information. All written information, reports, statements and
other papers and data furnished by or on behalf of any Credit Party or any Subsidiary thereof to
the Administrative Agent or any Lender whether pursuant to this Article VIII or any other
provision of this Agreement or the Guaranty Agreement shall, at the time the same is so
furnished, comply with the representations and warranties set forth in Section 7.27.


 


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ARTICLE IX




AFFIRMATIVE COVENANTS




Until all of the Obligations (other than (a) contingent indemnification obligations not then
due and (b) the Specified Hedge Obligations) have been paid and satisfied in full in cash and the
Revolving Credit Commitments terminated, (i) each of the Borrower and the Subsidiary Guarantors
will, in the case of Sections 9.1 through 9.16, and (ii) the General Partner will,
in the case of Section 9.17:



SECTION 9.1 Preservation of Corporate Existence and Related Matters. Except as
permitted by Section 11.4, preserve and maintain its separate corporate existence and all
rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify
and remain qualified as a foreign corporation or other entity and authorized to do business in each
jurisdiction in which the failure to so qualify could reasonably be expected to have a Material
Adverse Effect.




SECTION 9.2 Maintenance of Property and Licenses.



(a) Protect and preserve all Properties necessary in and material to its business, including
copyrights, patents, trade names, service marks and trademarks; maintain in good working order and
condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real and
personal property; and from time to time make or cause to be made all repairs, renewals and
replacements thereof and additions to such Property necessary for the conduct of its business, so
that the business carried on in connection therewith may be conducted in a commercially reasonable
manner.



(b) Maintain, in full force and effect in all respects, each and every license, permit,
certification, qualification, approval or franchise issued by any Governmental Authority (each a
“License”) required for each of them to conduct their respective businesses as presently
conducted, except where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect .



SECTION 9.3 Insurance. Maintain insurance with financially sound and reputable
insurance companies (or through self-insurance in accordance with Applicable Law) against at least
such risks and in at least such amounts as are customarily maintained by companies engaged in
similar businesses and owning similar properties in locations where the Borrower and its
Subsidiaries operate and as may be required by Applicable Law. From time to time after the Closing
Date, deliver to the Administrative Agent upon its request information in reasonable detail as to
the insurance then in effect, stating the names of the insurance companies, the amounts and rates
of the insurance, the dates of the expiration thereof and the properties and risks covered thereby.



SECTION 9.4 Accounting Methods and Financial Records. Maintain a system of
accounting, and keep proper books, records and accounts (which shall be true and complete in all
material respects) as may be required or as may be necessary to permit the preparation of
financial statements in accordance with GAAP and in compliance with the regulations of any
Governmental Authority having jurisdiction over it or any of its properties.


 


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SECTION 9.5 Payment of Taxes and Other Obligations. Pay and perform (a) all material
taxes, assessments and other governmental charges that may be levied or assessed upon it or any of
its Property and (b) all other indebtedness, obligations and liabilities in accordance with
customary trade practices; provided, that the Borrower or such Subsidiary Guarantor may
contest any item described in this Section in good faith so long as adequate reserves are
maintained with respect thereto in accordance with GAAP.



SECTION 9.6 Compliance With Laws and Approvals. Observe and remain in compliance with
all Applicable Laws and maintain in full force and effect all Governmental Approvals, in each case
applicable to the conduct of its business except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.



SECTION 9.7 Environmental Laws. In addition to and without limiting the generality of
Section 9.6, (a) except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply with, and ensure
such compliance by all tenants and subtenants with all applicable Environmental Laws and (ii)
obtain and comply with and maintain, and ensure that all tenants and subtenants, if any, obtain and
comply with and maintain, any and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws, (b) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under Environmental
Laws, and promptly comply with all lawful orders and directives of any Governmental Authority
regarding Environmental Laws, and (c) defend, indemnify and hold harmless the Administrative Agent
and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents,
officers and directors, from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the presence of Hazardous Materials, or the
violation of, noncompliance with or liability under any Environmental Laws applicable to the
operations of the Borrower or any Subsidiary Guarantor, or any orders, requirements or demands of
Governmental Authorities related thereto, including reasonable attorney’s and consultant’s fees,
investigation and laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor, as determined by a court of competent
jurisdiction by final nonappealable judgment.



SECTION 9.8 Compliance with ERISA. In addition to and without limiting the generality
of Section 9.6, except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (a) comply with applicable
provisions of ERISA and the regulations and published interpretations thereunder with respect to
all Employee Benefit Plans or (b) not take any action or fail to take action the result of which
could reasonably be expected to result in a liability to the PBGC or to a Multiemployer Plan.


 


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SECTION 9.9 Compliance with Agreements. Comply in all respects with each term,
condition and provision of all leases, agreements and other instruments entered into in the conduct
of its business including any Material Contract, except as could not reasonably be expected to have
a Material Adverse Effect.




SECTION 9.10 Visits and Inspections; Lender Meetings.



(a) Permit representatives of the Administrative Agent or any Lender, or any of their
respective representatives, at reasonable times and intervals, to visit all of its offices, to
discuss its financial matters with its officers (and the officers of the General Partner) and to
examine (and, at the expense of the Borrower, photocopy extracts from) any of its books or other
Borrower records. Upon the occurrence and during the continuance of any Default or Event of Default
the Borrower hereby authorizes its independent public accountant to discuss the Borrower’s
financial matters with the Administrative Agent and each Lender or any of their respective
representatives provided that a representative of the Borrower is present. So long as a Default or
Event of Default has occurred and is continuing, the Borrower shall pay any fees of the
Administrative Agent, each Lender and such independent public accountant incurred in connection
with the Administrative Agent’s or any Lender’s exercise of its rights pursuant to this Section.



(b) Upon the request of the Administrative Agent or the Required Lenders, participate in a
meeting of the Administrative Agent and Lenders once during each Fiscal Year, which meeting will be
held at the Borrower’s corporate offices (or such other location as may be agreed to by the
Borrower and the Administrative Agent) at such time as may be agreed by the Borrower and the
Administrative Agent.




SECTION 9.11 Additional Subsidiaries.



(a) Additional Material Subsidiaries. Notify the Administrative Agent of the creation
or acquisition of any Material Subsidiary or upon any Non-Material Subsidiary becoming a Material
Subsidiary and promptly thereafter (and in any event within thirty (30) days after such creation,
acquisition or occurrence), cause such Person to (i) become a Subsidiary Guarantor by delivering to
the Administrative Agent a duly executed supplement to the Guaranty Agreement or such other
document as the Administrative Agent shall deem reasonably necessary for such purpose, (ii) deliver
to the Administrative Agent such documents and certificates referred to in Section 6.1 as
may be reasonably requested by the Administrative Agent, (iii) deliver to the Administrative Agent
such updated Schedules to the Loan Documents as requested by the Administrative Agent with respect
to such Person, and (iv) deliver to the Administrative Agent such other documents as may be
reasonably requested by the Administrative Agent, all in form, content and scope reasonably
satisfactory to the Administrative Agent.



(b) Additional Foreign Subsidiaries. Notify the Administrative Agent at the time that
any Person becomes a Foreign Subsidiary of the Borrower, and promptly thereafter (and in any event
within forty-five (45) days after notification), cause such Person to deliver to the Administrative
Agent (i) such documents and certificates referred to in Section 6.1 as may be reasonably
requested by the Administrative Agent, (ii) such updated Schedules to the Loan Documents as
requested by the Administrative Agent with regard to such Person and (iii) such
other documents as may be reasonably requested by the Administrative Agent, all in form,
content and scope reasonably satisfactory to the Administrative Agent.


 


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(c) Notwithstanding the foregoing, to the extent any new Subsidiary is created solely for the
purpose of consummating a merger transaction pursuant to a Permitted Acquisition, and such new
Subsidiary at no time holds any assets or liabilities other than any merger consideration
contributed to it contemporaneously with the closing of such merger transaction, such new
Subsidiary shall not be required to take the actions set forth in Section 9.11(a) until the
consummation of such Permitted Acquisition (at which time, the surviving entity of the respective
merger transaction shall be required to so comply with Section 9.11(a) to the extent it is
a Material Subsidiary within ten (10) Business Days of the consummation of such Permitted
Acquisition).




SECTION 9.12 [Intentionally Omitted].



SECTION 9.13 Use of Proceeds. The Borrower shall use the proceeds of the Extensions
of Credit made (a) on the Closing Date (i) to repay the Indebtedness evidenced by the Existing
Credit Agreements and (ii) for working capital and general corporate purposes of the Borrower and
its Subsidiaries, including the payment of certain fees and expenses incurred in connection with
the Transactions and this Agreement and (b) after the Closing Date (including any New Loan) for
working capital and general corporate purposes of the Borrower and its Subsidiaries.




SECTION 9.14 [Intentionally Omitted].



SECTION 9.15 Further Assurances. Make, execute and deliver all such additional and
further acts, things, deeds, instruments and documents as the Administrative Agent or the Required
Lenders (through the Administrative Agent) may reasonably require for the purposes of implementing
or effectuating the provisions of this Agreement and the other Loan Documents.



SECTION 9.16 Non-Consolidation. Maintain (a) entity records and books of account
separate from those of any other entity which is an Affiliate of such entity, (b) not commingle its
funds or assets with those of any other entity which is an Affiliate of such entity (except
pursuant to cash management systems reasonably acceptable to the Administrative Agent) and (c)
provide that its board of directors (or equivalent governing body) will hold all appropriate
meetings to authorize and approve such entity’s actions.




SECTION 9.17 Covenants of the General Partner.




(a) The General Partner will maintain and keep in effect its corporate existence.



(b) The General Partner will deliver to the Administrative Agent, on behalf of the Lenders,
and the Administrative Agent will promptly distribute to each Lender at their respective addresses
as set forth in the Register, or such other office as may be designated by the Administrative Agent
and the Lenders from time to time, (i) (A) consolidating balance sheets and income statements of
the General Partner and its Subsidiaries at the times specified in, Section 8.1(a) and (B)
audited financial statements of the General Partner at the time specified in Section
8.1(b), in each case certified and reported on in the same manner as the financial
statements of the Borrower described in such Sections, and (ii) with reasonable promptness,
such other information and data (financial or other) as may from time to time be reasonably
requested by the Administrative Agent.


 


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(c) The General Partner will perform and comply with all of its obligations under the
Partnership Agreement, will enforce the Partnership Agreement against each other party thereto and
will not accept the termination of the Partnership Agreement or any amendment or supplement thereof
or modification or waiver thereunder, unless any such failure to perform, comply or enforce or any
such acceptance would not, individually or in the aggregate, present a reasonable likelihood of
having a Material Adverse Effect.



(d) Section 6.5 of the Partnership Agreement (the “Incorporated Covenant”) as in
effect on the Closing Date, together with all related definitions, is hereby incorporated herein in
the form included in the Partnership Agreement on April 19, 1995 and without regard to any
subsequent amendments or waivers of the provisions of, or any termination of, the Partnership
Agreement. The General Partner agrees to fully perform and comply with the Incorporated Covenant.



ARTICLE X




FINANCIAL COVENANTS




Until all of the Obligations (other than (a) contingent indemnification obligations not then
due and (b) the Specified Hedge Obligations) have been paid and satisfied in full in cash and the
Revolving Credit Commitments terminated, the Borrower and the Subsidiary Guarantors will not:



SECTION 10.1 Consolidated MLP Total Leverage Ratio. As of the end of any fiscal
quarter, permit the Consolidated MLP Total Leverage Ratio to be greater than 5.00 to 1.00.



SECTION 10.2 Consolidated Borrower Total Leverage Ratio. As of the end of any fiscal
quarter, permit the Consolidated Borrower Total Leverage Ratio to be greater than 2.75 to 1.00



SECTION 10.3 Interest Coverage Ratio. As of the end of any fiscal quarter, permit the
ratio of (a) Consolidated EBITDA of MLP and its Subsidiaries for the period of four (4) consecutive
fiscal quarters ending on or immediately prior to such date to (b) Consolidated Interest Expense of
MLP and its Subsidiaries for the period of four (4) consecutive fiscal quarters ending on or
immediately prior to such date to be less than 2.75 to 1.00.



ARTICLE XI




NEGATIVE COVENANTS




Until all of the Obligations (other than (a) contingent, indemnification obligations not then
due and (b) the Specified Hedge Obligations) have been paid and satisfied in full in cash and the
Revolving Credit Commitments terminated, (i) each of the Borrower and the Subsidiary
Guarantors will not, in the case of Sections 11.1 through 11.15, and (ii) the
General Partner will not, in the case of Section 11.16:


 


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SECTION 11.1 Limitations on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness except:



(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section
11.1(b));



(b) Indebtedness and obligations owing under Hedge Agreements (including, without duplication,
letters of credit issued to support the same) permitted under Section 11.14;



(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section
and listed on Schedule 7.21, and the renewal, refinancing, extension and replacement (but
not the increase in the aggregate principal amount) thereof;



(d) Indebtedness in respect of Capital Leases for fixed or capital assets within the
limitations set forth in Section 11.2(h); provided that the aggregate outstanding
amount of such Indebtedness shall not exceed $25,000,000 at any time;



(e) Indebtedness of a Person existing at the time such Person became a Subsidiary or
Indebtedness related to assets acquired from such Person in connection with an Investment permitted
pursuant to Section 11.3, to the extent that such Indebtedness was not incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of
such assets;



(f) unsecured Indebtedness of the Borrower owing to the General Partner or an Affiliate of the
General Partner (including MLP); provided that (i) the aggregate principal amount of such
Indebtedness does not exceed $100,000,000 at any time outstanding and (ii) such Indebtedness shall
be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;



(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to paragraphs
(a) through (e), (i), (j), (k), and (o) (so long as
such Indebtedness is not also a Guaranty Obligation) of this Section;



(h) unsecured intercompany Indebtedness (i) owed by the Borrower to any Subsidiary Guarantor,
(ii) owed by any Subsidiary Guarantor to the Borrower or another Subsidiary Guarantor, and (iii)
owed by the Borrower or any Subsidiary Guarantor to any Non-Guarantor Subsidiary; provided,
that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory
to the Administrative Agent;



(i) Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or other similar instrument drawn against insufficient funds in the ordinary course of
business;


 


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(j) other unsecured Indebtedness of the Borrower and the Subsidiary Guarantors;
provided, that in the case of each incurrence of such Indebtedness, (i) no Default or Event
of
Default shall have occurred and be continuing or would be caused by the incurrence of such
Indebtedness, (ii) the documentation evidencing such Indebtedness shall not contain financial
covenants which are, individually or in the aggregate, more restrictive than those set forth
herein, and (iii) such Indebtedness shall mature no earlier than six (6) months after the Revolving
Credit Maturity Date;



(k) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds,
statutory obligations or with respect to workers’ compensation claims, in each case incurred in the
ordinary course of business, and reimbursement obligations in respect of any of the foregoing;



(l) Indebtedness in respect of non-compete agreements entered into in connection with
Permitted Acquisitions;




(m) [Intentionally Omitted];



(n) Indebtedness arising under any asset securitization program in an aggregate amount not to
exceed $75,000,000 at any time outstanding; and



(o) additional Indebtedness not otherwise permitted pursuant to this Section in an aggregate
principal amount not to exceed $25,000,000 at any time outstanding.



SECTION 11.2 Limitations on Liens. Create, incur, assume or suffer to exist, any Lien
on or with respect to any of its Property, whether now owned or hereafter acquired, except:




(a) Liens created pursuant to the Loan Documents, if any;



(b) Liens in existence on the Closing Date and described on Schedule 11.2, including
Liens incurred in connection with any refinancing, refunding, renewal or extension of Indebtedness
pursuant to Section 11.1(c) (solely to the extent that such Liens were in existence on the
Closing Date and described on Schedule 11.2); provided that the scope of any such
Lien shall not be increased, or otherwise expanded, to cover any additional property or type of
asset, as applicable, beyond that in existence on the Closing Date;



(c) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien
imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet due or as to
which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired
or (ii) which are being contested in good faith and by appropriate proceedings if adequate reserves
are maintained to the extent required by GAAP;



(d) (i) the claims of materialmen, mechanics, carriers, warehousemen, processors, vendors,
repairmen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of
business, (A) which are not overdue for a period of more than thirty (30) days or (B) which are
being contested in good faith and by appropriate proceedings if adequate reserves are maintained to
the extent required by GAAP and (ii) do not, individually or in the aggregate, materially impair
the use thereof in the operation of the business of the Borrower or any of its Subsidiaries;


 


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(e) Liens consisting of deposits or pledges made in the ordinary course of business in
connection with, or to secure payment of, obligations under workers’ compensation, unemployment
insurance and other types of social security or similar legislation, or to secure the performance
of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds
(other than bonds related to judgments or litigation), performance bonds, release, appeal and
similar bonds and reimbursement obligations in respect of any of the foregoing;



(f) Liens constituting encumbrances in the nature of zoning restrictions, easements,
rights-of-way and rights or restrictions of record on the use of real property, which in the
aggregate are not substantial in amount and which do not, in any case, materially detract from the
value of such property or materially impair the use thereof in the ordinary conduct of business;



(g) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to personal property leased pursuant to operating leases entered into in the ordinary course
of business of the Borrower and its Subsidiaries;



(h) Liens securing Indebtedness permitted under Section 11.1(d); provided that
(i) such Liens shall be created not later than thirty (30) days after the acquisition or lease of
the related asset, (ii) such Liens do not at any time encumber any property other than the property
financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased
and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100%
of the original purchase price or lease payment amount of such property at the time it was
acquired;



(i) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 12.1(m) or securing appeal or other surety bonds relating to such judgments;



(j) Liens on tangible property or tangible assets (i) of any Subsidiary which are in existence
at the time that such Subsidiary is acquired pursuant to a Permitted Acquisition and (ii) of the
Borrower or any of its Subsidiaries existing at the time such tangible property or tangible assets
are purchased or otherwise acquired by the Borrower or such Subsidiary thereof pursuant to a
transaction permitted pursuant to this Agreement; provided that, with respect to each of
the foregoing clauses (i) and (ii), (A) such Liens (1) are not incurred in
connection with, or in anticipation of, such Permitted Acquisition, purchase or other acquisition,
(2) are applicable only to specific tangible property or tangible assets, and (3) do not attach to
any other property or assets of the Borrower or any of its Subsidiaries, and (B)(1) the
Indebtedness secured by such Liens is permitted under Section 11.1(e) and (2) the aggregate
outstanding principal amount of such Indebtedness does not exceed $25,000,000 at any time
outstanding;



(k) Liens on assets of Foreign Subsidiaries; provided that (i) such Liens do not
extend to, or encumber, assets that constitute the Capital Stock of the Borrower or any of the
Subsidiaries, and (ii) such Liens extending to the assets of any Foreign Subsidiary secure only
Indebtedness incurred by such Foreign Subsidiary pursuant to Section 11.1(n) or
11.1(o);



(l) (i) Liens of a collecting bank arising in the ordinary course of business under Section
4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction and (ii)
Liens of any depositary bank in connection with statutory, common law and contractual rights
of set-off and recoupment with respect to any deposit account of any Borrower or any Subsidiary
thereof;


 


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(m) (i) contractual or statutory Liens of landlords to the extent relating to the property and
assets relating to any lease agreements with such landlord, and (ii) contractual Liens of suppliers
(including sellers of goods) or customers to the extent limited to the property or assets relating
to such contract;



(n) any interest or title of a licensor, licensee, sublicensor, lessor, lessee, sublessor, or
sublessee with respect to any assets under any license or lease agreement entered into in the
ordinary course of business; provided that the same do not interfere in any material
respect with the business of the Borrower or its Subsidiaries or materially detract from the value
of the relevant assets of the Borrower or its Subsidiaries;



(o) deposits made to secure liability to insurance carriers under insurance or self-insurance
arrangements;



(p) Liens securing reimbursement obligations under letters of credit; provided that
such Liens cover only the title documents and related goods (and any proceeds thereof) covered by
the related letter of credit;



(q) Liens on cash and cash equivalents securing obligations in respect of Hedge Agreements
permitted under Section 11.14; and



(r) Liens not otherwise permitted hereunder securing Indebtedness in the aggregate amount not
to exceed the greater of (i) 5% of Consolidated Net Tangible Assets or (ii) $20,000,000 at any time
outstanding.



Notwithstanding the foregoing, in no event shall any Lien on any Property of the Borrower or any of
its Subsidiaries be permitted to secure Guaranty Obligations of the Borrower or such Subsidiary
with respect to, or any other Indebtedness which supports, Indebtedness of MLP or the General
Partner.



SECTION 11.3 Limitations on Investments. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any Capital Stock, interests in any partnership or joint venture
(including the creation or capitalization of any Subsidiary), evidence of Indebtedness or other
obligation or security, substantially all or a portion of the business or assets of any other
Person or any other investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in
cash or by delivery of Property in, any Person (all the foregoing, “Investments”) except:



(a) (i) equity Investments existing on the Closing Date in Subsidiaries existing on the
Closing Date, (ii) Investments existing on the Closing Date (other than Investments in Subsidiaries
existing on the Closing Date) and described on Schedule 11.3, (iii) equity Investments made
after the Closing Date in Subsidiary Guarantors, (iv) Investments made after the Closing Date by
the Borrower or the General Partner in any Subsidiary Guarantor, and (v)
Investments by a Subsidiary Guarantor in the Borrower, the General Partner or any other
Subsidiary Guarantor;


 


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(b) Investments in cash and Cash Equivalents;




(c) [Intentionally Omitted];



(d) deposits made in the ordinary course of business to secure the performance of leases or
other obligations as permitted by Section 11.2;




(e) Hedge Agreements permitted pursuant to Section 11.1;




(f) purchases of assets in the ordinary course of business;




(g) Investments in the form of Permitted Acquisitions;



(h) Investments (x) in the form of loans and advances to employees in the ordinary course of
business, which, in the aggregate, do not exceed at any time $1,000,000, (y) arising out of
extensions of trade credit or advances to third parties in the ordinary course of business and (z)
acquired by reason of the exercise of customary creditors’ rights upon default or pursuant to the
bankruptcy, insolvency or reorganization of a debtor;




(i) Investments in the form of Indebtedness permitted pursuant to Section 11.1(h);



(j) Investments in any Non-Guarantor Subsidiary in an aggregate amount not to exceed at any
time $15,000,000;



(k) Guaranty Obligations (x) permitted pursuant to Section 11.1 or (y) constituting an
obligation, warranty or indemnity, not guaranteeing Indebtedness of any Person, which is undertaken
or made in the ordinary course of business;



(l) Investments in joint ventures; provided, that the aggregate amount of all such
Investments shall not at any time exceed the greater of (i) 5% of Consolidated Net Tangible Assets
or (ii) $20,000,000; and



(m) other additional Investments not otherwise permitted pursuant to this Section not
exceeding the greater of (i) 5% of Consolidated Net Tangible Assets or (ii) $20,000,000 in the
aggregate.



For purposes of determining the amount of any Investment outstanding for purposes of this
Section 11.3, such amount shall be deemed to be the amount of such Investment determined in
accordance with GAAP.


 


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SECTION 11.4 Limitations on Fundamental Changes. Merge, consolidate or enter into any
similar combination with any other Person or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution) except:



(a) (i) any Wholly-Owned Material Subsidiary of the Borrower may be merged, amalgamated or
consolidated with or into the Borrower; provided that (x) the Borrower shall be the
continuing or surviving entity and (y) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing and (ii) any Wholly-Owned
Material Subsidiary of the Borrower may be merged, amalgamated or consolidated with or into any
Subsidiary Guarantor; provided that (x) the Subsidiary Guarantor shall be the continuing or
surviving entity or simultaneously with such transaction, the continuing or surviving entity shall
become a Subsidiary Guarantor and the Borrower shall comply with Section 9.11 in connection
therewith and (y) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing;



(b) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may be merged, amalgamated
or consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary, (ii) any
Non-Guarantor Subsidiary that is a Domestic Subsidiary may be merged, amalgamated or consolidated
with or into, or be liquidated into, any other Non-Guarantor Subsidiary that is a Domestic
Subsidiary and (iii) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may be merged,
amalgamated or consolidated with or into, or be liquidated into, the Borrower or any Material
Subsidiary; provided that in the case of this clause (iii), (x) the Borrower or the
Subsidiary Guarantor, as applicable, shall be the continuing or surviving entity or simultaneously
with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and
the Borrower shall, if applicable, comply with Section 9.11 in connection therewith, and
(y) immediately after giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing;



(c) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary
liquidation, dissolution, winding up or otherwise) to the Borrower or any Subsidiary Guarantor;
provided that, with respect to any such disposition by any Non-Guarantor Subsidiary, the
consideration for such disposition shall not exceed the fair value of such assets;



(d) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may dispose of all or
substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise)
to any other Non-Guarantor Subsidiary and (ii) any Non-Guarantor Subsidiary that is a Domestic
Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation,
dissolution, winding up or otherwise) to any other Non-Guarantor Subsidiary that is a Domestic
Subsidiary;




(e) dispositions permitted by Section 11.5;



(f) any Wholly-Owned Material Subsidiary of the Borrower may merge with or into the Person
such Wholly-Owned Material Subsidiary was formed to acquire in connection with a Permitted
Acquisition; provided that (i) a Subsidiary Guarantor shall be the continuing or surviving
entity or (ii) simultaneously with such transaction, the continuing or surviving entity shall
become a Subsidiary Guarantor and the Borrower shall comply with Section 9.11 in connection
therewith);



(g) any Person may merge into the Borrower or any of its Wholly-Owned Material Subsidiaries in
connection with a Permitted Acquisition; provided that (i) in the case of a merger
involving the Borrower or a Subsidiary Guarantor, the continuing or surviving Person shall be
the Borrower or such Subsidiary Guarantor and (ii) the continuing or surviving Person shall be the
Borrower or a Wholly-Owned Material Subsidiary of the Borrower; and


 


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(h) subject to compliance with Section 14.2, the Borrower may consolidate with or
merge into any other entity if (i) the Borrower is the continuing or surviving entity, (ii) the
surviving entity is a corporation or limited partnership organized and existing under the laws of
the United States of America or any state thereof or the District of Columbia, with substantially
all of its properties located and its business conducted within the United States and Canada and
(iii) immediately after giving effect to such transaction no Default or Event of Default shall have
occurred and be continuing.



SECTION 11.5 Limitations on Asset Dispositions. Make any Asset Disposition (including
the sale of any receivables and leasehold interests) except:




(a) the sale of inventory in the ordinary course of business;



(b) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business
of the Borrower or any of its Subsidiaries;



(c) the transfer of assets to the Borrower or any Subsidiary Guarantor pursuant to Section
11.4(b) and any other transaction permitted pursuant to Section 11.4;



(d) the Borrower or any Subsidiary may discount, sell or otherwise dispose of defaulted or
past due receivables and similar obligations (i) made in the ordinary course of business and which
remain unpaid by the account debtors, (ii) without recourse which are past due and which have been
written off as uncollectible, (iii) from a Material Subsidiary to the Borrower or (iv) made in
connection with the sale of a business but only with respect to the receivables directly generated
by the business so sold;




(e) the disposition of any Hedge Agreement;




(f) dispositions of Investments in cash and Cash Equivalents;



(g) (i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary
Guarantor, (ii) the Borrower may transfer assets to any Subsidiary Guarantor, (iii) any
Non-Guarantor Subsidiary may transfer assets to the Borrower or any Subsidiary Guarantor
(provided that, in connection with any such transfer, the Borrower or such Subsidiary
Guarantor shall not pay more than an amount equal to the fair market value of such assets as
determined in good faith by the General Partner at the time of such transfer), (iv) any
Non-Guarantor Subsidiary may transfer assets to any other Non-Guarantor Subsidiary and (v) any
Subsidiary Guarantor or the Borrower may transfer assets to a Non-Guarantor Subsidiary;
provided that for purposes of this clause (v), (x) such assets constitute non-core
assets or (y) after giving effect to such transfer, such Non-Guarantor Subsidiary shall become a
Subsidiary Guarantor;



(h) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary
course of business not interfering, individually or in the aggregate, in any material respect with
the conduct of the business of the Borrower and its Subsidiaries;


 


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(i) leases, subleases, licenses or sublicenses of real or personal property granted by any
Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in
any material respect with the business of the Borrower or any of its Subsidiaries;




(j) dispositions in connection with Insurance and Condemnation Events;



(k) dispositions of accounts receivable to a special purpose entity Subsidiary in connection
with an asset securitization program permitted by Section 11.1(n);



(l) dispositions of assets in exchange for other assets having a fair market value (as
determined in good faith by the Borrower) of not less than that of the assets so exchanged;




(m) the write-off of good will or other intangibles in the ordinary course of business; and



(n) additional Asset Dispositions not otherwise permitted pursuant to this Section in an
aggregate amount not to exceed in any Fiscal Year the greater of (i) 12.5% of Consolidated Net
Tangible Assets or (ii) $40,000,000.



SECTION 11.6 Limitations on Restricted Payments. Declare or pay any dividend on, or
make any payment or other distribution on account of, or purchase, redeem, retire or otherwise
acquire (directly or indirectly), or set apart assets for a sinking or other analogous fund for the
purchase, redemption, retirement or other acquisition of, any class of Capital Stock of the
Borrower or any Subsidiary Guarantor, or make any distribution of cash, property or assets to the
holders of shares of any Capital Stock of the Borrower or any Subsidiary Guarantor (all of the
foregoing, the “Restricted Payments”); provided that:



(a) the Borrower or any Subsidiary Guarantor may pay dividends in shares of its own Qualified
Capital Stock;



(b) any Subsidiary Guarantor may pay cash dividends to the Borrower or any other Subsidiary
Guarantor or ratably to all holders of its outstanding Qualified Capital Stock; and



(c) the Borrower may declare or order, and make, pay or set apart, once during each calendar
quarter a Restricted Payment if (a) such Restricted Payment is in an amount not exceeding Available
Cash for the immediately preceding calendar quarter, (b) immediately after giving effect to any
such proposed action no Event of Default (or Default under Section 12.1(a), (b),
(i) or (j)) shall have occurred and be continuing, (c) such Restricted Payment is
declared, ordered, paid or made in cash.



SECTION 11.7 Transactions with Affiliates. Directly or indirectly enter into any
transaction, including any purchase, sale, lease or exchange of Property, the rendering of any
service or the payment of any management, advisory or similar fees, with (a) any officer, director,
holder of any Capital Stock of, or other Affiliate of, the General Partner, the Borrower or any of
its Subsidiaries, (b) any Affiliate of any such officer, director or holder or (c) MLP or any
officer, director, holder of any Capital Stock of, or other Affiliate of, MLP, other than:




(i) transactions permitted by Sections 11.1, 11.3, 11.4,
11.5, 11.6 and 11.13;


 


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(ii) transactions existing on the Closing Date and described on Schedule 11.7;




(iii) other transactions (or series of related transactions) which are in the ordinary
course of business on terms as favorable as would be obtained by it on a comparable
arm’s-length transaction with an independent, unrelated third party as determined in good
faith by the Board of Directors (or equivalent governing body) of the General Partner;




(iv) employment and severance arrangements (including stock option plans, restricted
stock agreements and employee benefit plans and arrangements) with their respective officers
and employees in the ordinary course of business;




(v) payment of customary fees and reasonable out of pocket costs to, and indemnities
for the benefit of, directors, officers and employees of (i) the General Partner and its
Affiliates and (ii) the Borrower and its Subsidiaries, in each case, in the ordinary course
of business to the extent attributable to the ownership or operation of the Borrower and its
Subsidiaries; and




(vi) transactions in the ordinary course of business in connection with reinsuring the
self-insurance programs or other similar forms of retained insurable risks of the retail
propane business operated by the Borrower, its Subsidiaries and its Affiliates.



SECTION 11.8 Certain Accounting Changes; Organizational Documents. (a) Change its
Fiscal Year end, or make (without the consent of the Administrative Agent, which consent shall not
be unreasonably withheld or delayed) any material change in its accounting treatment and reporting
practices except as required by GAAP or (b) amend, modify or change its articles of incorporation
(or corporate charter or other similar organizational documents) or amend, modify or change its
bylaws (or other similar documents) in any manner which would materially and adversely affect the
rights or interests of the Lenders.



SECTION 11.9 [Intentionally Omitted].



SECTION 11.10 No Further Negative Pledges; Restrictive Agreements.



(a) Enter into, assume or be subject to any agreement prohibiting or otherwise restricting the
creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter
acquired, in any manner that is more restrictive than permitted hereunder, or requiring the grant
of any security for such obligation if security is given for some other obligation.



(b) Create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of the Borrower or any Subsidiary Guarantor to (i) pay
dividends or make any other distributions to the Borrower or any Subsidiary Guarantor on its
Capital Stock or with respect to any other interest or participation in, or measured by, its
profits, (ii) pay any Indebtedness or other obligation owed to the Borrower or any Subsidiary
Guarantor, (iii) make loans or advances to the Borrower or any Subsidiary Guarantor, (iv) sell,
lease or transfer any of its properties or assets to the Borrower or any Subsidiary Guarantor or



 


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(v) act as a Guarantor pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters referred to in clauses
(i) through (v) above) for such encumbrances or restrictions existing under or by
reason of (A) this Agreement and the other Loan Documents, (B) Applicable Law, (C) any document or
instrument governing Indebtedness incurred pursuant to Section 11.1(d) (provided,
that any such restriction contained therein relates only to the asset or assets acquired in
connection therewith), (D) any Permitted Lien or any document or instrument governing any Permitted
Lien (provided, that any such restriction contained therein relates only to the asset or
assets subject to such Permitted Lien), (E) obligations that are binding on a Subsidiary Guarantor
at the time such Subsidiary Guarantor first becomes a Subsidiary of the Borrower, so long as such
obligations are not entered into in contemplation of such Person becoming a Subsidiary, (F)
customary restrictions contained in an agreement related to the sale of Property (to the extent
such sale is permitted pursuant to Section 11.5) that limit the transfer of such Property
pending the consummation of such sale, (G) customary restrictions in leases, subleases, licenses
and sublicenses or asset sale agreements otherwise permitted by this Agreement so long as such
restrictions relate only to the assets subject thereto and (H) customary provisions restricting
assignment of any agreement entered into in the ordinary course of business.



SECTION 11.11 Nature of Business. With respect to the Borrower and the Subsidiary
Guarantors, engage in any business other than the business conducted by the Borrower and its
Subsidiaries as of the Closing Date and business activities reasonably related or ancillary
thereto, including any Midstream Business.




SECTION 11.12 [Intentionally Omitted].



SECTION 11.13 Sale Leasebacks. Directly or indirectly become or remain liable as
lessee or as guarantor or other surety with respect to any lease, whether an operating lease or a
Capital Lease, of any Property (whether real, personal or mixed), whether now owned or hereafter
acquired, (a) which the Borrower or any Subsidiary Guarantor has sold or transferred or is to sell
or transfer to a Person which is the Borrower or another Subsidiary Guarantor or (b) which the
Borrower or any Subsidiary Guarantor intends to use for substantially the same purpose as any other
Property that has been sold or is to be sold or transferred by the Borrower or such Subsidiary
Guarantor to another Person which is not the Borrower or another Subsidiary Guarantor in connection
with such lease.



SECTION 11.14 Hedge Agreements. Enter into any Hedge Agreement other than to manage
existing or anticipated interest rate, exchange rate or commodity price risks and not for
speculative purposes; provided that (i) no Hedge Agreement shall contain any provision
exonerating the non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party; and (ii) no Hedge Agreement can be secured by a Lien on any
assets of the Borrower or any of its Affiliates other than Liens permitted by Section
11.2(q).



SECTION 11.15 Disposal of Subsidiary Interests. The Borrower will not permit any
Material Subsidiary to be a non-Wholly-Owned Subsidiary except (a) as a result of or in connection
with a dissolution, merger, amalgamation, consolidation or disposition permitted by Section
11.4 or 11.5 or (b) so long as such Material Subsidiary continues to be a Subsidiary
Guarantor.


 


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SECTION 11.16 Covenant of the General Partner. The General Partner covenants that it
will not create any Liens on the general partnership interests in the Borrower or MLP.



ARTICLE XII




DEFAULT AND REMEDIES




SECTION 12.1 Events of Default. Each of the following shall constitute an Event of
Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment or order of any court or any order, rule
or regulation of any Governmental Authority or otherwise:



(a) Default in Payment of Principal of Loans and Reimbursement Obligations. The
Borrower shall default in any payment of principal of any Loan or Reimbursement Obligation when and
as due (whether at maturity, by reason of acceleration or otherwise).



(b) Other Payment Default. The Borrower or any other Credit Party shall default in
the payment when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan or Reimbursement Obligation or the payment of any other Obligation, and such
default shall continue for a period of five (5) days.



(c) Misrepresentation. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of any Credit Party in this Agreement, in any other Loan
Document, or in any document delivered by any Credit Party or by any Responsible Officer on behalf
of any such Credit Party in connection herewith or therewith that is subject to materiality or
Material Adverse Effect qualifications, shall be incorrect or intentionally misleading in any
respect when made or deemed made or any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of any Credit Party in this Agreement, any other Loan
Document, or in any document delivered in connection herewith or therewith that is not subject to
materiality or Material Adverse Effect qualifications, shall be incorrect or intentionally
misleading in any material respect when made or deemed made.



(d) Default in Performance of Certain Covenants. Any Credit Party shall default in
the performance or observance of any covenant or agreement contained in Section 8.1,
8.2, 8.5(e)(i), 9.1 (with respect to any Credit Party’s existence) or
9.13 or Article X or XI.



(e) Default in Performance of Other Covenants and Conditions. Any Credit Party shall
default in the performance or observance of any term, covenant, condition or agreement contained in
this Agreement (other than as specifically provided for in this Section) or any other Loan Document
and such default shall continue for a period of thirty (30) days after the earlier of (i) the
Administrative Agent’s delivery of written notice thereof to the Borrower and (ii) a Responsible
Officer of the Borrower or the General Partner having obtained knowledge thereof.



(f) Indebtedness Cross-Default. MLP or any Credit Party shall (i) default in the
payment of any Indebtedness (other than the Loans or any Reimbursement Obligation) the aggregate
outstanding amount of which Indebtedness is in excess of the Threshold Amount beyond the period of
grace if any, provided in the instrument or agreement under which such Indebtedness was created, or
(ii) default in the observance or performance of any other
agreement or condition relating to any Indebtedness (other than the Loans, any Reimbursement
Obligation) or contained in any instrument or agreement evidencing, securing or relating thereto
the aggregate outstanding amount of which Indebtedness is in excess of the Threshold Amount or any
other event shall occur or condition exist, the effect of which default or other event or condition
is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, with the giving of notice and/or lapse of time, if
required, any such Indebtedness to become due prior to its stated maturity and any applicable grace
period shall have expired.


 


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(g) [Intentionally Omitted].




(h) Change in Control. Any Change in Control shall occur.



(i) Voluntary Bankruptcy Proceeding. Any Credit Party or any Significant Subsidiary
Group shall (i) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in
effect), (ii) file a petition seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv) apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii)
take any corporate action for the purpose of authorizing any of the foregoing.



(j) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against any Credit Party or any Significant Subsidiary Group in any court of competent jurisdiction
seeking (i) relief under the federal bankruptcy laws (as now or hereafter in effect) or under any
other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like for any Credit Party or any Significant Subsidiary Group or for all or any substantial part of
their respective assets, domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.



(k) Failure of Agreements. Any material provision of this Agreement or any material
provision of the Guaranty Agreement shall for any reason cease to be valid and binding on any
Credit Party party thereto or any such Person shall so state in writing, in each case other than in
accordance with the express terms hereof or thereof.



(l) Termination Event. The occurrence of any of the following events: (i) any Credit
Party or any ERISA Affiliate fails to make full payment when due of all amounts which, under the
provisions of any Pension Plan or Section 412 of the Code, any Credit Party or any ERISA Affiliate
is required to pay as contributions thereto and such failure, individually or in the aggregate,
results in, or could reasonably be expected to result in, a Material Adverse Effect, (ii) any
Unfunded Pension Liability occurs or exists which, individually or in the aggregate, results
in, or could reasonably be expected to result in, a Material Adverse Effect, (iii) a
Termination Event and such occurrence, individually or in the aggregate, results in, or could
reasonably be expected to result in, a Material Adverse Effect or (iv) any Credit Party or any
ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such Multiemployer Plans
notifies such withdrawing employer that such employer has incurred a withdrawal liability and such
withdrawal liability, individually or in the aggregate, results in, or could reasonably be expected
to result in, a Material Adverse Effect.


 


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(m) Judgment. A judgment or order for the payment of money which causes the aggregate
amount of all such judgments or orders (net of any amounts paid or fully covered by independent
third party insurance as to which the relevant insurance company does not dispute coverage) to
exceed the Threshold Amount shall be entered against any Credit Party by any court and such
judgment or order shall continue without having been discharged, vacated or stayed for a period of
sixty (60) consecutive days after the entry thereof.



(n) Failure of Senior Indebtedness Status. The Obligations of the Borrower and each
Subsidiary Guarantor under this Agreement and each of the other Loan Documents shall fail to rank
at least pari passu to all other senior unsecured Indebtedness of each such Person.



SECTION 12.2 Remedies. Upon the occurrence of an Event of Default, with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower:




(a) Acceleration; Termination of Facilities.




(i) Terminate the Revolving Credit Commitment and declare the principal of and interest
on the Loans and the Reimbursement Obligations at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of
the other Loan Documents (including all L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented or shall be entitled to present
the documents required thereunder) and all other Obligations (other than Specified Hedge
Obligations), to be forthwith due and payable, whereupon the same shall immediately become
due and payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived by each Credit Party, anything in this Agreement or the other
Loan Documents to the contrary notwithstanding, and terminate the Credit Facility and any
right of the Borrower to request borrowings or Letters of Credit thereunder;
provided, that upon the occurrence of an Event of Default specified in Section
12.1(i) or (j), the Credit Facility shall be automatically terminated and all
Obligations (other than Specified Hedge Obligations) shall automatically become due and
payable without presentment, demand, protest or other notice of any kind, all of which are
expressly waived by each Credit Party, anything in this Agreement or in any other Loan
Document to the contrary notwithstanding; and




(ii) exercise on behalf of the Guaranteed Parties all of its other rights and remedies
under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy all
of the Obligations.


 


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(b) Letters of Credit. With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrower shall at such time deposit in a cash collateral account opened by
the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay the other Obligations on a pro rata basis. After
all such Letters of Credit shall have expired or been fully drawn upon, the Reimbursement
Obligation shall have been satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the Borrower.



(c) Rights of Collection. Exercise on behalf of the Lenders all of its other rights
and remedies under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy
all of the Borrower’s Obligations.



SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc. The enumeration of the
rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not
intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right
or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given hereunder or under the
other Loan Documents or that may now or hereafter exist at law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between the Borrower, the Administrative
Agent and the Lenders or their respective agents or employees shall be effective to change, modify
or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a
waiver of any Event of Default.



SECTION 12.4 Crediting of Payments and Proceeds. In the event that the Obligations
have been accelerated pursuant to Section 12.2 or the Administrative Agent or any Lender
has exercised any remedy set forth in this Agreement or any other Loan Document, all payments
received by the Lenders upon the Obligations and all net proceeds from the enforcement of the
Obligations shall be applied:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts, including attorney fees, payable to the Administrative Agent in its
capacity as such, the Issuing Lender in its capacity as such and the Swingline Lender in its
capacity as such (ratably among the Administrative Agent, the Issuing Lender and Swingline Lender
in proportion to the respective amounts described in this clause First payable to them);



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders under the Loan
Documents, including attorney fees (ratably among the Lenders in proportion to the respective
amounts described in this clause Second payable to them);


 


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



Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, Reimbursement Obligations, and Specified Hedge Obligations (including any termination
payments and any accrued and unpaid interest thereon) (ratably among the Lenders and the
counterparties to the Specified Hedge Obligations, in proportion to the respective amounts
described in this clause Fourth held by them);



Fifth, to the Administrative Agent for the account of the Issuing Lender, to cash
collateralize any L/C Obligations then outstanding; and



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



SECTION 12.5 Administrative Agent May File Proofs of Claim. In case of the pendency
of any Debtor Relief Law or other judicial proceeding relative to any Credit Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered (but not obligated), by intervention in such proceeding or otherwise:



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under the Loan
Document that are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the Issuing Lender and the Administrative
Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of
the Lenders, the Issuing Lender and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders, the Issuing Lender and the Administrative Agent
under Sections 3.3, 5.3 and 14.3) allowed in such judicial proceeding; and



(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the Issuing Lender to make
such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the Issuing Lender, to pay to
the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 3.3, 5.3 and 14.3.



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


 


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ARTICLE XIII




THE ADMINISTRATIVE AGENT




SECTION 13.1 Appointment and Authority. Each of the Lenders and the Issuing Lender
hereby irrevocably designates and appoints Wells Fargo to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the Administrative Agent,
the Lenders and the Issuing Lender, and none of the General Partner, the Borrower nor any
Subsidiary thereof shall have rights as a third party beneficiary of any of such provisions. It is
understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or
any other similar term) with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable
law. Instead such term is used as a matter of market custom, and is intended to create or reflect
only an administrative relationship between contracting parties.



SECTION 13.2 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the
financial advisor or in any other advisory capacity for and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not
the Administrative Agent hereunder and without any duty to account therefor to the Lenders.




SECTION 13.3 Exculpatory Provisions.



(a) The Administrative Agent shall not have any duties or obligations except those expressly
set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative
in nature. Without limiting the generality of the foregoing, the Administrative Agent:




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




(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents);
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or Applicable Law, including
for the avoidance of doubt any action that may be in violation of the automatic stay
under any Debtor Relief Law or that may effect a forfeiture, modification or termination of
property of a Defaulting Lender in violation of any Debtor Relief Law; and


 


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



(b) The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall
be necessary, under the circumstances as provided in Sections 14.2 and 12.2) or
(ii) in the absence of its own gross negligence, bad faith or willful misconduct as determined by a
court of competent jurisdiction by final nonappealable judgment. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent in writing by the Borrower, a Lender or the Issuing Lender.



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



SECTION 13.4 Reliance by 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 (including any electronic
message, Internet or intranet website posting or other distribution) reasonably believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
reasonably believed by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to the making of a
Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must
be fulfilled to the satisfaction of a Lender or the Issuing Lender, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the Issuing Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender or the Issuing
Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such
Letter of Credit. 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.


 


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SECTION 13.5 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its rights and powers by
or through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
Credit Facilities as well as activities as Administrative Agent. The Administrative Agent shall
not be responsible for the negligence or misconduct of any sub-agents except to the extent that a
court of competent jurisdiction determines in a final and non appealable judgment that the
Administrative Agent acted with gross negligence, bad faith or willful misconduct in the selection
of such sub-agents.




SECTION 13.6 Resignation of Administrative Agent.



(a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the Issuing Lender and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 15 days after the retiring Administrative
Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required
Lenders) (the “Resignation Effective Date”), then the Borrower may appoint a successor
Administrative Agent meeting the qualifications set forth above (which successor may be replaced by
the Required Lenders; provided such replacement successor shall be reasonably satisfactory
to the Borrower). If no such successor shall have been so appointed by the Borrower 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 (but shall not be obligated to), on
behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice on the Resignation
Effective Date and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender and the Issuing Lender directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise
agreed between the Borrower and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and
Section 14.3 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


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(b) Any resignation by Wells Fargo as Administrative Agent pursuant to this Section shall also
constitute its resignation as Issuing Lender and Swingline Lender. Upon the acceptance of a
successor’s appointment (including any Lender that accepts such appointment with the Borrower’s
consent) as Administrative Agent hereunder, (a) such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring Issuing Lender and Swingline
Lender, (b) the retiring Issuing Lender and Swingline Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor Issuing Lender shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangement satisfactory to the
retiring Issuing Lender to effectively assume the obligations of the retiring Issuing Lender with
respect to such Letters of Credit.



SECTION 13.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and
the Issuing Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the Issuing Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



SECTION 13.8 No Other Duties, etc. Anything herein to the contrary notwithstanding,
none of the syndication agents, documentation agents, co-agents, book manager, lead manager,
arranger, lead arranger or co-arranger listed on the cover page or signature pages hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the
Issuing Lender hereunder.



SECTION 13.9 Guaranty Matters. The Guaranteed Parties irrevocably authorize the
Administrative Agent, at its option and in its discretion (without notice to, or vote or consent
of, any counterparty to any Specified Hedge Agreement that was a Lender or an Affiliate of any
Lender at the time such agreement was executed), to release any Subsidiary Guarantor (whether or
not on the date of such release there may be outstanding Specified Hedge Obligations or contingent
indemnification obligations not then due) from its obligations under the Guaranty Agreement and any
other Loan Documents if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.


 


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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Subsidiary Guarantor from its obligations under the
Guaranty Agreement pursuant to this Section.



SECTION 13.10 Release of Guarantees of Subsidiaries. At the request and sole expense
of the Borrower, a Subsidiary Guarantor shall be released from all its obligations under this
Agreement and under all other Loan Documents in the event that all or a majority of the Capital
Stock of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of in a
transaction permitted by this Agreement (including by way of merger or consolidation), and the
Administrative Agent, at the request and sole expense of the Borrower, shall execute and deliver
without recourse, representation or warranty all releases or other documents necessary or desirable
to evidence or confirm the foregoing.



SECTION 13.11 Specified Hedge Agreements. No Lender or Affiliate thereof party to a
Specified Hedge Agreement that obtains the benefits of Section 12.4 by virtue of the
provisions hereof shall have any right to notice of any action or to consent to, direct or object
to any action hereunder or under any other Loan Document other than in its capacity as a Lender
and, in such case, only to the extent expressly provided in the Loan Documents.



ARTICLE XIV




MISCELLANEOUS





SECTION 14.1 Notices.



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



	 	 	 	 	 
	 

	 	If to the Borrower:
	 	AmeriGas Propane, L.P.

460 North Gulph Road

King of Prussia, PA 19406

Attention: Hugh Gallagher, Director of Treasury Services 
         
       and
Investor Relations

Telephone No.: (610) 337-1000 ext. 11029

Telecopy No.: (610) 992-3259

E-mail: ugi-treasury@ugicorp.com

Webpage: www.amerigas.com





 


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	 	With copies to:
	 	Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178

Attention: Patricia F. Brennan

Telephone No.: (212) 309-6814

Telecopy No.: (212) 309-6001

E-mail: pbrennan@morganlewis.com
	 
	 	 	 	 
	 

	 	If to Administrative
Agent or Swingline
Lender:
	 	




Wells Fargo Bank, National Association

1525 West W.T. Harris Blvd.

Charlotte, NC 28262

Mail Code: D1109-019

Attention: Syndication Agency Services

Telephone No.: (704) 590-2706

Telecopy No.: (704) 590-2790

E-mail: agencyservices.requests@wachovia.com
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Wells Fargo Bank, National Association

301 S. College Street, TW15

Charlotte, NC 28288

MAC: D1053-150

Attention: Allison Newman

Telephone No.: (704) 383-5260

Telecopy No.: (704) 715-1486

E-mail: allison.newman@wachovia.com
	 
	 	 	 	 
	 

	 	And:
	 	Alston & Bird LLP

Bank of America Plaza

Suite 4000

101 South Tryon Street

Charlotte, NC 28280-4000

Attention: Paul S. Donohue

Telephone No.: (704) 444-1039

Telecopy No.: (704) 444-1739

E-mail: paul.donohue@alston.com





 


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	 	If to the Issuing
Lender:
	 	



Wells Fargo Bank, National Association

301 South College Street, 15th Floor

MAC: D1053-153

Charlotte, NC 28288

Attention: Elaine Shue

Telephone No.: (704) 715-3133

Telecopy No.: (877) 487-0377

E-mail: elaine.shue@wachovia.com
	 
	 	 	 	 
	 

	 	If to any Lender:
	 	To the address set forth on the Register






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



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



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



(c) Administrative Agent’s Office. The Administrative Agent hereby designates its
office located at the address set forth above, or any subsequent office which shall have been
specified for such purpose by written notice to the Borrower and Lenders, as the Administrative
Agent’s Office referred to herein, to which payments due are to be made and at which Loans will be
disbursed and Letters of Credit requested.


 


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(d) Change of Address, Etc. Any party hereto may change its address, telecopier
number or e-mail address for notices and other communications hereunder by notice to the other
parties hereto.



SECTION 14.2 Amendments, Waivers and Consents. Except as set forth below or as
specifically provided in any Loan Document, any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing
signed by the Required Lenders (or by the Administrative Agent with the consent of the Required
Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the
Borrower; provided, that no amendment, waiver or consent shall:




(a) [Intentionally Omitted];



(b) increase the Revolving Credit Commitment of any Lender (or reinstate any Revolving Credit
Commitment terminated pursuant to Section 12.2) or the amount of Loans of any Lender, in
any case, without the written consent of such Lender;



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



(d) reduce the principal of, or the rate of interest specified herein on, any Loan or
Reimbursement Obligation, or (subject to clause (iv) of the second proviso to this Section)
any fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly and adversely affected thereby; provided that only the
consent of the Required Lenders shall be necessary (i) to waive any obligation of the Borrower to
pay interest at the rate set forth in Section 5.1(c) during the continuance of an Event of
Default or (ii) to amend any financial covenant hereunder (or any defined term used therein) even
if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C
Obligation or to reduce any fee payable hereunder;



(e) change Section 5.6 or 12.4 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender
directly and adversely affected thereby;




(f) [Intentionally Omitted];



(g) except as otherwise permitted by this Section 14.2 change any provision of this
Section or reduce the percentages specified in the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender directly affected thereby;



(h) consent to the assignment or transfer by any Credit Party of such Credit Party’s rights
and obligations under any Loan Document to which it is a party (except as permitted pursuant to
Section 11.4), in each case, without the written consent of each Lender; or


 


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(i) release (i) the General Partner, (ii) all of the Subsidiary Guarantors or (iii) Subsidiary
Guarantors comprising substantially all of the credit support for the Obligations, in any case,
from the Guaranty Agreement (other than as authorized in Section 13.9), without the written
consent of each Lender;



provided further, that (i) no amendment, waiver or consent shall, unless in writing
and signed by the Issuing Lender in addition to the Lenders required above, affect the rights or
duties of the Issuing Lender under this Agreement or any Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Swingline Lender in addition to the Lenders required above,
affect the rights or duties of the Swingline Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.



In connection with a proposed merger or consolidation of the Borrower in accordance with
Section 11.4(h) to a corporation or limited partnership, the parties agree to effect,
simultaneously with such transaction, all necessary and appropriate modifications to the terms and
conditions of this Agreement and the other Loan Documents to which it is a party (including without
limitation the ability of the Borrower to make payments under Section 11.6, taking into
account the effect of any change in the tax status of the Borrower on its financial condition and
the applicable financial covenants) to reflect the corporate existence of such successor
corporation and any other matters in form acceptable to the Required Lenders; provided,
that such modified terms and conditions convey to the parties substantially the same rights and
obligations provided under the Loan Documents to which it is a party immediately prior to such
transaction.



Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably
authorizes the Administrative Agent on its behalf, and without further consent, to enter into
amendments or modifications to this Agreement (including amendments to this Section 14.2)
or any of the other Loan Documents or to enter into additional Loan Documents as the Administrative
Agent reasonably deems appropriate in order to effectuate the terms of Section 5.14
(including as applicable, (1) to permit the New Loans to share ratably in the benefits of this
Agreement and the other Loan Documents and (2) to include the New Loan Revolving Credit Commitments
or outstanding New Loans in any determination of (i) Required Lenders or (ii) similar required
lender terms applicable thereto); provided that no amendment or modification shall result
in any increase in the amount of any Lender’s Revolving Credit Commitment or any increase in any
Lender’s Revolving Credit Commitment Percentage, in each case, without the written consent of such
affected Lender.


 


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SECTION 14.3 Expenses; Indemnity. 



(a) Costs and Expenses. The Borrower and any other Credit Party, jointly and
severally, shall pay (i) all reasonable and documented out of pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable and documented fees, charges and
disbursements of counsel for the Administrative Agent, subject to attorney-client privilege) in
connection with the syndication of the Credit Facilities, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and
documented out of pocket expenses incurred by the Issuing Lender 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 incurred by the Administrative Agent, any Lender or the Issuing
Lender, including the fees, charges and disbursements of not more than one (1) counsel for the
Administrative Agent and, to the extent there is an actual or perceived conflict of interest with
the Administrative Agent, not more than one (1) counsel for the Lenders or the Issuing Lender (but
excluding all fees and time charges for attorneys who may be employees of the Administrative Agent,
any Lender or the Issuing Lender), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit 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) Indemnification by the Borrower. The Borrower and the other Credit Parties shall
indemnify the Administrative Agent (and any sub-agent thereof), the Arranger, each Lender, the
Swingline Lender and the Issuing 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, and shall pay or reimburse any such Indemnitee for, any and all losses, claims (including any
Environmental Claims or civil penalties or fines assessed by OFAC), damages, liabilities and
related expenses (including the fees, charges and disbursements of not more than one (1) legal
counsel for any Indemnitee but excluding all fees and time charges for attorneys who may be
employees of such Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any
Person (including the Borrower or any other Credit Party) other than such Indemnitee and its
Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery
of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the
Issuing Lender 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 any Credit Party or any Subsidiary thereof, or any Environmental Claim related in any
way to any Credit Party or any Subsidiary, or (iv) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by any Credit Party or any Subsidiary thereof, and regardless
of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence, bad faith or willful misconduct of such
Indemnitee or (y) result from a claim not involving an act or omission by the Borrower or any of
its Affiliates that is brought by an Indemnitee against any other Indemnitee (other than any
action, suit or claim against Wells Fargo or Wells Fargo Securities, LLC in fulfilling its role as
the Administrative Agent, Arranger, bookrunner or any other similar role in respect of the Credit
Facilities unless such action, suit or
claim resulted from the gross negligence, bad faith or willful misconduct of Wells Fargo or
Wells Fargo Securities, LLC, as applicable, in fulfilling such roles, as determined by a court of
competent jurisdiction by final and nonappealable judgment).


 


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(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under paragraph (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the Issuing Lender, the
Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent), the Issuing Lender, the Swingline Lender or
such Related Party, as the case may be, such Lender’s Revolving Credit Commitment Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such
Lender); 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 (or any such sub-agent), the Issuing Lender or the Swingline Lender in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), Issuing Lender or the Swingline Lender in connection
with such capacity. The obligations of the Lenders under this paragraph (c) are subject to
the provisions of Section 5.7.



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
Applicable Law, the Borrower and each other Credit Party shall not assert, and hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.



(e) Payments. All amounts due under this Section shall be payable promptly after
demand therefor.



(f) Survival. Each party’s obligations under this Section shall survive the
termination of the Loan Documents and payment of the obligations hereunder.



SECTION 14.4 Right of Set Off. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Lender, the Swingline Lender and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by Applicable Law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the Issuing Lender, the Swingline Lender or any such
Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any
and all of the obligations of the Borrower or such Credit Party now or hereafter existing under
this Agreement or any other Loan


 


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Document
to such Lender, the Issuing Lender, the Swingline Lender or their respective Affiliates, irrespective of whether or not such Lender,
the Issuing Lender, the Swingline Lender or such Affiliate shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the Borrower or such Credit
Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender,
the Issuing Lender or the Swingline Lender different from the branch, office or Affiliate holding
such deposit or obligated on such indebtedness; provided that in the event that any
Defaulting Lender shall exercise any such right of setoff, (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 5.15 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, the Issuing Lender, the Swingline Lender and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. The rights of each Lender, the Issuing Lender, the Swingline Lender and their
respective Affiliates under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender, the Issuing Lender, the Swingline Lender or their
respective Affiliates may have. Each Lender, the Issuing Lender and the Swingline Lender agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff and application;
provided that the failure to give such notice shall not affect the validity of such setoff
and application.




SECTION 14.5 Governing Law; Jurisdiction, Etc.



(a) Governing Law. This Agreement and the other Loan Documents and any claims,
controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon,
arising out of or relating to this Agreement or any other Loan Document (except, as to any other
Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby
shall be governed by, construed and enforced in accordance with, the law of the State of New York.



(b) Submission to Jurisdiction. The Borrower and each other Credit Party irrevocably
and unconditionally agrees that it will not commence any action, litigation or proceeding of any
kind or description, whether in law or equity, whether in contract or in tort or otherwise, against
the Administrative Agent, any Lender, the Issuing Lender, or any Related Party of the foregoing in
any way relating to this Agreement or any other Loan Document or the transactions relating hereto
or thereto, in any forum other than the courts 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, and each of the parties hereto irrevocably and unconditionally submits to
the jurisdiction of such courts and agrees that all claims in respect of any such action,
litigation or proceeding may be heard and determined in such New York state court or, to the
fullest extent permitted by applicable law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action, litigation 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 or in any other Loan Document shall affect any right that the
Administrative Agent, any Lender or the Issuing Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the Borrower or any other
Credit Party or its properties in the courts of any jurisdiction.


 


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(c) Waiver of Venue. The Borrower and each other Credit Party irrevocably and
unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it
may now or hereafter have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any other Loan Document 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 Applicable Law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.



(d) Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in Section 14.1. Nothing in this Agreement will affect
the right of any party hereto to serve process in any other manner permitted by Applicable Law.



SECTION 14.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



SECTION 14.7 Reversal of Payments. To the extent any Credit Party makes a payment or
payments to the Administrative Agent for the ratable benefit of the Lenders which payments or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then, to the extent of such payment repaid,
the Obligations or part thereof intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been received by the Administrative Agent.




SECTION 14.8 Injunctive Relief; Punitive Damages.



(a) The Borrower recognizes that, in the event the Borrower fails to perform, observe or
discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove
to be inadequate relief to the Lenders. Therefore, the Borrower agrees that the Lenders, at the
Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.



(b) The Administrative Agent, the Lenders and the Borrower (on behalf of itself and the other
Credit Parties) hereby agree that no such Person shall have a remedy of punitive or exemplary
damages against any other party to a Loan Document and each such Person hereby
waives any right or claim to punitive or exemplary damages that they may now have or may arise
in the future in connection with any Dispute, whether such Dispute is resolved through arbitration
or judicially.


 


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SECTION 14.9 Accounting Matters. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide
to the Administrative Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.




SECTION 14.10 Successors and Assigns; Participations. 



(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section, (ii) by way of participation in accordance with the
provisions of paragraph (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (f) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.



(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and the Loans at the time owing to it); provided
that any such assignment shall be subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the assigning
Lender’s Revolving Credit Commitment and the Loans at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the amount
specified in clause (b)(i)(B) of this Section in the aggregate or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned; and


 


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(B) in any case not described in clause (b)(i)(A) of this Section, the
aggregate amount of the Revolving Credit Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Revolving Credit Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified
in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided that the Borrower shall be deemed to have given its
consent five (5) Business Days after the date written notice thereof has been delivered by
the assigning Lender (through the Administrative Agent) unless such consent is expressly
refused by the Borrower prior to such fifth (5th) Business Day;




(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loan or the Revolving Credit Commitment assigned;




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




(A) the consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (x) an Event of Default has occurred and is continuing at
the time of such assignment or (y) such assignment is to (1) a Lender or (2) an Affiliate of
a Lender which is a commercial bank; provided, that the Borrower shall be deemed to
have consented to any such assignment unless it shall object thereto by written notice to
the Administrative Agent within ten (10) Business Days after having received notice thereof;
and provided, further, that the Borrower’s consent shall not be required
during the primary syndication of the Credit Facilities;




(B) the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of the Revolving Credit
Facility if such assignment is to a Person that is not a Lender with a Revolving Credit
Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and




(C) the consents of the Issuing Lender and the Swingline Lender (each such consent not
to be unreasonably withheld or delayed) shall be required for any assignment in respect of
the Revolving Credit Facility.




(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 for each assignment; provided, that (x)
only one such fee will be payable in connection with simultaneous assignments to two or more
Approved Funds by a Lender and (y) the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


 


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




(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural Person.




(vii) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent, the Issuing Lender, the
Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y)
acquire (and fund as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit and Swingline Loans in accordance with its Revolving
Credit Commitment 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.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 5.8, 5.9, 5.10, 5.11 and
14.3 with respect to facts and circumstances occurring prior to the effective date of such
assignment; provided, that except to the extent otherwise expressly agreed by the affected
parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of
any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
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 (d) of this
Section.


 


106









 





(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Charlotte, North Carolina, a copy of each
Assignment and Assumption and each Joinder Agreement 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 amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”). The entries in the Register shall be conclusive absent manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower and any Lender (but
only to the extent of entries in the Register that are applicable to such Lender), at any
reasonable time and from time to time upon reasonable prior notice.



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
Person, or the General Partner or the Borrower or any of their respective Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Revolving Credit Commitment
and/or 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, Issuing Lender, Swingline Lender 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. For the avoidance of doubt, each Lender shall be responsible for the indemnity under
Section 14.3(c) with respect to any payments made by such Lender to its Participant(s).



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 or modification described in Section 14.2 that
directly affects such Participant. The Borrower agrees that each Participant shall be entitled to
the benefits of Sections 5.8, 5.9, 5.10 and 5.11 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section; provided that such Participant agrees to be subject to the
provisions of Section 5.12 as if it were an assignee under paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 14.4 as though it were a Lender; provided that such Participant agrees
to be subject to Section 5.6 as though it were a Lender.



The applicable Lender, acting solely for this purpose as an agent of the Borrower, shall
maintain a register for the recordation of the names and addresses of each Participant to which
such Lender has sold a participating interest and the amount of each such Participant’s interest in
such Lender’s rights and/or obligations under this Agreement (the “Participant Register”).
The entries in the Participant Register shall be conclusive absent manifest error, and such Lender
shall treat each Person whose name is recorded in the Participant Register as the owner of the
related rights and/or obligations, subject to the provisions of this Section.


 


107









 





(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 5.10 and 5.11 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. No Participant shall be entitled to the benefits of Section 5.11 unless the
Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 5.11(e) as though it were a Lender.



(f) Certain Pledges. 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,
including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



SECTION 14.11 Confidentiality. Each of the Administrative Agent, the Lenders and the
Issuing Lender agree to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its Related Parties (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
required or requested by any regulatory authority purporting to have jurisdiction over such Person
or its Related Parties (including any self-regulatory authority, such as the National Association
of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder; (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or
prospective party (or its Related Parties) to any swap, derivative or other transaction under which
payments are to be made by reference to the Borrower and its obligations, this Agreement or
payments hereunder; (g) on a confidential basis to (i) any rating agency in connection with rating
the Borrower or its Subsidiaries or the Credit Facilities or (ii) the CUSIP Service Bureau or any
similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the
Credit Facilities; (h) with the consent of the Borrower; or (i) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section, or (y) becomes
available to the Administrative Agent, any Lender, the Issuing Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower. For purposes of this
Section, “Information” means all information received from the Borrower or any of its
Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the Issuing Lender on a nonconfidential basis prior to disclosure by the Borrower or any
of its Subsidiaries; provided that, in the case of information received from the Borrower
or any of its Subsidiaries after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to
have complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.


 


108









 





SECTION 14.12 Performance of Duties. Each of the Credit Party’s obligations under
this Agreement and each of the other Loan Documents shall be performed by such Credit Party at its
sole cost and expense.



SECTION 14.13 All Powers Coupled with Interest. All powers of attorney and other
authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the
Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other
Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of
the Obligations remain unpaid or unsatisfied, any of the Revolving Credit Commitments remain in
effect or the Credit Facility has not been terminated.




SECTION 14.14 Survival.



(a) All representations and warranties set forth in Article VII and all
representations and warranties contained in any certificate, or any of the Loan Documents
(including, but not limited to, any such representation or warranty made in or in connection with
any amendment thereto) shall constitute representations and warranties made under this Agreement.
All representations and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a specific date), shall
survive the Closing Date and shall not be waived by the execution and delivery of this Agreement,
any investigation made by or on behalf of the Lenders or any borrowing hereunder.



(b) Notwithstanding any termination of this Agreement, the indemnities to which the
Administrative Agent and the Lenders are entitled under the provisions of this Article XIV
and any other provision of this Agreement and the other Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against events arising after
such termination as well as before.



SECTION 14.15 Titles and Captions. Titles and captions of Articles, Sections and
subsections in, and the table of contents of, this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.



SECTION 14.16 Severability of Provisions. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without
invalidating the remainder of such provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any other jurisdiction.




 


109









 





SECTION 14.17 Counterparts; Integration; Effectiveness; Electronic Execution.



(a) Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed signature page of this Agreement by facsimile or other electronic
method of transmission shall be effective as delivery of a manually executed counterparty hereof.
This Agreement and the other Loan Documents, and any separate letter agreements with respect to
fees payable to the 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. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in favor of
the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof. Except as provided in Section 6.1, this
Agreement shall become effective when it shall have been executed by the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof that, when taken together,
bear the signatures of each of the other parties hereto.



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



SECTION 14.18 Term of Agreement. This Agreement shall remain in effect from the
Closing Date through and including the date upon which all Obligations (other than (a) contingent
indemnification obligations not then due and (b) the Specified Hedge Obligations) arising hereunder
or under any other Loan Document shall have been indefeasibly and irrevocably paid and satisfied in
full and the Revolving Credit Commitment has been terminated. No termination of this Agreement
shall affect the rights and obligations of the parties hereto arising prior to such termination or
in respect of any provision of this Agreement which survives such termination.



SECTION 14.19 USA Patriot Act. The Administrative Agent and each Lender hereby
notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Borrower and Guarantors, which information
includes the name and address of each Borrower and Guarantor and other information that will allow
such Lender to identify such Borrower or Guarantor in accordance with the Act.



SECTION 14.20 [Intentionally Omitted].



SECTION 14.21 [Intentionally Omitted].



SECTION 14.22 [Intentionally Omitted].


 


110









 





SECTION 14.23 Inconsistencies with Other Documents.



(a) In the event there is a conflict or inconsistency between this Agreement and any other
Loan Document, the terms of this Agreement shall control; provided that any provision of
the Guaranty Agreement which imposes additional burdens on the General Partner, the Borrower or any
of its Subsidiaries or further restricts the rights of the General Partner, the Borrower or any of
its Subsidiaries or gives the Administrative Agent or Lenders additional rights shall not be deemed
to be in conflict or inconsistent with this Agreement and shall be given full force and effect.



(b) The Borrower expressly acknowledges and agrees that each covenant contained in Article
VIII, IX, X or XI shall be given independent effect. Accordingly, the
Borrower shall not engage in any transaction or other act otherwise permitted under any covenant
contained in Article VIII, IX, X or XI, if, before or after giving
effect to such transaction or act, the Borrower shall or would be in breach of any other covenant
contained in Article VIII, IX, X or XI; provided that
notwithstanding anything to the contrary contained herein, for the purposes of determining
compliance with Articles VIII, IX, X and XI, when engaging in any
transaction or act that meets the criteria of more than one of the categories described thereunder,
then the Borrower shall be permitted to classify such transaction or act (or later classify or
reclassify in whole or in part in its sole discretion) such transaction or act in any manner that
complies with Article VIII, IX, X or XI, as applicable.



[Signature pages to follow]



 


111









 





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



	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 	 	By: AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, INC., as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





Credit
Agreement


 


S-1









 





	 	 	 	 	 	 	 
	ADMINISTRATIVE AGENT
	 	 	 	 	 	 
	AND LENDERS:	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as	 	 
	 	 	Administrative Agent, Swingline Lender, Issuing Lender and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BRANCH BANKING AND TRUST COMPANY, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CITIBANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





Credit
Agreement


 


S-2









 





	 	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CITIZENS BANK OF PENNSYLVANIA, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	COMPASS BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





Credit
Agreement


 


S-3









 





	 	 	 	 	 	 	 
	 	 	MANUFACTURERS AND TRADERS TRUST COMPANY, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	SOVEREIGN BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	TD BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





Credit
Agreement



 


S-4









 







EXHIBIT A-1




FORM OF REVOLVING CREDIT NOTE




			
	 	 	 
	$_____ 

	 	_________ _____, 201_____ 







FOR VALUE RECEIVED, the undersigned, AMERIGAS PROPANE, L.P., a Delaware limited partnership
(the “Borrower”), promises to pay to the order of  _____, a
 _____ 

(the “Lender”), at the place and times provided in the Credit Agreement referred to below,
the principal sum of
 _____ 
DOLLARS ($_____) or, if less, the unpaid principal amount
of all Revolving Credit Loans made by the Lender from time to time pursuant to that certain Credit
Agreement, dated as of June 21, 2011 (as amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”) by and among the Borrower, AmeriGas Propane, Inc.,
the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as
Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.



The unpaid principal amount of this Revolving Credit Note from time to time outstanding is
subject to mandatory repayment from time to time as provided in the Credit Agreement and shall bear
interest as provided in Section 5.1 of the Credit Agreement. All payments of principal and
interest on this Revolving Credit Note shall be payable in lawful currency of the United States in
immediately available funds.



This Revolving Credit Note is entitled to the benefits of, and evidences Obligations incurred
under, the Credit Agreement, to which reference is made for a statement of the terms and conditions
on which the Borrower is permitted and required to make prepayments and repayments of principal of
the Obligations evidenced by this Revolving Credit Note and on which such Obligations may be
declared to be immediately due and payable.



THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ANY OTHER CONFLICTS OR CHOICE OF LAW
PRINCIPLES THEREOF.



The Borrower hereby waives all requirements as to diligence, presentment, demand of payment,
protest and (except as required by the Credit Agreement) notice of any kind with respect to this
Revolving Credit Note.


 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Revolving Credit Note under seal as of
the day and year first above written.



	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT A-2




FORM OF SWINGLINE NOTE




			
	 	 	 
	$30,000,000
	 	_______ _____, 201_____ 







FOR VALUE RECEIVED, the undersigned, AMERIGAS PROPANE, L.P., a Delaware limited partnership
(the “Borrower”), promises to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association (the “Swingline Lender”), at the place and times provided in
the Credit Agreement referred to below, the principal sum of THIRTY MILLION DOLLARS ($30,000,000)
or, if less, the principal amount of all Swingline Loans made by the Swingline Lender from time to
time pursuant to that certain Credit Agreement, dated as of June 21, 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) by and among
the Borrower, AmeriGas Propane, Inc., the Lenders from time to time party thereto and Wells Fargo
Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender.
Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.



The unpaid principal amount of this Swingline Note from time to time outstanding is subject to
mandatory repayment from time to time as provided in the Credit Agreement and shall bear interest
as provided in Section 5.1 of the Credit Agreement. Swingline Loans refunded as Revolving Credit
Loans in accordance with Section 2.2(b) of the Credit Agreement shall be payable by the Borrower as
Revolving Credit Loans pursuant to the Revolving Credit Notes, and shall not be payable under this
Swingline Note as Swingline Loans. All payments of principal and interest on this Swingline Note
shall be payable in lawful currency of the United States in immediately available funds.



This Swingline Note is entitled to the benefits of, and evidences Obligations incurred under,
the Credit Agreement, to which reference is made for a statement of the terms and conditions on
which the Borrower is permitted and required to make prepayments and repayments of principal of the
Obligations evidenced by this Swingline Note and on which such Obligations may be declared to be
immediately due and payable.



THIS SWINGLINE NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ANY OTHER CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.



The Borrower hereby waives all requirements as to diligence, presentment, demand of payment,
protest and (except as required by the Credit Agreement) notice of any kind with respect to this
Swingline Note.


 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Swingline Note under seal as of the day
and year first above written.



	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT B




FORM OF NOTICE OF BORROWING




Dated as of: _____________




Wells Fargo Bank, National Association,
  
as Administrative Agent

MAC D 1109-019

1525 West W.T. Harris Blvd.

Charlotte, North Carolina 28262

Attention: Syndication Agency Services




Ladies and Gentlemen:



This irrevocable Notice of Borrowing is delivered to you pursuant to Section 2.3 of that
certain Credit Agreement dated as of June 21, 2011 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among AmeriGas Propane, L.P., a
Delaware limited partnership (the “Borrower”), AmeriGas Propane, Inc., the Lenders from
time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent.



1. The Borrower hereby requests that the Lenders make a [Revolving Credit Loan] [Swingline
Loan] to the Borrower in the aggregate principal amount of $_____.1



2. The Borrower hereby requests that such Loan be made on the following Business Day:

 _____.2



3. The Borrower hereby requests that such Loan bear interest at the following interest rate,
plus the Applicable Margin, as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Termination Date for	 
	 	 	 	 	 	 	Interest Period	 	 	 Interest Period	 
	Component of Loan	 	Interest Rate	 	 	(LIBOR Rate only)	 	 	(if applicable)	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





 





	 	 	 
	1	 	The amount of such borrowing shall be (x) with respect
to Base Rate Loans in an aggregate principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof, (y) with respect to LIBOR Rate Loans
in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (z) with respect to Swingline Loans in an
aggregate principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof

	 
	2	 	The request for borrowing must be delivered not later
than 1:00 p.m. (i) on the same Business Day as each Base Rate Loan and each
Swingline Loan requested and (ii) at least three (3) Business Days before each
LIBOR Rate Loan requested



 


 









 









	 	 	 
	[Revolving 
Credit] [Swingline]

Loan

	 	[Base Rate][LIBOR 
Rate][LIBOR Market

Index Rate]3






4. The aggregate principal amount of all Loans and L/C Obligations outstanding as of the date
hereof (including the Loan requested herein) does not exceed the maximum amount permitted to be
outstanding pursuant to the terms of the Credit Agreement.



5. The representations and warranties contained in Article VII of the Credit Agreement are
true and correct in all material respects (except for those representations and warranties that are
already qualified by materiality or Material Adverse Effect, which are true, correct and complete
in all respects) on and as of the date hereof with the same effect as if made on and as of such
date and will remain true and correct on the date of such Loan, except for any representation and
warranty made as of an earlier date, which representation and warranty shall remain true and
correct in all material respects (except for those representations and warranties that are already
qualified by materiality or Material Adverse Effect, which shall be true, correct and complete in
all respects) as of such earlier date.



6. No Default or Event of Default has occurred and is continuing on the date hereof or will
occur and be continuing on the date of such Loan or after giving effect to the Loan to be made on
such date.



7. All of the other conditions applicable to the Loan 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 Loan.



8. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.



[Signature Page Follows]



 





	 	 	 
	3	 	Complete with (i) the Base Rate or the LIBOR Rate for
Revolving Credit Loans or (ii) the LIBOR Market Index Rate for Swingline Loans.



 


2









 









IN WITNESS WHEREOF, the undersigned has executed this Notice of Borrowing as of the day and
year first written above.



	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


3









 







EXHIBIT C




FORM OF NOTICE OF ACCOUNT DESIGNATION




Dated as of: _________




Wells Fargo Bank, National Association,
  
as Administrative Agent

MAC D 1109-019

1525 West W.T. Harris Blvd.

Charlotte, North Carolina 28262

Attention: Syndication Agency Services




Ladies and Gentlemen:



This Notice of Account Designation is delivered to you pursuant to Section 2.3(b) of the
Credit Agreement dated as of June 21, 2011 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among AmeriGas Propane, L.P., a
Delaware limited partnership (the “Borrower”), AmeriGas Propane, Inc., the Lenders from
time to time party thereto, and Wells Fargo Bank, National Association, as Administrative Agent.



1. The Administrative Agent is hereby authorized to disburse all Loan proceeds into the
following account(s):



	 	 	 
	 

	 	Bank:                                         
	 

	 	ABA Routing Number:                                         
	 

	 	Account Number:                                         






2. This authorization shall remain in effect until revoked or until a subsequent Notice of
Account Designation is provided to the Administrative Agent.



3. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.



[Signature Page Follows]



 


 









 







IN WITNESS WHEREOF, the undersigned has executed this Notice of Account Designation as of the
day and year first written above.



	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT D




FORM OF NOTICE OF PREPAYMENT




Dated as of: _____________




Wells Fargo Bank, National Association,
  
as Administrative Agent

MAC D 1109-019

1525 West W.T. Harris Blvd.

Charlotte, North Carolina 28262

Attention: Syndication Agency Services




Ladies and Gentlemen:



This Notice of Prepayment is delivered to you pursuant to Section 2.4(c) of the Credit
Agreement dated as of June 21, 2011 (as amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), by and among AmeriGas Propane, L.P., a Delaware
limited partnership (the “Borrower”), AmeriGas Propane, Inc., the Lenders from time to time
party thereto and Wells Fargo Bank, National Association, as Administrative Agent.



1. The Borrower hereby provides notice to the Administrative Agent that it shall repay the
following [Base Rate Loans] and/or [LIBOR Rate Loans] and/or [Swingline Loans]:

 _____.1




2. The Loan to be prepaid is a [check each applicable box]




o Swingline Loan




o Revolving Credit Loan



3. The Borrower shall repay the above-referenced Loans on the following Business Day:

 _____.2




 





	 	 	 
	1	 	Partial prepayments shall be in an aggregate amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to
Base Rate Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof
with respect to LIBOR Rate Loans and $100,000 or a whole multiple of $100,000
in excess thereof with respect to Swingline Loans.

	 
	2	 	Notice must be delivered by no later than 1:00 p.m. on
(i) the same Business Day as of the date of this Notice of Prepayment with
respect to any Swingline Loan or Base Rate Loan and (ii) two (2) Business Days
subsequent to date of this Notice of Prepayment with respect to any LIBOR Rate
Loan.



 


 









 






[4. This notice is expressly conditioned upon the effectiveness of [describe applicable debt
or equity issuance].]3




Capitalized terms used herein and not defined herein shall have the meanings assigned thereto
in the Credit Agreement.



[Signature Page Follows]



 





	 	 	 
	3	 	Include if applicable





 


2









 







IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment as of the day and
year first written above.



	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


 









 







EXHIBIT E




FORM OF NOTICE OF CONVERSION/CONTINUATION




Dated as of: _____________




Wells Fargo Bank, National Association,
  
as Administrative Agent

MAC D 1109-019

1525 West W.T. Harris Blvd.

Charlotte, North Carolina 28262

Attention: Syndication Agency Services




Ladies and Gentlemen:



This irrevocable Notice of Conversion/Continuation (this “Notice”) is delivered to you
pursuant to Section 5.2 of the Credit Agreement dated as of June 21, 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
AmeriGas Propane, L.P., a Delaware limited partnership (the “Borrower”), AmeriGas Propane,
Inc., the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as
Administrative Agent.



1. This Notice is submitted for the purpose of: (Check one and complete applicable
information in accordance with the Credit Agreement.)




	 	o 	 	Converting all or a portion of a Base Rate Loan into a LIBOR Rate
Loan

	 
	 	(a)	 	The aggregate outstanding principal balance of such Loan is
$_____.

	 
	 	(b)	 	The principal amount of such Loan to be converted is
$_____.1

	 
	 	(c)	 	The requested effective date of the conversion of such Loan is
 _____.2

	 
	 	(d)	 	The requested Interest Period applicable to the converted Loan
is  _____.





 






	 	 	 
	1	 	Such amount shall be in a principal amount equal to
$1,000,000 or any whole multiple of $1,000,000 in excess thereof.

	 
	2	 	Notice must be delivered by no later than 1:00 p.m.
three (3) Business Days prior to the date of such conversion.



 


 









 










	 	o	 	 Converting a portion of LIBOR Rate Loan into a Base Rate Loan







	 	(a)	 	The aggregate outstanding principal balance of such Loan is
$_____.







	 	(b)	 	The last day of the current Interest Period for such Loan is

 _____.







	 	(c)	 	The principal amount of such Loan to be converted is
$_____. 3







	 	(d)	 	The requested effective date of the conversion of such Loan is

 _____.4

	 
	 	o	 	Continuing all or a portion of a LIBOR Rate Loan as a LIBOR Rate
Loan







	 	(a)	 	The aggregate outstanding principal balance of such Loan is
$_____.







	 	(b)	 	The last day of the current Interest Period for such Loan is

 _____.







	 	(c)	 	The principal amount of such Loan to be continued is
$_____.







	 	(d)	 	The requested effective date of the continuation of such Loan
is
 _____.5







	 	(e)	 	The requested Interest Period applicable to the continued Loan
is
 _____.






2. The aggregate principal amount of all Loans and L/C Obligations outstanding as of the date
hereof does not exceed the maximum amount permitted to be outstanding pursuant to the terms of the
Credit Agreement.



(c) 3. The representations and warranties contained in Article VII of the Credit
Agreement are true and correct in all material respects (except for those representations and
warranties that are already qualified by materiality or Material Adverse Effect, which are true,
correct and complete in all respects) on and as of the date of such continuation or conversion with
the same effect as if made on and as of such date, except for any representation and warranty made
as of an earlier date, which representation and warranty shall remain true and correct in all
material respects (except for those representations and warranties that are already
qualified by materiality or Material Adverse Effect, which shall be true, correct and complete
in all respects) as of such earlier date.




 





	 	 	 
	3	 	Such amount shall be in a principal amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof

	 
	4	 	Notice must be delivered by no later than 1:00 p.m.
three (3) Business Days prior to the date of such conversion

	 
	5	 	Notice must be delivered by no later than 1:00 p.m.
three (3) Business Days prior to the date of such continuation



 


2









 










(d)



(e) 4. No Default or Event of Default has occurred and is continuing on the continuation or
conversion date with respect to such Loan or after giving effect to the Loans to be continued or
converted on such date.



5. All of the other conditions applicable to the conversion or continuation of the Loan
requested herein as set forth in the Credit Agreement have been satisfied or waived as of the date
hereof and will remain satisfied or waived to the date of such conversion or continuation.



6. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.


 


3









 





IN WITNESS WHEREOF, the undersigned has executed this Notice of Conversion/Continuation as of
the day and year first written above.



	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 	 	By: AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 


4









 







EXHIBIT F




FORM OF OFFICER’S COMPLIANCE CERTIFICATE




The undersigned, being the [Chief Financial Officer][Treasurer] of AmeriGas Propane, Inc., a
Pennsylvania corporation (the “General Partner”), as the sole general partner of AmeriGas
Propane, L.P., a Delaware limited partnership (the “Borrower”), hereby certifies to the
Administrative Agent and the Lenders, each as defined in the Credit Agreement referred to below, as
follows:



1. This certificate is delivered to you [pursuant to Section 8.2 of][in connection with a
Permitted Acquisition under and as defined in] that certain Credit Agreement dated as of June 21,
2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrower, AmeriGas Propane, Inc., the Lenders from time to time
party thereto and Wells Fargo Bank, National Association, as Administrative Agent. Capitalized
terms used herein and not defined herein shall have the meanings assigned thereto in the Credit
Agreement.



2. I have reviewed the financial statements of the Borrower and its Subsidiaries dated as of

 _____ 
and for the
 _____ 
period[s] then ended and such statements fairly present
in all material respects the financial condition of the Borrower and its Subsidiaries as of the
dates indicated and the results of their operations and cash flows for the period[s] indicated
[(except for the absence of footnotes and subject to changes resulting from normal year-end
adjustments)]1[(except, in the case of such consolidating financial statements, for the
absence of footnotes)]2 in accordance with GAAP applied on a basis consistent with
prior fiscal periods except for inconsistencies resulting from changes in accounting principles and
methods agreed to by the Borrower’s independent accountants.



3. I have reviewed the terms of the Credit Agreement, and the related Loan Documents and have
made, or caused to be made under my supervision, a review in reasonable detail of the transactions
and the condition of the Borrower and its Subsidiaries during the accounting period covered by the
financial statements referred to in Paragraph 2 above. Such review has not disclosed the existence
or continuance of any condition or event that constitutes a Default or an Event of Default, nor do
I have any knowledge of the existence of any such condition or event as at the date of this
certificate [except, if such condition or event existed or exists, describe the nature and period
of existence thereof and what action the Borrower has taken, is taking and proposes to take with
respect thereto].



4. [The Applicable Margin, the Commitment Fee and calculations determining such figures are
set forth on the attached Schedule 1, the Borrower and its Subsidiaries are in compliance
with the financial covenants contained in Article X of the Credit Agreement as shown on such
Schedule 1.]3


 






	 	 	 
	1	 	Insert bracketed text for quarterly financial
statements.

	 
	2	 	Insert bracketed text for annual financial statements

	 
	3	 	Include for certificates delivered pursuant to Section
8.2



 


 









 









5. [The calculations that demonstrate which Domestic Subsidiaries are Material Subsidiaries
are set forth on the attached
Schedule 2.]4



6. [The Borrower and its Subsidiaries are in compliance on a Pro Forma Basis (as of the date
of the Permitted Acquisition and after giving effect thereto and any Indebtedness incurred in
connection therewith) with each covenant contained in Article X of the Credit Agreement as shown on
Schedule 1 attached
hereto.]5


 





	 	 	 
	4	 	Include for certificates delivered pursuant to Section
8.2

	 
	5	 	Include for certificates delivered in connection with
a Permitted Acquisition in excess of $25,000,000



 


 









 










WITNESS the following signature as of the day and year first written above.



	 	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title: [Chief Financial Officer][Treasurer]	 	 






 


 









 







Schedule 1

to

Officer’s Compliance Certificate




[To be provided in a form acceptable to the Administrative Agent]



 


 









 







Schedule 2

to

Officer’s Compliance Certificate




[To be provided in a form acceptable to the Administrative Agent]




 


 









 







EXHIBIT G




FORM OF ASSIGNMENT AND ASSUMPTION




This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [INSERT NAME OF ASSIGNOR] (the
“Assignor”) and the parties identified on the Schedules hereto and [the]
[each]1 Assignee identified on the Schedules hereto as [“Assignee”][“Assignees”]
([collectively, the “Assignees” and each an][the] “Assignee”). [It is understood
and agreed that the rights and obligations of [the
Assignees]2 hereunder are several
and not
joint.]3 Capitalized terms used but not defined herein shall have the meanings
given to them in the Credit Agreement identified below (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which
is hereby acknowledged by [the] [each] Assignee. The Standard Terms and Conditions set forth in
Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made
a part of this Assignment and Assumption as if set forth herein in full.



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to [the
Assignee] [the respective Assignees], and [the] [each] Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and
the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit
Agreement and any other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the facility identified below (including without limitation any
letters of credit, guarantees, and swingline loans included in such facility) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby or in any way
based on or related to any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned to [the] [any] Assignee pursuant to clauses (i) and
(ii) above being referred to herein collectively as, [the] [an] “Assigned
Interest”). Each such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.


 





	 	 	 
	1	 	For bracketed language here and elsewhere in this form
relating to the Assignee(s), if the assignment is to a single Assignee, choose
the first bracketed language. If the assignment is to multiple Assignees,
choose the second bracketed language.

	 
	2	 	Select as appropriate.

	 
	3	 	Include bracketed language if there are either
multiple Assignors or multiple Assignees.



 


 









 









	 	 	 	 	 
	1.

	 	Assignor:
	 	[INSERT NAME OF ASSIGNOR]
	 
	 	 	 	 
	 	 	[Assignor [is] [is not] a Defaulting Lender]
	 
	 	 	 	 
	2.

	 	Assignee(s):
	 	See Schedules attached hereto
	 
	 	 	 	 
	3.

	 	Borrower:
	 	AmeriGas Propane, L.P., a Delaware limited partnership
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Wells Fargo Bank, National Association, as the administrative agent under the Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Credit Agreement dated as of June 21, 2011 by and among the Borrower, AmeriGas Propane,
Inc., the Lenders from time to time parties thereto and the Administrative Agent (as amended,
restated, supplemented or otherwise modified from time to time)
	 
	 	 	 	 
	6.

	 	Assigned Interest:
	 	See Schedules attached hereto
	 
	 	 	 	 
	[7.

	 	Trade Date:
	 	
 _____ 
]4






[Remainder of Page Intentionally Left Blank]



 





	 	 	 
	4	 	To be completed if the Assignor and the Assignees
intend that the minimum assignment amount is to be determined as of the Trade
Date.



 


2









 









Effective
Date:  ____ _____, 2_____ [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



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



	 	 	 	 	 	 	 
	 	 	ASSIGNOR	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE[S]	 	 
	 
	 	 	 	 	 	 
	 	 	See Schedules attached hereto	 	 





 


3









 





	 	 	 	 	 
	[Consented
to and]5 Accepted:	 	 
	 
	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	Accepted:	 	 
	 
	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	as Swingline Lender	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	Accepted:	 	 
	 
	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	as Issuing Lender	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented
to:]6	 	 
	 
	 	 	 	 
	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 
	By: AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





 





	 	 	 
	5	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement. May also use a Master
Consent.

	 
	6	 	To be added only if the consent of the Borrower is
required by the terms of the Credit Agreement. May also use a Master Consent.






 


4











 




SCHEDULE 1

To Assignment and Assumption




By its execution of this Schedule, [the][each] Assignee agrees to the terms set forth in the
attached Assignment and Assumption.



Assigned Interests:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	 	 	 	 	Percentage	 	 	 	 
	 	 	Revolving Credit	 	 	Amount of	 	 	Assigned of	 	 	 	 
	 	 	Commitment/	 	 	Revolving Credit	 	 	Revolving Credit	 	 	 	 
	 	 	Loans for all	 	 	Commitment/	 	 	Commitment/	 	 	 	 
	Facility Assigned	 	Lenders7	 	 	Loans Assigned8	 	 	Loans9	 	 	CUSIP Number	 
	Revolving Credit
Facility
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 






	 	 	 	 	 
	 	 	[NAME OF
ASSIGNEE]10
	 	 	[and is an
Affiliate/Approved Fund of [identify
Lender]11]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
 Title:





 





	 	 	 
	7	 	Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.

	 
	8	 	Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.

	 
	9	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.

	 
	10	 	Add additional signature blocks, as needed.

	 
	11	 	Select as applicable.



 


5









 









ANNEX 1

to Assignment and Assumption




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



1.2. Assignee[s]. [The] [Each] Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under
Section 14.10(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as
may be required under Section 14.10(b)(iii) of the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and, to the extent of [the] [the relevant] Assigned Interest, shall have the obligations of a
Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the Person exercising discretion in making
its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v)
it has received a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to Section
8.1 thereof, as applicable, and such other documents and information as it deems appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase [the] [such] Assigned Interest, (vi) it has, independently and without reliance upon the
Administrative Agent, or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the] [such] Assigned Interest, and (vii) if it is a Foreign Lender,
attached to the Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent, [the]
[any] the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


6









 





2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the] [each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding
the Effective Date and to [the] [the relevant] Assignee for amounts which have accrued from and
after the Effective Date.



3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy or other electronic method of transmission shall be effective
as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law of the State of New
York.



[remainder of page intentionally left blank]




 


7









 







EXHIBIT H




FORM OF GUARANTY AGREEMENT




THIS GUARANTY AGREEMENT dated as of June 21, 2011 is executed and delivered by each of the
undersigned and the other Persons from time to time party hereto pursuant to the execution and
delivery of an Accession Agreement in the form of Annex I hereto (all of the undersigned,
together with such other Persons each a “Guarantor” and collectively, the
“Guarantors”) in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as
Administrative Agent (the “Administrative Agent”) for the Lenders under that certain Credit
Agreement dated as of June 21, 2011 (as amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Credit Agreement), by and among
AmeriGas Propane, L.P., a Delaware limited partnership (the “Borrower”), AmeriGas Propane,
Inc., a Pennsylvania corporation (the “General Partner”), the financial institutions party
thereto and their assignees under Section 14.10 thereof (the “Lenders”), the Administrative
Agent, and the other parties thereto, for its benefit and the benefit of the Lenders, the Swingline
Lender, the Issuing Lender and any Affiliate of a Lender or any other Person to whom Obligations
are owed from time to time (the Administrative Agent, the Lenders, the Swingline Lender, the
Issuing Lender, such Affiliates and such other Persons each individually a “Guarantied
Party” and collectively, the “Guarantied Parties”).



WHEREAS, pursuant to the Credit Agreement, the Administrative Agent and the Lenders have
agreed to make available to the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;



WHEREAS, the Borrower and each of the Guarantors, though separate legal entities, are mutually
dependent on each other in the conduct of their respective businesses as an integrated operation
and have determined it to be in their mutual best interests to obtain financing from the
Administrative Agent and the Lenders through their collective efforts;



WHEREAS, each Guarantor acknowledges that it will receive direct and indirect benefits from
the Administrative Agent and the Lenders making such financial accommodations available to the
Borrower under the Credit Agreement and, accordingly, each Guarantor is willing to guarantee the
Borrower’s obligations to the Guarantied Parties on the terms and conditions contained herein; and



WHEREAS, each Guarantor’s execution and delivery of this Guaranty is a condition to the
Guaranties Parties making, and continuing to make, such financial accommodations to the Borrower.



 


 









 





NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each Guarantor, each Guarantor hereby agrees as follows:




Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when due, whether at stated
maturity,
by acceleration or otherwise, of all of the following (collectively referred to as the
“Guarantied Obligations”): (a) all indebtedness, liabilities, obligations, covenants and
duties owing by the Borrower to the Administrative Agent or any other Guarantied Party under or in
connection with the Credit Agreement and any other Loan Document, including without limitation, the
repayment of all principal of the Loans, the Reimbursement Obligations and all other L/C
Obligations, and the payment of all interest, fees, charges, reasonable attorneys’ fees and other
amounts payable to the Administrative Agent or any other Guarantied Party thereunder or in
connection therewith (including, to the extent permitted by Applicable Law, interest, fees and
other amounts that would accrue and become due after the filing of a case or other proceeding under
the Bankruptcy Code (as defined below) or other similar Applicable Law but for the commencement of
such case or proceeding, whether or not such amounts are allowed or allowable in whole or in part
in such case or proceeding); (b) any and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; (c) all other Obligations; and (d) to the extent required under the
Credit Agreement, all expenses, including, without limitation, reasonable attorneys’ fees and
disbursements, that are incurred by the Administrative Agent or any of the other Guarantied Parties
in the enforcement of any of the foregoing or any obligation of such Guarantor hereunder.



Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a guaranty of
payment, and not of collection, and a debt of each Guarantor for its own account. Accordingly,
none of the Administrative Agent or the other Guarantied Parties shall be obligated or required
before enforcing this Guaranty against any Guarantor: (a) to pursue any right or remedy any of
them may have against the Borrower, any other Guarantor or any other Person or commence any suit or
other proceeding against the Borrower, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of the Borrower, any other
Guarantor or any other Person; or (c) to make demand of the Borrower, any other Guarantor or any
other Person or to enforce or seek to enforce or realize upon any collateral security held by the
Administrative Agent or any other Guarantied Party which may secure any of the Guarantied
Obligations.



Section 3. Guaranty Absolute. The liability of each Guarantor under this Guaranty
shall be absolute, irrevocable and unconditional in accordance with its terms and shall remain in
full force and effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever, including without
limitation, the following (whether or not such Guarantor consents thereto or has notice thereof):



(a) (i) any change in the amount, interest rate or due date or other term of any of the
Guarantied Obligations, (ii) any change in the time, place or manner of payment of all or any
portion of the Guarantied Obligations, (iii) any amendment or waiver of, or consent to the
departure from or other indulgence with respect to, the Credit Agreement, any other Loan Document,
or any other document or instrument evidencing or relating to any Guarantied Obligations, or (iv)
any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action
or inaction under or in respect of, the Credit Agreement, any of the other Loan Documents, or any
other documents, instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;


 


2









 





(b) any lack of validity or enforceability of the Credit Agreement, any of the other Loan
Documents, or any other document, instrument or agreement referred to therein or evidencing any
Guarantied Obligations or any assignment or transfer of any of the foregoing;



(c) any furnishing to the Administrative Agent or the other Guarantied Parties of any security
for the Guarantied Obligations, or any sale, exchange, release or surrender of, or realization on,
any collateral securing any of the Obligations;



(d) any settlement or compromise of any of the Guarantied Obligations, any security therefor,
or any liability of any other party with respect to the Guarantied Obligations, or any
subordination of the payment of the Guarantied Obligations to the payment of any other liability of
the Borrower or any other Credit Party;



(e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Guarantor, the Borrower, any other Credit
Party or any other Person, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding;



(f) any act or failure to act by the Borrower, any other Credit Party or any other Person
which may adversely affect such Guarantor’s subrogation rights, if any, against the Borrower to
recover payments made under this Guaranty;



(g) any nonperfection or impairment of any security interest or other Lien on any collateral
securing in any way any of the Guarantied Obligations;



(h) any application of sums paid by the Borrower, any other Guarantor or any other Person with
respect to the liabilities of the Borrower to the Administrative Agent or any other Guarantied
Party, regardless of what liabilities of the Borrower remain unpaid;



(i) any defect, limitation or insufficiency in the borrowing powers of the Borrower or in the
exercise thereof;



(j) any defense, set-off, claim or counterclaim which may at any time be available to or be
asserted by the Borrower, any other Credit Party or any other Person against the Administrative
Agent or any other Guarantied Party;



(k) any change in the corporate existence, structure or ownership of the Borrower or any other
Credit Party;



(l) any statement, representation or warranty made or deemed made by or on behalf of the
Borrower, any Guarantor or any other Credit Party under any Loan Document, or any amendment hereto
or thereto, proves to have been incorrect or misleading in any respect; or



(m) any other circumstance which might otherwise constitute a defense available to, or a
discharge of, a Guarantor hereunder.


 


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For the avoidance of doubt, notwithstanding anything contained herein to the contrary, in no event
shall the Guarantors waive the defense of the indefeasible payment and performance in full of the
Guarantied Obligations.



Section 4. Action with Respect to Guarantied Obligations. The Administrative Agent
and the other Guarantied Parties may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor from its obligations hereunder,
take any and all actions described in Section 3 and may otherwise: (a) amend, modify,
alter or supplement the terms of any of the Guarantied Obligations, including, but not limited to,
extending or shortening the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations; (b) amend, modify, alter or
supplement the Credit Agreement or any other Loan Document; (c) sell, exchange, release or
otherwise deal with all, or any part, of any collateral securing any of the Obligations, if any;
(d) release any other Credit Party or other Person liable in any manner for the payment or
collection of the Guarantied Obligations; (e) exercise, or refrain from exercising, any rights
against the Borrower, any other Guarantor or any other Person; and (f) apply any sum, by whomsoever
paid or however realized, to the Guarantied Obligations in such order as the Administrative Agent
shall elect.



Section 5. Representations and Warranties. Each Guarantor (other than the General
Partner) hereby makes to the Administrative Agent and the other Guarantied Parties all of the
representations and warranties made by the Borrower with respect to or in any way relating to such
Guarantor in the Credit Agreement and the other Loan Documents, as if the same were set forth
herein in full. The General Partner hereby makes to the Administrative Agent and the other
Guarantied Parties all of the representations and warranties made by the General Partner in the
Credit Agreement and the other Loan Documents, as if the same were set forth herein in full.



Section 6. Covenants. Each Guarantor will comply with all covenants which the
Borrower is to cause such Guarantor to comply with under the terms of the Credit Agreement or any
of the other Loan Documents. The General Partner will comply with all covenants which it is to
comply with under the terms of the Credit Agreement or any of the other Loan Documents.



Section 7. Waiver. Each Guarantor, to the fullest extent permitted by Applicable
Law, hereby waives notice of acceptance hereof or any presentment, demand, protest or notice of any
kind, and any other act or thing, or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.



Section 8. Inability to Accelerate Loan. If the Administrative Agent and/or the
other Guarantied Parties are prevented under Applicable Law or otherwise from demanding or
accelerating payment of any of the Guarantied Obligations by reason of any automatic stay or
otherwise, the Administrative Agent and/or the other Guarantied Parties shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which otherwise would have been due had
such demand or acceleration occurred.


 


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Section 9. Reinstatement of Guarantied Obligations. If claim is ever made on the
Administrative Agent or any of the other Guarantied Parties for repayment or recovery of any amount
or amounts received in payment or on account of any of the Guarantied Obligations, and the
Administrative Agent or such other Guarantied Party repays all or part of said amount by reason of
(a) any judgment, decree or order of any court or administrative body of competent jurisdiction, or
(b) any settlement or compromise of any such claim effected by the Administrative Agent or such
other Guarantied Party with any such claimant (including the Borrower or a trustee in bankruptcy
for the Borrower), then and in such event each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding on it, notwithstanding any revocation hereof or
the cancellation of the Credit Agreement, any of the other Loan Documents, or any other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and remain liable to the
Administrative Agent or such other Guarantied Party for the amounts so repaid or recovered to the
same extent as if such amount had never originally been paid to the Administrative Agent or such
other Guarantied Party.



Section 10. Subrogation. Upon the making by any Guarantor of any payment hereunder
for the account of the Borrower, such Guarantor shall be subrogated to the rights of the payee
against the Borrower; provided, however, that such Guarantor shall not enforce any
right or receive any payment by way of subrogation or otherwise take any action in respect of any
other claim or cause of action such Guarantor may have against the Borrower arising by reason of
any payment or performance by such Guarantor pursuant to this Guaranty, unless and until all of the
Guarantied Obligations have been indefeasibly paid and performed in full. If any amount shall be
paid to such Guarantor on account of or in respect of such subrogation rights or other claims or
causes of action, such Guarantor shall hold such amount in trust for the benefit of the
Administrative Agent and the other Guarantied Parties and shall forthwith pay such amount to the
Administrative Agent to be credited and applied against the Guarantied Obligations, whether matured
or unmatured, in accordance with the terms of the Credit Agreement or to be held by the
Administrative Agent as collateral security for any Guarantied Obligations existing.



Section 11. Payments Free and Clear. All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be paid in full in
accordance with the terms of the Credit Agreement, without set-off or counterclaim or any deduction
or withholding whatsoever (including any Taxes), and if any Guarantor is required by Applicable Law
or by a Governmental Authority to make any such deduction or withholding, such Guarantor shall pay
to the Administrative Agent and the other Guarantied Parties such additional amount as will result
in the receipt by the Administrative Agent and the other Guarantied Parties of the full amount
payable hereunder had such deduction or withholding not occurred or been required.



Section 12. Set-off. In addition to any rights now or hereafter granted under any of
the other Loan Documents or Applicable Law and not by way of limitation of any such rights, each
Guarantor hereby authorizes the Administrative Agent, each Lender and any of their respective
Affiliates, at any time while an Event of Default exists, without any prior notice to such
Guarantor or to any other Person, any such notice being hereby expressly waived, but in the case of
a Lender or an Affiliate of a Lender subject to receipt of the prior written consent of the
Administrative Agent exercised in its sole discretion, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held
or owing by the Administrative Agent, such Lender, or any Affiliate of the Administrative Agent or
such Lender, to or for the credit or the account of such Guarantor against and on account of any of
the Guarantied Obligations, although such obligations shall be contingent or unmatured.


 


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Section 13. Subordination. Each Guarantor hereby expressly covenants and agrees for
the benefit of the Administrative Agent and the other Guarantied Parties that all obligations and
liabilities of the Borrower to such Guarantor of whatever description, including without
limitation, all intercompany receivables of such Guarantor from the Borrower (collectively, the
“Junior Claims”) shall be subordinate and junior in right of payment to all Guarantied
Obligations. If an Event of Default shall exist, then no Guarantor shall accept any direct or
indirect payment (in cash, property or securities, by setoff or otherwise) from the Borrower on
account of or in any manner in respect of any Junior Claim until all of the Guarantied Obligations
have been indefeasibly paid in full.



Section 14. Avoidance Provisions. It is the intent of each Guarantor, the
Administrative Agent and the other Guarantied Parties that in any Proceeding (as defined below),
such Guarantor’s maximum obligation hereunder shall equal, but not exceed, the maximum amount which
would not otherwise cause the obligations of such Guarantor hereunder (or any other obligations of
such Guarantor to the Administrative Agent and the other Guarantied Parties) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of Applicable Law, including
without limitation, (a) Section 548 of the Bankruptcy Code and (b) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such Proceeding, whether by virtue of Section 544
of the Bankruptcy Code or otherwise. The Applicable Laws under which the possible avoidance or
unenforceability of the obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Administrative Agent and the other Guarantied Parties) shall be determined in any
such Proceeding are referred to as the “Avoidance Provisions”. Accordingly, to the extent
that the obligations of any Guarantor hereunder would otherwise be subject to avoidance under the
Avoidance Provisions, the maximum Guarantied Obligations for which such Guarantor shall be liable
hereunder shall be reduced to that amount which, as of the time any of the Guarantied Obligations
are deemed to have been incurred under the Avoidance Provisions, would not cause the obligations of
such Guarantor hereunder (or any other obligations of such Guarantor to the Administrative Agent
and the other Guarantied Parties), to be subject to avoidance under the Avoidance Provisions. This
Section is intended solely to preserve the rights of the Administrative Agent and the other
Guarantied Parties hereunder to the maximum extent that would not cause the obligations of any
Guarantor hereunder to be subject to avoidance under the Avoidance Provisions, and no Guarantor or
any other Person shall have any right or claim under this Section as against the Administrative
Agent and the other Guarantied Parties that would not otherwise be available to such Person under
the Avoidance Provisions.




 Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower and the other
Guarantors, and of all other circumstances bearing upon the risk of nonpayment of any of the
Guarantied
Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that neither the Administrative Agent nor any of the other Guarantied Parties
shall have any duty whatsoever to advise any Guarantor of information regarding such circumstances
or risks.


 


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Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSES SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICT
OF LAW RULES).




SECTION 17. WAIVER OF JURY TRIAL.



(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG ANY
GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF OTHER GUARANTIED PARTIES WOULD BE BASED ON DIFFICULT
AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES.
ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY WAIVES ITS RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN
WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN
OR AMONG ANY GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF THE OTHER GUARANTIED PARTIES OF ANY KIND
OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.



(b) EACH OF THE GUARANTORS HEREBY AGREES THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND
ANY APPELLATE COURT FROM ANY THEREOF SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN OR AMONG THE PARTIES HERETO, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH OF THE PARTIES HERETO
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY HERETO FURTHER WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH
AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY ADMINISTRATIVE AGENT OR ANY OTHER GUARANTIED PARTY
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION OR THE ENFORCEMENT BY ANY
SUCH PARTY OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


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(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS GUARANTY.



Section 18. Loan Accounts. The Administrative Agent and each Lender may maintain
books and accounts setting forth the amounts of principal, interest and other sums paid and payable
with respect to the Guarantied Obligations, and in the case of any dispute relating to any of the
outstanding amount, payment or receipt of any of the Guarantied Obligations or otherwise, the
entries in such books and accounts shall be deemed conclusive evidence of the amounts and other
matters set forth herein, absent manifest error. The failure of the Administrative Agent or any
Lender to maintain such books and accounts shall not in any way relieve or discharge any Guarantor
of any of its obligations hereunder.



Section 19. Waiver of Remedies. No delay or failure on the part of the
Administrative Agent or any of the other Guarantied Parties in the exercise of any right or remedy
it may have against any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Administrative Agent or any of the other Guarantied Parties of
any such right or remedy shall preclude any other or further exercise thereof or the exercise of
any other such right or remedy.



Section 20. Termination. This Guaranty shall remain in full force and effect until
the termination of the Credit Agreement in accordance with Section 14.18 of the Credit Agreement.



Section 21. Successors and Assigns. Each reference herein to the Administrative
Agent or the other Guarantied Parties shall be deemed to include such Person’s respective
successors and assigns (including, but not limited to, any holder of the Guarantied Obligations) in
whose favor the provisions of this Guaranty also shall inure, and each reference herein to each
Guarantor shall be deemed to include such Guarantor’s successors and assigns, upon whom this
Guaranty also shall be binding. The Lenders may, in accordance with the applicable provisions of
the Credit Agreement, assign, transfer or sell any Guarantied Obligation, or grant or sell
participations in any Guarantied Obligations, to any Person without the consent of, or notice to,
any Guarantor and without releasing, discharging or modifying any Guarantor’s obligations
hereunder. Subject to Section 14.11 of the Credit Agreement, each Guarantor hereby consents to the
delivery by the Administrative Agent, any Lender or the Issuing Lender to any assignee or
Participant (or any prospective assignee or Participant) of any financial or other information
regarding the Borrower or any Guarantor. No Guarantor may assign or transfer its rights or
obligations hereunder to any Person without the prior written consent of the Administrative Agent
and the applicable Guarantied Parties as provided in the Credit Agreement and any such
assignment or other transfer to which the Administrative Agent and the other applicable Guarantied
Parties have not so consented shall be null and void.


 


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Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE GUARANTORS
HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE
FOR THE FULL AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE OBLIGATIONS AND LIABILITIES OF
EACH OF THE OTHER GUARANTORS HEREUNDER.



Section 23. Amendments. This Guaranty may not be amended except in a writing signed
by the Administrative Agent, on behalf of the Guarantied Parties, and each Guarantor.



Section 24. Payments. All payments to be made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Administrative Agent at
the Administrative Agent’s Office, not later than 3:00 p.m. on the date of demand therefor.



Section 25. Notices. All notices, requests and other communications hereunder shall
be in writing (including facsimile transmission or similar writing) and shall be given (a) to each
Guarantor at its address set forth below its signature hereto, (b) to the Administrative Agent, the
Swingline Lender, the Issuing Lender or any Lender at its respective address for notices provided
for in the Credit Agreement, or (c) as to each such party at such other address as such party shall
designate in a written notice to the other parties. Each such notice, request or other
communication shall be effective (i) if mailed, when received; (ii) if telecopied, when
transmitted; or (iii) if hand delivered, when delivered; provided, however, that
any notice of a change of address for notices shall not be effective until received.



Section 26. Severability. In case any provision of this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



Section 27. Headings. Section headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.



Section 28. Limitation of Liability. Neither the Administrative Agent nor any of the
other Guarantied Parties, nor any Related Party of the Administrative Agent or any of the other
Guarantied Parties, shall have any liability with respect to, and, to the fullest extent permitted
by Applicable Law, each Guarantor hereby waives, releases, and agrees not to sue any of them upon,
any claim for any special, indirect, incidental, or consequential damages suffered or incurred by a
Guarantor in connection with, arising out of, or in any way related to, this Guaranty or any of the
other Loan Documents, or any of the transactions contemplated by this Guaranty, the Credit
Agreement or any of the other Loan Documents. To the fullest extent permitted by Applicable Law,
each Guarantor hereby waives, releases, and agrees not to sue the Administrative Agent or any of
the other Guarantied Parties or any of the Administrative Agent’s or of any other Guarantied
Parties’ Related Parties for punitive damages in respect of any claim in connection with, arising
out of, or in any way related to, this Guaranty, the Credit Agreement
or any of the other Loan Documents, or any of the transactions contemplated by Credit Agreement or
financed thereby.


 


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Section 29. Electronic Delivery of Certain Information. Each Guarantor acknowledges
and agrees that information regarding the Guarantor may be delivered electronically pursuant to
Section 14.1(b) of the Credit Agreement.



Section 30. Costs and Expenses. Each Guarantor hereby, jointly and severally, agrees
to pay, to the extent required by the terms of the Credit Agreement, all reasonable out of pocket
costs and expenses of each Guarantied Party in connection with the enforcement of this Guaranty
Agreement and any amendment, waiver or consent relating hereto (including without limitation the
reasonable fees and disbursements of counsel employed by any of the Guarantied Parties).



Section 31. Certain Rights. Notwithstanding any other provision of this Guaranty
Agreement, the Borrower may liquidate, sell or dispose of, directly or indirectly, any Material
Subsidiary to the extent permitted by the terms of the Credit Agreement. At the time of any such
liquidation, sale or disposition or release, such Material Subsidiary shall cease to be a Guarantor
hereunder and shall have no further liability or obligations arising from this Guaranty Agreement
and the Administrative Agent shall, at the request and expense of such Material Subsidiary, execute
any necessary documents or instruments confirming such Material Subsidiary’s release from any
further liability or obligation hereunder.



Section 32. Additional Guarantors. If, pursuant to Section 9.11 of the Credit
Agreement, the Borrower shall be required to cause any Person that is not a Guarantor to become a
Guarantor hereunder, such Person shall execute and deliver to the Administrative Agent an Accession
Agreement substantially in the form of Annex I hereto and shall thereafter for all purposes
be party hereto as a “Guarantor”, having the same rights, benefits and obligations as a Guarantor
initially party hereto. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any other Guarantor
hereunder. The rights and obligations of each Guarantor as a “Guarantor” hereunder shall remain in
full force and effect notwithstanding the addition of any new Guarantor as a party to this
Agreement.




Section 33. Definitions. For the purposes of this Guaranty:



“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as
amended from time to time, and any successor statute or statutes and all rules and regulations from
time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy,
insolvency or creditors’ rights.


 


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“Proceeding” means any of the following: (i) a voluntary or involuntary case
concerning any Guarantor shall be commenced under the Bankruptcy Code; (ii) a custodian (as defined
in such Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or takes charge
of, all or any substantial part of the property of any Guarantor; (iii) any other proceeding under
any Applicable Law, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up or composition for adjustment of debts, whether now or hereafter in effect, is
commenced relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v)
any order of relief or other order approving any such case or proceeding is entered by a court of
competent jurisdiction; (vi) any Guarantor makes a general assignment for the benefit of creditors;
(vii) any Guarantor shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts; (ix) any Guarantor
shall by any act or failure to act indicate its consent to, approval of or acquiescence in any of
the foregoing; or (x) any corporate action shall be taken by any Guarantor for the purpose of
effecting any of the foregoing.



[Signatures on Next Page]




 


11









 







IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty as of the
date and year first written above.



	 	 	 	 	 	 	 
	GUARANTORS:	 	AMERIGAS PROPANE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Attn:                                                             	 	 
	 	 	Telecopy Number:                                                                                 	 	 
	 	 	Telephone Number:                                                                                 	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Attn:                                                             	 	 
	 	 	Telecopy Number:                                                             	 	 
	 	 	Telephone Number:                                                             	 	 





Guaranty

 


S-1









 







ANNEX I




FORM OF ACCESSION AGREEMENT




THIS ACCESSION AGREEMENT dated as of
 _____, 201_____, executed and delivered by

 _____, a
 _____ 
(the “New Guarantor”), in favor of WELLS FARGO
BANK, NATIONAL ASSOCIATION, in its capacity as Administrative Agent for the Guarantied Parties (the
“Administrative Agent”), under that certain Credit Agreement dated as of June 21, 2011 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among AmeriGas Propane, L.P., a Delaware limited partnership (the
“Borrower”), AmeriGas Propane, Inc., a Pennsylvania corporation, the Lenders from time to
time party thereto the Administrative Agent, and the other parties thereto.



WHEREAS, pursuant to the Credit Agreement, the Guarantied Parties have agreed to make
available to the Borrower certain financial accommodations on the terms and conditions set forth in
the Credit Agreement;



WHEREAS, to in connection with the Credit Agreement and the other Loan Documents, the General
Partner and the other “Guarantors” thereunder have executed and delivered that certain Guaranty
Agreement dated as of June 21, 2011 (as amended, restated, supplemented or otherwise modified from
time to time, the “Guaranty”; capitalized terms used but not otherwise defined herein shall
have the meanings given to such terms in the Guaranty or, if not defined therein, in the Credit
Agreement) in favor of the Administrative Agent; and



WHEREAS, pursuant to Section 9.11 of the Credit Agreement, new Material Subsidiaries must
execute and deliver certain Loan Documents, including the Guaranty, and the execution and delivery
of the Guaranty by the New Guarantor may be accomplished by the execution of this Accession
Agreement in favor of the Administrative Agent, for the benefit of the Guarantied Parties.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the New Guarantor, the New Guarantor agrees as follows:



Section 1. Accession to Guaranty. In accordance with Section 32 of the Guaranty, the
New Guarantor, by its signature below, becomes a “Guarantor” under the Guaranty with the same force
and effect as if originally named therein and assumes all obligations of a “Guarantor” thereunder,
and the New Guarantor hereby (a) agrees to all of the terms and provisions of the Guaranty
applicable to it as a “Guarantor” thereunder and (b) represents and warrants that the
representations and warranties made by it as a “Guarantor” thereunder are true and correct on and
as of the date hereof. Each reference to a “Guarantor” in the Guaranty shall be deemed to include
the New Guarantor. The Guaranty is incorporated herein by reference. Without limiting the
generality of the foregoing, the New Guarantor hereby:



(a) irrevocably and unconditionally guarantees the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all Guarantied Obligations;


 


1









 





(b) makes to the Administrative Agent and the Guarantied Parties as of the date hereof each of
the representations and warranties contained in Section 5 of the Guaranty and agrees to be bound by
each of the covenants contained in Section 6 of the Guaranty; and




(c) consents and agrees to each provision set forth in the Guaranty.



Section 2. Representations and Warranties. The New Guarantor hereby represents and
warrants to the Administrative Agent, for the benefit of the Guarantied Parties, that this
Accession Agreement has been duly executed and delivered by such New Guarantor and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally and by general principles of equity.



SECTION 3. GOVERNING LAW. THIS ACCESSION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT
TO THE CONFLICT OF LAW PRINCIPLES THEREOF EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).



Section 4. Counterparts. This Accession Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, but all of which shall
together constitute one and the same instrument. Delivery of an executed counterpart of this
Accession Agreement by facsimile or other electronic method of transmission shall be equally
effective as delivery of an original executed counterpart.



Section 5. Effect. Except as expressly supplemented hereby, the Guaranty shall
remain in full force and effect.



[Signatures on Next Page]



 


2









 







IN WITNESS WHEREOF, the New Guarantor has caused this Accession Agreement to be duly executed
and delivered under seal by its duly authorized officers as of the date first written above.



	 	 	 	 	 	 	 
	 	 	[NAME OF NEW GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Attn:              
                     
                     
                      
   	 	 
	 	 	Telecopy Number:                                                             	 	 
	 	 	Telephone Number:                                                             	 	 






Accepted:



WELLS FARGO BANK, NATIONAL
ASSOCIATION, 

as Administrative
Agent



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






 


3









 







EXHIBIT I




FORM OF JOINDER AGREEMENT




THIS JOINDER AGREEMENT dated as of _______ _____, 20_____ 
(this “Agreement”) is executed by

 _____ 
(the “New Lender”).



WHEREAS, AMERIGAS PROPANE, L.P., a Delaware limited partnership (the “Borrower”),
AMERIGAS PROPANE, INC., a Pennsylvania corporation (the “General Partner”), the lenders
from time to time party thereto (the “Lenders”), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent for the Lenders (the “Administrative Agent”) have
entered into that certain Credit Agreement dated as of June 21, 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the
Credit Agreement); and



WHEREAS, pursuant to Section 5.14 of Credit Agreement, the Borrower has requested New Loan
Revolving Credit Commitments in the amount of $_____; and



WHEREAS, the New Lender desires to become a “Lender” under the Credit Agreement as provided in
Section 5.14 of the Credit Agreement.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged by the parties hereto, the parties hereto hereby agree as follows:



Section 1. Joinder. Effective as of the date hereof (the “Effective Date”),
the New Lender acknowledges and agrees that it shall be a Lender under the Credit Agreement having
a New Loan Revolving Credit Commitment in the amount of $_____ 
and shall have all of the
rights and obligations of a Lender under the Credit Agreement and the other Loan Documents,
including without limitation, all voting rights associated with the New Loan Revolving Credit
Commitment, all rights to receive interest on the amount of the New Loans made by the New Lender
and all commitment and other fees with respect to the New Loan Revolving Credit Commitment and
other rights of a Lender under the Credit Agreement and the other Loan Documents with respect to
the New Loan Revolving Credit Commitment. From and after the Effective Date, the New Lender,
subject to the terms and conditions hereof, hereby assumes all obligations required of it as a
Lender under the terms of the Credit Agreement with respect to the New Loan Revolving Credit
Commitment, which obligations shall include, but shall not be limited to, the obligation to make
Revolving Credit Loans to the Borrower with respect to the New Loan Revolving Credit Commitment,
the obligation to pay the Issuing Bank amounts due in respect of draws under Letters of Credit as
required under Section 3.4 of the Credit Agreement, the obligation to refund the Swingline Lender
for Swingline Loans as required under Section 2.2(b) of the Credit Agreement, and the obligation to
indemnify the Administrative Agent as provided in the Credit Agreement. In addition to the
foregoing, on the date hereof, the New Lender agrees to purchase from the other Lenders its Pro
Rata Share (as determined after giving effect to the New Loan Revolving Credit Commitment) of any
outstanding Revolving Loans, by making available to the Administrative Agent for the account of
such other Lenders, in same day funds, an amount equal to the sum of
(A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by
the New Lender plus (B) interest accrued and unpaid to and as of such date on such portion
of the outstanding principal amount of such Revolving Loans on the day other than the last day of
an Interest Period. The maturity date of the New Loans shall be [the Revolving Credit Maturity
Date][_____, 201_____]. The Applicable Margin for the New Loans shall be [_____].


 


1









 






Section 2. Representations, Warranties and Agreements of the New Lender.



(a) Generally. The New Lender (i) represents and warrants to the Administrative
Agent, the Lenders and the Borrower that it is legally authorized to enter into this Agreement;
(ii) confirms that it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant thereto and such other documents and information
(including the Loan Documents) as it has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement; (iii) appoints and authorizes the Administrative Agent to
take such action as contractual representative on its behalf and to exercise such powers under the
Loan Documents as are specifically delegated to the Administrative Agent by the terms thereof
together with such powers as are reasonably incidental thereto; (iv) agrees that it will become a
party to and shall be bound by the Credit Agreement, the other Loan Documents to which the other
Lenders are a party on the Effective Date and, on and after the Effective Date, will perform in
accordance therewith all of the obligations which are required to be performed by it as a Lender;
and (v) has delivered to the Administrative Agent (with an additional copy for the Borrower) such
items required by the Administrative Agent.



(b) Representations to the Administrative Agent and Lenders. The New Lender makes and
confirms to the Administrative Agent and the Lenders all of the acknowledgements, agreements,
covenants and indemnifications of a Lender under the Credit Agreement. Not in limitation of the
foregoing, the New Lender acknowledges and agrees that (i) it has, independently and without
reliance upon the Administrative Agent, any other Lender or counsel to the Administrative Agent, or
any of their respective officers, directors, employees, agents or any other affiliates or
subsidiaries thereof, and based on the financial statements supplied by the General Partner, the
Borrower, the Subsidiaries and such other documents and information as it has deemed appropriate,
made its own credit and legal analysis and decision to become a Lender under the Credit Agreement;
(ii) it will, independently and without reliance upon the Administrative Agent, any other Lender or
counsel to the Administrative Agent or any of their respective officers, directors, employees and
agents, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit Agreement
or any Note or pursuant to any other Loan Document or pursuant to any other obligation; (iii) the
Administrative Agent shall have no duty or responsibility, either initially or on a continuing
basis, to provide the New Lender with any credit or other information with respect to the Borrower,
any other Credit Party or any other Affiliate thereof or to notify the undersigned of any Event of
Default except as expressly provided in the Credit Agreement and (iv) it has not relied on the
Administrative Agent as to any legal or factual matter in connection therewith or in connection
with the transactions contemplated thereunder.



Section 3. Address and Payment Instructions. The New Lender specifies as its address
for notices under the Credit Agreement and as its Lending Office for all Revolving Credit Loans the
offices set forth in its Administrative Questionnaire delivered to the Administrative Agent.
All payments to be made to the New Lender under the Credit Agreement shall be made as provided in
the Credit Agreement in accordance with the payment instructions set forth on the Administrative
Questionnaire.


 


2









 





Section 4. Effectiveness of Agreement. This Agreement shall not be effective until
this Agreement is executed and delivered by the New Lender and acknowledged by the Administrative
Agent and the Borrower.




Section 5. Agreements and Representations of the Borrower.



(a) The Borrower hereby agrees that (i) the New Lender shall be a Lender under the Credit
Agreement having the Revolving Credit Commitment set forth herein, (ii) the Borrower shall perform
all obligations to the New Lender that are required to be performed by it under the terms of the
Credit Agreement with respect to a Lender having the Revolving Credit Commitment set forth herein,
and (iii) the New Lender shall have all of the rights and remedies of a Lender under the Credit
Agreement and the other Loan Documents as if the New Lender were an original Lender under and
signatory to the Credit Agreement. Further, the New Lender shall be entitled to the
indemnification provisions from the Borrower in favor of the Lenders as provided in the Credit
Agreement and the other Loan Documents.



(b) The Borrower represents and warrants that (i) no Default or Event of Default is in
existence as of the date hereof before or after giving effect to (A) any New Loan Revolving Credit
Commitment, and (B) the making of the New Loan pursuant hereto, (ii) no representation or warranty
made or deemed made by the Borrower or any other Credit Party in any Loan Document to which any
such Credit Party is a party is untrue or incorrect as of the date hereof or will be untrue or
incorrect after giving effect to this Agreement (except for representations or warranties which
expressly relate solely to an earlier date), (iii) the proceeds of the New Loan shall be used for
the purposes permitted by Section 9.13(b) of the Credit Agreement, and (iv) the New Loan Revolving
Credit Commitment (and the New Loan made hereunder) shall constitute Obligations of the Borrower
and shall be guaranteed with the other Extensions of Credit on a pari passu basis.



Section 6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE.



Section 7. Counterparts. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the same agreement.
Delivery of an executed signature page of this Agreement by facsimile or other electronic method of
transmission shall be effective as delivery of a manually executed counterparty hereof.



Section 8. Headings. Section headings have been inserted herein for convenience only
and shall not be construed to be a part hereof.



Section 9. Amendments; Waivers. This Agreement may not be amended, changed, waived
or modified except by a writing executed by the New Lender and the Administrative Agent.


 


3









 





Section 10. Binding Effect. This Agreement shall be binding upon the New Lender, and
its successors and permitted assigns and shall inure to the benefit of the Borrower, the
Administrative Agent, and the Lenders, and their respective successors and permitted assigns.



Section 11. Entire Agreement. This Agreement embodies the entire agreement of the
parties with respect to the subject matter hereof and supersedes all other prior arrangements and
understandings relating to the subject matter hereof.



[remainder of page intentionally left blank]



 


4









 





IN WITNESS WHEREOF, the undersigned has duly executed this Joinder Agreement as of the date
and year first written above.



	 	 	 	 	 	 	 
	 	 	[NAME OF NEW LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 
Name:
	 	 
	 

	 	 	 	Title:	 	 






Acknowledged and Accepted as of the

date first written above.



WELLS FARGO BANK, NATIONAL ASSOCIATION, as
  
Administrative Agent



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	AMERIGAS PROPANE, L.P., as Borrower	 	 
	 
	 	 	 	 
	By: AmeriGas Propane, Inc., its General Partner	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






 












 







SCHEDULE 1.1-1




EXISTING LETTERS OF CREDIT





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LOC #	 	Issue Date	 	Expiry Date	 	Issuing Bank	 	Beneficiary	 	 	Amount	 
	 
	SM204266W
	 	8/28/2003	 	7/30/2011	 	Wells Fargo Bank	 	ACE American	 	$	15,862,300	 
	 
	 	 	 	 	 	(as successor to	 	Insurance Co.	 	 	 	 
	 
	 	 	 	 	 	Wachovia Bank)	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SM209193
	 	7/30/2004	 	7/30/2011	 	Wells Fargo Bank	 	ACE American	 	$	16,146,715	 
	 
	 	 	 	 	 	(as successor to	 	Insurance Co.	 	 	 	 
	 
	 	 	 	 	 	Wachovia Bank)	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SM204265W
	 	8/7/2003	 	8/7/2011	 	Wells Fargo Bank	 	Lumberman’s Mutual	 	$	1,410,000	 
	 
	 	 	 	 	 	(as successor to	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Wachovia Bank)	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SM204271W
	 	8/7/2003	 	8/7/2011	 	Wells Fargo Bank	 	National Union	 	$	1,803,077	 
	 
	 	 	 	 	 	(as successor to	 	Fire Ins. Co.	 	 	 	 
	 
	 	 	 	 	 	Wachovia Bank)	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	519451
	 	8/26/1996	 	8/22/2011	 	Wells Fargo Bank	 	Pacific Employers	 	$	455,789	 
	 
	 	 	 	 	 	(as successor to	 	Ins. Co.	 	 	 	 
	 
	 	 	 	 	 	Wachovia Bank)	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL EXISTING LETTERS OF CREDIT	 	 	 	 	 	$	35,677,881	 
	 	 	 	 	 	 	 	 	 	 	 	 	 





 


 









 







SCHEDULE 1.1-2




REVOLVING CREDIT COMMITMENTS




	 	 	 	 	 
	Revolving Credit Lender	 	Revolving Credit Commitment	 
	 
	 	 	 	 
	Wells Fargo Bank, National Association
	 	$	44,000,000	 
	Branch Banking and Trust Company
	 	$	33,000,000	 
	Citibank, N.A.
	 	$	33,000,000	 
	JPMorgan Chase Bank, N.A.
	 	$	33,000,000	 
	PNC Bank, National Association
	 	$	33,000,000	 
	Citizens Bank of Pennsylvania
	 	$	33,000,000	 
	The Bank of New York Mellon
	 	$	30,000,000	 
	Compass Bank
	 	$	21,500,000	 
	Manufacturers and Traders Trust Company
	 	$	21,500,000	 
	Sovereign Bank
	 	$	21,500,000	 
	TD Bank, N.A.
	 	$	21,500,000	 
	 	 	 	 
	 
	 	 	 	 
	TOTAL
	 	$	325,000,000	 
	 	 	 	 






 


 









 







SCHEDULE 7.1




JURISDICTIONS OF ORGANIZATION AND QUALIFICATION




AmeriGas Propane, Inc.

Jurisdiction of Organization:      Pennsylvania

Jurisdictions of Qualification:




	 	 	 
	Alabama
	 	Montana
	Alaska
	 	Nebraska
	Arizona
	 	Nevada
	Arkansas
	 	New Hampshire
	California
	 	New Jersey
	Colorado
	 	New Mexico
	Connecticut
	 	New York
	Delaware
	 	North Carolina
	District of Columbia
	 	North Dakota
	Florida
	 	Ohio
	Georgia
	 	Oklahoma
	Hawaii
	 	Oregon
	Idaho
	 	Rhode Island
	Illinois
	 	South Carolina
	Indiana
	 	South Dakota
	Iowa
	 	Tennessee
	Kansas
	 	Texas
	Kentucky
	 	Utah





 


 









 





	 	 	 
	Louisiana
	 	Vermont
	Maine
	 	Virginia
	Maryland
	 	Washington
	Massachusetts
	 	West Virginia
	Michigan
	 	Wisconsin
	Minnesota
	 	Wyoming
	Mississippi
	 	 
	Missouri
	 	 





 


 









 





AmeriGas Propane, L.P.

Jurisdiction of Organization:      Delaware

Jurisdictions of Qualification:




	 	 	 
	Alabama
	 	Montana
	Alaska
	 	Nebraska
	Arizona
	 	Nevada
	Arkansas
	 	New Hampshire
	California
	 	New Jersey
	Colorado
	 	New Mexico
	Connecticut
	 	New York
	District of Columbia
	 	North Carolina
	Florida
	 	North Dakota
	Georgia
	 	Ohio
	Hawaii
	 	Oklahoma
	Idaho
	 	Oregon
	Illinois
	 	Pennsylvania
	Indiana
	 	Rhode Island
	Iowa
	 	South Carolina
	Kansas
	 	South Dakota
	Kentucky
	 	Tennessee
	Louisiana
	 	Texas
	Maine
	 	Utah
	Maryland
	 	Vermont
	Massachusetts
	 	Virginia
	Michigan
	 	Washington
	Minnesota
	 	West Virginia
	Mississippi
	 	Wisconsin
	Missouri
	 	Wyoming





 


 









 





SCHEDULE 7.2




SUBSIDIARIES AND CAPITALIZATION




AmeriGas Propane, Inc.




Subsidiaries owned by the General Partner:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Entity Name	 	Equity/Interest	 	Authorized	 	 	Issued	 	 	Outstanding	 	 	% Owned	 
	AmeriGas Propane, L.P.
	 	General Partnership Interest	 	 	—	 	 	 	—	 	 	 	—	 	 	 	1.010100	 
	AmeriGas Technology Group, Inc.
	 	Common Stock	 	 	1	 	 	 	1	 	 	 	1	 	 	 	100	 
	Petrolane Incorporated
	 	Common Stock	 	 	100	 	 	 	100	 	 	 	100	 	 	 	100	 






Capitalization of the General Partner:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Holder	 	Equity/Interest	 	Authorized	 	 	Issued	 	 	Outstanding	 	 	% Owned	 
	AmeriGas, Inc.
	 	Common Stock	 	 	100	 	 	 	100	 	 	 	 	 	 	 	100	 






AmeriGas Propane, L.P.




Subsidiaries owned by the Partnership:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Entity Name	 	Equity/Interest	 	Authorized	 	 	Issued	 	 	Outstanding	 	 	% Owned	 
	AmeriGas Eagle Holdings, Inc.
	 	Common Stock	 	 	3,000	 	 	 	1,000	 	 	 	1,000	 	 	 	100	 
	AmerE Holdings, Inc.
	 	Common Stock	 	 	100	 	 	 	100	 	 	 	100	 	 	 	100	 
	Active Propane of Wisconsin LLC
	 	Membership Interest	 	 	—	 	 	 	—	 	 	 	—	 	 	 	100	 
	AmeriGas Propane Parts & Service, Inc.
	 	Common Stock	 	 	1,000	 	 	 	1,000	 	 	 	1,000	 	 	 	100	 






Capitalization of the Partnership:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Holder	 	Equity/Interest	 	Authorized	 	 	Issued	 	 	Outstanding	 	 	% Owned	 
	AmeriGas Propane, Inc.
	 	General Partnership Interest	 	 	—	 	 	 	—	 	 	 	—	 	 	 	1.0101	 
	AmeriGas Partners, L.P.
	 	Limited Partnership Interest	 	 	—	 	 	 	—	 	 	 	—	 	 	 	98.8899	 
	AmeriGas Eagle Holdings, Inc.
	 	Limited Partnership Interest	 	 	—	 	 	 	—	 	 	 	—	 	 	 	.1	 





 


 









 





SCHEDULE 7.8




ENVIRONMENTAL LIABILITIES




By letter dated March 6, 2008, the New York State Department of Environmental Conservation
(“DEC”) notified the Borrower that DEC had placed property owned by the Borrower in Saranac Lake,
New York on its Registry of Inactive Hazardous Waste Disposal Sites. A site characterization study
performed by DEC disclosed contamination related to former manufactured gas plant (“MGP”)
operations on the site. DEC has classified the site as a significant threat to public health or
environment with further action required. The Borrower has researched the history of the site and
its ownership interest in the site. The Borrower has reviewed the preliminary site characterization
study prepared by the DEC, the extent of the contamination, and the possible existence of other
potentially responsible parties. The Borrower has communicated the results of its research to DEC
and is awaiting a response before doing any additional investigation. Because of the preliminary
nature of available environmental information, the ultimate amount of expected clean up costs
cannot be reasonably estimated.


 


 









 





SCHEDULE 7.9




ERISA PLANS




AmeriGas Propane, Inc.




AmeriGas Propane, Inc. Supplemental Executive Retirement Plan

AmeriGas Propane, Inc. Executive Employee Severance Plan

AmeriGas Propane, Inc. Senior Executive Employee Severance Plan

AmeriGas Propane, Inc. Severance Plan for Exempt Employees in Salary Grades 20-24

AmeriGas Propane, Inc. Severance Plan for Employees in Grades 19 and Below

AmeriGas Propane, Inc. Non-Qualified Deferred Compensation Plan

AmeriGas Propane, Inc. Health and Welfare Plan

AmeriGas Propane, Inc. Savings Plan



UGI Corporation





UGI Corporation 2009 Supplemental Retirement Plan for New Employees

UGI Corporation Supplemental Executive Retirement Plan and Supplemental Savings Plan

UGI Corporation Severance Plan for Exempt Employees in Salary Grades 54 and Below and All Non-Exempt Employees

UGI Corporation Executive Employee Severance Plan

UGI Corporation Senior Executive Employee Severance Plan

UGI Corporation Severance Plan for Exempt Employees in Salary Grades 55-62

UGI Corporation 2009 Deferral Plan

UGI Corporation Annual Bonus Plan, Revised 10/1/1995



UGI Utilities, Inc.




UGI Utilities, Inc. Executive Employee Severance Plan

UGI Utilities, Inc. Senior Executive Employee Severance Plan

UGI Utilities, Inc. Severance Plan for Exempt Employees in Salary Grades 17 and Below and All Non-Exempt Employees

UGI Utilities, Inc. Severance Plan for Exempt Employees in Salary Grades 18-26

UGI Utilities, Inc. Health and Welfare Program

UGI Utilities, Inc. Health and Welfare Program for Retired Employees and their Dependents

Retirement Income Plan for Employees of UGI Utilities, Inc.

UGI Utilities, Inc. Savings Plan



UGI Energy Services, Inc.




UGI Energy Services, Inc. Supplemental Executive Retirement Plan



UGI HVAC Enterprises, Inc.




UGI HVAC Enterprises, Inc. Savings Plan

UGI HVAC Enterprises, Inc. Health and Welfare Plan



UGI Central Penn Gas Inc.



Penn Fuel Gas, Inc. Supplemental Executive Retirement Plan


 


 









 





SCHEDULE 7.21




INDEBTEDNESS AND GUARANTY OBLIGATIONS





	1.	 	Outstanding Letters of Credit — See Schedule 1.1-1

	 
	2.	 	Notes Payable by the Borrower (Maturing within 12 months) — $1,908,320

	 
	3	 	Noncompete Payments payable by the Borrower (Relating to 33 acquisitions) — $11,991,600




 


 









 










SCHEDULE 11.2




EXISTING LIENS




None.


 


 









 





Schedule 11.3




EXISTING LOANS, ADVANCES AND INVESTMENTS




None.


 


 









 





Schedule 11.7




TRANSACTIONS WITH AFFILIATES




Pursuant to the Partnership Agreement and a Management Services Agreement between AmeriGas
Eagle Holdings, Inc., the general partner of AmeriGas Eagle Propane, Inc. prior to its merger with
the Borrower on October 1, 2010, and the General Partner, the General Partner is entitled to
reimbursement for all direct and indirect expenses incurred or payments it makes on behalf of the
Borrower. These costs which totaled $102,485,000 and $196,193,000 for the three and six months
ended March 31, 2011, respectively, and $97,634 and $188,129 for the three and six months ended
March 31, 2010, respectively, include employee compensation and benefit expenses of employees of
the General Partner and general and administrative expenses.



UGI provides certain financial and administrative services to the General Partner. UGI bills the
General Partner monthly for all direct and indirect corporate expenses incurred in connection with
providing these services and the General Partner is reimbursed by the Borrower for these expenses.
The allocation of indirect UGI corporate expenses to the Borrower utilizes a weighted,
three-component formula based on the relative percentage of the Borrower’s revenues, operating
expenses and net assets employed to the total of such items for all UGI operating subsidiaries for
which general and administrative services are provided. The General Partner believes that this
allocation method is reasonable and equitable to the Borrower. Such corporate expenses totaled
$5,187,000 and $7,804,000 during the three and six months ended March 31, 2011, respectively, and
$4,668,000 and $5,872,000 during the three and six months ended March 31, 2010, respectively. In
addition, UGI and certain of its subsidiaries provide office space, stop loss medical coverage and
automobile liability insurance to the Borrower. The costs related to these items totaled $783,000
and $1,568,000 for the three and six months ended March 31, 2011, respectively, and $627,000 and
$1,436,000 for the three and six months ended March 31, 2010, respectively.



The Borrower purchases propane from Atlantic Energy, LLC (“Atlantic Energy”), a former subsidiary
of UGI Energy Services, Inc. (“Energy Services”), a subsidiary of UGI, pursuant to a propane sales
agreement (“Product Sales Agreement”) expiring on April 2015, whereby Atlantic Energy has agreed to
sell and the Borrower has agreed to purchase a specified amount of propane annually at a terminal
located in Chesapeake, Virginia. The price to be paid for product purchased under the agreement is
determined annually using a contractual formula that takes into account published index prices and
the locational value of deliveries at the terminal. On July 30, 2010, Energy Services sold its
interest in Atlantic Energy. In addition, from time to time, the Borrower purchases propane on an
as needed basis from Energy Services. The prices of the purchases are generally based on market
price at the time of purchase. Purchases of propane by the Borrower from Energy Services and
Atlantic Energy (through the date of its sale) totaled $2,633,000 and $4,073,000 during the three
and six months ended March 31, 2011, respectively, and $23,973,000 and $33,756,000 during the three
and six months ended March 31, 2010, respectively. The sale of the terminal did not affect the
terms of the Product Sales Agreement.



The Borrower also sells propane to other affiliates of UGI. Such amounts were not material during
the periods presented.