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EXECUTION COPY    
    


 
  Exhibit 10.10    
    


TERM LOAN AGREEMENT  


 dated as of December 19, 2018  


 among  


 NORTH BAJA PIPELINE, LLC  


as Borrower


 THE LENDERS FROM TIME TO TIME PARTY HERETO  


 MUFG BANK, LTD.  


as Administrative Agent


 and  


 MUFG BANK, LTD.  


as Lender 



















 



 
 







 TABLE OF CONTENTS



	 	 	 	 	





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	 ARTICLE I	 	 
	
  DEFINITIONS; CONSTRUCTION	
 	

1
	 	Section 1.1.	 	Definitions	 	1
	 	Section 1.2.	 	Classifications of Loans and Borrowings	 	13
	 	Section 1.3.	 	Accounting Terms and Determination	 	13
	 	Section 1.4.	 	Terms Generally	 	13
	 	Section 1.5.	 	Interest Rates, LIBOR Notification	 	14
	
  ARTICLE II	
 	

 
	
  AMOUNT AND TERMS OF THE COMMITMENTS	
 	

14
	 	Section 2.1.	 	General Description of Facilities	 	14
	 	Section 2.2.	 	Term Loans	 	14
	 	Section 2.3.	 	Interest Elections	 	14
	 	Section 2.4.	 	Repayment of Loans	 	15
	 	Section 2.5.	 	Evidence of Indebtedness	 	15
	 	Section 2.6.	 	Optional Prepayments	 	16
	 	Section 2.7.	 	Interest on Loans	 	16
	 	Section 2.8.	 	Fees	 	16
	 	Section 2.9.	 	Computation of Interest and Fees	 	17
	 	Section 2.10.	 	Substitute Basis of Borrowing, Successor LIBOR	 	17
	 	Section 2.11.	 	Illegality	 	18
	 	Section 2.12.	 	Increased Costs	 	18
	 	Section 2.13.	 	Funding Indemnity	 	19
	 	Section 2.14.	 	Taxes	 	19
	 	Section 2.15.	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	22
	 	Section 2.16.	 	Mitigation of Obligations	 	23
	 	Section 2.17.	 	Replacement of Lenders	 	23
	 	Section 2.18.	 	Defaulting Lender	 	23
	
  ARTICLE III	
 	

 
	
  CONDITIONS PRECEDENT TO LOANS	
 	

24
	 	Section 3.1.	 	Conditions To Effectiveness	 	24
	 	Section 3.2.	 	Delivery of Documents	 	25
	
  ARTICLE IV	
 	

 
	
  REPRESENTATIONS AND WARRANTIES	
 	

25
	 	Section 4.1.	 	Existence; Power	 	25
	 	Section 4.2.	 	Organizational Power; Authorization	 	25
	 	Section 4.3.	 	Governmental Approvals; No Conflicts	 	25
	 	Section 4.4.	 	Financial Statements	 	25
	 	Section 4.5.	 	Litigation and Environmental Matters	 	26
	 	Section 4.6.	 	Compliance with Laws and Agreements	 	26
	 	Section 4.7.	 	Investment Company Act, Etc.	 	26
	 	Section 4.8.	 	Taxes	 	26
	 	Section 4.9.	 	Margin Regulations	 	26
	 	Section 4.10.	 	ERISA	 	26
	 	Section 4.11.	 	Ownership of Property	 	27
	 	Section 4.12.	 	Disclosure	 	27
	 	Section 4.13.	 	Labor Relations	 	27
	 	Section 4.14.	 	Subsidiaries	 	27
	 	Section 4.15.	 	Solvency	 	27









 


	 	 	 	 	





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	 	Section 4.16.	 	OFAC	 	27
	 	Section 4.17.	 	Patriot Act	 	28
	
  ARTICLE V	
 	

 
	
  AFFIRMATIVE COVENANTS	
 	

28
	 	Section 5.1.	 	Financial Statements and Other Information	 	28
	 	Section 5.2.	 	Notices of Material Events	 	28
	 	Section 5.3.	 	Existence; Conduct of Business	 	29
	 	Section 5.4.	 	Compliance with Laws, Etc.	 	29
	 	Section 5.5.	 	Payment of Obligations	 	29
	 	Section 5.6.	 	Books and Records	 	29
	 	Section 5.7.	 	Visitation, Inspection, Etc.	 	29
	 	Section 5.8.	 	Maintenance of Properties; Insurance	 	30
	 	Section 5.9.	 	Pari Passu Ranking	 	30
	 	Section 5.10.	 	Use of Proceeds	 	30
	 	Section 5.11.	 	Maintenance of Tax Status	 	30
	
  ARTICLE VI	
 	

 
	
  FINANCIAL COVENANTS	
 	

30
	 	Section 6.1.	 	Debt to Capitalization Ratio	 	30
	
  ARTICLE VII	
 	

 
	
  NEGATIVE COVENANTS	
 	

30
	 	Section 7.1.	 	Indebtedness	 	30
	 	Section 7.2.	 	Negative Pledge	 	31
	 	Section 7.3.	 	Fundamental Changes	 	32
	 	Section 7.4.	 	Investments, Loans, Etc.	 	33
	 	Section 7.5.	 	Restricted Payments	 	33
	 	Section 7.6.	 	Transactions with Affiliates	 	33
	 	Section 7.7.	 	Restrictive Agreements	 	33
	 	Section 7.8.	 	Sale and Leaseback Transactions	 	34
	 	Section 7.9.	 	Hedging Transactions	 	34
	 	Section 7.10.	 	Certain Amendments to Cash Distribution Policies and Partnership Agreements	 	34
	 	Section 7.11.	 	Accounting Changes	 	34
	 	Section 7.12.	 	Sanctions	 	34
	
  ARTICLE VIII	
 	

 
	
  EVENTS OF DEFAULT	
 	

35
	 	Section 8.1.	 	Events of Default	 	35
	
  ARTICLE IX	
 	

 
	
  THE ADMINISTRATIVE AGENT	
 	

36
	 	Section 9.1.	 	Appointment of the Administrative Agent	 	36
	 	Section 9.2.	 	Nature of Duties of the Administrative Agent	 	37
	 	Section 9.3.	 	Lack of Reliance on the Administrative Agent	 	37
	 	Section 9.4.	 	Certain Rights of the Administrative Agent	 	37
	 	Section 9.5.	 	Reliance by Administrative Agent	 	37
	 	Section 9.6.	 	The Administrative Agent in its Individual Capacity	 	38
	 	Section 9.7.	 	Successor Administrative Agent	 	38
	 	Section 9.8.	 	Authorization to Execute other Loan Documents	 	38




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	 ARTICLE X	 	 
	
  MISCELLANEOUS	
 	

39
	 	Section 10.1.	 	Notices	 	39
	 	Section 10.2.	 	Waiver; Amendments	 	40
	 	Section 10.3.	 	Expenses; Indemnification	 	41
	 	Section 10.4.	 	Successors and Assigns	 	42
	 	Section 10.5.	 	Governing Law; Jurisdiction; Consent to Service of Process	 	44
	 	Section 10.6.	 	WAIVER OF JURY TRIAL	 	45
	 	Section 10.7.	 	Right of Setoff	 	45
	 	Section 10.8.	 	Counterparts; Integration	 	45
	 	Section 10.9.	 	Survival	 	45
	 	Section 10.10.	 	Severability	 	45
	 	Section 10.11.	 	Confidentiality	 	46
	 	Section 10.12.	 	Interest Rate Limitation	 	46
	 	Section 10.13.	 	Patriot Act	 	46
	 	Section 10.14.	 	Non-Recourse to the General Partner and Associated Persons	 	46
	 	Section 10.15.	 	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	 	47





	 





	Schedules	 	 
	 	
 Schedule I	
 	

–	
 	

Applicable Margin for Term Loans
	 	Schedule II	 	–	 	Commitment Amounts
	 	Schedule 4.5	 	–	 	Environmental Matters
	 	Schedule 4.14	 	–	 	Subsidiaries
	 	Schedule 7.1	 	–	 	Outstanding Indebtedness
	 	Schedule 7.2	 	–	 	Existing Liens
	 	Schedule 7.4	 	–	 	Existing Investments
	 	Schedule 7.6	 	–	 	Transactions with Affiliates
	
  Exhibits	
 	

 
	 	
Exhibit A	
 	

–	
 	

Form of Assignment and Acceptance
	 	Exhibit 2.3	 	–	 	Form of Notice of Continuation/Conversion
	 	Exhibit 3.1(b)(iv)	 	–	 	Form of Secretary's Certificate
	 	Exhibit 3.1(b)(viii)	 	–	 	Form of Officer's Certificate
	 	Exhibit 5.1(c)	 	–	 	Form of Compliance Certificate




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 TERM LOAN AGREEMENT


THIS TERM LOAN AGREEMENT (this "Agreement") is made and entered into as of
December 19, 2018, by and among NORTH BAJA PIPELINE, LLC, a Delaware limited liability company (the "Borrower"), the several banks
and other financial institutions and lenders from time to time party hereto (the "Lenders"), and MUFG BANK, LTD., in its capacity as
administrative agent for the Lenders (the "Administrative Agent"). 


 
 







W I T N E S S E T H:


WHEREAS, the Borrower has requested that the Lenders make a term loan in an aggregate principal amount equal to $50,000,000
to the Borrower; and 


WHEREAS, subject to the terms and conditions of this Agreement, the Lenders, to the extent of their respective Commitments
(as defined herein), are willing severally to make the term loan to the Borrower; 


NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows: 


 
 







ARTICLE I    
    
    DEFINITIONS; CONSTRUCTION



Section 1.1.    Definitions.    In addition to the other terms defined herein, the following terms
used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined): 


"Adjusted LIBO Rate" shall mean, with respect to each Interest Period for a Eurodollar Borrowing, the rate per annum obtained
by dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve Percentage. 


"Administrative Agent" shall have the meaning assigned to such term in the opening paragraph hereof. 



"Administrative Questionnaire" shall mean, with respect to each Lender, an administrative questionnaire in the form prepared
by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender. 


"Affiliate" shall mean, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is
under common control with such Person or is a director or officer of such Person. For purposes of this definition the term "control" (including the terms "controlling", "controlled by" and "under
common control with") of a Person shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the
ownership of voting stock, by contract or otherwise. 


"Applicable Lending Office" shall mean, for each Lender and for each Type of Loan, the "Lending Office" of such Lender
(or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained. 


"Applicable Margin" shall mean, as of any date, with respect to interest on all Term Loans outstanding on such date a
percentage per annum determined by reference to the applicable Rating Category from
time to time in effect on such date as set forth on Schedule I; provided, that a change in the Applicable Margin resulting from a change in the
Rating Category shall be effective on the day on which the rating agency changes its rating and shall continue until the day prior to the day that a further change becomes effective. Notwithstanding
the foregoing, the Applicable Margin from the Closing Date until a change in the Rating Category shall be at Level III as set forth on  Schedule I. The provisions of this definition shall not
limit the rights of the Administrative Agent and the Lenders with respect to  Section 2.7(b) or Article VIII. 



"Approved Fund" shall mean any Person (other than a natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of 







 




its business and that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages
a Lender. 


"Assignment and Acceptance" shall mean an assignment and acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 10.4(b)) and accepted by the Administrative Agent, in the form of  Exhibit A
attached hereto or any other form approved by the Administrative Agent. 


"Bail-In Action" shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority
in respect of any liability of an EEA Financial Institution. 


"Bail-In Legislation" shall mean, with respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule. 


"Base Rate" shall mean the highest of (i) the rate which the Administrative Agent announces from time to time as its
prime lending rate, as in effect from time to time, (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%) per
annum and (iii) the Adjusted LIBO Rate determined on a daily basis for an Interest Period of one (1) month, plus one percent (1.00%) per
annum (any changes in such rates to be effective as of the date of any change in such rate). The Administrative Agent's prime lending rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent may make commercial loans or other loans at rates of interest at, above, or below the
Administrative Agent's prime lending rate. 


"Beneficial Ownership Certification" means a certification regarding beneficial ownership as required by the Beneficial
Ownership Regulation. 


"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230. 


"Borrower" shall have the meaning in the introductory paragraph hereof. 



"Borrower LLC Agreement" shall mean that certain Second Amended and Restated Limited Liability Company Agreement of
the Borrower dated August 31, 2012, as amended, supplemented, restated or otherwise modified from time to time. 


"Borrowing" shall mean a borrowing consisting of Loans of the same Type made, converted or continued on the same day and in
the case of Eurodollar Loans, as to which a single Interest Period is in effect. 


"Business Day" shall mean (i) any day other than a Saturday, Sunday or other day on which commercial banks in Calgary,
Canada or New York, New York are authorized or required by law to close and (ii) if such day relates to a borrowing of, a payment or prepayment of principal or interest on, a
conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which banks are not open for dealings in dollar deposits are carried on
in the London interbank market. 


"Capital Lease Obligations" of any Person shall mean all obligations of such Person to pay rent or other amounts under any
lease (or other arrangement conveying the right to use) of real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP. 



"Capital Stock" shall mean any non-redeemable capital stock (or in the case of a partnership or limited liability
company, the partners' or members' equivalent equity interest) of any Person, whether common or preferred. 


"Change in Control" shall mean the occurrence of one or more of the following events: (i) any Person or two or more
Persons (other than TransCanada Corporation or any of its Subsidiaries or any other Person reasonably acceptable to the Required Lenders) acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of member interests of the Borrower
(or other securities convertible into such member interests) representing 50% or more of the member ownership interest in the Borrower; (ii) any Person or two or more Persons (other than
TransCanada 


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Corporation
or any of its Subsidiaries or any other Person reasonably acceptable to the Required Lenders) acting in concert shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of
the Borrower. 


"Change in Law" shall mean (i) the adoption of any applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or regulation, or any change in the interpretation, implementation or application thereof, by any Governmental Authority after the date of
this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) with any request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement; provided that for purposes of this Agreement, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives 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. 


"Closing Date" shall mean the date on which the conditions precedent set forth in  Section 3.1 have been satisfied or waived in accordance with Section 10.2. 


"Code" shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time. 


"Commitment" shall mean, with respect to each Lender, the obligation of such Lender to make a Term Loan hereunder on the
Effective Date, in a principal amount not exceeding the amount set forth with respect to such Lender on Schedule II. The aggregate principal
amount of all Lenders' Commitments as of the Closing Date is $50,000,000. 


"Compliance Certificate" shall mean a certificate executed by a Responsible Officer in the form of, and containing the
certifications set forth in, the certificate attached hereto as Exhibit 5.1(c). 



"Connection Income Taxes" means Other Connection Taxes that are imposed on or measured by net income (however denominated) or
that are franchise Taxes or branch profits Taxes. 


"Consolidated Net Tangible Assets" means, at any date of determination, the total amount of assets (less applicable reserves)
after deducting therefrom (a) all current liabilities (excluding the current portion of funded indebtedness), and (b) the value of all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles which would be treated as intangibles under GAAP (except regulatory assets, recorded on the balance sheet in accordance with GAAP), all
as set forth on the consolidated balance sheet of the Borrower and its consolidated Subsidiaries for the Borrower's most recently completed Fiscal Quarter, prepared in accordance with GAAP. 


"Contractual Obligation" of any Person shall mean any provision of any security issued by such Person or of any agreement,
instrument or undertaking under which such Person is obligated or by which it or any of the property in which it has an interest is bound. 


"Default" shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an
Event of Default. 


"Default Interest" shall have the meaning set forth in Section 2.7(b). 


"Defaulting Lender" shall mean, at any time, subject to  Section 2.18(b), any Lender with respect to which a Lender Insolvency Event or a Bail-In Action has occurred
and is continuing. 


"Designated Threshold" means, at any time, 5% of Consolidated Net Tangible Assets at such time. 


"Dollar(s)" and the sign "$" shall mean lawful money of the United States of America. 


"EEA Financial Institution" shall mean (a) any credit institution or investment firm established in any EEA Member
Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution 


3







 



established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with
its parent. 


"EEA Member Country" shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway. 


"EEA Resolution Authority" shall mean any public administrative authority or any person entrusted with public administrative
authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. 



"Effective Date" shall mean the date that the Loan is drawn pursuant to the terms hereof and which shall not be later than
five Business Days after the Closing Date. 


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


"Environmental Liability" shall mean any liability, contingent or otherwise (including any liability for damages, costs of
environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly
resulting from or based upon (i) any actual or alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (iii) any actual or alleged exposure to any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous Materials or (v) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. 


"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor
statute. 


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


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


"EU Bail-In Legislation Schedule" shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association
(or any successor person), as in effect from time to time. 


"Eurodollar" when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate. 


"Eurodollar Reserve Percentage" shall mean the aggregate of the maximum reserve percentages (including, without limitation,
any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the 


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Adjusted
LIBO Rate pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental Authority succeeding to any of its principal functions) with
respect to eurocurrency funding (currently referred to as "eurocurrency liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject
to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of any change in any reserve percentage. 


"Event of Default" shall have the meaning provided in Article VIII. 


"Excluded Taxes" means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or
deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed by the
United States of America or any state or local taxing authority in the United States of America, (ii) imposed as a result of such Recipient being organized under the laws of, or
having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or
(iii) that are Other Connection Taxes, (b) in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable
interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request
by the Borrower under Section 2.17) or (ii) such Lender changes its Applicable Lending Office, except in each case to the extent that,
pursuant to Section 2.14, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became
a party hereto or to such Lender immediately before it
changed its lending office, (c) Taxes attributable to such Recipient's failure to comply with Section 2.14(g)
and (d) any U.S. federal withholding Taxes imposed under FATCA. 


"FATCA" shall mean Sections 1471 through 1474 of the Code, as in effect on the date hereof (and any
amended or successor version that is substantively comparable and not materially more onerous to comply with), and any present or future regulations or official interpretations thereof and any
agreements entered into pursuant to Section 1471(b)(1) of the Code. 


"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next
1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds
brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day
shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations 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" shall mean that certain fee letter, dated as of December 19, 2018, executed by MUFG Bank, Ltd. and
accepted by the Borrower. 


"Fiscal Quarter" shall mean any fiscal quarter of the Borrower. 


"Fiscal Year" shall mean any fiscal year of the Borrower. 


"Foreign Lender" shall mean (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person and
(b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for
tax purposes. 


"GAAP" shall mean generally accepted accounting principles in the United States applied on a consistent basis and
subject to the terms of Section 1.3. 


"Governmental Authority" shall mean the government of the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank). 


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"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of
the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation;  provided, that the
term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which Guarantee is made or, if not so stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term "Guarantee" used as a verb has a
corresponding meaning. 


"Hazardous Materials" shall mean all explosive or radioactive substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law. 


"Hedging Obligations" of any Person shall mean any and all obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals, terminations or
assignments of any Hedging Transactions and (iii) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions. 


"Hedging Transaction" of any Person shall mean any transaction (including an agreement with respect thereto) now existing or
hereafter entered into by such Person that is a rate swap, basis swap, forward rate transaction, commodity swap, interest rate option, foreign exchange transaction, cap transaction, floor transaction,
collateral transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any
of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures. 


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


"Indebtedness" of any Person shall mean, without duplication, (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course of business), (iv) all obligations of such Person under any conditional sale or other title retention
agreement(s) relating to property acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in respect of
letters of credit, acceptances or similar extensions of credit, (vii) all Guarantees of such Person of the type of Indebtedness described in clauses (i) through (vi) above,
(viii) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (ix) all obligations of
such Person to purchase, redeem, retire or otherwise acquire for value any common stock of such Person, (x) Off-Balance Sheet Liabilities and (xi) all Hedging 


6







 



Obligations.
The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that
the terms of such Indebtedness provide that such Person is not liable therefor. 


"Indemnified Taxes" shall mean (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by
or on account of any obligation of the Borrower under any Loan Document and (ii) to the extent not otherwise described in (i), Other Taxes. 


"Interest Period" shall mean with respect to any Eurodollar Borrowing, a period of (i) one week or two weeks
(in each case, if all of the Lenders can accommodate such interest period), (ii) one, two, three or six months or (iii) subject to clause (C) of this definition, twelve
months; provided, that: 


(A)   the
initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires; 


(B)    if
any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such Business Day
falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day; 



(C)   the
Borrower shall not be entitled to select an Interest Period having a duration of twelve months unless, by 2:00 P.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, each Lender notifies the Administrative Agent that such Lender will be providing funding for such Borrowing with such Interest Period
(the failure of any Lender to so respond by such time being deemed for all purposes of this Agreement as an objection by such Lender to the requested duration of such Interest Period);  provided
that, if any or all of the Lenders object to the requested duration of such Interest Period, the duration of the Interest Period for such
Borrowing shall be one, two, three or six months, as specified by the Borrower as the desired alternative to an Interest Period of twelve months; 



(D)   any
Interest Period of one month or more which 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 such calendar month; and 


(E)    no
Interest Period may extend beyond the Maturity Date. 


"Lender Insolvency Event" shall mean that (i) a Lender or its parent company is insolvent, or is generally unable to
pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, (ii) a Lender or its
parent company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, custodian 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 capacity, has been
appointed for such Lender or its parent company, or such Lender or its parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or
appointment, or (iii) a Lender or its parent company has been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets to be,
insolvent; provided that, for the avoidance of doubt, a Lender Insolvency Event shall not be deemed to have occurred solely by virtue of the ownership
or acquisition of any equity interest in or control of a Lender or a parent company thereof by a Governmental Authority or an instrumentality thereof so long as such ownership or acquisition 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. 


"Lenders" shall have the meaning assigned to such term in the opening paragraph of this Agreement. 


"LIBOR" shall mean, for any applicable Interest Period with respect to any Eurodollar Term Loan, the rate  per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) appearing on Reuters Screen LIBOR01 Page (or any successor page) as
the London interbank offered rate for Dollar deposits as of 11:00 a.m. (London, England time) on 


7







 



the
day that is two Business Days prior to the first day of the Interest Period; provided, that if the Administrative Agent determines that the relevant
foregoing sources are unavailable for the relevant Interest Period, LIBOR shall mean the rate of interest determined by the Administrative Agent to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are offered to the Administrative Agent two (2) Business Days preceding the first day of such
Interest Period by leading banks in the London interbank market as of 10:00 a.m. (New York time) for delivery on the first day of such Interest Period, for the number of days comprised
therein and in an amount comparable to the amount of the Eurodollar Term Loan of the Administrative Agent. 


"Lien" shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation,
assignment, deposit arrangement, or other arrangement having the practical effect of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing). 



"Loan Documents" shall mean, collectively, this Agreement, the Fee Letter, all Notices of Conversion/Continuation, and all
Compliance Certificates. 


"Loans" shall mean all Term Loans in the aggregate. 


"Material Adverse Effect" shall mean, with respect to any event, act, condition or occurrence of whatever nature (including
any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or
conditions, occurrence or occurrences whether or not related, a material adverse change in, or a material adverse effect on, (i) the business, results of operations, financial condition,
assets, or liabilities of the Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the Borrower to perform any of its obligations under the Loan Documents, (iii) the
rights and remedies of the Administrative Agent and the Lenders under any of the Loan Documents or (iv) the legality, validity or enforceability of any of the Loan Documents. 


"Material Indebtedness" shall mean Indebtedness (other than the Loans) of the Borrower or any of its Subsidiaries,
individually or in an aggregate principal amount exceeding the Designated Threshold. 



"Maturity Date" shall mean the earlier of (i) December 19, 2021 or (ii) the date on which the principal
amount of all outstanding Term Loans have been declared or automatically have become due and payable (whether by acceleration or otherwise). 


"Moody's" shall mean Moody's Investors Service, Inc. 


"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3) of ERISA. 


"Notice of Conversion/Continuation" shall mean the notice given by the Borrower to the Administrative Agent in respect of the
conversion or continuation of an outstanding Borrowing as provided in Section 2.3(b). 


"Obligations" shall mean all amounts owing by the Borrower to the Administrative Agent or any Lender pursuant to or in
connection with this Agreement or any other Loan Document, including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all
reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all reasonable fees and expenses of counsel to the Administrative Agent and any
Lender (to the extent payable by the Borrower pursuant to Section 10.3) incurred pursuant to this Agreement or any other Loan Document),
whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, and all obligations and liabilities incurred in connection
with collecting and enforcing the foregoing, together with all renewals, extensions, modifications or refinancings thereof. 


"Off-Balance Sheet Liabilities" of any Person shall mean (i) any repurchase obligation or liability of such Person
with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any sale and leaseback transactions that do not create a liability on the balance sheet
of such Person, (iii) any Synthetic Lease Obligation or 


8







 



(iv) any
obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance
sheet of such Person. 


"Optional Prepayment Notice" shall have the meaning set forth in Section 2.6. 


"OSHA" shall mean the Occupational Safety and Health Act of 1970, as amended from time to time, and any successor statute. 


"Other Connection Taxes" means, with respect to any Recipient, Taxes imposed as a result of a present or former connection
between such Recipient and the jurisdiction imposing such Tax (other than
connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). 



"Other Taxes" shall mean any and all present or future stamp, court or documentary, intangible, filing or similar Taxes that
arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Loan Document, except any
such Taxes that are Other Connection Taxes imposed with respect to any assignment (other than an assignment made pursuant to  Section 2.17); provided,
 however that Other Taxes
shall not include any such taxes imposed as a result of a present or former connection between a Lender, the Administrative Agent or any other recipient of a payment by or on account of any obligation
of the Borrower made hereunder, and any jurisdiction (other than a connection arising from such Lender, Administrative Agent or other recipient having executed, delivered, become a party to, performed
its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an
interest in any Loan or Loan Document). 


"Participant" shall have the meaning set forth in Section 10.4(d). 


"Patriot Act" shall have the meaning set forth in Section 10.13. 



"Payment Office" shall mean the office of the Administrative Agent located at 1251 Avenue of the Americas,
New York, NY 10020-1104, or such other location as to which the Administrative Agent shall have given written notice to the Borrower and the other Lenders. 


"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity
performing similar functions. 


"Permitted Encumbrances" shall mean: 



(i)     Liens
imposed by law for taxes, assessments or governmental charges not yet due or which are being contested in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves are being maintained in accordance with GAAP; 


(ii)    statutory
Liens of landlords, carriers, warehousemen, mechanics, materialmen and similar Liens arising by operation of law in the ordinary course of business for amounts overdue for
a period of more than 30 days or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance
with GAAP; 


(iii)   pledges
and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations; 


(iv)   deposits
to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business; 


(v)    judgment
and attachment liens not giving rise to an Event of Default or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP; 


9







 

(vi)   customary
rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or common law of banks or other financial institutions
where the Borrower or any of its Subsidiaries maintains deposits (other than deposits intended as cash collateral) in the ordinary course of business; and 


(vii)  easements,
zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrower and its Subsidiaries taken as
a whole; 


provided, that the term "Permitted Encumbrances" shall not include any Lien securing Indebtedness. 


"Permitted Investments" shall mean: 


(i)     direct
obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States or Canada (or by any agency thereof to
the extent such obligations are backed by the full faith and credit of the United States or Canada), in each case maturing within one year from the date of acquisition thereof; 



(ii)    commercial
paper rated at least A-1 (or its equivalent) by S&P or P-1 (or its equivalent) by Moody's at the time of acquisition thereof, and in either case maturing
within 360 days from the date of acquisition thereof; 


(iii)   certificates
of deposit, bankers' acceptances and time deposits maturing within 180 days of the date of acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States or any state thereof which has (a) a combined
capital and surplus and undivided profits of not less than $500,000,000 or (b) has certificates of deposit or other debt obligations rated at least A-1 (or its equivalent) by S&P or P-1
(or its equivalent) by Moody's; 


(iv)   fully
collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (i) above and entered into with a financial
institution satisfying the criteria described in clause (iii) above; 


(v)    mutual
funds or similar funds that have at least 95% of their assets invested in any one or more of the Permitted Investments described in clauses (i) through (iv)
above; 


(vi)   demand
deposit accounts maintained in the ordinary course of business at a bank or trust company satisfying the requirements specified in (a) or (b) of
clause (iii) above; 


(vii)  any
other securities issued or directly and fully guaranteed or insured by the United States or Canadian government or any agency or instrumentality thereof, in each case,
maturing within one year from the date of acquisition thereof; 


(viii) investments
in any fund that invests exclusively in investments of the type described in clauses (vii) which fund may also hold immaterial amounts of cash pending investment
and/or distribution; and 


(ix)   other
cash equivalents and securities reasonably acceptable to the Administrative Agent. 



"Permitted Sale-Leaseback Transaction" shall mean a Sale-Leaseback Transaction entered into by the Borrower or a Subsidiary
with respect to a Principal Property that satisfied any of the following conditions: 


(i)     the
Sale-Leaseback Transaction occurs within one year from the date of completion of the acquisition of the Principal Property or the date of the completion of construction,
development or substantial repair or improvement, or commencement of full operations on the Principal Property, whichever is later; 


(ii)    the
Sale-Leaseback Transaction involves a lease for a period, including renewals, of not more than three years; 



(iii)   the
Borrower or such Subsidiary would be entitled to incur Indebtedness secured by a Lien on the Principal Property in a principal amount equal to or exceeding the net sale proceeds
from such Sale-Leaseback Transaction; or 


(iv)   the
Borrower or such Subsidiary, within a 270-day period after such Sale-Leaseback Transaction, applies or causes to be applied an amount not less than the net sale proceeds from
such Sale-Leaseback Transaction to (A) the prepayment, repayment, redemption, reduction or retirement of Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted
Subordinated Debt), or (B) the investment in another Principal Property. 


10









  













 





"Permitted Subordinated Debt" shall mean any Indebtedness of the Borrower or any Subsidiary that (i) is expressly
subordinated to the Obligations and any Hedging Obligations entered into with the Administrative Agent or any Lender on terms satisfactory to the Administrative Agent and the Required Lenders in their
sole discretion, (ii) matures by its terms no earlier than six months after the later of the Maturity Date then in effect with no scheduled principal payments permitted prior to such date and
(iii) is evidenced by an indenture or other similar agreement that is in a form satisfactory to the Administrative Agent and the Required Lenders. 


"Permitted Tax Distributions" shall mean cash dividends or distributions to the partners of the Borrower with respect to each
taxable year during which the Borrower is a partnership in an amount not to exceed the aggregate of the maximum federal and state income tax liability of the partners of the Borrower (assuming that
all of such partners are taxed at the maximum permissible federal and state rates of such partners or members) attributable to the taxable income of the Borrower for such taxable year, computed in
accordance with the Code. 


"Person" shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company,
trust or other entity, or any Governmental Authority. 


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


"Principal Property" means, whether currently owned or leased or subsequently acquired, any pipeline, gathering system,
terminal, storage facility, processing plant or other plant or facility located in the United States of America or any territory or political subdivision thereof owned or leased by the Borrower
or any of its Subsidiaries and used in transporting, distributing, terminalling, gathering, treating, processing, marketing or storing natural gas, natural gas liquids or other hydrocarbons, except
(i) any property or asset consisting of inventories, furniture, office fixtures and equipment (including data processing equipment), vehicles and equipment used on, or useful with, vehicles
(but excluding vehicles that generate transportation revenues) and (ii) any such pipeline or other plant or facility that, in the good faith opinion of the board of directors of the
General Partner as evidenced by a resolution of the board of directors or comparable governing body of the General Partner, is not material in relation to the activities of the Borrower and its
Subsidiaries, taken as a whole. 


"Pro Rata Share" shall mean, with respect to any Commitment of any Lender at any time, a percentage, the numerator of
which shall be such Lender's Commitment, and the denominator of which shall be the sum of such Commitments of all Lenders. 


"Rating Category" shall mean the applicable rating category set forth on  Schedule I attached hereto. 


"Recipient" means the Administrative Agent or any Lender, as applicable. 


"Regulation D" shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may
be in effect from time to time, and any successor regulations. 



"Related Parties" shall mean, with respect to any specified Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such Person's Affiliates. 


"Release" shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility
or fixture. 


"Required Lenders" shall mean, at any time, Lenders holding more than 50% of the aggregate Term Loans. In each case, at any
time any Lender is a Defaulting Lender, all Defaulting Lenders shall be excluded in determining "Required Lenders" and "Required Lenders" shall mean non-Defaulting Lenders otherwise meeting the
criteria set forth in this definition. 


11







 

"Requirement of Law" for any Person shall mean the articles or certificate of incorporation, bylaws, partnership certificate
and agreement, or limited liability company certificate of organization and agreement, as the case may be, and other organizational and governing documents of such Person, and any law, treaty, rule or
regulation, or determination of a Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property
is subject. 


"Responsible Officer" shall mean any of the president or a vice president of the Borrower or such other representative of the
Borrower as may be designated in writing by any one of the foregoing with the consent of the Administrative Agent; and, with respect to the financial covenants only, the president, treasurer, vice
president of finance or controller of the Borrower. 


"Restricted Payment" shall have the meaning set forth in Section 7.5. 


"S&P" shall mean Standard & Poor's, a Division of the McGraw-Hill Companies. 


"Sale-Leaseback Transaction" shall have the meaning provided in Section 7.8. 


"Solvent" shall mean, with respect to any Person on a particular date, that on such date (i) the fair value of the
property of such Person is greater than the total amount of liabilities, including subordinated and contingent liabilities, of such Person; (ii) the present fair saleable value of the assets of
such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts and liabilities, including subordinated and contingent liabilities as they
become absolute and matured; (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (iv) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person's property would constitute
an unreasonably small capital. The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the
facts and circumstances existing at the time, represents the amount that would reasonably be expected to become an actual or matured liability. 



"Stockholder's Equity" shall mean, as of the time any determination thereof is to be made, the sum of the Borrower's Capital
Stock (which shall exclude treasury stock and any Capital Stock subject to mandatory redemption by the holder thereof) and additional paid-in capital plus retained earnings (minus accumulated
deficit), all as shown on the consolidated balance sheet of the Borrower and its Subsidiaries and in accordance with GAAP as in effect on the date of such determination. 


"Subsidiary" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent's consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a
partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references to "Subsidiary" hereunder shall mean a Subsidiary of
the Borrower. 


"Synthetic Lease" shall mean a lease transaction under which the parties intend that (i) the lease will be treated as
an "operating lease" by the lessee pursuant to Statement of Financial Accounting Standards No. 13, as amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property. 


"Synthetic Lease Obligations" shall mean, with respect to any Person, the sum of (i) all remaining rental obligations
of such Person as lessee under Synthetic Leases which are attributable to principal and, without duplication, (ii) all rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the lease property at the end of the lease term. 


12







 

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


"Termination Date" shall mean the date that no Loan remains outstanding and unpaid and no other amount is owing to any Lender
or the Administrative Agent hereunder or under any of the other Loan Documents (except contingent indemnification obligations or expense reimbursement obligations to the extent no claim giving rise
thereto has been asserted). 


"Term Loans" shall have the meaning set forth in Section 2.1. 


"Total Capitalization" shall mean at any date, at the time outstanding and without duplication, the sum of Total Debt and
Stockholder's Equity. 


"Total Debt" shall mean at any date, the sum of all Indebtedness of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP. 


"Type", when used in reference to a Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans
comprising the Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base Rate. 


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


"U.S. Tax Compliance Certificate" has the meaning assigned to such term in paragraph (g) of  Section 2.14. 



"Withholding Agent" means the Borrower and the Administrative Agent. 


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


"Write-Down and Conversion Powers" means, with respect to any EEA Resolution Authority, the write-down and conversion powers
of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In
Legislation Schedule. 


Section 1.2.    Classifications of Loans and Borrowings.    For purposes of this Agreement, Loans and
Borrowings may be classified and referred to by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan"). 


Section 1.3.    Accounting Terms and Determination.    Unless otherwise defined or specified herein,
all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis consistent with the most recent audited consolidated financial statement of the Borrower delivered pursuant to  Section 5.1(a); provided, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI 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 VI 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 and the Required Lenders. 


Section 1.4.    Terms Generally.    The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation". The word "will" shall be construed to have the same meaning and effect as the word "shall". In the computation of periods
of time from a specified date to a later specified date, the word "from" means "from and including" and the word "to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any
reference herein to any Person shall be construed to include such Person's successors and 


13







 



permitted
assigns, (iii) the words "hereof", "herein" and "hereunder" and words of similar import shall be construed to refer to this Agreement as a whole and not to any particular provision
hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v) all
references to a specific time shall be construed to refer to the time in the city and state of the Administrative Agent's principal office, unless otherwise indicated. All actions required to be
undertaken by the Borrower under the Loan Documents shall be undertaken by the Borrower through the General Partner. 


Section 1.5.    Interest Rates, LIBOR Notification    


The
interest rate on Eurdollar Loans is determined by reference to LIBOR, which is derived from the London interbank offered rate. The London interbank offered rate is
intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct
Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to
the ICE Benchmark Administrator, the "IBA") for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate
may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private
sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. In the event that the London interbank
offered rate is no longer available or in certain other circumstances as set forth in Section 2.10 of this Agreement, such Section 2.10 provides a mechanism for determining an
alternative rate of interest. The Administrative Agent will notify the Borrower, pursuant to Section 2.10, in advance of any change to the reference rate upon which the interest rate on
Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any
other matter related to the London interbank offered rate or other rates in the definition of "LIBOR" or with respect to any alternative or successor rate thereto, or replacement rate thereof,
including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to
Section 2.10 will be similar to, or produce the same value or economic equivalence of, LIBOR or have the same volume or liquidity as did the London interbank offered rate prior to its
discontinuance or unavailability. 


 
 







ARTICLE II    
    
    AMOUNT AND TERMS OF THE COMMITMENTS


Section 2.1.    General Description of Facilities.    Subject to and upon the terms and conditions
herein set forth, each Lender severally agrees to make a single term loan, in a single draw down, to the Borrower in a principal amount not exceeding such Lender's Commitment on the Effective Date
(the "Term Loans"). For the avoidance of doubt, the Effective Day may not be a date which is later than five Business Days from the Closing Date.
Also for the avoidance of doubt, where the aggregate Commitment is less than $50,000,000, such undrawn funds shall be immediately cancelled and shall not be available to the Borrower pursuant to the
terms hereof. 


Section 2.2.    Term Loans.    The Term Loans may be, from time to time, Base Rate Loans or
Eurodollar Loans or a combination thereof; provided that on the Effective Date all Term Loans shall be Eurodollar Loans. The Borrower shall give the
Administrative Agent one (1) Business Day's prior written notice of such Term Loan Borrowing on the Effective Date pursuant to a notice of borrowing. The Borrower shall be entitled to prepay
Term Loans in accordance with the provisions hereof, but once repaid or prepaid, Term Loans may not be reborrowed. 


Section 2.3.    Interest Elections.    


(a)    The
Borrowing on the Effective Date initially shall be a Eurodollar Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a different Type or to continue such
Borrowing, and in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.3. The Borrower may
elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably 


14







 



among
the Lenders holding Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. 


(b)    To
make an election pursuant to this Section 2.3, the Borrower shall give the Administrative Agent prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing substantially in the form of Exhibit 2.3 attached hereto
(a "Notice of Conversion/Continuation") that is to be converted or continued, as the case may be, (x) prior to 10:00 a.m.
(New York time) on the requested date of a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. (New York time) three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being elected with respect to different portions thereof, the portions thereof that are to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Continuation/Conversion, which shall be a Business Day; (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period applicable thereto after giving effect to such election, which shall be a period contemplated by the
definition of "Interest Period". If any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall be deemed to have selected an
Interest Period of one month. The principal amount of any resulting Borrowing shall be (i) in the case of a Eurodollar Term Loan, in a minimum principal amount of $5,000,000 or a larger
multiple of $1,000,000 and (ii) in the case of a Base Rate Term Loan, in a minimum principal amount of $1,000,000 or a larger multiple of $100,000. 


(c)    If,
on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of Conversion/ Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to continue such Borrowing for an Interest Period of one (1) month. No Borrowing may be converted into, or
continued as, a Eurodollar Borrowing if a Default or an Event of Default exists, unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the Interest Period in respect thereof. 



(d)    Upon
receipt of any Notice of Conversion/Continuation, the Administrative Agent shall promptly notify each Lender of the details thereof and of such Lender's portion of each resulting
Borrowing. 


Section 2.4.    Repayment of Loans.    The outstanding balance of all Term Loans shall be due and
payable (together with accrued and unpaid interest thereon) on the Maturity Date. 


Section 2.5.    Evidence of Indebtedness.    



(a)    Each
Lender shall maintain in accordance with its usual practice appropriate records evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the amount of each Loan made hereunder by each Lender, the Type thereof and the Interest Period applicable thereto, (ii) the date of
each continuation thereof pursuant to Section 2.3, (iii) the date of each conversion of all or a portion thereof to another Type pursuant
to Section 2.3, (iv) the date and amount of any principal or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (v) both the date and amount of any sum received by the Administrative Agent hereunder from the Borrower in respect of the Loans and each
Lender's Pro Rata Share thereof. The entries made in such records shall be prima facie evidence of the existence and amounts of the obligations
of the Borrower therein recorded; provided, that the failure or delay of any Lender or the Administrative Agent in maintaining or making entries into
any such record or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans (both principal and unpaid accrued interest) of such Lender in accordance with the
terms of this Agreement. 


(b)    At
the request of any Lender at any time, the Borrower agrees that it will execute and deliver to such Lender a Note, payable to the order of such Lender. 


15









  













  Section 2.6.    Optional Prepayments.    The Borrower shall have the right at any time and from time
to time to prepay any Borrowing, in whole or in part, without premium or penalty, by giving written notice (or telephonic notice promptly confirmed in writing)
(an "Optional Prepayment Notice") to the Administrative Agent no later than (i) in the case of prepayment of any Eurodollar Borrowing,
11:00 a.m. (New York time) not less than three (3) Business Days prior to any such prepayment and (ii) in the case of any prepayment of any Base Rate Borrowing, not less
than one (1) Business Day prior to the date of such prepayment. Upon receipt of any Optional Prepayment Notice, the Administrative Agent shall promptly notify each affected Lender of the
contents thereof and of such Lender's Pro Rata Share of any such prepayment. Each Optional Prepayment Notice shall be irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid; provided that any such Optional Prepayment Notice may state that such Optional Prepayment Notice is conditioned upon the
effectiveness of other credit facilities or acquisitions or the receipt of net proceeds from the issuance of Capital Stock or incurrence of Indebtedness by the Borrower, in which case, such Optional
Prepayment Notice may be revoked by the Borrower giving written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent on or prior to the date for prepayment
specified in such Optional Prepayment Notice if such condition is not satisfied. If an Optional Prepayment Notice is given and has not been revoked by the Borrower in accordance with the proviso to
the immediately preceding sentence, the aggregate amount specified in such Optional Prepayment Notice shall be due and payable on the date designated in such Optional Prepayment Notice, together with
accrued interest to such date on the amount so prepaid in accordance with Section 2.7(c);  provided, that if a Eurodollar Borrowing is prepaid on a
date other than the last day of an Interest Period applicable thereto, the Borrower shall also
pay all amounts required pursuant to Section 2.13. Each partial prepayment of any Loan shall be in (i) in the case of a Eurodollar Term
Loan, in a minimum principal amount of $5,000,000 or a larger multiple of $1,000,000 and (ii) in the case of a Base Rate Term Loan, in a minimum principal amount of $1,000,000 or a larger
multiple of $100,000. Each prepayment of a Term Loan shall be applied to principal installments in inverse order of maturity. 


Section 2.7.    Interest on Loans.    


(a)    The
Borrower shall pay interest on each Base Rate Loan at the Base Rate in effect from time to time and on each Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest
Period in effect for such Loan, plus, in each case, the Applicable Margin in effect from time to time. 


(b)    While
an Event of Default exists or after acceleration, at the option of the Required Lenders, the Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar Loans at the rate otherwise applicable for the then-current Interest Period plus an
additional 2% per annum until the last day of such Interest Period, and thereafter, and with respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at the rate in
effect for Base Rate Loans, plus an additional 2% per annum. 


(c)    Interest
on the principal amount of all Loans shall accrue from and including the date such Loans are made to but excluding the date of any repayment thereof. Interest on all
outstanding Base Rate Loans shall be payable quarterly in arrears on the last day of each March, June, September and December and on the Maturity Date. Interest on all outstanding Eurodollar Loans
shall be payable on the last day of each Interest Period applicable thereto, and, in the case of any Eurodollar Loans having an Interest Period in excess of three months or 90 days,
respectively, on each day which occurs every three months or 90 days, as the case may be, after the initial date of such Interest Period, and on the Maturity Date. Interest on any Loan which is
converted into a Loan of another Type or which is repaid or prepaid shall be payable on the date of such conversion or on the date of any such repayment or prepayment (on the amount repaid or
prepaid) thereof. All Default Interest shall be payable on demand. 


(d)    The
Administrative Agent shall determine each interest rate applicable to the Loans hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing
(or by telephone, promptly confirmed in writing). Any such determination shall be conclusive and binding for all purposes, absent manifest error. 


Section 2.8.    Fees.    


(a)    The
Borrower shall pay to the Administrative Agent for its own account fees in the amounts and at the times previously agreed upon in writing by the Borrower and the Administrative
Agent, including for the avoidance of doubt, fees described in the Fee Letter. 


16







 

(b)    The
Borrower shall pay to the Administrative Agent, for the ratable benefit of each Lender, the upfront fee previously agreed upon by the Borrower and the Administrative Agent as
described in the Fee Letter, which shall be due and payable on the earlier of (i) the date on which the Term Loan Borrowing is actually funded and (ii) December 19, 2018. 


Section 2.9.    Computation of Interest and Fees.    


All
computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365/366 days, as the case may be, and all
computations of interest based on LIBOR or
the Federal Funds Rate and of fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable (to the extent computed on the basis of days elapsed). Each determination by the Administrative Agent of an interest amount or fee hereunder
shall be made in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes. 


Section 2.10.    Substitute Basis of Borrowing, Successor LIBOR.    



(a)    If
prior to the commencement of any Interest Period for any Eurodollar Borrowing, 



(i)     the
Administrative Agent (acting reasonably) determines that by reason of circumstances affecting the London interbank market, adequate and fair means do not exist for ascertaining
the rate of interest with respect to a requested Eurdollar Borrowing during the ensuing Interest Period selected; 


(ii)    the
Administrative Agent (acting reasonably) determines that by reason of circumstances affecting the London interbank market, deposits are not available in sufficient amounts in the
ordinary course of business at the rate determined hereunder to fund, a requested Eurdollar Borrowing during the ensuing Interest Period selected; or 



(iii)   the
Administrative Agent (acting reasonably) determines that the making or the continuing of the requested Eurodollar Borrowing by the Lenders has been made impracticable by the
occurrence of an event which materially adversely affects the London interbank market generally; or 


(iv)   the
Administrative Agent is advised by the Required Lenders (acting reasonably) by written notice (each, a "Lender Libor Suspension
Notice"), such notice to be received by the Administrative Agent no later than 2:00 p.m. on the third Banking Day prior to the commencement of any Interest Period that
such Lenders have determined (acting reasonably) that the Adjusted LIBO Rate will not or does not adequately reflect the effective cost of funds to such Lenders of dollar deposits in such market for
the relevant Interest Period 


then
the Administrative Agent shall give notice thereof to the Lenders and the Borrower as soon as possible after such determination or receipt of such Lender Libor Suspension Notice, as the case may
be, and the Borrower shall, within one Banking Day after receipt of such notice and in replacement of the Notice of Conversion or Notice of Continuation, as the case may be, previously given by the
Borrower, give the Administrative Agent a Notice of Conversion which specifies the Conversion of the relevant Eurodollar Loan on the last day of the applicable Interest Period into a Base Rate Loan.
In the event the Borrower fails to give, if applicable, a valid replacement Notice of Conversion with respect to the maturing Eurodollar Loans which were the subject of a Rollover Notice, such
maturing Eurodollar Loans shall be converted on the last day of the applicable Interest Period into Base Rate Loans as if a Conversion Notice had been given to the Administrative Agent by the Borrower
pursuant to the provisions hereof. 




(b)    If
at any time the Agent determines (which determination shall be conclusive absent manifest error) that: 



(i)     the
circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary; 


(ii)    the
circumstances set forth in clause (a)(i) have not arisen but either (A) the applicable supervisor or administrator of the Reuters Screen LIBOR01 Page has
made a public statement identifying a specific date after which the Reuters Screen LIBOR01 Page shall permanently or indefinitely cease to be published, or (B) a Governmental Authority
having jurisdiction over the Agent, has made a public statement identifying a specific date after which LIBOR shall no longer be used for determining interest rates for loans (either such date, a
"Libor Discontinuation Date"); or 



17







 

(iii)   a
rate other than LIBOR has become a widely recognized benchmark rate for newly originated loans denominated in United States Dollars in the United States market, then
the Administrative Agent and the Borrower shall negotiate in good faith to select a replacement index for the Reuters Screen LIBOR01 Page and make adjustments to the Applicable Margin
(but not any reduction thereof) and other related amendments to this Agreement that shall give due consideration to the prevailing market practice for: (i) determining a rate of interest
applicable to newly originated syndicated dollar loans made in the United States at such time, and (ii) transitioning existing loans from LIBOR-based interest rates to loans bearing
interest calculated with reference to the new reference rate); provided that, if the rate of interest determined by such replacement index for the Reuters Screen LIBOR01 Page would be less than
zero, such rate shall be deemed to be zero for the purposes of this Agreement. 




(c)    Upon
an agreement being reached between the Administrative Agent and the Borrower pursuant to clause (b) above, the Administrative Agent and the Borrower shall enter into an
amendment to this Agreement that gives effect to the replacement reference rate of interest, adjustments to the Applicable Margin and such other related amendments as may be appropriate in the
discretion of the Administrative Agent for the implementation and administration of United States dollar loans bearing interest calculated with reference to the replacement index.
Notwithstanding anything to the contrary in this Agreement, such amendment shall become effective at 5:00 p.m. on the fifth Banking Day after a copy of the amendment is provided to the Lenders
and without any further action or consent of any other party to this Agreement. 


(d)    If
the circumstances set forth in clause (b)(ii) or clause (b)(iii) have arisen, until the earlier of (x) an amendment reflecting the transition to a new
reference rate becomes effective as contemplated by this Section and (y) the occurrence of a Libor Discontinuation Date as determined by the Administrative Agent (which determination shall be
conclusive, absent manifest error), each Continuation of a Eurodollar Loan shall continue to bear interest calculated with reference to the Reuters Screen LIBOR01 Page. 



Section 2.11.    Illegality.    If, after the date of this Agreement, any Change in Law shall make it
unlawful or impossible for any Lender to maintain any Eurodollar Loan and such Lender shall so promptly notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to
the Borrower and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation
of such Lender to continue or convert outstanding Loans as or into Eurodollar Loans, shall be suspended. Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such designation would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to
such Lender in the good faith exercise of its discretion. 


Section 2.12.    Increased Costs.    


(a)    If
any Change in Law shall: 



(i)     impose,
modify or deem applicable any reserve, special deposit, compulsory loan, Federal Deposit Insurance Corporation insurance charge or other similar insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted LIBO Rate); or 


(ii)    impose
on any Lender or the eurodollar interbank market any other condition affecting this Agreement or Loans made by such Lender or participation therein; 




and
the result of either of the foregoing is to increase the cost to such Lender or such other Recipient of converting into, continuing or maintaining a Eurodollar Loan or
to reduce the amount received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount), then the Borrower shall promptly pay, upon written notice
from and demand by such Lender or other Recipient on the Borrower (with a copy of such notice and demand to the Administrative Agent), to the Administrative Agent for the account of such Lender or
other Recipient, within five Business Days after the date of such notice and demand, additional amount or amounts sufficient to compensate such Lender for such additional costs incurred or reduction
suffered; provided, that amounts paid under 


18







 

this
Section 2.12(a) shall be without duplication of amounts paid under Section 2.12
and shall not include Excluded Taxes (including any amounts attributable to any change in the rate of any Excluded Tax) payable by a Lender. 


(b)    If
any Lender shall have determined that on or after the date of this Agreement any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing
the rate of return on such Lender's capital (or on the capital of such Lender's parent corporation) as a consequence of its obligations hereunder to a level below that which such Lender or such
Lender's parent corporation could have achieved but for such Change in Law (taking into consideration such Lender's policies or the policies of such Lender's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt by the Borrower of written demand by such Lender (with a copy thereof to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender or such Lender's parent corporation for any such reduction suffered. 


(c)    A
certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or such Lender's parent corporation specified in paragraph (a) or (b)
of this Section 2.12 shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive, absent manifest error.
The Borrower shall pay any such Lender such amount or amounts within 10 days after receipt thereof. 


(d)    Except
as provided in Section 2.12(e), failure or delay on the part of any Lender to demand compensation pursuant to this  Section 2.12 shall not
constitute a waiver of such Lender's right to demand such compensation. 


(e)    Notwithstanding
anything to the contrary in this Section 2.12, the Borrower shall not be required to compensate a Lender
pursuant to this Section 2.12 for any amounts incurred prior to the date that such Lender notifies the Borrower of such Lender's intention to
claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive effect. 


Section 2.13.    Funding Indemnity.    In the event of (a) the payment of any principal of a
Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrower to prepay, convert or continue any Eurodollar Loan on the date specified in any
applicable notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the Borrower shall compensate each Lender, within five (5) Business Days after written
demand from such Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (A) the amount of interest that would have accrued on the principal amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate
applicable to such Eurodollar Loan for the period from the date of such event to the last day of the then current Interest Period therefor (or in the case of a failure to convert or continue,
for the period that would have been the Interest Period for such Eurodollar Loan) over (B) the amount of interest that would accrue on the principal amount of such Eurodollar Loan for the same
period if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or the date on which the Borrower failed to convert or continue such Eurodollar Loan. A certificate
as to any additional amount payable under this Section 2.13 submitted to the Borrower by any Lender (with a copy to the Administrative Agent)
shall be conclusive, absent manifest error. 


Section 2.14.    Taxes.    


(a)    For
purposes of this Section 2.14, the term "applicable law" includes FATCA. 



(b)    Any
and all payments by or on account of any obligation of the Borrower hereunder shall be made free and clear of and without deduction or withholding for any Taxes, except as
required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such
payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or
withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.14) the
applicable 


19







 



Recipient
receives an amount equal to the sum it would have received had no such deduction or withholding been made. 


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


(d)    The
Borrower shall indemnify each Recipient within five (5) Business Days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified
Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14) payable or paid by such Recipient or required to be
withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. 



(e)    Each
Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender
(but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so),
(ii) any Taxes attributable to such Lender's failure to comply with the provisions of Section 10.4 relating to the maintenance of a Participant Register and (iii) any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this
paragraph (e). 


(f)    As
soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.14, 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. 


(g)    (i)
Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the
Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or
the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.14(f)(ii)(A),  (ii)(B)
and (ii)(D) below) shall not be required if in the Lender's reasonable judgment such
completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. 



(ii)    Without
limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person, 



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




20







 


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



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



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


(iii)   in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially to the
effect that such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or a "controlled foreign corporation" described in Section 881(c)(3)(C) of the Code (a "U.S. Tax Compliance
Certificate") and (y) executed originals of IRS Form W-8BEN; or 


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




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


(D)   if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the
Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the
Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (D), "FATCA" shall include any amendments made to FATCA after the date of this Agreement. 





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


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(h)    If
any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this  Section 2.14 (including by the
payment of additional amounts pursuant to this  Section 2.14), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made
under this Section 2.14 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such
indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified
party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority)
in the event that such indemnified party is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any indemnified party to make available its
Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. 



Section 2.15.    Payments Generally; Pro Rata Treatment; Sharing of Set-offs.    


(a)    The
Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, or of amounts payable under  Sections 2.12, 2.13
or 2.14, or otherwise)
prior to 12:00 noon (New York time) on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off or counterclaims. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at the Payment Office, except that payments pursuant to Sections 2.12,  2.13 and 2.14 and 10.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars. 



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


(c)    If
any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans that would result
in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving
such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the
Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. 


(d)    Unless
the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for 


22







 



each
day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation. 


(e)    If
any Lender shall fail to make any payment required to be made by it pursuant to Section 2.15(d)
or 10.3(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid. 


Section 2.16.    Mitigation of Obligations.    If any Lender requests compensation under  Section 2.12, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.14, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable under Section 2.12 or Section 2.14,
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 costs and expenses incurred by any Lender in connection with such designation or assignment. 


Section 2.17.    Replacement of Lenders.    If any Lender requests compensation under  Section 2.12, if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority of the account of any Lender
pursuant to Section 2.14 or any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in  Section 10.4(b) all its
interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender); provided, that (i) the Borrower shall have received the prior written consent of the Administrative Agent with respect to
the proposed assignee, which consent shall not be unreasonably withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal amount of all Loans owed to
it, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (in the case of such outstanding principal and accrued interest) and from the
Borrower (in the case of all other amounts) and (iii) in the case of a claim for compensation under Section 2.12 or payments
required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and
delegation cease to apply. 


Section 2.18.    Defaulting Lenders.    


(a)    If
a Lender becomes, and during the period it remains, a Defaulting Lender, (i) 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 and (ii) notwithstanding Section 10.2, any such Defaulting Lender shall not have the
right to vote on or consent to any amendment or waiver under this Agreement if such amendment or waiver does not (A) disproportionately in an adverse manner affect the rights of such Defaulting
Lender, or (B) reduce the principal owed to such Defaulting Lender or extend the final maturity thereof; provided, that any amendment to this clause (ii) shall require the consent of all
Lenders, including any Defaulting Lenders. 


(b)    If
the Borrower and the Administrative Agent agree in writing in their discretion that any Defaulting Lender has ceased to be a Defaulting Lender, the Administrative Agent will so
notify the parties hereto, whereupon as of the effective date specified in such notice, and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender. 


23









  













 



 
 







ARTICLE III    
    
    CONDITIONS PRECEDENT TO LOANS



Section 3.1.    Conditions To Effectiveness.    The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with  Section 10.2). 


(a)    The
Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including upfront fees for the Lenders and reimbursement or
payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under
any other Loan Document and under any agreement with the Administrative Agent. 


(b)    The
Administrative Agent (or its counsel) shall have received the following: 



(i)     a
counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or other
electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement; 


(ii)    a
certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iv), attaching and
certifying copies of (x) the Borrower LLC Agreement, or comparable organizational documents and authorizations of the Borrower and (y) resolutions of the management committee or
comparable governing body of the Borrower, authorizing the execution, delivery and performance of the Loan Documents by the Borrower; 


(iii)   certificates
of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower, and each other jurisdiction where
the Borrower is required to be qualified to do business as a foreign corporation; 


(iv)   a
certificate signed by a Responsible Officer, certifying the name, title and true signature of each officer of the Borrower executing the Loan Documents on behalf of the Borrower to
which the Borrower is a party; 


(v)    a
favorable written opinion of in-house counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the
Loan Documents and the transactions contemplated therein as the Administrative Agent shall reasonably request; 


(vi)   a
certificate in the form of Exhibit 3.1(b)(viii), dated the Closing Date and signed by a Responsible Officer, certifying that
(A) all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law or by any Contractual Obligation of
the Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby have been obtained, and such
consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any
governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing, (B) no Default or Event of Default exists, (C) no default
or event of default exists in respect of any Material Indebtedness, (D) all representations and warranties of the Borrower set forth in the Loan Documents are true and correct in all material
respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be
true and correct in all respects) and (E) since the date of the financial statements of the Borrower described in Section 4.4, there shall
have been no change which has had or could reasonably be expected to have a Material Adverse Effect; 


(vii)  a
duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof; 


(viii) a
certificate, dated the Closing Date and signed by the chief financial officer of the Borrower, confirming that the Borrower is Solvent before and after giving effect to the
transactions contemplated to occur on the Closing Date; 



24







 

(ix)   to
the extent requested by the Administrative Agent, the Administrative Agent shall have received, a reasonable time prior to the Closing Date, all documentation and other
information with respect to the Borrower and the General Partner that the Administrative Agent reasonably believes is required by regulatory authorities under applicable
"know-your-customer" and anti-money laundering rules and regulations, including without limitation, the Patriot Act and the Beneficial Ownership Regulation; and 



(x)    evidence
satisfactory to the Administrative Agent (acting reasonably) that the Borrower has received an investment grade rating from Fitch Ratings Inc. (i.e. a rating of
BBB- or higher). 




Section 3.2.    Delivery of Documents.    All of the Loan Documents, certificates, legal opinions and
other documents and papers referred to in this Article III, unless otherwise specified, shall be delivered to the Administrative Agent for the
account of each of the Lenders and in sufficient counterparts or copies for each of the Lenders and shall be in form and substance reasonably satisfactory in all respects to the Administrative Agent. 


 
 







ARTICLE IV    
    
    REPRESENTATIONS AND WARRANTIES


The
Borrower represents and warrants to the Administrative Agent and each Lender as follows: 


Section 4.1.    Existence; Power.    The Borrower and each of its Subsidiaries (i) is duly
organized, validly existing and in good standing as a corporation, partnership or limited liability company under the laws of the jurisdiction of its organization, (ii) has all requisite power
and authority to carry on its business as now conducted, and (iii) is duly qualified to do business, and is in good standing, in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect. 



Section 4.2.    Organizational Power; Authorization.    The execution, delivery and performance by
the Borrower of the Loan Documents to which it is a party are within the Borrower's organizational powers and have been duly authorized by all necessary organizational, and if required, general
partner action. This Agreement has been duly executed and delivered by the Borrower, and constitutes, and each other Loan Document to which the Borrower is a party, when executed and delivered by the
Borrower, will constitute, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity. 



Section 4.3.    Governmental Approvals; No Conflicts.    The execution, delivery and performance by
the Borrower of this Agreement, and of the other Loan Documents to which it is a party (a) do not require any consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in full force and effect, (b) will not violate any Requirements of Law applicable to the Borrower or any of its
Subsidiaries or any judgment, order or ruling of any Governmental Authority, (c) will not violate or result in a default under any indenture, material agreement or other material instrument
binding on the Borrower or any of its Subsidiaries or any of its assets or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries and
(d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries, except Liens (if any) created under the Loan Documents. 


Section 4.4.    Financial Statements.    


(a)    The
Borrower has furnished to each Lender (i) the audited FERC Form 2 Financial Statements of the Borrower and its Subsidiaries as of December 31, 2017 for the
Fiscal Year then ended and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of September 30, 2018, and the related unaudited consolidated statements
of income and cash flows for the Fiscal Quarter and year-to-date period then ending, certified by a Responsible Officer. Such financial statements fairly present in all material respects the
consolidated financial condition of the Borrower and its Subsidiaries as of such dates and the consolidated results of operations for such periods in conformity with GAAP consistently applied, subject
to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii). 


25







 

(b)    Since
December 31, 2017, there have been no changes with respect to the Borrower and its Subsidiaries which have had or could reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect. 


Section 4.5.    Litigation and Environmental Matters.    


(a)    No
litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is pending against or, to the knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries (i) as to which there is a reasonable likelihood of an adverse determination that could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect or (ii) which in any manner draws into question the validity or enforceability of this Agreement or any other Loan Document. 


(b)    Except
for the matters set forth on Schedule 4.5 and except as could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability. 



Section 4.6.    Compliance with Laws and Agreements.    The Borrower and each Subsidiary is in
compliance with (a) all Requirements of Law and all judgments, decrees and orders of any Governmental Authority and (b) all indentures, agreements or other instruments binding upon it or
its properties, except where non-compliance, either singly or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 


Section 4.7.    Investment Company Act, Etc.    Neither the Borrower nor any of its Subsidiaries is
(a) an "investment company" or is "controlled" by an "investment company", as such terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as amended, or
(b) otherwise subject to any other regulatory scheme limiting its ability to incur debt or requiring any approval or consent from or registration or filing with, any Governmental Authority in
connection therewith, except those as have been obtained or made and are in full force and effect. 


Section 4.8.    Taxes.    The Borrower and its Subsidiaries and each other Person for whose taxes the
Borrower or any Subsidiary is liable have timely filed or caused to be filed all Federal income tax returns and all other material tax returns that are required to be filed by them, and have paid all
taxes shown to be due and payable on such returns or on any assessments made against it or its property and all other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority, except where the same are currently being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as the case may be, has set aside on
its books adequate reserves in accordance with GAAP. The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of such taxes are adequate, and no tax liabilities
that could be materially in excess of the amount so provided are anticipated. 


Section 4.9.    Margin Regulations.    None of the proceeds of any of the Loans will be used,
directly or indirectly, for "purchasing" or "carrying" any "margin stock" with the respective meanings of each of such terms
under Regulation U of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect or for any purpose that violates the provisions of the
Regulation U. Neither the Borrower nor its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or
carrying "margin stock." 


Section 4.10.    ERISA.    No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. With respect to the Plans,
(a) the present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan, and (b) the present value of all accumulated benefit obligations
of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Standards No. 87) did not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of all such underfunded Plans, where the liability, if any, in (a) or (b) above could reasonably be expected to result in a Material
Adverse Effect. 


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Section 4.11.    Ownership of Property.    Except as could not reasonably be expected to result in a
Material Adverse Effect: 


(a)    Each
of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all of its real and personal property material to the operation of its business,
including all such properties reflected in the most recent audited FERC Form 2 Financial Statements of the Borrower referred to in  Section 4.4 or purported to have been acquired by the
Borrower or any Subsidiary after said date (except as sold or otherwise disposed of
in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are material to the business or operations of
the Borrower and its Subsidiaries are valid and subsisting and are in full force. 


(b)    Except
as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, each of the Borrower and its Subsidiaries owns, or is licensed,
or otherwise has the right, to use, all patents, trademarks, service marks, trade names, copyrights and other intellectual property material to its business, and the use thereof by the Borrower and
its Subsidiaries does not infringe in any material respect on the rights of any other Person. 


(c)    The
properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies, in such amounts with such deductibles and covering such risks
of loss or damage of the kinds customarily carried by companies in the same or similar businesses operating in the same or similar locations, which may include self-insurance, if determined by the
Borrower to be reasonably prudent and consistent with business practices as in effect on the date hereof. 


Section 4.12.    Disclosure.    The Borrower has disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which the Borrower or any of its Subsidiaries is subject, and all other matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. None of the reports (including without limitation all reports that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation or
syndication of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in light of the circumstances under which they were made, not materially
misleading; 


Section 4.13.    Labor Relations.    There are no strikes, lockouts or other material labor disputes
or grievances against the Borrower or any of its Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its Subsidiaries, or to the Borrower's knowledge, threatened against any of them before any Governmental Authority. All
payments due from the Borrower or any of its Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of the Borrower or any such Subsidiary, except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect. 


Section 4.14.    Subsidiaries.    Schedule 4.14
sets forth the name of, the jurisdiction of incorporation or organization of, and the type of, each Subsidiary, in each case as of the Closing Date. 


Section 4.15.    Solvency.    After giving effect to the execution and delivery of the Loan
Documents, the making of the Loans under this Agreement, the Borrower and the Borrower together with its Subsidiaries taken as a whole will be Solvent. 


Section 4.16.    OFAC.    The Borrower (i) is not a person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) does not knowingly engage in any dealings or transactions prohibited by Section 2 of such executive
order, or is not otherwise knowingly associated with any such person in any manner violative of Section 2 of such executive order, or (iii) is not a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or 


27







 



prohibitions
under any other U.S. Department of Treasury's Office of Foreign Assets Control regulation or executive order. 


Section 4.17.    Patriot Act.    The Borrower is in compliance, in all material respects, with
(i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) and any other enabling legislation or executive order relating thereto, and (ii) the Patriot Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended. 


 
 







ARTICLE V    
    
    AFFIRMATIVE COVENANTS



Until
the Termination Date, the Borrower covenants and agrees that: 


Section 5.1.    Financial Statements and Other Information.    The Borrower will deliver to the
Administrative Agent and each Lender: 


(a)    as
soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited financial statements for such Fiscal Year
for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income,
changes in members' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, all in reasonable detail and reported on by KPMG LLP or other independent public accountants of nationally recognized standing (without a "going concern" or like
qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the
financial condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants
in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; 


(b)    as
soon as available and in any event within 90 days after the end of each of the first three Fiscal Quarters of any Fiscal Year of the Borrower, an unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income, changes in members' equity and
cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the Borrower's previous Fiscal Year; 


(c)    concurrently
with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate; and 



(d)    promptly
following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request. 


Section 5.2.    Notices of Material Events.    The Borrower will furnish to the Administrative Agent
and each Lender prompt written notice of the following: 


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



(b)    the
filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against the Borrower or any Subsidiary which could reasonably be
expected to result in a Material Adverse Effect; 


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(c)    the
occurrence of any event or any other development by which the Borrower or any of its Subsidiaries (i) fails to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, (ii) becomes subject to any Environmental Liability, (iii) receives notice of any claim with
respect to any Environmental Liability, or (iv) becomes aware of any basis for any Environmental Liability and in each of the preceding clauses, which individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect; 


(d)    the
occurrence of any ERISA Event that alone, or together with any other ERISA Events that have occurred, since the Closing Date, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding the Designated Threshold; and 



(e)    the
occurrence of any default or event of default, or the receipt by the Borrower or any of its Subsidiaries of any written notice of an alleged default or event of default, in
respect of any Material Indebtedness of the Borrower or any of its Subsidiaries. 


Each
notice delivered under this Section 5.2 shall be accompanied by a written statement of a Responsible Officer
setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto. 


Section 5.3.    Existence; Conduct of Business.    The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its (a) legal existence;  provided, that nothing in this Section 5.3(a) shall prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 7.3 and (b) its respective rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names except for any failure to preserve, renew or maintain any such right, license, permit, privilege, franchise, patent, copyright, trademark or trade name as could
not reasonably be expected to result in a Material Adverse Effect. 


Section 5.4.    Compliance with Laws, Etc.    The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental Authority applicable to its business and properties, including without limitation, all Environmental
Laws, ERISA and OSHA, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 


Section 5.5.    Payment of Obligations.    The Borrower will, and will cause each of its Subsidiaries
to, pay and discharge at or before maturity, all of its obligations and liabilities (including without limitation all taxes, assessments and other governmental charges, levies and all other claims
that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings and the Borrower or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to make any such payment could not reasonably be expected to result in a Material Adverse Effect. 


Section 5.6.    Books and Records.    The Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities to the extent necessary to
prepare the consolidated financial statements of the Borrower in conformity with GAAP. 


Section 5.7.    Visitation, Inspection, Etc.    The Borrower will, and will cause each of its
Subsidiaries to, permit at any reasonable time and from time to time and upon reasonable notice, the Administrative Agent or any of its agents or representatives, to (i) examine and make copies
of and abstracts from the records and books of account of, and visit the properties of, the Borrower and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and
any of its Subsidiaries with any of their officers or directors and (ii) use commercially reasonable efforts to provide for the Administrative Agent or any representatives thereof
(in the presence of representatives of the Borrower) to meet with the independent certified public accountants;  provided,however, if an Event
of Default has occurred
and is continuing, no prior notice of such visit or inspection shall be required to the Borrower and its Subsidiaries; provided,  further, that any such
visits or inspections shall be subject to such conditions as the Borrower and each of its Subsidiaries shall deem necessary based
on reasonable considerations of safety and security; and provided, further, that 


29







 



neither
the Borrower nor any Subsidiary shall be required to disclose to the Administrative Agent or any representatives thereof any information which is subject to the attorney-client privilege or
attorney work-product privilege properly asserted by the applicable Person to prevent the loss of such privilege in connection with such information or which is prevented from disclosure pursuant to a
confidentiality agreement with third parties. 


Section 5.8.    Maintenance of Properties; Insurance.    The Borrower will, and will cause each of
its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, except as could not
reasonably be expected to have a Material Adverse Effect, and (b) maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the kinds customarily insured against by companies in the same or similar businesses operating in the same or similar
locations, which may include self-insurance, if determined by the Borrower to be reasonably prudent and consistent with business practices as in effect on the date hereof. 


Section 5.9.    Pari Passu Ranking.    The Borrower shall ensure that at all times all of its
payment obligations hereunder and under any other Loan Documents rank at least pari passu in right of payment with the other unsecured and
unsubordinated Indebtedness for borrowed money of the Borrower (other than claims preferred by operation of law). 


Section 5.10.    Use of Proceeds.    The Borrower will use the proceeds of all Loans to repay
existing indebtedness, finance working capital needs and capital expenditures and for other general corporate purposes of the Borrower and its Subsidiaries, including future possible acquisitions. No
part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X. 


Section 5.11.    Maintenance of Tax Status.    To the extent permitted by Requirements of Law, the
Borrower shall take all action necessary to prevent the Borrower from being, and will take no action which would have the effect of causing the Borrower to be, treated as an association taxable as a
corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes. 


 
 







ARTICLE VI    
    
    FINANCIAL COVENANTS


Until
the Termination Date, the Borrower covenants and agrees that: 


Section 6.1.    Debt to Capitalization Ratio.    The Borrower and its Subsidiaries will maintain on a
consolidated basis as of the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending September 30, 2018, a ratio of Total Debt to Total Capitalization that is not greater
than 70%. 


 
 







ARTICLE VII    
    
    NEGATIVE COVENANTS


Until
the Termination Date, the Borrower covenants and agrees that: 



Section 7.1.    Indebtedness.    The Borrower will not permit any of its Subsidiaries to create,
incur, assume or suffer to exist any Indebtedness, except ("Permitted Indebtedness"): 


(a)    Indebtedness
of the Subsidiaries of the Borrower listed in Schedule 7.1 and existing on the date of this Agreement and
extensions, renewals, refinancings and replacements thereof; provided that (A) the principal amount of any such refinancing does not exceed the principal amount of the Indebtedness being
refinanced plus the amount of fees, expenses, premiums and accrued interest paid in connection with such refinancing and (B) the final maturity of such refinancing debt is not shorter than the
maturity of the Indebtedness being replaced; 


30









  













 





(b)    endorsements of checks or drafts in the ordinary course of business; 


(c)    Indebtedness
of the Subsidiaries of the Borrower resulting from loans made by the Borrower to a Subsidiary or loans made by a Subsidiary to another Subsidiary; 


(d)    other
Indebtedness of the Subsidiaries of the Borrower (excluding Indebtedness otherwise permitted in this Section 7.1) which
does not exceed the Designated Threshold outstanding at any time in the aggregate; 


(e)    Permitted
Subordinated Debt; 


(f)    Guarantees
of the Subsidiaries of the Borrower in respect of Permitted Indebtedness of other Subsidiaries of the Borrower or Guarantees of the Subsidiaries of the Borrower in respect
of Indebtedness of the Borrower permitted by this Agreement; 


(g)    Indebtedness
of any Person which becomes a Subsidiary of the Borrower after the Closing Date and extensions, renewals, refinancings and replacements thereof;  provided that (A) the principal amount of any such
refinancing does not exceed the principal amount of the Indebtedness being refinanced plus the
amount of reasonable fees, expenses, premiums and accrued interest paid in connection with such refinancing and (B) the final maturity of such refinancing debt is not shorter than the maturity
of the Indebtedness being replaced; provided further, that (1) such Indebtedness exists at the time such Person becomes a Subsidiary and is not
created or incurred in contemplation of or in connection with such Person becoming a Subsidiary and (2) no Default or Event of Default exists at the time such Person becomes a Subsidiary and
immediately after such Person becomes a Subsidiary; 


(h)    Hedging
Obligations arising under Hedging Transactions permitted by Section 7.9;


provided, however, no Indebtedness otherwise permitted under this  Section 7.1 shall be permitted if, after
giving effect to the incurrence thereof, any Default or Event of Default shall have occurred and
be continuing. 


The
Borrower will not, and will not permit any Subsidiary to, issue any preferred shares or other preferred partnership, limited liability company or other equity interests
that (i) mature or are mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) are or may become redeemable or repurchaseable by the Borrower or such Subsidiary
at the option of any holders thereof, in whole or in part or (iii) are convertible or exchangeable at the option of any holders thereof for Indebtedness not permitted by this Agreement, on or
prior to, in the case of clause (i), (ii) or (iii), the first anniversary of the Maturity Date. 


Section 7.2.    Negative Pledge.    The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property now owned or hereafter acquired, except: 


(a)    Permitted
Encumbrances; 


(b)    any
Liens on any property or asset of the Borrower or any Subsidiary existing on the Closing Date set forth on Schedule 7.2;
provided, that such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary; 


(c)    purchase
money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of construction or improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the acquisition, construction or improvement of such fixed or capital assets (including Liens securing any Capital Lease Obligations);  provided,
that (i) such Lien secures Indebtedness permitted by this Agreement, (ii) such Lien attaches to such asset concurrently or
within one (1) year after the acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend to any other asset; and (iv) the Indebtedness
secured thereby does not exceed the original cost of acquiring, constructing or improving such fixed or capital assets; 


(d)    any
Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such
Person is merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower;  provided, that any such Lien was not created in the contemplation of any of the foregoing and any such Lien secures only those obligations which it
secures on the date that such Person becomes a Subsidiary or the date of such merger or the date of such acquisition; 


31







 

(e)    extensions,
renewals, or replacements of any Lien referred to in paragraphs (a) through (f) of this Section 7.2;
provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally
encumbered thereby; 


(f)    any
right which any municipal or governmental body or agency may have by virtue of any franchise, license, contract or status to purchase or designate a purchaser of, or order the
sale of, any property of the Borrower or any Subsidiary upon payment of reasonable compensation therefor or to terminate any franchise, license or other rights or to regulate the property and business
of the Borrower or any Subsidiary; 


(g)    Liens
on cash and cash equivalents granted pursuant to master agreements entered into in the ordinary course of business in connection with Hedging Transactions; provided that
(i) the transactions secured by such Liens are governed by standard International Swaps and Derivatives Association, Inc. ("ISDA") documentation, and (ii) such Hedging
Transactions consist of derivative transactions contemplated to be settled in cash and not by physical delivery and are designed to minimize the risk of fluctuations in oil and gas prices, interest
rates or foreign currency rates with respect to the Borrower's and its Subsidiaries' operations in the ordinary course of its business; 



(h)    Liens
pursuant to master agreements entered into in the ordinary course of business in connection with Hedging Transactions, in each case pursuant to which the Borrower or any
Subsidiary of the Borrower, as a party to such master agreement and as pledgor, pledges or otherwise transfers to the other party to such master agreement, as pledgee, in order to secure the
Borrower's or such Subsidiary's obligations under such master agreement, a Lien upon and/or right of set off against, all right, title, and interest of the pledgor in any obligations of the pledgee
owed to the pledgor, together with all accounts and general intangibles and payment intangibles in respect of such obligations and all dividends, interest, and other proceeds from time to time
received, receivable, or otherwise distributed in respect of, or in exchange for, any or all of the foregoing; 


(i)     Liens
securing Indebtedness permitted under Section 7.1(g);


(j)     Liens
not otherwise permitted by this Section 7.2 if at the time of, and after giving effect to, the creation or assumption of
any such Lien, the aggregate of all obligations of the Borrower and its Subsidiaries secured by any Liens not otherwise permitted hereby, together with all net sale proceeds from Sale-Leaseback
Transactions (other than Sale-Leaseback Transactions described in clauses (i), (ii) and (iv) in the definition of "Permitted Sale-Leaseback
Transaction"), does not exceed 5% of Consolidated Net Tangible Assets at any one time outstanding; and 


For
purposes of making the calculation in paragraph (j) above, with respect to any such secured obligations of a non-wholly-owned Subsidiary with no recourse to the
Borrower or any wholly-owned Subsidiary thereof, only that portion of the aggregate principal amount of such secured obligations reflecting the Borrower's pro rata ownership interest in such
non-wholly-owned Subsidiary shall be included in making such calculation. 


Section 7.3.    Fundamental Changes.    


(a)    The
Borrower will not, and will not permit any Subsidiary to, merge into or consolidate into any other Person, or permit any other Person to merge into or consolidate with it, or
sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all of its assets (in each case, whether now owned or hereafter acquired) (whether now
owned or hereafter acquired) or liquidate or dissolve; provided, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, then (i) the Borrower or any Subsidiary may merge with a Person if the Borrower
(or such Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (ii) any Subsidiary may merge into another Subsidiary; (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to another Subsidiary, and (iv) any Subsidiary may sell, lease, transfer or otherwise dispose
of (in a single transaction or a series of transactions) all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the Capital Stock of its
Subsidiaries or may liquidate or dissolve if the Borrower determines in good faith that such sale, lease, transfer, disposition, liquidation or dissolution is in the best interests of the Borrower and
is not materially disadvantageous to the Lenders; provided, however, that in no event shall any such merger, consolidation, sale, transfer, lease or
other disposition whether or not otherwise permitted by this  Section 7.3 have the effect of releasing the Borrower from any of its obligations and liabilities under this Agreement or the other
Loan Documents. 


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(b)    The
Borrower shall not engage in any business activity except the ownership or operation of energy infrastructure assets and/or such activities as may be incidental or related
thereto. The Borrower shall not permit any of its Subsidiaries to engage, directly or indirectly, in any business activity not related to the ownership or operation of energy infrastructure assets. 


Section 7.4.    Investments, Loans, Etc.    The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Subsidiary prior to such merger), any common stock, evidence of indebtedness or
other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit
to exist any investment or any other interest in, any other Person (all of the foregoing being collectively called "Investments"), or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit, or create or form any Subsidiary, except: 


(a)    Investments
(other than Permitted Investments) existing on the date hereof and set forth on Schedule 7.4 (including Investments
in Subsidiaries); 


(b)    Permitted
Investments; 


(c)    Guarantees
constituting Indebtedness permitted by Section 7.1;


(d)    loans
or advances to employees, officers or directors of the Borrower or any Subsidiary in the ordinary course of business for travel, relocation and related expenses;  provided, however, that the aggregate amount of all such
loans and advances does not exceed $1,000,000 at any one time outstanding; 


(e)    Accounts
receivable or other indebtedness and extensions of trade credit which arose in the ordinary course of such Person's business; 


(f)    Prepaid
expenses of such Person incurred and prepaid in the ordinary course of business; 


(g)    Endorsements
of instruments for deposit or collection in the ordinary course of business; 


(h)    Hedging
Transactions permitted by Section 7.9; and 


(i)     Investments
permitted by Section 7.3(d).


Section 7.5.    Restricted Payments.    The Borrower will not, and will not permit its Subsidiaries
to, declare or make, or agree to pay or make, directly or indirectly, any dividend on any class of its Capital Stock, or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any shares of Capital Stock or Indebtedness subordinated to the Obligations of the Borrower or any
Guarantee thereof or any options, warrants, or other rights to purchase such Capital Stock or such Indebtedness, whether now or hereafter outstanding (each, a "Restricted
Payment"), except for (i) dividends payable by Subsidiaries of the Borrower solely in shares of any class of its Capital Stock, (ii) Restricted Payments made by
any Subsidiary to the Borrower or to another Subsidiary, on at least a pro rata basis with any other holders of its Capital Stock if such Subsidiary is not wholly owned by the Borrower and
other wholly owned Subsidiaries, (iii) so long as no Event of Default has occurred and is continuing, distributions on the Borrower's Members' interests in accordance with the
Borrower LLC Agreement, (iv) Permitted Tax Distributions, and (v) payments made with respect to Permitted Subordinated Debt to the extent allowed by the terms of the agreements
entered into connection therewith, which agreements shall have been approved by the Administrative Agent and the Required Lenders. 



Section 7.6.    Transactions with Affiliates.    Except as set forth in  Schedule 7.6, the Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) at prices and on terms and conditions
not less favorable to the Borrower or such Subsidiary than could be obtained on an arm's-length basis from unrelated third parties, (b) any Restricted Payment permitted by  Section 7.5
and (c) any Investment permitted by Section 7.4. 



Section 7.7.    Restrictive Agreements.    The Borrower will not, and will not permit any Subsidiary
to, directly or indirectly, enter into, incur or permit to exist any agreement that prohibits, restricts or imposes any condition upon 


33







 



(a) the
ability of the Borrower or any Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now owned or hereafter acquired, to secure any obligations
owing under the Loan Documents, except by indentures or other agreements governing Indebtedness of the Borrower requiring that such Indebtedness be
secured by an equal and ratable Lien with any Lien that may be granted to secure any obligations owing under the Loan Documents, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its Capital Stock, to make or repay loans or advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary or to
transfer any of its property or assets to the Borrower or any Subsidiary of the Borrower; provided, that the foregoing shall not apply to
(i) restrictions or conditions imposed by law or by this Agreement or any other Loan Document or any loan or credit agreement or indenture governing Indebtedness not prohibited by this
Agreement, (ii) customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is sold and such sale is permitted hereunder, (iii) customary provisions in leases restricting the assignment thereof, (iv) any such covenant contained in a Contractual
Obligation granting or relating to a particular Lien permitted by this Agreement which affects only the property that is the subject of such Lien, (v) restrictions which are not more
restrictive than those contained in this Agreement and are contained in any documents governing any Indebtedness incurred after the Closing Date and permitted in accordance with the provisions of this
Agreement, (vi) in the case of any joint venture, customary restrictions in such person's organizational or governing documents or pursuant to any joint venture agreement or stockholders
agreement or (vii) any agreement in effect at the time a Person first became a Subsidiary, so long as such agreement was not entered into solely in contemplation of such Person becoming a
Subsidiary and such agreement only applies to Subsidiaries of such Person. 


Section 7.8.    Sale and Leaseback Transactions.    The Borrower will not, and will not permit any of
the Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any Principal Property, whether now owned or hereinafter acquired, and thereafter rent or
lease such Principal Property or other property that it intends to use for substantially the same purpose or purposes as the Principal Property sold or transferred (any such arrangement, a
"Sale-Leaseback Transaction"), other than Permitted Sale-Leaseback Transactions. 


Section 7.9.    Hedging Transactions.    The Borrower will not, and will not permit any of the
Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary
is exposed in the conduct of its business or the management of its liabilities. Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered into for speculative
purposes or of a speculative nature (which shall be deemed to include any Hedging Transaction under which the Borrower or any of the Subsidiaries is or may become obliged to make any payment
(i) in connection with the purchase by any third party of any common stock or any Indebtedness or (ii) as a result of changes in the market value of any common stock or any Indebtedness)
is not a Hedging Transaction entered into in the ordinary course of business to hedge or mitigate risks. 


Section 7.10.    Certain Amendments to Cash Distribution Policy and Borrower LLC
Agreement.    The Borrower agrees that it shall not consent to, or vote in favor of, any amendment of (a) the cash distribution policies of the Borrower in any
manner which would materially adversely affect the rights and remedies of the Lenders under and in connection with this Agreement or any other Loan Document; or (b) the Borrower LLC
Agreement in any manner which would
(i) have a material adverse effect on the rights and remedies of the Lenders under and in connection with this Agreement or any other Loan Document; or (ii) result in a Material
Adverse Effect. 


Section 7.11.    Accounting Changes.    The Borrower will not, and will not permit any of its
Subsidiaries to, make any significant change in accounting treatment or reporting practices, except as required by GAAP, or change the fiscal year of the Borrower or of any of its Subsidiaries, except
to change the fiscal year of a Subsidiary to conform its fiscal year to that of the Borrower. 


Section 7.12.    Sanctions.    The Borrower will not use the proceeds of any Borrowing for the
purpose of funding, financing or facilitating any activities, business or transaction in any manner that would result in the violation of any economic or financial sanctions or trade embargoes
imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or
the U.S. Department of State. 


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ARTICLE VIII    
    
    EVENTS OF DEFAULT


Section 8.1.    Events of Default.    If any of the following events (each an
"Event of Default") shall occur: 


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


(b)    the
Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount payable under clause (a) of this  Section 8.1) payable under this Agreement or any other
Loan Document, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five (5) Business Days; or 


(c)    any
representation or warranty made or deemed made by or on behalf of the Borrower in or in connection with this Agreement or any other Loan Document and any amendments or
modifications hereof shall prove to be incorrect in any material respect when made or deemed made or submitted; or 


(d)    the
Borrower shall fail to observe or perform any covenant or agreement contained in Sections 5.1,  5.2, or 5.3(a) or Articles VI
or VII; or 


(e)    the
Borrower shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those referred to in clauses (a), (b) and (d)
above) or any other Loan Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any Responsible Officer becomes aware of such failure, or
(ii) written notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or 


(f)    the
Borrower (whether as primary obligor or as guarantor or other surety) shall fail to pay any principal of, or premium or interest on, (i) any Material Indebtedness that is
outstanding, when and as the same shall become due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness; or any other event shall occur or condition shall exist under any agreement or
instrument relating to such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to
accelerate, or permit the acceleration of, the maturity of such Indebtedness; (ii) any such Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each
case prior to the stated maturity thereof; or (iii) (A) there occurs under any Hedging Transaction an Early Termination Date (as defined in such Hedging Transaction) resulting
from an event of default under such Hedging Transaction as to which the Borrower is the Defaulting Party (as defined in such Hedging Transaction) and the value owed by the Borrower as a result
thereof is greater than (individually or collectively) the Designated Threshold and such amount is not paid when due under such Hedging Transaction, or (B) there occurs under any Hedging
Transaction an Early Termination Date (as defined in such Hedging Transaction) resulting from any Termination Event (as so defined) under such Hedging Transaction as to which the
Borrower is an Affected Party (as defined in such Hedging Transaction) and the value owed by the Borrower or any of its Significant Subsidiaries as a result thereof is greater than
(individually or collectively) the Designated Threshold and such amount is not paid when due under such Hedging Transaction; or 


(g)    the
Borrower shall (i) commence a voluntary case or other proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a custodian, trustee, receiver, liquidator or other similar official of them or any
substantial part of their property, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this  Section 8.1, (iii) apply for or consent to the appointment of a custodian, trustee, receiver, liquidator or other similar official for the
Borrower or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, or (vi) take any member action for the purpose of effecting any of the foregoing; or 


35









  













 





(h)    an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or its
debts, or any substantial part of their assets, under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the Borrower or for a substantial part of its assets, and in any such case, such proceeding or petition shall remain undismissed
for a period of 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or 


(i)     the
Borrower shall admit in writing its inability to pay, or shall fail to pay, its debts as they become due; or 



(j)     an
ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with other ERISA Events that have occurred, could reasonably be expected to result
in liability to the Borrower in an aggregate amount exceeding the Designated Threshold; or 


(k)    any
judgment or order for the payment of money in excess of the Designated Threshold in the aggregate shall be rendered against the Borrower, and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be a period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this
Section 8.1(k) if and for so long as (i) the amount of such judgment or order is covered (subject to customary deductibles) by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least "A-" by A.M. Best Company, has been notified of, and has not denied
coverage of, the amount of such judgment or order; or 


(l)     any
non-monetary judgment or order shall be rendered against the Borrower that could reasonably be expected to have a Material Adverse Effect, and there shall be a period of
30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or 



(m)  a
Change in Control shall occur or exist. 


then,
and in every such event (other than an event with respect to the Borrower described in clause (g) or (h) of this  Section 8.1) and at any time thereafter during the continuance of
such event, the Administrative Agent may, and upon the written request
of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitment of
each Lender shall terminate immediately, (ii) declare the principal of and any accrued interest on the Loans, and all other Obligations owing hereunder, to be, whereupon the same shall become,
due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (iii) exercise all remedies contained in any other
Loan Document, and (iv) exercise any other remedies available at law or in equity; and that, if an Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, and all fees, and all other Obligations shall automatically become
due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. 


 
 







 ARTICLE IX    
    
    THE ADMINISTRATIVE AGENT


Section 9.1.    Appointment of the Administrative Agent.    Each Lender irrevocably appoints MUFG
Bank, Ltd. ("MUFG") as the Administrative Agent and authorizes it to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and powers that are reasonably incidental thereto. The Administrative Agent may perform any of its duties hereunder or under the
other Loan Documents by or through any one or more sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative Agent and any such sub-agent or attorney-in-fact may
perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions set forth in this Article shall apply to any such sub-agent or
attorney-in-fact and the Related 


36







 



Parties
of the Administrative Agent, any such sub-agent and any such attorney-in-fact and shall apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as the Administrative Agent. 


Section 9.2.    Nature of Duties of the Administrative Agent.    The Administrative Agent shall not
have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have
any duty to take any discretionary action or exercise any discretionary powers, except those discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent
is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in  Section 10.2), and
(c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated
to or obtained by the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it, its sub-agents or
attorneys-in-fact with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in  Section 10.2) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be responsible for
the negligence or misconduct of any sub-agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of
Default unless and until written notice thereof (which notice shall include an express reference to such event being a "Default" or "Event of Default" hereunder) is given to the Administrative Agent
by the Borrower or any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or
in connection with any 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 and conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower) concerning all matters pertaining to such duties. 


Section 9.3.    Lack of Reliance on the Administrative Agent.    Each of the Lenders acknowledges
that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each of the Lenders also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, continue to make its own decisions in taking or not taking of any action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder. 


Section 9.4.    Certain Rights of the Administrative Agent.    If the Administrative Agent shall
request instructions from the Required Lenders with respect to any action or actions (including the failure to act) in connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have received instructions from such Lenders; and the Administrative Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders where required by the terms of this Agreement. 


Section 9.5.    Reliance by Administrative Agent.    The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, posting or
other distribution) believed by it to be genuine and to have been signed, sent or made by the proper Person. The Administrative Agent may also rely upon any statement made to it orally or by telephone
and believed by it to be made by the proper Person and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (including counsel for the Borrower),
independent 


37







 



public
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 such counsel, accountants or experts. 


Section 9.6.    The Administrative Agent in its Individual Capacity.    The bank serving as the
Administrative Agent shall have the same rights and powers under this Agreement and any other Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain from exercising
the same as though it were not the Administrative Agent; and the terms "Lenders", "Required Lenders", or any similar terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business
with the Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the Administrative Agent hereunder. 


Section 9.7.    Successor Administrative Agent.    



(a)    The
Administrative Agent may resign at any time by giving notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent, subject to the approval by the Borrower provided that no Default or Event of Default shall exist at such time. If no successor Administrative Agent shall have
been so appointed, and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States of America or any state thereof or a bank which
maintains an office in the United States, having a combined capital and surplus of at least $500,000,000. 



(b)    Upon
the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given of the retiring Administrative Agent's resignation under this  Section 9.7 no successor Administrative Agent shall have
been appointed and shall have accepted such appointment, then on such
45th day (i) the retiring Administrative Agent's resignation shall become effective, (ii) the retiring Administrative Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents and (iii) the Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under the Loan Documents until such time
as the Required Lenders appoint a successor Administrative Agent as provided above. After any retiring Administrative Agent's resignation hereunder, the provisions of this Article shall continue in
effect for the benefit of such retiring Administrative Agent and its representatives and agents in respect of any actions taken or not taken by any of them while it was serving as the Administrative
Agent. 


Section 9.8.    Authorization to Execute other Loan Documents.    Each Lender hereby authorizes the
Administrative Agent to execute on behalf of all Lenders all Loan Documents other than this Agreement. 


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 ARTICLE X    
    
    MISCELLANEOUS


Section 10.1.    Notices.    


(a)    Written Notices.    



(i)     Except
in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications to any party herein to be effective shall be
in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows: 



	To the Borrower:	 	North Baja Pipeline, LLC

450-1 Street SW

Calgary, AB T2P5H1

Attention: Senior Vice-President, Capital Markets

Telecopy Number: (403) 920-2358
	

With a copy to:	
 	

North Baja Pipeline, LLC

700 Louisiana Street, Suite 700

Houston, TX 77002-2761

Attention: Corporate Secretary

Telecopy Number: (832) 320-6201
	

To the Administrative Agent:	
 	

MUFG

1251 Avenue of the Americas

New York, NY 10020-1104

Attention: Kevin Sparks

Telecopy Number: (212) 782-6440
	

With a copy to:	
 	

MUFG Bank, Ltd., Canada Branch

1840, 335 – 8th Avenue

Calgary, AB T2P 1C9

Attention: John Hunt

Telecopy Number: (416) 865-9511
	

To any other Lender:	
 	

the address set forth in the Assignment and

Acceptance Agreement executed by such Lender






Any
party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All such notices and other communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile machine, respectively, or if mailed, upon the
third Business Day after the date deposited into the mail or if delivered, upon delivery; provided, that any Notice of Conversion/Continuation, and any notice provided under  Section 5.2
or 5.3 delivered to the Administrative Agent shall not be effective until
actually received by such Person at its address specified in this Section 10.1. 


(ii)    Any
agreement of the Administrative Agent and the Lenders herein to receive certain notices by telephone or facsimile is solely for the convenience and at the request of the
Borrower. The Administrative Agent and the Lenders shall be entitled to rely on the authority of any Person believed by it to be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or other Person on account of any action taken or not taken by the Administrative Agent or the Lenders in reliance upon
such telephonic or facsimile notice. The obligation of the Borrower to repay the Loans and all other Obligations hereunder shall not be affected in any way or to any extent by any failure of the
Administrative Agent and the Lenders to receive written confirmation of any telephonic or facsimile notice or the receipt by the 



39







 




Administrative
Agent and the Lenders of a confirmation which is at variance with the terms understood by the Administrative Agent and the Lenders to be contained in any such telephonic or facsimile
notice. 




(b)    Electronic Communications.    



(i)     Notices
and other communications to the Lenders 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 pursuant to  Article II unless
such Lender and the Administrative Agent have agreed to receive notices under such Section by electronic
communication and have agreed to the procedures governing such communications. 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. 


(ii)    Unless
the Administrative Agent otherwise prescribes, (A) 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, (B) 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 and (C) notices and other communications sent by facsimile shall be deemed received upon actual receipt by the intended recipient; 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. 




Section 10.2.    Waiver; Amendments.    


(a)    No
failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between the Borrower and
the Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent and the
Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this  Section 10.2, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent or any Lender may
have had notice or knowledge of such Default or Event of Default at the time. 


(b)    No
amendment or waiver of any provision of this Agreement or the other Loan Documents, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Borrower and the Required Lenders or the Borrower and the Administrative Agent with the consent of the Required Lenders and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given; provided, that no amendment or waiver shall:
(i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any
fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the date fixed for any payment of any principal of, or interest on, any Loan or interest
thereon or any fees hereunder or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent
of each Lender affected thereby, (iv) change Section 2.15(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, or (v) change any of the provisions of this  Section 10.2 or the
definition of "Required Lenders" or any other 


40







 



provision
hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the
consent of each Lender; provided further, that no such agreement shall amend, modify or otherwise affect the rights, duties or obligations of the
Administrative Agent without the prior written consent of such Person. Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without the consent of any
Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement
(as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of  Sections 2.12, 2.13, 2.14
and 10.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and
other amounts owing to it or accrued for its account under this Agreement. 


Section 10.3.    Expenses; Indemnification.    



(a)    The
Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the Administrative Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and its Affiliates, in connection with the preparation and administration of the Loan Documents and any amendments, modifications or waivers
thereof (whether or not the transactions contemplated in this Agreement or any other Loan Document shall be consummated) and (ii) all out-of-pocket costs and expenses incurred by the
Administrative Agent or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this  Section 10.3, or in connection
with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans; provided that the Borrower shall only be responsible for reimbursing the legal fees and expenses
of one outside counsel for the Administrative Agent and the Lenders. 


(b)    The
Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys
who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower 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 the use or proposed use of the proceeds therefrom, (iii) any
actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower, 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 or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower against an Indemnitee
for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if the Borrower has obtained a final judgment in its favor on such claim as determined by a court
of competent jurisdiction. 


(c)    To
the extent that the Borrower fails to pay any amount required to be paid to the Administrative Agent under clauses (a) or (b) hereof, each Lender severally agrees to
pay to the Administrative Agent such Lender's Pro Rata Share (determined as of the time that the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity
as such. 



(d)    To
the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or 


41







 



direct
damages) arising out of, in connection with or as a result of, this Agreement or any agreement or instrument contemplated hereby, the transactions contemplated therein, any Loan or the use of
proceeds thereof. 


(e)    All
amounts due under this Section 10.3 shall be payable promptly after written demand therefor. 


Section 10.4.    Successors and Assigns.    


(a)    The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of 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)    Any
Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the
Loans 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 amount of Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and 


(B)    in
any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and
Acceptance, 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). 




(ii)    Proportionate Amounts.    Each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to the Loans assigned. 


(iii)    Required Consents.    No consent shall be required for any assignment except to the extent required by
paragraph (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 a Lender, an Affiliate of a Lender or an Approved Fund; and 


(B)    the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person that is not a Lender with
a Commitment. 




(iv)    Assignment and Acceptance.    The parties to each assignment shall deliver to the Administrative Agent (A) a duly
executed Assignment and Acceptance, (B) a processing and recordation fee of $3,500, (C) an Administrative Questionnaire unless the assignee is already a Lender and (D) the
documents required under Section 2.14. 


(v)    No Assignment to Borrower.    No such assignment shall be made to the Borrower or any of the Borrower's Affiliates or
Subsidiaries. 


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



42









  













  
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this  Section 10.4, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of
the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 2.12, 2.13, 2.14 and  10.3 with respect to facts
and circumstances occurring prior to the effective date of such assignment. 



(c)    The
Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in New York, NY a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount 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. Information
contained in the Register with respect to any Lender shall be available for inspection by such Lender at any reasonable time and from time to time upon reasonable prior notice; information contained
in the Register shall also be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. In establishing and maintaining the Register, the
Administrative Agent shall serve as the Borrower's agent solely for tax purposes and solely with respect to the actions described in this Section, and
the Borrower hereby agrees that, to the extent MUFG serves in such capacity, MUFG and its officers, directors, employees, agents, sub-agents and affiliates shall constitute "Indemnitees." 


(d)    Any
Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent sell participations to any Person (other than a natural person, the Borrower
or any of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Each Lender that sells a
participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts
(and stated interest) of each Participant's interest in the Loans or other obligations under the Loan Documents (the "Participant Register"); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans or
its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt,
the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. 


(e)    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 with respect to the following to the extent affecting such Participant: (i) increase the Commitment
of such Lender, (ii) reduce the principal amount of any Loan owing to such Lender or reduce the rate of interest thereon, or reduce any fees payable to such Lender hereunder,
(iii) postpone the date fixed for any repayment of any principal of any Loan owing to such Lender or interest thereon or any fees payable to such Lender hereunder or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment; provided,  however, that this 


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clause (iii)
shall not apply to the postponement of the date fixed for, or the waiver of any requirement by the Borrower to make, any optional prepayment under  Section 2.6 (it being understood that such
postponement or waiver shall be effective with the written consent of the Required Lenders),
(iv) change Section 2.15(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, (v) change any of the provisions of this Section 10.4 or the definition of "Required Lenders"
or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder;
or (vi) release all or substantially all collateral (if any) securing any of the Obligations. Subject to paragraph (f) of this  Section 10.4, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections  2.12, 2.13, and 2.14 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 10.4. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7 as though it were a Lender, provided such Participant agrees to be subject to  Section 2.15 as though it were a Lender. 


(f)    A
Participant shall not be entitled to receive any greater payment under Section 2.12 and  Section 2.14 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, after disclosure of such greater payment, is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.14 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 2.14(e) as though it were a Lender. 


(g)    Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or any central 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 10.5.    Governing Law; Jurisdiction; Consent to Service of Process.    


(a)    This
Agreement and the other Loan Documents shall be construed in accordance with and be governed by the law (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) of the State of New York. 


(b)    The
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court of the Southern
District of New York, and of the Supreme Court of the State of New York sitting in New York county and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York state court or, to the extent permitted by
applicable law, such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of any jurisdiction. 


(c)    The
Borrower irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding described in
paragraph (b) of this Section 10.5 and brought in any court referred to in paragraph (b) of this  Section 10.5. Each of the parties
hereto 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)    Each
party to this Agreement irrevocably consents to the service of process in the manner provided for notices in Section 10.1.
Nothing in this Agreement or in any other Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law. 


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Section 10.6.    WAIVER OF JURY TRIAL.    EACH PARTY HERETO 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 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 PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 


Section 10.7.    Right of Setoff.    In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, each Lender shall have the right, at any time or from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, to set off and apply against all deposits (general or
special, time or demand, provisional or final) of the Borrower at any time held or other obligations at any time owing by such Lender or any of its Affiliates to or for the credit or the account of
the Borrower against any and all Obligations held by such Lender, irrespective of whether such Lender shall have made demand hereunder and although such Obligations may be unmatured. Each Lender
agrees promptly to notify the Administrative Agent and the Borrower after any such set-off and any application made by such Lender; provided, that the
failure to give such notice shall not affect the validity of such set-off and application. Each Lender agrees to apply all amounts collected from any such set-off to the Obligations before applying
such amounts to any other Indebtedness or other obligations owed by the Borrower and any of its Subsidiaries to such Lender. 


Section 10.8.    Counterparts; Integration.    This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by telecopy or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. This Agreement, the Fee Letter, the other Loan Documents, and any separate letter agreement(s) relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters hereof and thereof and supersede all prior agreements and understandings, oral or written, regarding such subject matters. 


Section 10.9.    Survival.    All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.12, 2.13,  2.14, and 10.3 and Article IX shall survive and
remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, or the termination of this
Agreement or any provision hereof provided that the provisions of Sections 2.12,  2.13, and 2.14 shall only survive and remain in full force and effect until the first anniversary of the
Termination Date. All representations and warranties made herein, in the certificates, reports, notices, and other documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the other Loan Documents, and the making of the Loans. 


Section 10.10.    Severability.    Any provision of this Agreement or any other Loan Document held to
be illegal, invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the
legality, validity or enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. 


45







 

Section 10.11.    Confidentiality.    Each of the Administrative Agent and each Lender agrees to take
normal and reasonable precautions to maintain the confidentiality of any confidential information provided to it by the Borrower or any Subsidiary, except that such information may be disclosed
(i) to any Related Party of the Administrative Agent or any such Lender, including without limitation accountants, legal counsel and other advisors with a reasonable need for such information
(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 on
substantially the same terms as provided herein), (ii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iii) to the extent requested
by any regulatory agency or authority or self-regulatory body having or claiming authority to regulate or oversee any aspect of the Administrative Agent's or any Lender's business or businesses,
(iv) to the extent that such information becomes publicly available other than as a result of a breach of this Section 10.11, or which
becomes available to the Administrative Agent, any Lender or any Related Party of any of the foregoing on a non-confidential basis from a source other than the Borrower, (v) in connection with
the exercise of any remedy hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, and (ix) subject to provisions substantially similar to
this Section 10.11, to any actual or prospective assignee or Participant, or (vi) with the consent of the Borrower. Any Person required to
maintain the confidentiality of any information as provided for in this Section 10.11 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 its own confidential information; provided that, in the case
of clauses (ii) or (iii), with the exception of disclosure to bank regulatory authorities, the Administrative Agent and each Lender agrees, to the extent practicable and legally
permissible, to give the Borrower prompt prior notice so that it may seek a protective order or other appropriate remedy. 


Section 10.12.    Interest Rate Limitation.    Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which may be treated as interest on such Loan under applicable law (collectively, the
"Charges"), shall exceed the maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable
as a result of the operation of this Section 10.12 shall be cumulated and the interest and Charges payable to such Lender in respect of other
Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at
the Federal Funds Rate to the date of repayment (to the extent permitted by applicable law), shall have been received by such Lender. 



Section 10.13.    Patriot Act.    The Administrative Agent and each Lender to whom the Patriot Act
applies hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Patriot Act"), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act. The Borrower
shall, and shall cause each of its Subsidiaries to, provide to the extent commercially reasonable, such information and take such other actions as are reasonably requested by the Administrative Agent
or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot Act. 


Section 10.14.    Non-Recourse to the General Partner and Associated Persons.    The Administrative
Agent and each Lender agrees on behalf of itself and its successors, assigns and legal representatives, that any Person which is a partner, shareholder, member, owner, officer, director, supervisor,
trustee or other principal (collectively, "Associated Persons") of the Borrower, or any of its respective successors or assigns, shall not have any personal liability for the payment or performance of
any of the Borrower's obligations hereunder and no monetary or other judgment shall be sought or enforced against any of such Associated Persons or any of their respective successors or assigns.
Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall be deemed barred by this Section 10.14 from asserting any
claim against any Person based upon an allegation of fraud or misrepresentation. 


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Section 10.15.    Acknowledgment and Consent to Bail-In of EEA Financial Institutions.    


Notwithstanding
anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: 



(a)    the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is
an EEA Financial Institution; and 


(b)    the
effects of any Bail-in Action on any such liability, including, if applicable: 



(i)     a
reduction in full or in part or cancellation of any such liability; 


(ii)    a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution
that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or 


(iii)   the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority. 




47
























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



	 	 	BORROWER:

NORTH BAJA PIPELINE, LLC
	

 	
 	

By:	
 	


 
	 	 	 	 	Name:	 	Nathaniel A. Brown
	 	 	 	 	Title:	 	President, Principal Financial Officer and Controller
	

 	
 	

By:	
 	


 
	 	 	 	 	Name:	 	Jon A. Dobson
	 	 	 	 	Title:	 	Corporate Secretary
	

 	
 	
ADMINISTRATIVE AGENT:
	

 	
 	
MUFG BANK, LTD., as the

Administrative Agent
	

 	
 	

By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 
	

 	
 	
LENDER
	

 	
 	
MUFG BANK, LTD., as the Lender
	

 	
 	

By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 










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



	 	 	BORROWER:

NORTH BAJA PIPELINE, LLC
	

 	
 	

By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 
	

 	
 	

By:	
 	


	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 
	

 	
 	
ADMINISTRATIVE AGENT:
	

 	
 	
MUFG BANK, LTD., as the

Administrative Agent
	

 	
 	

By:	
 	


 
	 	 	 	 	Name:	 	Kevin Sparks
	 	 	 	 	Title:	 	Director
	

 	
 	
LENDER
	

 	
 	
MUFG BANK, LTD., as the Lender
	

 	
 	

By:	
 	


 
	 	 	 	 	Name:	 	Kevin Sparks
	 	 	 	 	Title:	 	Director













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EXECUTION COPY

Exhibit 10.10



TABLE OF CONTENTS



TERM LOAN AGREEMENT

W I T N E S S E T H

ARTICLE I DEFINITIONS; CONSTRUCTION



ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS


ARTICLE III CONDITIONS PRECEDENT TO LOANS

ARTICLE IV REPRESENTATIONS AND WARRANTIES

ARTICLE V AFFIRMATIVE COVENANTS

ARTICLE VI FINANCIAL COVENANTS

ARTICLE VII NEGATIVE COVENANTS


ARTICLE VIII EVENTS OF DEFAULT


ARTICLE IX THE ADMINISTRATIVE AGENT

ARTICLE X MISCELLANEOUS