exv10w1



 





Exhibit 10.1




CUSIP Number: ___________




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of July 20, 2007

among

ENERGY TRANSFER PARTNERS, L.P.,

as the Borrower,

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent,

LC Issuer and

Swingline Lender,

BANK OF AMERICA, N.A.

as Syndication Agent,

and

BNP PARIBAS,

JPMORGAN CHASE BANK, N.A.,

and

THE ROYAL BANK OF SCOTLAND PLC,

as Co-Documentation Agents,

and

CITIBANK, N.A.,

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

DEUTSCHE BANK SECURITIES, INC.,

MORGAN STANLEY BANK,

SUNTRUST BANK,

and

UBS SECURITIES, LLC,

as Senior Managing Agents,

and

The Other Lenders Party Hereto

WACHOVIA CAPITAL MARKETS, LLC

and BANC OF AMERICA SECURITIES LLC,

as

Joint Lead Arrangers and Book Managers

$2,000,000,000 Five Year Revolving Credit Facility














 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	     1.01
	 	Defined Terms	 	 	1	 
	     1.02
	 	Other Interpretive Provisions	 	 	23	 
	     1.03
	 	Accounting Terms	 	 	24	 
	     1.04
	 	Rounding	 	 	24	 
	     1.05
	 	Times of Day	 	 	24	 
	     1.06
	 	Letter of Credit Amounts	 	 	24	 
	 
	 	 	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	25	 
	     2.01
	 	Loans	 	 	25	 
	     2.02
	 	Swingline Loans	 	 	25	 
	     2.03
	 	Requests for New Loans	 	 	27	 
	     2.04
	 	Continuations and Conversions of Existing Loans	 	 	28	 
	     2.05
	 	Use of Proceeds	 	 	29	 
	     2.06
	 	Prepayments of Loans	 	 	30	 
	     2.07
	 	Letters of Credit	 	 	30	 
	     2.08
	 	Requesting Letters of Credit	 	 	30	 
	     2.09
	 	Reimbursement and Participations	 	 	31	 
	     2.10
	 	No Duty to Inquire	 	 	33	 
	     2.11
	 	LC Collateral	 	 	34	 
	     2.12
	 	Interest Rates and Fees	 	 	35	 
	     2.13
	 	Evidence of Debt	 	 	36	 
	     2.14
	 	Payments Generally; Administrative Agent’s Clawback	 	 	37	 
	     2.15
	 	Sharing of Payments by Lenders	 	 	39	 
	     2.16
	 	Reductions in Commitment	 	 	39	 
	     2.17
	 	Increase in Aggregate Commitments	 	 	39	 
	     2.18
	 	Extension of Revolving Credit Maturity Date; Removal of Lenders	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	43	 
	     3.01
	 	Taxes	 	 	43	 
	     3.02
	 	Illegality	 	 	45	 
	     3.03
	 	Inability to Determine Rates	 	 	46	 
	     3.04
	 	Increased Costs; Reserves on Eurodollar Loans	 	 	46	 
	     3.05
	 	Compensation for Losses	 	 	48	 
	     3.06
	 	Mitigation Obligations; Replacement of Lenders	 	 	48	 
	     3.07
	 	Survival	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	49	 
	     4.01
	 	Conditions of Initial Credit Extension	 	 	49	 
	     4.02
	 	Conditions to all Credit Extensions	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES	 	 	51	 
	     5.01
	 	No Default	 	 	52	 
	     5.02
	 	Organization and Good Standing	 	 	52	 
	     5.03
	 	Authorization	 	 	52	 
	     5.04
	 	No Conflicts or Consents	 	 	52	 
	     5.05
	 	Enforceable Obligations	 	 	52	 
	     5.06
	 	Initial Financial Statements; No Material Adverse Effect	 	 	53	 
	     5.07
	 	Taxes	 	 	53	 
















 






	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	     5.08
	 	Full Disclosure	 	 	53	 
	     5.09
	 	Litigation	 	 	53	 
	     5.10
	 	ERISA	 	 	53	 
	     5.11
	 	Compliance with Laws	 	 	54	 
	     5.12
	 	Ownership of Property; Liens	 	 	54	 
	     5.13
	 	Environmental Compliance	 	 	54	 
	     5.14
	 	Insurance	 	 	54	 
	     5.15
	 	Margin Regulations; Investment Company Act	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS	 	 	55	 
	     6.01
	 	Books, Financial Statements and Reports	 	 	55	 
	     6.02
	 	Other Information and Inspections	 	 	57	 
	     6.03
	 	Notice of Material Events	 	 	57	 
	     6.04
	 	Maintenance of Properties	 	 	58	 
	     6.05
	 	Maintenance of Existence and Qualifications	 	 	58	 
	     6.06
	 	Payment of Obligations	 	 	58	 
	     6.07
	 	Insurance	 	 	58	 
	     6.08
	 	Compliance with Law	 	 	59	 
	     6.09
	 	Subsidiaries and Unrestricted Subsidiaries	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS	 	 	59	 
	     7.01
	 	Indebtedness	 	 	60	 
	     7.02
	 	Limitation on Liens	 	 	60	 
	     7.03
	 	Limitation on Mergers, Sale of Assets	 	 	62	 
	     7.04
	 	Reserved	 	 	62	 
	     7.05
	 	Distributions	 	 	62	 
	     7.06
	 	Investments	 	 	62	 
	     7.07
	 	Change in Nature of Businesses	 	 	62	 
	     7.08
	 	Transactions with Affiliates	 	 	62	 
	     7.09
	 	Burdensome Agreements	 	 	63	 
	     7.10
	 	Hedging Contracts	 	 	63	 
	     7.11
	 	Leverage Ratio	 	 	63	 
	 
	 	 	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES	 	 	63	 
	     8.01
	 	Events of Default	 	 	63	 
	     8.02
	 	Remedies Upon Event of Default	 	 	66	 
	     8.03
	 	Application of Funds	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE IX ADMINISTRATIVE AGENT	 	 	67	 
	     9.01
	 	Appointment and Authority	 	 	67	 
	     9.02
	 	Rights as a Lender	 	 	68	 
	     9.03
	 	Exculpatory Provisions	 	 	68	 
	     9.04
	 	Reliance by Administrative Agent	 	 	69	 
	     9.05
	 	Delegation of Duties	 	 	69	 
	     9.06
	 	Resignation of Administrative Agent	 	 	69	 
	     9.07
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	70	 
	     9.08
	 	No Other Duties, Etc	 	 	71	 
	     9.09
	 	Administrative Agent May File Proofs of Claim	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE X MISCELLANEOUS	 	 	72	 
	     10.01
	 	Amendments, Etc	 	 	72	 
	     10.02
	 	Notices; Effectiveness; Electronic Communication	 	 	73	 






ii









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	     10.03
	 	No Waiver; Cumulative Remedies	 	 	74	 
	     10.04
	 	Expenses; Indemnity; Damage Waiver	 	 	74	 
	     10.05
	 	Payments Set Aside	 	 	76	 
	     10.06
	 	Successors and Assigns	 	 	77	 
	     10.07
	 	Treatment of Certain Information; Confidentiality	 	 	80	 
	     10.08
	 	Right of Setoff	 	 	81	 
	     10.09
	 	Interest Rate Limitation	 	 	81	 
	     10.10
	 	Counterparts; Integration; Effectiveness	 	 	81	 
	     10.11
	 	Survival of Representations and Warranties	 	 	82	 
	     10.12
	 	Severability	 	 	82	 
	     10.13
	 	Replacement of Lenders	 	 	82	 
	     10.14
	 	Governing Law; Jurisdiction; Etc	 	 	83	 
	     10.15
	 	Waiver of Jury Trial	 	 	84	 
	     10.16
	 	USA PATRIOT Act Notice	 	 	84	 
	     10.17
	 	Time of the Essence.	 	 	84	 
	     10.18
	 	No Recourse	 	 	84	 
	     10.19
	 	Existing Credit Agreement	 	 	85	 
	 
	 	 	 	 	 	 
	SIGNATURES            	 	 	S-1	 






iii









 







AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of July
___, 2007, among ENERGY TRANSFER PARTNERS, L.P., a Delaware limited partnership (the
“Borrower”), WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, LC Issuer and
Swingline Lender, and each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”).



     In consideration of the mutual covenants and agreements contained herein and in consideration
of the loans which may hereafter be made by Lenders to, and the Letters of Credit that may
hereafter be issued by the LC Issuer for the account of, the Borrower, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto do hereby agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



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



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



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



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



     “Aggregate Commitments” means the Commitments of all the Lenders. The initial amount
of the Aggregate Commitments is $2,000,000,000, subject to optional reductions pursuant to
Section 2.16 and subject to increases as provided in Section 2.17.



     “Agreement” means this Amended and Restated Credit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.



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



     “Applicable Rate” means, on any day, with respect to any Eurodollar Loan or commitment
fees hereunder, respectively, the percent per annum set forth below under the



 









 







caption “Eurodollar
Margin,” or “Commitment Fee Rate,” respectively, based upon the Level corresponding to the Ratings
by the Rating Agencies applicable on such date:



	 	 	 	 	 	 	 	 	 
	             Ratings:	 	 	 	 
	   (Fitch/Moody’s/S&P)	 	Eurodollar Margin	 	Commitment Fee Rate
	Level 1 

>BBB+/Baa1/BBB+
	 	 	0.300	%	 	 	0.070	%
	Level 2

BBB/Baa2/BBB
	 	 	0.400	%	 	 	0.090	%
	Level 3

BBB-/Baa3/BBB-
	 	 	0.550	%	 	 	0.110	%
	Level 4

<BB+/Ba1/BB+
	 	 	0.700	%	 	 	0.125	%






     For purposes of the foregoing, (a) if only one Rating is determined, the Level corresponding
to that Rating shall apply; (b) if there are only two Ratings, then (i) if there is a one Level
difference between the two Ratings, then the Level corresponding to the higher Rating shall be
used, and (ii) if there is a greater than one Level difference between the Ratings, then the Level
that is one Level below the higher Rating will be used; (c) if there are three Ratings, then (i) if
all three are at different Levels, the middle Level shall apply and (ii) if two Ratings correspond
to the same Level and the third is different, the Level corresponding to the two same Levels shall
apply; (d) if the Ratings established or deemed to have been established by the Rating Agencies
shall be changed (other than as a result of a change in the rating system of such Rating Agency),
such change shall be effective as of the date on which it is first announced by the applicable
Rating Agency and (e) if no Rating is determined, Level 4 shall apply. Changes in the Applicable
Rate will occur automatically without prior notice as changes in the applicable Ratings occur, and
each change in the Applicable Rate shall apply during the period commencing on the effective date
of such change and ending on the date immediately preceding the effective date of the next such
change.



     In addition to the increases, if any, in the Applicable Rate pursuant to the immediately
preceding paragraph, on each day that the Facility Usage exceeds 50% of the Aggregate Commitments,
the then effective Applicable Rate set forth above under “Eurodollar Margin” shall be increased by
0.05 % per annum for Level 1, Level 2 and Level 3 and shall be increased by 0.10% per annum for
Level 4.



     The Applicable Rate for Base Rate Loans at all times is zero percent (0.0%).



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



2









 





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



     “Base Rate” means, for any day, a rate per annum equal to the greater of (a) the Prime
Rate in effect on such day, and (b) the Federal Funds Rate in effect on such day plus 1/2 of 1%. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective from and including the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.



     “Base Rate Loan” means a Loan or portion of a Loan that bears interest based on the
Base Rate.



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



     “Borrowing” means Loans of the same Type made, Converted or Continued on the same date
and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.



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



     “Capital Lease” means a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.



     “Capital Lease Obligation” means, with respect to any Person and a Capital Lease, the
amount of the obligation of such Person as the lessee under such Capital Lease which would, in
accordance with GAAP, appear as a liability on a balance sheet of such Person.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the LC Issuer and the Lenders, as collateral for the LC Obligations, cash
or deposit account balances pursuant to documentation in form and substance reasonably satisfactory
to the Administrative Agent and the LC Issuer. Derivatives of such term have corresponding
meanings.



     “Cash Equivalents” means Investments in:



     (a) marketable obligations, maturing within 12 months after acquisition thereof, issued or
unconditionally guaranteed by the United States or an instrumentality or agency thereof and
entitled to the full faith and credit of the United States;



3









 





     (b) demand deposits and time deposits (including certificates of deposit) maturing within 12
months from the date of deposit thereof, (i) with any office of any Lender or (ii) with a domestic
office of any national or state bank or trust company which is organized under the
Laws of the United States or any state therein, which has capital, surplus and undivided
profits of at least $500,000,000, and whose long-term certificates of deposit are rated BBB+ or
Baa1 or better, respectively, by either Rating Agency;



     (c) repurchase obligations with a term of not more than seven days for underlying securities
of the types described in subsection (a) above entered into with (i) any Lender or (ii) any other
commercial bank meeting the specifications of subsection (b) above;



     (d) open market commercial paper, maturing within 270 days after acquisition thereof, which
are rated at least P-1 by Moody’s or A-1 by S&P; and



     (e) money market or other mutual funds substantially all of whose assets comprise securities
of the types described in subsections (a) through (d) above.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means the existence of any of the following: (a) any person or
group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than a
Permitted Investor, shall be the legal or beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the combined voting power of the then total Equity Interests of
the GP Owner; or (b) the failure of the General Partner, or any other Wholly Owned Subsidiary of
the GP Owner, to constitute all of the general partners of the Borrower; or (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the GP Owner by
Persons who were neither (i) nominated, approved or appointed by the board of directors of the GP
Owner nor (ii) appointed by directors so nominated, approved or appointed. As used herein
“Permitted Investors” means any of (A) Ray C. Davis, Kelcy L. Warren, the heirs at law of
such individuals, entities or trusts owned by or established for the benefit of such individuals or
their respective heirs at law (such as entities or trusts established for estate planning purposes)
or (B) Natural Gas Partners VI, L.P.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 and Section 4.02 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986, together with all rules and
regulations promulgated with respect thereto.



     “Commission” means the United States Securities and Exchange Commission.



4









 





     “Commitment” means, as to each Lender, its obligation (a) to make Revolving Credit
Loans to the Borrower pursuant to Section 2.01, and (b) to purchase participations in LC
Obligations and Swingline Loans, in an aggregate principal amount at any one time outstanding not
to exceed the Commitment amount set forth opposite such Lender’s name on Schedule 1 or in
the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this
Agreement.



     “Commitment Period” means the period from and including the Closing Date to the
earliest of (a) the Revolving Credit Maturity Date, (b) the date of termination of the Aggregate
Commitments pursuant to Section 2.16, and (c) the date of termination of the Commitment of
each Lender to make Loans and of the obligation of the LC Issuer to make LC Credit Extensions
pursuant to Section 8.02.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
B.



     “Consolidated” refers to the consolidation of any Person, in accordance with GAAP,
with its properly consolidated subsidiaries. References herein to a Person’s Consolidated
financial statements, financial condition, results of operations, cash flows, assets, liabilities,
etc. refer to the consolidated financial statements, financial condition, results of operations,
cash flows, assets, liabilities, etc. of such Person and its properly consolidated subsidiaries.
Notwithstanding the foregoing, when used in reference to the Borrower and its subsidiaries,
“Consolidated” shall exclude the effect on the consolidated financial statements, financial
condition, results of operations, cash flows, assets, liabilities, etc. of the Borrower and its
subsidiaries of all Unrestricted Subsidiaries, determined as if neither the Borrower nor any of its
subsidiaries held any Equity Interest in Unrestricted Subsidiaries.



     “Consolidated EBITDA” means, for any period (without duplication), Consolidated Net
Income for such period, plus (a) each of the following to the extent (other than with respect to
clause (a)(v) below) deducted in determining such Consolidated Net Income (i) all Consolidated
Interest Expense, (ii) all income taxes (including any franchise taxes to the extent based upon net
income) of the Borrower and its Subsidiaries for such period, (iii) all depreciation and
amortization (including amortization of good will and debt issue costs) of the Borrower and its
Subsidiaries for such period, (iv) any other non-cash charges or losses of the Borrower and its
Subsidiaries for such period, and (v) so long as any of the HOLP Companies are Unrestricted
Subsidiaries, general and administrative expense of the Borrower (on an unconsolidated basis) to
the extent allocated to the HOLP Companies during such period not to exceed $5,000,000 for any
period of four Fiscal Quarters, minus (b) each of the following (i) all non-cash items of income or
gain of the Borrower and its Subsidiaries which were included in determining such Consolidated Net
Income for such period, and (ii) any cash payments made during such period in respect of items
described in clause (a)(iv) above subsequent to the Fiscal Quarter in which the relevant non-cash
charges or losses were reflected as a charge in determining Consolidated Net Income. Consolidated
EBITDA shall be subject to the adjustments set forth in the following clauses (1) and (2) for all
purposes under this Agreement:



5









 





     (1) If, since the beginning of the four Fiscal Quarter period ending on the date for which
Consolidated EBITDA is determined, the Borrower or any Subsidiary shall have made any disposition
or acquisition of operating assets, shall have consolidated or merged with or into Person (other
than a Subsidiary), or shall have made any disposition of a Subsidiary or an acquisition of a
Subsidiary, Consolidated EBITDA shall be calculated giving pro forma effect thereto as if the
disposition, acquisition, consolidation or merger had occurred on the first day of
such period. Such pro forma effect shall be determined (A) in good faith by the chief
financial officer, principal accounting officer or treasurer of the Borrower and (B) giving effect
to any anticipated or proposed cost savings related to such disposition, acquisition, consolidation
or merger, to the extent approved by Administrative Agent, such approval not to be unreasonably
withheld or delayed.



     (2) Consolidated EBITDA shall be increased by the amount of any applicable Material Project
EBITDA Adjustments applicable to such period.



     “Consolidated Funded Indebtedness” means as of any date, the sum of the following
(without duplication): (a) all Indebtedness which is classified as “long-term indebtedness” on a
Consolidated balance sheet of the Borrower and its Subsidiaries prepared as of such date in
accordance with GAAP and any current maturities and other principal amount in respect of such
Indebtedness due within one year but which was classified as “long-term indebtedness” at the
creation thereof, (b) Indebtedness for borrowed money of the Borrower and its Subsidiaries
outstanding under a revolving credit or similar agreement, notwithstanding the fact that any such
borrowing is made within one year of the expiration of such agreement, (c) Capital Leases
Obligations of the Borrower and its Subsidiaries, and (d) all Indebtedness in respect of any
Guarantee by the Borrower or any of its Subsidiaries of Indebtedness of any Person other than the
Borrower or any of its Subsidiaries, but excluding (i) Performance Guaranties and (ii) obligations
of the Borrower or any Subsidiaries under Hybrid Securities; provided, however,
Consolidated Funded Indebtedness shall not include Excluded Inventory Indebtedness.



     “Consolidated Interest Expense” means, for any period, all interest paid or accrued
(that has resulted in a cash payment in the period or will result in a cash payment in future
quarter(s)) during such period on, and all fees and related charges in respect of, Indebtedness
which was deducted in determining Consolidated Net Income during such period.



     “Consolidated Net Income” means, for any period (without duplication), the Borrower’s
and its Subsidiaries’ gross revenues for such period, minus the Borrower’s and its Subsidiaries’
expenses and other proper charges against income (including taxes on income to the extent imposed),
determined on a Consolidated basis. Consolidated Net Income shall be adjusted to exclude the
effect of (a) any gain or loss from the sale of assets other than in the ordinary course of
business, (b) any extraordinary gains or losses, or (c) any non-cash gains or losses resulting from
mark to market activity as a result of SFAS 133, (d) net income of any Subsidiary to the extent,
but only to the extent, that the declaration or payment of cash Distributions by such Subsidiary of
such net income is not, as of the date of determination, permitted by the operation of the terms of
its charter or any Contractual Obligation, judgment, decree, order, statute, rule or governmental



6









 







regulation applicable to such Subsidiary, and (e) income or losses attributable to Unrestricted
Subsidiaries, joint ventures, any Person accounted for by the equity method of accounting, or any
other Person that is not a Subsidiary, provided that Consolidated Net Income shall include the
lesser of (i) any cash distributions received by the Borrower or its Subsidiaries from Unrestricted
Subsidiaries, joint ventures, any Person accounted for by the equity method of accounting, or any
other Person that is not a Subsidiary, in each case during such period or (ii) 15% of Consolidated
EBITDA for such period.



     “Consolidated Net Tangible Assets” means, at any date of determination, the total
amount of Consolidated assets of the Borrower and its Subsidiaries after deducting therefrom: (a)
all current liabilities (excluding (i) any current liabilities that by their terms are extendable
or renewable at the option of the obligor thereon to a time more than 12 months after the time as
of which the amount thereof is being computed, and (ii) current maturities of long-term debt); and
(b) the value (net of any applicable reserves and accumulated amortization) of all goodwill, trade
names, trademarks, patents and other like intangible assets, all as set forth, or on a pro forma
basis would be set forth, on the Consolidated balance sheet of the Borrower and its Subsidiaries
for the most recently completed Fiscal Quarter, prepared in accordance with GAAP.



     “Continue,” “Continuation,” and “Continued” shall refer to the
continuation pursuant to Section 2.04 of a Eurodollar Loan as a Eurodollar Loan from one
Interest Period to the next Interest Period.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound pursuant to which such Person is obligated to
perform an agreement or other undertaking.



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



     “Convert,” “Conversion,” and “Converted” shall refer to a conversion
pursuant to Section 2.04 or Article III of one Type of Loan into another Type of
Loan.



     “Credit Extension” means each of the following: (a) a Borrowing that is not a
Continuation or Conversion, and (b) an LC Credit Extension.



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



7









 





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



     “Default Rate” means, at the time in question, (a) for any Eurodollar Loan (up to the
end of the applicable Interest Period), two percent (2%) per annum plus the Applicable Rate for
Eurodollar Loans plus the Eurodollar Rate then in effect, (b) for each Base Rate Loan, Swingline
Loan or LC Obligation, two percent (2%) per annum plus the Base Rate or (c) for each Letter of
Credit, two percent (2%) per annum plus the Applicable Rate for Eurodollar Loans; provided,
however, the Default Rate shall never exceed the Maximum Rate.



     “Default Rate Period” means (i) any period during which any Event of Default specified
in Section 8.01(a), (b) or (j) is continuing and (ii) upon the request of
the Majority Lenders, any period during which any other Event of Default is continuing.



     “Disclosure Schedule” means Schedule 3 hereto.



     “Distribution” means, as to any Person, with respect to any shares of any capital
stock, any units, any partnership interests or other equity securities or ownership interests
issued by such Person, (a) the retirement, redemption, purchase or other acquisition for value of
any such securities, (b) the declaration or payment of any dividend on or with respect to any such
securities, and (c) any other payment by such Person with respect to such securities.



     “Dollar” and “$” mean lawful money of the United States.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent and the LC Issuer, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries.



     “Environmental Laws” means any and all Laws relating to the environment or to
emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment including ambient air,
surface water, ground water, or land, or otherwise relating to the manufacture, processing,
distribution use, treatment, storage, disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests),



8









 







and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974, together with all
rules and regulations promulgated with respect thereto.



     “ERISA Affiliate” means the Borrower and its Subsidiaries and all members of a
controlled group of corporations and all trades or businesses (whether or not incorporated) under
common control that, together with such entity, are treated as a single employer under Section 414
of the Code.



     “ERISA Plan” means any employee pension benefit plan subject to Title IV of ERISA
maintained by any ERISA Affiliate with respect to which any of the Borrower or any Subsidiary has a
fixed or contingent liability.



     “Eurodollar Loan” means a Loan or portion of a Loan that bears interest at a rate
based on the Eurodollar Rate.



     “Eurodollar Rate” means, with respect to any Eurodollar Loan for any Interest Period,
(a) the rate per annum appearing on [Page 3750 of the Bridge Telerate Service (formerly Dow Jones
Market Service)] (or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time to time for purposes
of providing quotations of interest rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest
Period; (b) if for any reason the rate specified in clause (a) of this definition does not so
appear on [Page 3750 of the Bridge Telerate Service] (or any successor or substitute page or any
such successor to or substitute for such Service), the rate per annum appearing on Reuters Screen
LIBO page (or any successor or substitute page) as the London interbank offered rate for deposits
in dollars at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period for a maturity comparable to such Interest Period; and (c) if the rate
specified in clause (a) of this definition does not so appear on [Page 3750 of the Bridge Telerate
Service] (or any successor or substitute page or any such successor to or substitute for such
Service) and if no rate specified in clause (b) of this definition so appears on Reuters Screen
LIBO page (or any successor or substitute page), the average of the interest rates per annum at
which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London offices of Wachovia Bank, National Association in immediately
available funds in the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.



     “Event of Default” has the meaning given to such term in Section 8.01.



9









 





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



     “Excluded Inventory Indebtedness” means Indebtedness of the Borrower and its
Subsidiaries (whether under this Agreement or other Indebtedness permitted to be incurred under the
terms of this Agreement) incurred to finance the purchase or holding by one or more of the Borrower
or any Subsidiary of inventories of gas held in storage at the Bammel reservoir for sale and
delivery in the ordinary course of business, that is designated by the Borrower as Excluded
Inventory Indebtedness, subject to the following conditions: (i) the Borrower will designate the
amount of Indebtedness that is Excluded Inventory Indebtedness in connection with each
determination of Consolidated Funded Indebtedness, (ii) the aggregate amount of Excluded Inventory
Indebtedness on any day shall not exceed the value of inventory then owned by the Borrower or any
Subsidiary on such day which is held in storage at the Bammel reservoir for sale and delivery in
the ordinary course of business and with respect to which the price has been hedged to
substantially eliminate price risk in compliance with the Risk Management Policy, the
value of such inventory determined based on the price as so hedged and any margin calls
relating to such hedges, and (iii) the aggregate amount of Excluded Inventory Indebtedness on any
day shall not exceed $400,000,000.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the LC
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
10.13), any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a).



     “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement
dated as of June 29, 2006, among Borrower, Wachovia Bank, National Association, as Administrative
Agent, LC Issuer and Swingline Lender, Bank of America, N.A. and Citibank, N.A., as Co-Syndication
agents, BNP Paribas and The Royal Bank of Scotland plc, as Co-Documentation Agents, the other
agents named therein and a syndicate of lenders party thereto.



     “Existing Letters of Credit” means the Letters of Credit (as defined in the Existing
Credit Agreement) issued and outstanding under the Existing Credit Agreement and which shall remain
issued and outstanding for purposes of this Agreement.



10









 





     “Facility Usage” means, at the time in question, the aggregate amount of outstanding
Loans and LC Obligations at such time.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.



     “Fee Letter” means the letter agreement, dated June [___], 2007, among the Borrower,
the Administrative Agent and Wachovia Capital Markets, LLC.



     “Fiscal Quarter” means (a) a fiscal quarter of the Borrower ending on the last day of
November, February, May or August, or (b) if the Borrower notifies the Administrative Agent in
writing that the Borrower has changed its fiscal year to December 31, thereafter a fiscal quarter
of the Borrower ending on the last day of March, June, September or December.



     “Fiscal Year” means (a) a fiscal year of the Borrower ending on August 31, or (b) if
the Borrower notifies the Administrative Agent in writing that the Borrower has changed its fiscal
year to December 31, thereafter a fiscal year of the Borrower ending on December 31.



     “Fitch” means Fitch, Inc., or its successor.



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



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



     “GAAP” means those generally accepted accounting principles and practices which are
recognized as such by the Financial Accounting Standards Board (or any generally recognized
successor) and which, in the case of the Borrower and its Consolidated Subsidiaries, are applied
for all periods after the date hereof in a manner consistent with the manner in which such
principles and practices were applied to the Initial Financial Statements. If any change in any
accounting principle or practice is required by the Financial Accounting Standards Board (or any
such successor) in order for such principle or practice to continue as a generally accepted



11









 







accounting principle or practice, all reports and financial statements required hereunder with
respect to the Borrower or with respect to the Borrower and its Consolidated Subsidiaries may be
prepared in accordance with such change, but all calculations and determinations to be made
hereunder may be made in accordance with such change only after notice of such change is given to
each Lender, and the Borrower and Majority Lenders agree to such change insofar as it affects the
accounting of the Borrower or of the Borrower and its Consolidated Subsidiaries.



     “General Partner” means Energy Transfer Partners GP, L.P., a Delaware limited
partnership, or the corporate, partnership or limited liability successor thereto, in either case,
so long as such Person is the sole general partner of the Borrower and a wholly-owned Subsidiary of
the GP Owner.



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



     “GP Owner” means Energy Transfer Equity, L.P., and any successor by merger,
consolidation or reincorporation



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The term “Guarantee” shall
exclude endorsements in the ordinary course of business of negotiable instruments in the course of
collection. The amount of any Guarantee shall be deemed to be an amount equal to the lesser of (i)
the stated or determinable amount of the related primary obligation, or portion thereof, in respect
of which such Guarantee is made, or (ii) if not stated or determinable or if such Guarantee by its
terms is limited to less than the full amount of such primary obligation, the maximum reasonably
anticipated liability in respect thereof as



12









 







determined by the guaranteeing Person in good faith or
the amount to which such Guarantee is limited. The term “Guarantee” as a verb has a corresponding
meaning.



     “Hazardous Materials” means any substances regulated under any Environmental Law,
whether as pollutants, contaminants, or chemicals, or as industrial, toxic or hazardous substances
or wastes, or otherwise.



     “Hedging Contract” means (a) any agreement providing for options, swaps, floors, caps,
collars, forward sales or forward purchases involving interest rates, commodities or commodity
prices, equities, currencies, bonds, or indexes based on any of the foregoing, (b) any option,
futures or forward contract traded on an exchange, and (c) any other derivative agreement or other
similar agreement or arrangement.



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



     “HHI” means Heritage Holdings, Inc., a Delaware corporation, or the corporate,
partnership or limited liability successor thereto.



     “HOLP” means Heritage Operating, L.P., a Delaware limited partnership, or the
corporate, partnership or limited liability successor thereto.



     “HOLP Companies” means HOLP and each Wholly-Owned Subsidiary of HOLP, whether now
existing or hereafter formed or acquired.



     “Hybrid Securities” means any hybrid securities consisting of trust preferred
securities or deferrable interest subordinated debt securities with maturities of at least 20 years
issued either by the Borrower or by wholly owned special purpose entities that are Subsidiaries.



     “Increase Effective Date” has the meaning given to such term in Section
2.17(a).



     “Indebtedness” of any Person at any date means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (other than current trade payables incurred in the ordinary
course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (e) all Capital Lease
Obligations of such



13









 







Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under or in respect of acceptances, letters of credit, surety bonds or
similar arrangements, (g) the liquidation value of all mandatorily redeemable preferred Equity
Interests of such Person, (h) all Guarantees of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts
and contract rights) owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation, and (j) for the purposes of Section 8.01(h) only, all
obligations of such Person in respect of Hedging Contracts.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Inemnitee” or Indemnitees” has the meaning given to such term in Section
10.04(b).



     “Initial Financial Statements” means (i) the audited Consolidated annual financial
statements of the Borrower as of August 31, 2006 and (ii) the unaudited interim Consolidated
quarterly financial statements of the Borrower as of May 31, 2007.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Revolving Credit Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Loan exceeds three
months, the respective dates that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business
Day of each Fiscal Quarter and the Revolving Credit Maturity Date.



     “Interest Period” means, as to each Eurodollar Loan, the period commencing on the date
such Eurodollar Loan is disbursed or converted to or continued as a Eurodollar Loan and ending on
the date one, two, three or six months thereafter (or nine or twelve months thereafter if consented
to by all the Lenders), as selected by the Borrower in its Loan Notice; provided that: (a)
any Interest Period that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding Business Day; (b) any Interest
Period that begins on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period) shall end
on the last Business Day of the calendar month at the end of such Interest Period; and (c) no
Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or Joint Venture Interest in such other
Person and any arrangement pursuant to which the investor Guarantees obligations of such other



14









 







Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of determining the
outstanding amount of an Investment, the amount of any Investment shall be the amount actually
invested (without adjustment for subsequent increases or decreases in the value of such Investment)
reduced by the cash proceeds received upon the sale, liquidation, repayment or disposition of such
Investment (less all costs thereof) or other cash Distributions or proceeds received from such
Investment, whether as earnings or as a return of capital, in an aggregate amount up to but not in
excess of the amount of such Investment.



     “Issuer Documents” means with respect to any Letter of Credit, the LC Application
(substantially in the form attached as Exhibit C hereto), and any other document, agreement
and instrument entered into by the LC Issuer and the Borrower (or any Subsidiary) or in favor the
LC Issuer and relating to any such Letter of Credit.



     “Joint Venture Interest” means an acquisition of or Investment in Equity Interests in
any Person incorporated or otherwise formed pursuant to the laws of the United States or Canada or
any state or province thereof or the District of Columbia, held directly or indirectly by the
Borrower, that will not be a Subsidiary or Unrestricted Subsidiary after giving effect to such
acquisition or Investment.



     “Laws” means any statute, law, regulation, ordinance, rule, treaty, judgment, order,
decree, permit, concession, franchise, license, agreement or other governmental restriction of the
United States or any state or political subdivision thereof or of any foreign country or any
department, state, province or other political subdivision thereof.



     “LC Application” means an application and agreement for the issuance or amendment of a
Letter of Credit substantially in the form attached as Exhibit C hereto.



     “LC Collateral” means cash or deposit account balances pledged and deposited with or
delivered to the Administrative Agent, for the benefit of the LC Issuer and the Lenders, as
collateral for the LC Obligations.



     “LC Conditions” has the meaning given to such term in Section 2.07(f).



     “LC Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “LC Issuer” means Wachovia Bank, National Association in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder, and one or
more other Lenders selected by the Borrower who agree to act as an issuer of Letters of Credit and
are approved by Administrative Agent in its reasonable discretion.



     “LC Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Matured LC Obligations. For purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of



15









 







Credit shall be determined in accordance with
Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter
of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the “International Standby Practices 1998” (published by the Institute of
International Banking Law & Practice or such later version thereof as may be in effect at the time
of issuance), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining
available to be drawn.



     “Lender” has the meaning given to such term in the introductory paragraph hereto.
Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.



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



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



     “Leverage Ratio” means the ratio of (a) Consolidated Funded Indebtedness outstanding
on the specified date to (b) the Consolidated EBITDA for the specified four Fiscal Quarter period.



     “LIBOR Reference Rate” means a rate of interest for Swingline Loans determined by
reference to the Eurodollar Rate for a one (1) month interest period that would be applicable for a
Revolving Credit Loan, as that rate may fluctuate in accordance with changes in the Eurodollar Rate
as determined on a day-to-day basis.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest 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
substantially the same economic effect as any of the foregoing).



     “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement, including the Revolving Credit Loans and the Swingline Loans.



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



     “Loan Notice” means a notice of (a) a Borrowing, (b) a Conversion of Loans from one
Type to the other, pursuant to Section 2.04, or (c) a Continuation of Eurodollar Loans,
pursuant to Section 2.04, which, if in writing, shall be substantially in the form of
Exhibit D.




16









 






     “Majority Lenders” means, as of any date of determination, Lenders having more
than 50% of the Aggregate Commitments or, if the Commitment of each Lender to make Loans and the
obligation of the LC Issuer to make LC Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Facility Usage (with
the aggregate amount of each Lender’s risk participation and funded participation in LC Obligations
being deemed “held” by such Lender for purposes of this definition).



     “Material Adverse Effect” means a material adverse effect on (i) the financial
condition, operations, properties or prospects of the Borrower and its Subsidiaries, taken as a
whole, or (ii) the ability of the Borrower to perform its obligations under this Agreement and the
Notes, or (iii) the validity or enforceability of this Agreement or the Notes.



     “Material Project” means the construction or expansion of any capital project of the
Borrower or any of its Subsidiaries with multi-year customer contracts, the aggregate capital cost
of which exceeds $30,000,000.



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



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



     (B) for the first full Fiscal Quarter following completion of the Material Project, for the first
two full Fiscal Quarters following such completion, and for the first three full Fiscal Quarters
following such completion, an amount equal to the lesser of (x) actual
Consolidated




17









 




EBITDA of the Borrower and its Subsidiaries attributable to the Material Project for such
first full Fiscal Quarter times four, such first two full Fiscal Quarters times two, and such first
three full Fiscal Quarters times four/thirds, respectively, and (y) actual Consolidated EBITDA of
the Borrower and its Subsidiaries attributable to the Material Project for such first full Fiscal
Quarter, such first two full Fiscal Quarters, and such first three full Fiscal Quarters,
respectively, plus projected Consolidated EBITDA of Borrower and its Subsidiaries
attributable to such Material Project (determined in the same manner as set forth in clause (A)
above) for the balance of the four full Fiscal Quarter period following such completion.




     Notwithstanding the foregoing:



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



     (a) not later than 20 days (or such shorter time period as may be agreed by the Administrative
Agent) prior to the delivery of a certificate required by the terms and provisions of Section
6.01(b) if Material Project EBITDA Adjustments will be made to Consolidated EBITDA in
determining compliance with Section [7.11] under clause (i) thereof, the Borrower shall
have delivered to the Administrative Agent a written request for Material Project EBITDA
Adjustments setting forth (i) the scheduled commercial operation date for such Material Project,
(ii) pro forma projections of Consolidated EBITDA attributable to such Material Project, (iii)
information, as applicable, regarding (A) customer contracts relating to such Material Project (or
negotiated settlements in connection with such Material Project), (B) the creditworthiness of the
other parties to such contracts or settlements, as the case may be, (C) projected revenues from
such contracts or settlements, as the case may be, (D) projected capital costs and expenses, and
(E) commodity price assumptions, and (iv) such other information previously requested by the
Administrative Agent which it reasonably deemed necessary to approve such Material Project EBITDA
Adjustments, and



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



     (ii) the aggregate amount of all Material Project EBITDA Adjustments during any period shall
be limited to 20% of the total actual Consolidated EBITDA of the Borrower and its Subsidiaries for
such period (which total actual Consolidated EBITDA shall be determined without including any
Material Project EBITDA Adjustments or any adjustments in respect of any acquisition, consolidation
or merger as provided in clause (1) of the definition of Consolidated EBITDA).



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



18









 





     “Matured LC Obligations” means all amounts paid by LC Issuer on drafts or demands for
payment drawn or made under or purported to be under any Letter of Credit and all other amounts due
and owing to LC Issuer under any LC Application, to the extent the same have not been repaid to LC
Issuer (with the proceeds of Loans or otherwise).



     “Maturity Date” means (a) the Revolving Credit Maturity Date or (b) if the Borrower
has made the term-out election in accordance with Section 2.01, the Term Loan Maturity
Date.



     “Maximum Rate” has the meaning given to such term in Section 10.09.



     “Moody’s” means Moody’s Investors Service, Inc., or its successor.



     “New Lenders” has the meaning given to such term in Section 2.17(a).



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



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any of the Borrower arising under any Loan Document or otherwise with respect to any
Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against any of the Borrower thereof of
any proceeding under any Debtor Relief Laws naming it as the debtor in such proceeding, regardless
of whether such interest and fees are allowed claims in such proceeding.



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



     “Participant” has the meaning given to such term in Section 10.06(d).



     “Performance Guaranties” means, collectively, guaranties by the Borrower of
obligations of any Unrestricted Subsidiary (but not of Indebtedness of any Unrestricted Subsidiary)
not to exceed in the aggregate amount outstanding of $100,000,000 at any time.



     “Permitted Acquisition” means (A) the acquisition by the Borrower or a Subsidiary of
Equity Interests in a Person resulting in such Person becoming a Subsidiary or (B) the acquisition
by the Borrower or a Subsidiary of all or substantially all of the business, assets, operating
division or business unit of any Person (whether in a single transaction or a series of related
transactions) or (C) a merger or consolidation of any Person with or into the Borrower or a
Subsidiary so long as the survivor is the Borrower or a Subsidiary or becomes a Subsidiary upon
consummation thereof; provided, that (i) prior to and after giving effect to such
acquisition no Default or Event of Default shall have occurred and be continuing; and (ii) all
representations and warranties contained in this Agreement shall be true and correct in all
material respects as if



19









 







restated immediately following the consummation of such acquisition; and (iii) the Borrower
has provided to the Administrative Agent an officer’s certificate, in form reasonably satisfactory
to the Administrative Agent, certifying that each of the foregoing conditions has been satisfied.



     “Permitted Investors” has the meaning given to such term in the definition of
“Change of Control.”



     “Permitted Lien” has the meaning given to such term in Section 7.02.



     “Permitted Priority Debt” means (i) Indebtedness of a Subsidiary, whether or not
secured, other than Indebtedness permitted under subsections (a) through (e) of
Section 7.01 and (ii) Indebtedness of the Borrower or any Subsidiary secured by Liens on
property of the Borrower or any Subsidiary, other than Liens permitted under subsections (a)
through (o) of Section 7.02, not to exceed at any one time outstanding in the aggregate
under clause (i) and (ii), but without duplication, an aggregate principal amount equal to 15% of
Consolidated Net Tangible Assets.



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



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



     “Quarterly Testing Date” means the last day of each Fiscal Quarter.



     “Rating” means, as to each Rating Agency and on any day, the rating maintained by such
Rating Agency on such day for senior, unsecured, non-credit enhanced) long-term debt of the
Borrower.



     “Rating Agency” means Fitch, S&P or Moody’s.



     “Register” has the meaning given to such term in Section 10.06(c).



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



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, or treasurer of the Borrower. Any document delivered hereunder that is signed by a
Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such entity and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such entity.



     “Revolving Credit Loan” means a Loan made pursuant to Section 2.01.



20









 





     “Revolving Credit Maturity Date” means July 20, 2012, as may be extended pursuant to
Section 2.18.



     “Risk Management Policy” means the Risk Management Policy of the Borrower in effect on
the date of this Agreement as amended from time to time.



     “S&P” means Standard & Poor’s Ratings Services (a division of McGraw Hill, Inc.) or
its successor.



     “Specified Acquisition” means an acquisition of Person which becomes a Subsidiary,
assets, operating lines or divisions by the Borrower or a Subsidiary for a purchase price of not
less than $50,000,000.



     “Specified Acquisition Period” means a period elected by the Borrower that commences
on the date elected by the Borrower, by notice to the Administrative Agent, following the
occurrence of a Specified Acquisition and ending on the earliest of (a) the third Quarterly Testing
Date occurring after the consummation of such Specified Acquisition, (b) the date of a Specified
Equity Offering and (c) if the Leverage Ratio is less than or equal to 4.75 to 1.00 on such date,
the date of the Borrower’s delivery of a notice to the Administrative Agent terminating such
Specified Acquisition Period accompanied by a certificate reflecting compliance with such Leverage
Ratio; provided, in the event the Leverage Ratio exceeds 5.00 to 1.00 as of the end of any
Fiscal Quarter in which a Specified Acquisition has occurred, the Borrower shall be deemed to have
so elected a Specified Acquisition Period with respect thereto on such last day of such Fiscal
Quarter; provided, further, following the election (or deemed election) of a
Specified Acquisition Period, the Borrower may not elect (or be deemed to have elected) a
subsequent Specified Acquisition Period unless, at the time of such subsequent election, the
Leverage Ratio does not exceed 5.00 to 1.00. Only one Specified Acquisition Period may be elected
(or deemed elected) with respect to any particular Specified Acquisition.



     “Specified Equity Offering” means the date (or the last such date if more than one
issuances are aggregated) that the proceeds are received by the Borrower of one or more issuances
of equity by the Borrower for aggregate net cash proceeds of not less than twenty five percent
(25%) of the aggregate purchase price of the Specified Acquisition. For purposes of clarification,
the Borrower, the Administrative Agent and the Lenders agree that nothing in this Agreement,
including this definition, shall obligate the Borrower at any time to issue equity for the purpose
of financing all or any portion of the purchase price associated with a Specified Acquisition.



     “subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person.



21









 





     “Subsidiary” means any subsidiary of the Borrower other than an Unrestricted
Subsidiary.



     “Swingline Commitment” means the commitment of the Swingline Lender to make Swingline
Loans, as such amount may be adjusted from time to time in accordance with this Agreement by the
Borrower and the Swingline Lender. The Swingline Commitment is $300,000,000.



     “Swingline Lender” means Wachovia Bank, National Association.



     “Swingline Loan” means a Loan made pursuant to Section 2.02.



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



     “Term Loan Maturity Date” means the day that is 364 days after the Revolving Credit
Maturity Date.



     “Termination Event” means (a) the occurrence with respect to any ERISA Plan of (i) a
reportable event described in Sections 4043(c)(5) or (6) of ERISA or (ii) any other reportable
event described in Section 4043(c) of ERISA other than a reportable event not subject to the
provision for 30 day notice to the Pension Benefit Guaranty Corporation pursuant to a waiver by
such corporation under Section 4043(a) of ERISA, or (b) the withdrawal of any ERISA Affiliate from
an ERISA Plan during a plan year in which it was a “substantial employer” as defined in Section
4001(a)(2) of ERISA, or (c) the filing of a notice of intent to terminate any ERISA Plan or the
treatment of any ERISA Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate any ERISA Plan by the Pension Benefit Guaranty Corporation
under Section 4042 of ERISA, or (e) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,
any ERISA Plan.



     “Tribunal” means any government, any arbitration panel, any court or any governmental
department, commission, board, bureau, agency or instrumentality of the United States or any state,
province, commonwealth, nation, territory, possession, county, parish, town, township, village or
municipality, whether now or hereafter constituted or existing.



     “TWP” means Transwestern Pipeline Company, LLC, a Delaware limited liability company,
or the corporate, partnership or limited liability successor thereto.



     “TWP Note Purchase Agreements” means collectively, (a) the Note Purchase Agreement
dated as of November 17, 2004, among TWP and the purchasers named therein, as amended and
supplemented, and (b) the Note Purchase Agreement dated as of May 24, 2007, among TWP and the
purchasers named therein, as amended and supplemented.



22









 





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



     “UCC” means the Uniform Commercial Code as in effect in the State of New York from
time to time.



     “Unrestricted Subsidiaries” means each of the following: (i) the HOLP Companies, (ii)
HHI and (iii) any other subsidiary of the Borrower which is designated as an Unrestricted
Subsidiary pursuant to Section 6.09.



     “United States” and “U.S.” mean the United States of America.



     “Wholly Owned Subsidiary” means, with respect to a Person, any subsidiary of such
Person, all of the issued and outstanding stock, limited liability company membership interests, or
partnership interests of which (including all rights or options to acquire such stock or interests)
are directly or indirectly (through one or more subsidiaries) owned by such Person, excluding any
general partner interests owned, directly or indirectly, by General Partner in any such subsidiary
that is a partnership, in each case such general partner interests not to exceed two percent (2%)
of the aggregate ownership interests of any such partnership and directors’ qualifying shares if
applicable.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,”
and words of similar import when used in any Loan Document, shall be construed to refer to such
Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a
Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles
and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear,
(v) any reference to any law shall include all statutory and regulatory provisions consolidating,
amending replacing or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property”
shall be construed to



23









 







have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.



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



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms.



     (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Initial Financial Statements, except as otherwise
specifically prescribed herein.



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



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



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



     1.06 Letter of Credit Amounts. Unless otherwise specified, all references herein to the
amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of
Credit in effect at such time; provided, however, that with respect to any Letter
of



24









 







Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one
or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall
be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.



ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Loans. Subject to the terms and conditions hereof, each Lender agrees to make Revolving
Credit Loans (“Revolving Credit Loans”) to the Borrower upon the Borrower’s request from
time to time during the Commitment Period, provided that (a) subject to Sections 3.03,
3.04 and 3.06, all Lenders are requested to make Revolving Credit Loans of the same
Type in accordance with their respective Applicable Percentages and as part of the same Borrowing,
and (b) after giving effect to such Revolving Credit Loans, the Facility Usage does not exceed the
Aggregate Commitments, and the Loans of any Lender plus such Lender’s Applicable Percentage of all
LC Obligations does not exceed such Lender’s Commitment. The aggregate amount of all Revolving
Credit Loans that are Base Rate Loans in any Borrowing must be equal to $5,000,000 or any higher
integral multiple of $1,000,000. The aggregate amount of all Eurodollar Loans in any Borrowing
must be equal to $5,000,000 or any higher integral multiple of $1,000,000. The Borrower may have
no more than twelve (12) Borrowings of Eurodollar Loans outstanding at any time. Subject to the
terms and conditions of this Agreement, the Borrower may borrow, repay, and reborrow under this
Section 2.01. At the option of the Borrower, upon written notice delivered to the
Administrative Agent no earlier than 45 days and no later than 30 days prior to the Revolving
Credit Maturity Date, the aggregate principal amount of all Revolving Credit Loans outstanding
immediately prior to the close of the Administrative Agent’s business on the Revolving Credit
Maturity Date shall automatically be converted to a term loan (the “Term Loan”); provided
that, at the time of such conversion, (i) no Event of Default or incipient Default shall have
occurred hereunder and be then continuing and (ii) all representations and warranties (excluding
the representation that no Material Adverse Effect has occurred) are true and correct. At the time
of such conversion, any portion of each Lender’s Commitment not utilized on or before the Revolving
Credit Maturity Date shall be permanently canceled. Unless so converted into a Term Loan on the
Revolving Credit Maturity Date, the outstanding Revolving Credit Loans shall be due and payable on
the Revolving Credit Maturity Date. The Term Loan shall be due and payable in a single payment on
the Term Loan Maturity Date; provided however, any portion of the Term Loan that is prepaid by the Borrower prior to the Term Loan Maturity Date
may not be reborrowed by the Borrower hereunder.



     2.02 Swingline Loans.



     (a) Subject to the terms and conditions of this Agreement, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Commitment Period; provided,
that the aggregate principal amount of all outstanding Swingline Loans (after giving effect
to any amount requested), shall not exceed the lesser of (i) the Aggregate Commitments less the sum
of all outstanding Revolving Credit Loans and the LC Obligations



25









 







and (ii) the Swingline Commitment;
provided further that the Swingline Lender will not make a Swingline Loan from and after
the date which is one (1) day after it has received written notice from the Borrower or any Lender
that one or more of the applicable conditions to Credit Extensions specified in Section
4.02 is not then satisfied until such conditions are satisfied or waived in accordance with the
provisions of this Agreement (and the Swingline Lender shall be entitled to conclusively rely on
any such notice and shall have no obligation to independently investigate the accuracy of such
notice and shall have no liability to the Borrower in respect thereof if such notice proves to be
inaccurate). The aggregate amount of Swingline Loans in any Borrowing shall not be subject to a
minimum amount or increment.



     (b) Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such
refundings shall be made by each Lender in accordance with its Applicable Percentage and shall
thereafter be reflected as Loans of the Lenders on the books and records of the Administrative
Agent. Each Lender shall fund its Applicable Percentage of Revolving Credit Loans as required to
repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but
in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No
Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any
other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, nor shall any
Lender’s Applicable Percentage be increased as a result of any such failure of any other Lender to
fund its Applicable Percentage of a Swingline Loan.



     (c) The Borrower shall pay to the Swingline Lender the amount of each Swingline Loan (unless
such Swingline Loan is fully refunded by the Lenders pursuant to Section 2.02(b)): on the
earliest to occur of (i) the fourteenth day after the date such Swingline Loan was made, (ii)
demand by the Swingline Lender and (iii) the Revolving Credit Maturity Date. In addition, the
Borrower hereby authorizes the Administrative Agent to charge any account maintained by the
Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay
the Swingline Lender the amount of such Swingline Loans. If any portion of any such amount paid to
the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender
in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all
the Lenders in accordance with their Applicable Percentages (unless the amounts so recovered by or
on behalf of the Borrower pertain to a
Swingline Loan extended after the occurrence and during the continuance of an Event of Default
of which the Administrative Agent has received notice in the manner required pursuant to
Section 10.02 and which such Event of Default has not been waived by the Majority Lenders
or the Lenders, as applicable).



     (d) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in
accordance with the terms of this Section 2.02 is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article IV. Further, each Lender agrees and acknowledges that if
prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.02,
one of the events described in subsections (j)(i), (j)(ii) or (j)(iii) of Section
8.01 shall have occurred, each Lender will, on the date the applicable Revolving Credit Loan
would have been made,



26









 







purchase an undivided, irrevocable and unconditional participating interest
in the Swingline Loans to be refunded in an amount equal to its Applicable Percentage of the
aggregate amount of such Swingline Loans. Each Lender will immediately transfer to the Swingline
Lender, in immediately available funds, the amount of its participation, and upon receipt thereof,
the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated
the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline
Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to
such Lender its participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s participating interest
was outstanding and funded). Notwithstanding the foregoing provisions of this Section
2.02(d), a Lender shall have no obligation to refund a Swingline Loan pursuant to Section
2.02(b) if (i) a Default shall exist at the time such refunding is requested by the Swingline
Lender, (ii) such Default had occurred and was continuing at the time such Swingline Loan was made
by the Swingline Lender and (ii) such Lender notified the Swingline Lender in writing, not less
than one Business Day prior to the making by the Swingline Lender of such Swingline Loan, that such
Default has occurred and is continuing and that such Lender will not refund Swingline Loans made
while such Default is continuing.



     2.03 Requests for New Loans. The Borrower must give to the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of any requested Borrowing of Loans to
be funded by Lenders, except in the case of Swingline Loans under a cash management arrangement as
provided below. Each such notice constitutes a “Loan Notice” hereunder and must:



     (a) specify (i) the aggregate amount of any such Borrowing of Base Rate Loans and the date on
which such Base Rate Loans are to be advanced, (ii) the aggregate amount of any such Borrowing of
Eurodollar Loans, the date on which such Eurodollar Loans are to be advanced (which shall be the
first day of the Interest Period which is to apply thereto), and the length of the applicable
Interest Period, or (iii) the aggregate amount of any such Borrowing of Swingline Loans and the
date on which such Swingline Loans are to be advanced; and



     (b) be received by the Administrative Agent not later than 11:00 a.m. on (i) the day on which
any such Base Rate Loans or Swingline Loans are to be made, or (ii) the third Business Day
preceding the day on which any such Eurodollar Loans are to be made.



     Each such written request or confirmation must be made in the form and substance of the Loan
Notice attached as Exhibit D hereto, duly completed. Each such telephonic request shall be
deemed a representation, warranty, acknowledgment and agreement by the Borrower as to the matters
which are required to be set out in such written confirmation. Upon receipt of any such Loan
Notice requesting Revolving Credit Loans, the Administrative Agent shall give each Lender prompt
notice of the terms thereof. Upon receipt of any such Loan Notice requesting Swingline Loans, the
Administrative Agent shall give the Swingline Lender prompt notice of the terms thereof. In the
case of Revolving Credit Loans, if all conditions precedent to such new



27









 







Loans have been met, each
Lender will on the date requested promptly remit to the Administrative Agent at the Administrative
Agent’s Office the amount of such Lender’s Loan in immediately available funds, and upon receipt of
such funds, unless to its actual knowledge any conditions precedent to such Loans have been neither
met nor waived as provided herein, the Administrative Agent shall promptly make such Loans
available to the Borrower. In the case of Swingline Loans, if all conditions precedent to such new
Loans have been met, the Swingline Lender will on the date requested promptly remit to the
Administrative Agent at the Administrative Agent’s Office the amount of such Swingline Loan in
immediately available funds, and upon receipt of such funds, unless to its actual knowledge any
conditions precedent to such Swingline Loan have been neither met nor waived as provided herein,
the Administrative Agent shall promptly make such Loans available to the Borrower. Revolving
Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the Lenders
as provided in Section 2.02(b). The Borrower may maintain with the Swingline Lender
operating accounts with a cash management arrangement for the automatic funding and repayment of
Swingline Loans according to cash needs or excess cash existing in the operating accounts at the
end of each Business Day. No request to the Administrative Agent by the Borrower is required for
the funding or repayment of Swingline Loans in connection with such arrangement; provided, however,
the Borrower must notify the Swingline Lender and the Administrative Agent immediately on any
Business Day if one or more of the applicable conditions specified in Article IV is not
then satisfied and instruct the Swingline Lender not to fund Swingline Loans under such arrangement
until the Borrower has notified the Swingline Lender and the Administrative Agent that all
applicable conditions specified in Article IV are satisfied.



     2.04 Continuations and Conversions of Existing Loans. The Borrower may make the following
elections with respect to Revolving Credit Loans already outstanding: to Convert, in whole or in
part, Base Rate Loans to Eurodollar Loans, to Convert, in whole or in part, Eurodollar Loans to
Base Rate Loans on the last day of the Interest Period applicable thereto, and to Continue, in
whole or in part, Eurodollar Loans beyond the expiration of such Interest Period by designating a
new Interest Period to take effect at the time of such expiration. In making such elections, the
Borrower may combine existing Revolving Credit Loans made pursuant to separate Borrowings into one
new Borrowing or
divide existing Revolving Credit Loans made pursuant to one Borrowing into separate new
Borrowings, provided, that (i) the Borrower may have no more than twelve (12)
Borrowings of Eurodollar Loans outstanding at any time, (ii) the aggregate amount of all Base Rate
Loans in any Borrowing must be equal to $1,000,000 or any higher integral multiple of $500,000, and
(iii) the aggregate amount of all Eurodollar Loans in any Borrowing must be equal to $5,000,000 or
any higher integral multiple of $1,000,000. To make any such election, the Borrower must give to
the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of any
such Conversion or Continuation of existing Loans, with a separate notice given for each new
Borrowing. Each such notice must:



     (a) specify the existing Loans which are to be Continued or Converted;



28









 





     (b) specify (i) the aggregate amount of any Borrowing of Base Rate Loans into which such
existing Loans are to be Continued or Converted and the date on which such Continuation or
Conversion is to occur, or (ii) the aggregate amount of any Borrowing of Eurodollar Loans into
which such existing Loans are to be Continued or Converted, the date on which such Continuation or
Conversion is to occur (which shall be the first day of the Interest Period which is to apply to
such Eurodollar Loans), and the length of the applicable Interest Period; and



     (c) be received by the Administrative Agent not later than 11:00 a.m. on (i) the day on which
any such Conversion to Base Rate Loans is to occur, or (ii) the third Business Day preceding the
day on which any such Continuation or Conversion to Eurodollar Loans is to occur.



     Each such written request or confirmation must be made in the form and substance of the Loan
Notice, duly completed. Each such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by the Borrower as to the matters which are required to be set out in
such written confirmation. Upon receipt of any such Loan Notice, the Administrative Agent shall
give each Lender prompt notice of the terms thereof. Each Loan Notice shall be irrevocable and
binding on the Borrower. During the continuance of any Default, the Borrower may not make any
election to Convert existing Loans into Eurodollar Loans or Continue existing Loans as Eurodollar
Loans beyond the expiration of their respective and corresponding Interest Period then in effect.
If (due to the existence of a Default or for any other reason) the Borrower fails to timely and
properly give any Loan Notice with respect to a Borrowing of existing Eurodollar Loans at least
three days prior to the end of the Interest Period applicable thereto, such Eurodollar Loans, to
the extent not prepaid at the end of such Interest Period, shall automatically be Converted into
Base Rate Loans at the end of such Interest Period. No new funds shall be repaid by the Borrower
or advanced by any Lender in connection with any Continuation or Conversion of existing Loans
pursuant to this section, and no such Continuation or Conversion shall be deemed to be a new
advance of funds for any purpose; such Continuations and Conversions merely constitute a change in
the interest rate, Interest Period or Type applicable to already outstanding Loans.



     2.05 Use of Proceeds. The Borrower shall use the proceeds of all Loans (a) for working capital purposes, (b) for
purchases of common Equity Interests of the Borrower, (c) for acquisitions of assets or Equity
Interests otherwise permitted under the terms of this Agreement, (d) as a liquidity backstop for
issuances of commercial paper and (e) for general business purposes. The Letters of Credit shall
be used for general business purposes of the Borrower and its Subsidiaries. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board of Governors of the Federal Reserve System, including
Regulations T, U and X. The Borrower represents and warrants that the Borrower is not engaged
principally, or as one of the Borrower’s important activities, in the business of extending credit
to others for the purpose of purchasing or carrying such margin stock.



29









 





     2.06 Prepayments of Loans. The Borrower may, upon three Business Days’ notice to the
Administrative Agent (which notice shall be irrevocable, and the Administrative Agent will promptly
give notice to the other Lenders), from time to time and without premium or penalty (other than
Eurodollar Loan breakage costs, if any, pursuant to Section 3.05) prepay the Loans, in
whole or in part, so long as the aggregate amounts of all partial prepayments of principal on the
Loans equals $5,000,000 or any higher integral multiple of $1,000,000. Each prepayment of
principal under this section shall be accompanied by all interest then accrued and unpaid on the
principal so prepaid. Any principal or interest prepaid pursuant to this section shall be in
addition to, and not in lieu of, all payments otherwise required to be paid under the Loan
Documents at the time of such prepayment.



     2.07 Letters of Credit. Subject to the terms and conditions hereof, during the Commitment
Period the Borrower may request LC Issuer to issue, amend, or extend the expiration date of, one or
more Letters of Credit for the account of the Borrower or any or its Subsidiaries, provided
that:



     (a) after taking such Letter of Credit into account the Facility Usage does not exceed the
Aggregate Commitments at such time;



     (b) the expiration date of such Letter of Credit is prior to the earlier of (i) 365 days after
the issuance thereof, provided that such Letter of Credit may provide for automatic
extensions of such expiration date (such Letter of Credit an “Auto-Extension Letter of
Credit”) for additional periods of 365 days thereafter, and (ii) five Business Days prior to
the end of the Commitment Period;



     (c) the issuance of such Letter of Credit will be in compliance with all applicable
governmental restrictions, policies, and guidelines and will not subject LC Issuer to any cost
which is not reimbursable under Article III;



     (d) such Letter of Credit is in form and upon terms as shall be acceptable to LC Issuer in its
sole and absolute discretion; and



     (e) all other conditions in this Agreement to the issuance of such Letter of Credit have been
satisfied.



     (f) LC Issuer will honor any such request if the foregoing conditions (a) through (e) (the
“LC Conditions”) have been met as of the date of issuance, amendment, or extension of such
Letter of Credit.



     2.08 Requesting Letters of Credit. The Borrower must make written application for any Letter
of Credit at least three Business Days (or such shorter period as may be agreed upon by the LC
Issuer) before the date on which the Borrower desires for LC Issuer to issue such Letter of Credit.
By making any such written application, unless otherwise expressly stated therein, the Borrower
shall be deemed to have represented and warranted that the LC Conditions



30









 







will be met as of the date
of issuance of such Letter of Credit. Each such written application for a Letter of Credit must be
made in the form of the LC Application. If all LC Conditions for a Letter of Credit have been met
on any Business Day before 11:00 a.m., LC Issuer will issue such Letter of Credit on the same
Business Day at LC Issuer’s Lending Office. If the LC Conditions are met on any Business Day on or
after 11:00 a.m., LC Issuer will issue such Letter of Credit on the next succeeding Business Day at
LC Issuer’s Lending Office. If any provisions of any LC Application conflict with any provisions
of this Agreement, the provisions of this Agreement shall govern and control. Unless otherwise
directed by the LC Issuer, the Borrower shall not be required to make a specific request to the LC
Issuer for any extension of an Auto-Extension Letter of Credit. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the LC
Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later
than five Business Days prior to the end of the Commitment Period; provided, however, that the LC
Issuer shall not permit any such extension if (A) the LC Issuer has determined that it would not be
permitted at such time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof, or (B) it has received notice (which may be by telephone or in writing) from the
Administrative Agent, any Lender or the Borrower on or before the day that is five Business Days
before the last day in which notice of non-extension for such Letter of Credit may be given that
one or more of the applicable conditions specified in Section 4.02 is not then satisfied,
and directing the LC Issuer not to permit such extension.



     2.09 Reimbursement and Participations.



     (a) Reimbursement. Each Matured LC Obligation shall constitute a loan by LC Issuer to
the Borrower. The Borrower promises to pay to LC Issuer, or to LC Issuer’s order, on demand, the
full amount of each Matured LC Obligation together with interest thereon (i) at the
Base Rate plus the Applicable Margin for Base Rate Loans to and including the second Business
Day after the Matured LC Obligation is incurred, subject to Section 2.09(b), and (ii) at
the Default Rate applicable to Base Rate Loans on each day thereafter.



     (b) Letter of Credit Advances. If the beneficiary of any Letter of Credit makes a
draft or other demand for payment thereunder, then the Borrower shall be deemed to have requested
the Lenders make Loans to the Borrower in the amount of such draft or demand, which Loans shall be
made concurrently with LC Issuer’s payment of such draft or demand and shall be immediately used by
LC Issuer to repay the amount of the resulting Matured LC Obligation. Such deemed request by the
Borrower shall be made in compliance with all of the provisions hereof, provided that for
the purposes of the first sentence of Section 2.01, the amount of such Loans shall be
considered, but the amount of the Matured LC Obligation to be concurrently paid by such Loans shall
not be considered.



     (c) Participation by Lenders. LC Issuer irrevocably agrees to grant and hereby grants
to each Lender, and – to induce LC Issuer to issue Letters of Credit hereunder – each Lender
irrevocably agrees to accept and purchase and hereby accepts and purchases from LC Issuer, on the
terms and conditions hereinafter stated and for such Lender’s own account and risk an



31









 







undivided
interest equal to such Lender’s Applicable Percentage of LC Issuer’s obligations and rights under
each Letter of Credit issued hereunder and the amount of each Matured LC Obligation paid by LC
Issuer thereunder. Each Lender unconditionally and irrevocably agrees with LC Issuer that, if a
Matured LC Obligation is paid under any Letter of Credit for which LC Issuer is not reimbursed in
full by the Borrower in accordance with the terms of this Agreement and the related LC Application
(including any reimbursement by means of concurrent Loans or by the application of LC Collateral),
such Lender shall (in all circumstances and without set-off or counterclaim) pay to LC Issuer on
demand, in immediately available funds at LC Issuer’s Lending Office, such Lender’s Applicable
Percentage of such Matured LC Obligation (or any portion thereof which has not been reimbursed by
the Borrower). Each Lender’s obligation to pay LC Issuer pursuant to the terms of this subsection
is irrevocable and unconditional. If any amount required to be paid by any Lender to LC Issuer
pursuant to this subsection is paid by such Lender to LC Issuer within three Business Days after
the date such payment is due, LC Issuer shall in addition to such amount be entitled to recover
from such Lender, on demand, interest thereon calculated from such due date at the Federal Funds
Rate. If any amount required to be paid by any Lender to LC Issuer pursuant to this subsection is
not paid by such Lender to LC Issuer within three Business Days after the date such payment is due,
LC Issuer shall in addition to such amount be entitled to recover from such Lender, on demand,
interest thereon calculated from such due date at the Base Rate.



     (d) Distributions to Participants. Whenever LC Issuer has in accordance with this
Section received from any Lender payment of such Lender’s Applicable Percentage of any Matured LC
Obligation, if LC Issuer thereafter receives any payment of such Matured LC Obligation or any
payment of interest thereon (whether directly from the Borrower or by application of LC Collateral
or otherwise, and excluding only interest for any period prior to LC Issuer’s demand that such
Lender make such payment of its Applicable Percentage), LC Issuer
will distribute to such Lender its Applicable Percentage of the amounts so received by LC
Issuer; provided, however, that if any such payment received by LC Issuer must
thereafter be returned by LC Issuer, such Lender shall return to LC Issuer the portion thereof
which LC Issuer has previously distributed to it.



     (e) Calculations. A written advice setting forth in reasonable detail the amounts
owing under this Section, submitted by LC Issuer to the Borrower or any Lender from time to time,
shall be conclusive, absent manifest error, as to the amounts thereof.



     (f) Obligations Absolute. The Borrower’s obligation to reimburse Matured LC
Obligations shall be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by the LC Issuer under a Letter of
Credit against presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar
to



32









 







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



     2.10 No Duty to Inquire.



     (a) Drafts and Demands. LC Issuer is authorized and instructed to accept and pay
drafts and demands for payment under any Letter of Credit without requiring, and without
responsibility for, any determination as to the existence of any event giving rise to said draft,
either at the time of acceptance or payment or thereafter. LC Issuer is under no duty to determine
the proper identity of anyone presenting such a draft or making such a demand (whether by tested
telex or otherwise) as the officer, representative or agent of any beneficiary under any Letter of
Credit, and payment by LC Issuer to any such beneficiary when requested by any such purported
officer, representative or agent is hereby authorized and approved. The Borrower releases LC
Issuer and each Lender from, and agrees to hold LC Issuer and each Lender harmless and indemnified
against, any liability or claim in connection with or arising out of the subject matter of this
section, which indemnity shall apply whether or not any such liability or claim is in any way or to
any extent caused, in whole or in part, by any negligent act or omission of any kind by any LC
Issuer or Lender, provided only that no LC Issuer or Lender shall be entitled to indemnification
for that portion, if any, of any liability or claim which is proximately caused by its own
individual gross negligence or willful misconduct, as determined in a final judgment.



33









 





     (b) Extension of Maturity. If the maturity of any Letter of Credit is extended by its
terms or by Law or governmental action, if any extension of the maturity or time for presentation
of drafts or any other modification of the terms of any Letter of Credit is made at the request of
the Borrower, or if the amount of any Letter of Credit is increased or decreased at the request of
the Borrower, this Agreement shall be binding upon the Borrower and all of its Subsidiaries with
respect to such Letter of Credit as so extended, increased, decreased or otherwise modified, with
respect to drafts and property covered thereby, and with respect to any action taken by LC Issuer,
LC Issuer’s correspondents, or any Lender in accordance with such extension, increase, decrease or
other modification.



     (c) Transferees of Letters of Credit. If any Letter of Credit provides that it is
transferable, LC Issuer shall have no duty to determine the proper identity of anyone appearing as
transferee of such Letter of Credit, nor shall LC Issuer be charged with responsibility of any
nature or character for the validity or correctness of any transfer or successive transfers, and
payment by LC Issuer to any purported transferee or transferees as determined by LC Issuer is
hereby authorized and approved, and the Borrower releases LC Issuer and each Lender from, and
agrees to hold LC Issuer and each Lender harmless and indemnified against, any liability or claim
in connection with or arising out of the foregoing, which indemnity shall apply whether or not any
such liability or claim is in any way or to any extent caused, in whole or in part, by any
negligent act or omission of any kind by any LC Issuer or Lender,  provided
only that neither LC Issuer nor any Lender shall be entitled to indemnification for that portion,
if any, of any liability or claim which is proximately caused by its own individual gross
negligence or willful misconduct, as determined in a final judgment.



     2.11 LC Collateral.



     (a) Acceleration of LC Obligations. If the Obligations or any part thereof become
immediately due and payable pursuant to Section 8.02 then, unless the Administrative Agent,
acting on the instruction of Majority Lenders, shall otherwise specifically elect to the contrary
(which election may thereafter be retracted by the Administrative Agent, acting on the instruction
of Majority Lenders, at any time), the Borrower shall be obligated to pay to LC Issuer immediately
an amount equal to the aggregate LC Obligations which are then outstanding to be held as LC
Collateral. Nothing in this subsection shall, however, limit or impair any rights which LC Issuer
may have under any other document or agreement relating to any Letter of Credit, LC Collateral or
LC Obligation, including any LC Application, or any rights which LC Issuer or any Lender may have
to otherwise apply any payments by the Borrower and any LC Collateral under Section 2.14.



     (b) Investment of LC Collateral. Pending application thereof, all LC Collateral shall
be invested by LC Issuer in such Cash Equivalents as LC Issuer may choose in its sole discretion.
All interest on (and other proceeds of) such Investments shall be reinvested or applied to Matured
LC Obligations or other Obligations which are due and payable. When all Obligations have been
satisfied in full, including all LC Obligations, all Letters of Credit have expired or been
terminated, and all of the Borrower’s reimbursement obligations in connection



34









 







therewith have been
satisfied in full, LC Issuer shall release to the Borrower any remaining LC Collateral. The
Borrower hereby assigns and grants to LC Issuer for the benefit of Lenders a continuing security
interest in all LC Collateral paid by it to LC Issuer, all Investments purchased with such LC
Collateral, and all proceeds thereof to secure its Matured LC Obligations and its Obligations under
this Agreement, each Note, and the other Loan Documents. The Borrower further agrees that LC
Issuer shall have all of the rights and remedies of a secured party under the UCC with respect to
such security interest and that an Event of Default under this Agreement shall constitute a default
for purposes of such security interest.



     (c) Payment of LC Collateral. If the Borrower is required to provide LC Collateral
for any reason but fails to do so as required, LC Issuer or the Administrative Agent may without
prior notice to the Borrower or any Subsidiary provide such LC Collateral (whether by transfers
from other accounts maintained with LC Issuer, or otherwise) using any available funds of the
Borrower or any other Person also liable to make such payments, and LC Issuer or the Administrative
Agent will give notice thereof to the Borrower promptly after such application or transfer. Any
such amounts which are required to be provided as LC Collateral and which are not provided on the
date required shall be considered past due Obligations owing hereunder.



     2.12 Interest Rates and Fees.



     (a) Interest Rates. Unless the Default Rate shall apply, (i) each Base Rate Loan
shall bear interest on each day outstanding at the Base Rate in effect on such day, (ii) each
Eurodollar Loan shall bear interest on each day during the related Interest Period at the related
Eurodollar Rate plus the Applicable Rate for Eurodollar Loans in effect on such day, and (iii) each
Swingline Loan shall bear interest on each day outstanding at the LIBOR Reference Rate plus the
Applicable Rate for Eurodollar Loans in effect on such day. During a Default Rate Period, all
Loans and other Obligations shall bear interest on each day outstanding at the applicable Default
Rate. The interest rate shall change whenever the applicable Base Rate, the Eurodollar Rate, the
LIBOR Reference Rate or the Applicable Rate for Eurodollar Loans changes. In no event shall the
interest rate on any Loan exceed the Maximum Rate.



     (b) Commitment Fees. In consideration of each Lender’s commitment to make Loans, the
Borrower will pay to the Administrative Agent for the account of each Lender a commitment fee
determined on a daily basis equal to the Applicable Rate for commitment fees in effect on such day
times such Lender’s Applicable Percentage of the unused portion of the Aggregate Commitments on
each day during the Commitment Period, determined for each such day by deducting from the amount of
the Aggregate Commitments at the end of such day the Facility Usage. For the purposes of
calculating the commitment fee pursuant to this subsection (b), the aggregate amount of outstanding
Swingline Loans shall not be included in the term Facility Usage. This commitment fee shall be due
and payable in arrears on the last day of each Fiscal Quarter and at the end of the Commitment
Period.



     (c) Letter of Credit Fees. In consideration of LC Issuer’s issuance of any Letter of
Credit, the Borrower agrees to pay to the Administrative Agent, for the account of all Lenders in



35









 







accordance with their respective Applicable Percentages, a letter of credit fee equal to the
Applicable Rate for Eurodollar Loans then in effect (or the Default Rate during the Default Rate
Period) applicable each day times the face amount of such Letter of Credit. Such fee will be
calculated on the face amount of each Letter of Credit outstanding on each day at the above
applicable rates and will be payable in arrears on the last day of each Fiscal Quarter. In
addition, the Borrower will pay a minimum administrative issuance fee equal to the greater of $150
or one-eighth percent (0.125%) per annum of the face amount of each Letter of Credit and such other
fees and charges customarily charged by the LC Issuer in respect of any issuance, amendment or
negotiation of any Letter of Credit in accordance with the LC Issuer’s published schedule of such
charges effective as of the date of such amendment or negotiation; such fees will be payable to the
Administrative Agent for the account of the LC Issuer in arrears on the last day of each Fiscal
Quarter.



     (d) Administrative Agent’s Fees. In addition to all other amounts due to the
Administrative Agent under the Loan Documents, the Borrower will pay fees to the Administrative
Agent as described in the Fee Letter.



     (e) Calculations and Determinations. All calculations of interest chargeable with
respect to the Eurodollar Rate and of fees shall be made on the basis of actual days elapsed
(including the first day but excluding the last) and a year of 360 days. All calculations under
the Loan Documents of interest chargeable with respect to the Base Rate shall be made on the basis
of actual days elapsed (including the first day but excluding the last) and a year of 365 or
366 days, as appropriate.



     (f) Past Due Obligations. The Borrower hereby promises to each Lender to pay interest
at the Default Rate on all Obligations (including Obligations to pay fees or to reimburse or
indemnify any Lender) which the Borrower has in this Agreement promised to pay to such Lender and
which are not paid when due. Such interest shall accrue from the date such Obligations become due
until they are paid.



     2.13 Evidence of Debt.



     (a) Credit Extensions. The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall



36









 







evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



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



     2.14 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made (i) with
respect to Revolving Credit Loans, to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, and (ii) with respect to Swingline Loans, to the
Administrative Agent, for the account of the Swingline Lender. Each such payment shall be made at
the Administrative Agent’s Office in Dollars and in immediately available funds not later than 3:00
p.m. on the date specified herein. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein) of each such
payment with respect to Revolving Credit Loans in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the Administrative Agent after 3:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.03 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and



37









 







(B) in the case of a payment
to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to
the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative Agent.




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



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



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and to make payments pursuant to Section
10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any
such participation or to make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 10.04(c).



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     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.15 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Loans made by it, or the participations in LC Obligations held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in LC Obligations of the other Lenders, or make such other adjustments as shall
be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and other amounts owing them,
provided that:



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



     (b) the provisions of this Section shall not be construed to apply to (i) any payment made by
the Borrower pursuant to and in accordance with the express terms of this Agreement or (ii) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or subparticipations in LC Obligations to any assignee or participant, other than
to the Borrower or any Subsidiary or Unrestricted Subsidiary thereof (as to which the provisions of
this Section shall apply).



     The Borrower and each Subsidiary 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 such entity rights of setoff and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of such entity in
the amount of such participation.



     2.16 Reductions in Commitment. The Borrower shall have the right from time to time to
permanently reduce the Aggregate Commitments, provided that (i) notice of such reduction is
given not less than two Business Days prior to such reduction, (ii) the resulting Aggregate
Commitments are not less than the Facility Usage, and (iii) each partial reduction shall be in an
amount at least equal to $5,000,000 and in multiples of $1,000,000 in excess thereof.



     2.17 Increase in Aggregate Commitments.



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     (a) The Borrower shall have the option, without the consent of the Lenders, from time to time
to cause one or more increases in the Aggregate Commitments by adding, subject to the prior
approval of the Administrative Agent (such approval not to be unreasonably withheld), to this
Agreement one or more financial institutions as Lenders (collectively, the “New Lenders”)
or by allowing one or more Lenders to increase their respective Commitments; provided
however that: (i) prior to and after giving effect to the increase, no Default or Event of
Default shall have occurred hereunder and be continuing, (ii) no such increase shall cause the
Aggregate Commitments to exceed $3,000,000,000, (iii) no Lender’s Commitment shall be increased
without such Lender’s consent, and (iv) such increase shall be evidenced by a commitment increase
agreement in form and substance acceptable to the Administrative Agent and executed by the
Borrower, the Administrative Agent, New Lenders, if any, and Lenders
increasing their Commitments, if any, and which shall indicate the amount and allocation of
such increase in the Aggregate Commitments and the effective date of such increase (the
“Increase Effective Date”). Each financial institution that becomes a New Lender pursuant
to this Section by the execution and delivery to the Administrative Agent of the applicable
commitment increase agreement shall be a “Lender” for all purposes under this Agreement on the
applicable Increase Effective Date. The Borrower shall borrow and prepay Loans on each Increase
Effective Date (and pay any additional amounts required pursuant to Section 3.06) to the
extent necessary to keep the outstanding Loans of each Lender ratable with such Lender’s revised
Applicable Percentage after giving effect to any nonratable increase in the Aggregate Commitments
under this Section.



     (b) As a condition precedent to each increase pursuant to subsection (a) above, the Borrower
shall deliver to the Administrative Agent, to the extent requested by the Administrative Agent, the
following in form and substance satisfactory to the Administrative Agent:




     (i) a certificate dated as of the Increase Effective Date, signed by a Responsible
Officer of the Borrower certifying that each of the conditions to such increase set forth in
this Section shall have occurred and been complied with and that, before and after giving
effect to such increase, (A) the representations and warranties contained in this Agreement
and the other Loan Documents are true and correct in all material respects on and as of the
Increase Effective Date after giving effect to such increase, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
were true and correct in all material respects as of such earlier date, and (B) no Default
or Event of Default exists;




     (ii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with such increase agreement, and
such documents and certifications as the Administrative Agent may require to evidence that
the Borrower is validly existing and in good standing in its jurisdiction of organization;
and



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     (iii) a favorable opinion of Vinson & Elkins L.L.P., counsel to the Borrower, relating
to such increase agreement, addressed to the Administrative Agent and each Lender.



     2.18 Extension of Revolving Credit Maturity Date; Removal of Lenders.



     (a) Subject to the remaining terms and provisions of this Section 2.18, the Borrower
shall have successive options to extend the Revolving Credit Maturity Date for a period of 364 days
each (each shall be referred to herein as an “Extension Option”). In connection with the
Extension Option, the Borrower may, by written notice to the Administrative Agent (a
“Notice of Extension”) given not earlier than 60 days prior to the date that is 4 years
prior to the then effective Revolving Credit Maturity Date nor later than 45 days prior to the then
effective Revolving Credit Maturity Date, advise the Lenders that it requests an extension of the
then effective Revolving Credit Maturity Date (such then effective Revolving Credit Maturity Date
being the “Existing Revolving Credit Maturity Date”) by 364 calendar days, effective on the
Existing Revolving Credit Maturity Date. The Administrative Agent will promptly, and in any event
within five Business Days of the receipt of any such Notice of Extension, notify the Lenders of the
contents of each such Notice of Extension.



     (b) Each Notice of Extension shall (i) be irrevocable and (ii) constitute a representation by
the Borrower that (A) no Event of Default or Default has occurred and is continuing and no event or
circumstance has occurred that has had a Material Adverse Effect, and (B) the representations and
warranties contained in Article V are correct on and as of the date Borrower provides any
Notice of Extension, as though made on and as of such date (unless any representation and warranty
expressly relates to an earlier date, in which case such representation and warranty shall be
correct as of such earlier date).



     (c) In the event a Notice of Extension is given to the Administrative Agent as provided in
Section 2.18(a) and the Administrative Agent notifies a Lender of the contents thereof,
such Lender shall, on or before the day that is 20 days following the date of Administrative
Agent’s receipt of said Notice of Extension, advise the Administrative Agent in writing whether or
not such Lender consents to the extension requested thereby and if any Lender fails so to advise
the Administrative Agent, such Lender shall be deemed to have not consented to such extension. If
the Majority Lenders so consent (the “Consenting Lenders”) to such extension, which consent
may be withheld in their sole and absolute discretion, and any and all Lenders who have not
consented (the “Non-Consenting Lenders”) are replaced pursuant to paragraph (d) or (e) of
this Section 2.18 or repaid pursuant to paragraph (f) of this Section 2.18, the
Revolving Credit Maturity Date, and the Commitments of the Consenting Lenders and the Nominees (as
defined below) shall be automatically extended 364 calendar days from the Existing Revolving Credit
Maturity Date, effective on the Existing Revolving Credit Maturity Date. The Administrative Agent
shall promptly notify the Borrower and all of the Lenders of each written notice of consent given
pursuant to this Section 2.18(c).



41









 





     (d) In the event the Consenting Lenders hold less than 100% of the sum of the aggregate
Facility Usage and unused Commitments, the Consenting Lenders, or any of them, shall have the right
(but not the obligation) to assume all or any portion of the Non-Consenting Lenders’ Commitments by
giving written notice to the Borrower and the Administrative Agent of their election to do so on or
before the day that is 25 days following the date of Administrative Agent’s receipt of the Notice
of Extension, which notice shall be irrevocable and shall constitute an undertaking to (i) assume,
as of 5:00 p.m. on the Existing Revolving Credit Maturity Date, all or such portion of the
Commitments of the Non-Consenting Lenders, as the case may be, as may be specified in such written
notice, and (ii) purchase (without recourse) from the Non-Consenting Lenders, at 5:00 p.m. on the
Existing Revolving Credit Maturity Date, the Facility
Usage outstanding on the Existing Revolving Credit Maturity Date that corresponds to the
portion of the Commitments to be so assumed at a price equal to the sum of (x) the unpaid principal
amount of all Loans so purchased, plus (y) the aggregate amount, if any, previously funded by the
transferor or any participations so purchased, plus (z) all accrued and unpaid interest thereon and
accrued unpaid commitment fees in respect of such Commitments. Such Commitments and Facility
Usage, or portion thereof, to be assumed and purchased by Consenting Lenders shall be allocated by
the Administrative Agent among those Consenting Lenders who have so elected to assume the same,
such allocation to be on a pro rata basis in accordance with the respective Commitments of such
Consenting Lenders as of the Existing Revolving Credit Maturity Date (provided,
however, in no event shall a Consenting Lender be required to assume and purchase an amount
or portion of the Commitments of and Obligation owing to the Non-Consenting Lenders in excess of
the amount which such Consenting Lender agreed to assume and purchase pursuant to the immediately
preceding sentence) or on such other basis as such Consenting Lender shall agree. The
Administrative Agent shall promptly notify the Borrower and the other Consenting Lenders in the
event it receives any notice from a Consenting Lender pursuant to this Section 2.18(d).



     (e) Conditions to Effectiveness of Extensions. In the event that the Consenting
Lenders shall not elect as provided in Section 2.18(d) to assume and purchase all of the
Non-Consenting Lenders’ Commitments and Facility Usage, the Borrower may designate, by written
notice to the Administrative Agent and the Consenting Lenders given on or before the day that is 30
days following the date of Administrative Agent’s receipt of the Notice of Extension, one or more
assignees not a party to this Agreement (individually, a “Nominee” and collectively, the
“Nominees”) to assume all or any portion of the Non-Consenting Lenders’ Commitments not to
be assumed by the Consenting Lenders and to purchase (without recourse) from the Non-Consenting
Lenders all Facility Usage outstanding at 5:00 p.m. on the Existing Revolving Credit Maturity Date
that corresponds to the portion of the Commitments so to be assumed at the price specified in
Section 2.18(d). Each assumption and purchase under this Section 2.18(e) shall be
effective as of 5:00 p.m. on the Existing Revolving Credit Maturity Date when each of the following
conditions has been satisfied in a manner satisfactory to the Administrative Agent:




     (i) each Nominee and the Non-Consenting Lenders have executed an Assignment and
Assumption pursuant to which such Nominee shall (A) assume in writing its share of the
obligations of the Non-Consenting Lenders hereunder, including



42









 







its share of the Commitments
of the Non-Consenting Lenders and (B) agree to be bound as a Lender by the terms of this
Agreement;




     (ii) each Nominee shall have completed and delivered to the Administrative Agent an
Administrative Questionnaire; and




     (iii) the assignment shall otherwise comply with Section 10.06.



     (f) If all of the Commitments of the Non-Consenting Lenders are not replaced on or before the
Existing Revolving Credit Maturity Date, then, at the Borrower’s option, either (i) all
Commitments shall terminate on the Existing Revolving Credit Maturity Date or (ii) the
Borrower shall give prompt notice of termination on the Existing Revolving Credit Maturity Date of
the Commitments of each Non-Consenting Lender not so replaced to the Administrative Agent, and
shall fully repay on the Existing Revolving Credit Maturity Date the Loans (including, without
limitation, all accrued and unpaid interest and unpaid fees), if any, of such Non-Consenting
Lenders, which shall reduce the aggregate Commitments accordingly (to the extent not assumed), and
the Existing Revolving Credit Maturity Date shall be extended in accordance with this Section
2.18 for the remaining Commitments of the Consenting Lenders; provided, however, that the
Majority Lenders have consented to such extension pursuant to Section 2.18(c). Following
the Existing Revolving Credit Maturity Date, the Non-Consenting Lenders shall have no further
obligations under this Agreement, including, without limitation, that such Non-Consenting Lenders
shall have no obligation to purchase participations in Letters of Credit.



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



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



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



43









 





     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the LC Issuer, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the LC Issuer, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto (provided that the Borrower shall not
indemnify the Administrative Agent, any Lender or the LC Issuer for any
such penalties, interest and reasonable expenses arising solely from such party’s failure to
notify the Borrower of such Indemnified Taxes or Other Taxes within a reasonable period of time
after such party has actual knowledge of such Indemnified Taxes or Other Taxes), whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the LC Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the LC Issuer, shall be
conclusive absent manifest error.



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



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if 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.



     Without limiting the generality of the foregoing, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:




44










 






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




     (ii) duly completed copies of Internal Revenue Service 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 to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




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



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



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to
make, maintain or fund Eurodollar Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market,
then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to make or continue Eurodollar Loans or to convert Base Rate Loans to
Eurodollar Loans shall be suspended until such Lender notifies the



45









 







Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans
of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.



     3.03 Inability to Determine Rates. If the Majority Lenders determine that for any reason in connection with any request for a
Eurodollar Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Loan, (b) adequate and reasonable means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Loan, or
(c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar
Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurodollar Loans shall be suspended until the
Administrative Agent (upon the instruction of the Majority Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Costs; Reserves on Eurodollar Loans.



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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or the LC Issuer;




     (ii) subject any Lender or the LC Issuer to any tax of any kind whatsoever with respect
to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Eurodollar Loan made by it, or change the basis of taxation of payments to such Lender or
the LC Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or the LC Issuer); or




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



46









 




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




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



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



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



47









 





     (e) Reserves on Eurodollar Loans. The Borrower shall pay to each Lender, as long as
such Lender shall be required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),
additional interest on the unpaid principal amount of each Eurodollar Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable on each date on
which interest is payable on such Loan, provided the Borrower shall have received at least 10 days’
prior notice (with a copy to the Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such notice.



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




     (a) any Continuation, Conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, Continue or Convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;
including any loss or expense arising from the liquidation or reemployment of funds obtained by
it to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained (but excluding any loss of anticipated profits). The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the foregoing.



     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Loan made by it at
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Loan was in fact so funded.



     3.06 Mitigation Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or 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 3.01, or if
any Lender gives a notice pursuant to Section 3.02, 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



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judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, 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 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07 Survival



     All of the Borrower’s obligations under this Article III shall survive termination of the
Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV



CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:



     (a) The Administrative Agent shall have received all of the following, each dated the Closing
Date (or, in the case of certificates of governmental officials, a recent date before the Closing
Date) and each in form and substance satisfactory to the Administrative Agent:




     (i) counterparts of this Agreement executed by the Borrower and each Lender, sufficient
in number for distribution to the Administrative Agent, each Lender and the Borrower;




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




     (iii) such certificate of resolutions or other action, incumbency certificate and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents to which the Borrower is a party;




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that the Borrower is duly organized or formed, and that the Borrower is
validly existing, in good standing and qualified to engage in business in each jurisdiction
where its ownership, lease or operation of properties or the conduct of



49









 







its business requires such qualification, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect;




     (v) a favorable opinion of Vinson & Elkins L.L.P., counsel to the Borrower,
substantially in the form of Exhibit F, in form and substance satisfactory to
Administrative Agent, addressed to the Administrative Agent and each Lender;




     (vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies
of all consents, licenses and approvals required in connection with the execution, delivery
and performance by the Borrower and the validity against the Borrower of the Loan Documents
to which it is a party, and such consents, licenses and approvals shall be in full force and
effect, or (B) stating that no such consents, licenses or approvals are so required;




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied,
and (B) that there has been no event or circumstance since the date of the Initial Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect;




     (viii) a duly completed Compliance Certificate as of the last day of the Fiscal Quarter
of the Borrower most recently ended prior to the Closing Date for which financial statements
are available to the Borrower, signed by a Responsible Officer of the Borrower;




     (ix) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect;




     (x) evidence satisfactory to it that (A) all Loans (as defined in the Existing Credit
Agreement) of the Lenders (as defined in the Existing Credit Agreement) shall have been or
shall concurrently be repaid in full, together with any accrued interest thereon and any
accrued fees payable to such Lenders under the Existing Credit Agreement to the Closing
Date, (B) the commitments under the Existing Credit Agreement of such Lenders shall have
been or shall concurrently be terminated, and (C) all Guarantees of any of the Borrower’s
Subsidiaries in connection with the Existing Credit Agreement are being concurrently
released;




     (xi) the Initial Financial Statements;




     (xii) evidence that a notice has been delivered under the Borrower’s Indentures
governing its notes terminating the guarantees of such notes by the Subsidiaries; and




     (xiii) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the LC Issuer or the Majority Lenders reasonably may require.



50









 





     (b) The Borrower shall have a Rating from at least one Rating Agency of BBB- or better.



     (c) Any fees required to be paid on or before the Closing Date shall have been paid.



     (d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the Administrative
Agent).



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has executed and delivered this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto.



     4.02 Conditions to all Credit Extensions. No Lender has any obligation to make any Credit Extension (including its first), and the LC
Issuer has no obligation to make any LC Credit Extension (including its first), unless the
following conditions precedent have been satisfied:



     (a) The representations and warranties of the Borrower set forth in this Agreement shall be
true and correct in all material respects on and as of the date of such Credit Extension, both
before and after giving effect to such Credit Extension, provided, however, for
purposes of this Section 4.02, (i) to the extent that such representations and warranties
specifically refer to an earlier date, they shall be true and correct as of such earlier date, (ii)
the representations and warranties contained in Section 5.06(a) shall be deemed to refer to
the most recent financial statements furnished pursuant to Section 6.01, and (iii) the
representation and warranty contained in Section 5.06(b) shall not need to be true and
correct on any date after the date of the initial Credit Extension; and



     (b) At the time of and immediately after giving effect to such Credit Extension, no Default
shall have occurred and be continuing.



     Each Credit Extension shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.



ARTICLE V



REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to each Lender that:



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     5.01 No Default. Neither the Borrower nor any Subsidiary is in default in the performance of any of the
covenants and agreements contained in any Loan Document to which the Borrower or such Subsidiary is
party. No event has occurred and is continuing which constitutes a Default.



     5.02 Organization and Good Standing. The Borrower and each Subsidiary is duly organized, validly existing and in good standing
under the Laws of its jurisdiction of organization, having all powers required to carry on its
business and enter into and carry out the transactions contemplated hereby. The Borrower and each
Subsidiary is duly qualified, in good standing, and authorized to do business in all other
jurisdictions wherein the character of the properties owned or held by it or the nature of the
business transacted by it makes such qualification necessary except where the failure to so qualify
could not reasonably be expected to have a Material Adverse Effect.



     5.03 Authorization. The Borrower and each Subsidiary has duly taken all action necessary to authorize the
execution and delivery by it of the Loan Documents to which it is a party and to authorize the
consummation of the transactions contemplated thereby and the performance of its obligations
thereunder.



     5.04 No Conflicts or Consents. The execution and delivery by the Borrower and each Subsidiary of the Loan Documents to
which it is a party, the performance the Borrower and each Subsidiary of its respective obligations
under such Loan Documents, and the consummation of the transactions contemplated by the various
Loan Documents, do not and will not (i) conflict with any provision of (1) any Law, (2) the
organizational documents of the Borrower, any Subsidiary or the General Partner, or (3) any
material Contractual Obligation, judgment, license, order or permit applicable to or binding upon
the Borrower, any Subsidiary or the General Partner, (ii) result in the acceleration of any
Indebtedness owed by the Borrower, any of its Subsidiaries, any of its Unrestricted Subsidiaries or
the General Partner, or (iii) result in or require the creation of any Lien upon any assets or
properties of the Borrower, any of its Subsidiaries or the General Partner, except, in each case,
with respect to the preceding clauses (i) through (iii), as could not reasonably be expected to
have a Material Adverse Effect. Except as expressly contemplated in the Loan Documents or
disclosed in the Disclosure Schedule, no permit, consent, approval, authorization or order of, and
no notice to or filing, registration or qualification with, any Tribunal or third party is required
in connection with the execution, delivery or performance by the Borrower or any Subsidiary of any
Loan Document or to consummate any transactions contemplated by the Loan Documents. Neither the
Borrower nor any Subsidiary is in breach of or in default under any instrument, license or other
agreement applicable to or binding upon such entity, which breach or default has had, or could
reasonably be expected to have a Material Adverse Effect.



     5.05 Enforceable Obligations. This Agreement is, and the other Loan Documents to which the Borrower is a party when duly
executed and delivered will be, legal, valid and binding obligations of the Borrower enforceable in
accordance with their terms except as such



52









 







enforcement may be limited by bankruptcy, insolvency or
similar Laws of general application relating to the enforcement of creditors’ rights.



     5.06 Initial Financial Statements; No Material Adverse Effect.



     (a) The Borrower has heretofore delivered to the Lenders true, correct and complete copies of
the Initial Financial Statements. The Initial Financial Statements were prepared in accordance
with GAAP. The Initial Financial Statements fairly present the Borrower’s Consolidated financial
position at the date thereof, the Consolidated results of the Borrower’s operations for the periods
thereof and the Borrower’s Consolidated cash flows for the period thereof.



     (b) Since the date of the Initial Financial Statements, no event or circumstance has occurred
that has had a Material Adverse Effect.



     5.07 Taxes. The Borrower and each of its Subsidiaries has timely filed all tax returns and reports
required to have been filed and has paid all taxes, assessments, and other governmental charges or
levies imposed upon it or upon its income, profits or property, except to the extent that any of
the foregoing is not yet due or is being in good faith contested as permitted by Section
6.06.



     5.08 Full Disclosure. No written certificate, statement or other information, taken as a whole, delivered
herewith or heretofore by the Borrower to any Lender in connection with the negotiation of this
Agreement or in connection with any transaction contemplated hereby contains any untrue statement
of a material fact or omits to state any material fact necessary to make the statements contained
herein or therein, in light of the circumstances under which they were made, not misleading as of
the date made or deemed made.



     5.09 Litigation. Except as disclosed in the Initial Financial Statements or in the Disclosure Schedule and
except for matters that could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect (i) there are no actions, judgments, injunctions, orders, suits or legal, equitable,
arbitrative or administrative proceedings pending or, to the knowledge of the Borrower, threatened,
by or before any Tribunal against the Borrower or any of its Subsidiaries or against any property
of the Borrower or any of its Subsidiaries.



     5.10 ERISA. All currently existing ERISA Plans are listed in the Disclosure Schedule. Except as
disclosed in the Initial Financial Statements or in the Disclosure Schedule, no Termination Event
has occurred with respect to any ERISA Plan and all ERISA Affiliates are in compliance with ERISA
in all material respects. No ERISA Affiliate is required to contribute to, or has any other
absolute or contingent liability in respect of, any “multiemployer plan” as defined in Section 4001
of ERISA. Except as set forth in the Disclosure Schedule: (i) no “accumulated funding deficiency”
(as defined in Section 412(a) of the Code exists with respect to any ERISA Plan, whether or not
waived by the Secretary of the Treasury or his delegate, and



53









 







(ii) the current value of each ERISA
Plan’s benefits does not exceed the current value of such ERISA Plan’s assets available for the
payment of such benefits by more than $5,000,000.



     5.11 Compliance with Laws. The Borrower and each of its Subsidiaries is in compliance with all Laws applicable to it
or its property and all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.



     5.12 Ownership of Property; Liens. Each of the Borrower and its Material Subsidiaries has good title to, or valid leasehold
interests in, all material property necessary or used in the ordinary conduct of its business,
except for such defects in title as would not, individually or in the aggregate, have a Material
Adverse Effect. There is no Lien on any property of the Borrower or any of its Subsidiaries, other
than Liens permitted by Section 7.01.



     5.13 Environmental Compliance. The Borrower and its Material Subsidiaries conduct in the ordinary course of business a review
of the effect of existing Environmental Laws and claims alleging potential liability or
responsibility for violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof have reasonably concluded that, except as specifically
disclosed in Schedule 5.09, they: (a) to the best of their knowledge, are in compliance with all
applicable Environmental Laws, except to the extent that any non-compliance would not reasonably be
expected to have a Material Adverse Effect; (b) to the best of their knowledge, are not subject to
any judicial, administrative, government, regulatory or arbitration proceeding alleging the
violation of any applicable Environmental Laws or that may lead to claim for cleanup costs,
remedial work, reclamation, conservation, damage to natural resources or personal injury or to the
issuance of a stop-work order, suspension order, control order, prevention order or clean-up order,
except to the extent that any such proceeding would not reasonably be expected to have a Material
Adverse Effect; (c) to the best of their knowledge, are not subject to any federal, state, local or
foreign review, audit or investigation which may lead to a proceeding referred to in (b) above; (d)
have no actual knowledge that any of their predecessors in title to any of their property and
assets are the subject of any currently pending federal, state, local or
foreign review, audit or investigation which may lead to a proceeding referred to in (b)
above; (e) have not filed any notice under any applicable Environmental Laws indicating past or
present treatment, storage or disposal of, or reporting a release or Hazardous Materials into the
environment where the circumstances surrounding such notice would reasonably be expected to have a
Material Adverse Effect; and (f) possess, and are in compliance with, all approvals, licenses,
permits, consents and other authorizations which are necessary under any applicable Environmental
Laws to conduct their business, except to the extent that the failure to possess, or be in
compliance with, such authorizations would not reasonably be expected to have a Material Adverse
Effect.



     5.14 Insurance.
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 as
are customarily carried by companies engaged in similar businesses and owning similar properties in
localities where the Borrower or its Subsidiaries operate.



54









 





     5.15 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board), or extending credit for the purpose of purchasing or carrying
margin stock.



     (b) The Borrower is not an “investment company” or a company “controlled by” an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.



ARTICLE VI



AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation shall
remain unpaid, or any Letter of Credit shall remain outstanding, the Borrower covenants and agrees
that:



     6.01 Books, Financial Statements and Reports. The Borrower will maintain and will cause its Subsidiaries to maintain a standard system of
accounting and proper books of record and account in accordance with GAAP and will furnish the
following statements and reports to each Lender at the Borrower’s expense:



     (a) As soon as available, and in any event within ninety (90) days after the end of each
Fiscal Year, (i) complete Consolidated financial statements of the Borrower together with all notes
thereto, prepared in reasonable detail in accordance with GAAP, together with an unqualified
opinion relating to such financial statements, based on an audit using generally
accepted auditing standards, by Grant Thornton LLP, or other independent certified public
accountants selected by the General Partner and acceptable to the Administrative Agent, stating
that such Consolidated financial statements have been so prepared; provided,
however, that at any time when the Borrower shall be subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act, delivery within the time period specified above of
copies of the Annual Report on Form 10-K of the Borrower for such Fiscal Year prepared in
compliance with the requirements therefor and filed with the Commission shall be deemed to satisfy
the requirements of this clause (a)(i), and (ii) a consolidating balance sheet and a consolidating
statement of operations reflecting the consolidating information for the Borrower, the Unrestricted
Subsidiaries (individually or with one or more on a combined basis) and the Subsidiaries
(individually or with one or more on a combined basis) for such Fiscal Year, setting forth, in each
case, in comparative form, figures for the preceding Fiscal Year, certified by an authorized
financial officer of the Borrower as presenting fairly, in all material respects, the information
contained therein, on a basis consistent with the Consolidated financial statements, which
consolidating statement of operations may be in summary form in detail satisfactory to the
Administrative Agent. Such financial statements shall contain a Consolidated balance sheet as of
the end of such Fiscal Year and Consolidated statements of earnings for such Fiscal Year. Such



55









 







financial statements shall set forth in comparative form the corresponding figures for the
preceding Fiscal Year. Such financial statements shall set forth in comparative form the
corresponding figures for the preceding fiscal year.



     (b) As soon as available, and in any event within fifty (50) days after the end of each Fiscal
Quarter (i) the Borrower’s Consolidated balance sheet as of the end of such Fiscal Quarter and the
Borrower’s Consolidated statements of income, partners’ capital and cash flows for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, all in reasonable detail and prepared in accordance with GAAP, subject to changes
resulting from normal year-end adjustments; provided, however, that at any time
when the Borrower shall be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, delivery within the time period specified above of copies of the Quarterly Report on
Form 10-Q of the Borrower for such Fiscal Quarter prepared in accordance with the requirements
therefor and filed with the Commission shall be deemed to satisfy the requirements of this clause
(b)(i) for any of the first three Fiscal Quarters of a Fiscal Year and (ii) a consolidating balance
sheet and a consolidating statement of operations reflecting the consolidating information for the
Borrower, the Unrestricted Subsidiaries (individually or with one or more on a combined basis) and
the Subsidiaries (individually or with one or more on a combined basis) for such Fiscal Quarter,
setting forth, in each case, in comparative form, figures for same period of the preceding Fiscal
Year, certified by an authorized financial officer of the Borrower as presenting fairly, in all
material respects, the information contained therein, on a basis consistent with the Consolidated
financial statements, which consolidating statement of operations may be in summary form in detail
satisfactory to the Administrative Agent. Such financial statements shall set forth in comparative
form the corresponding figures for the same period of the preceding Fiscal Year. In addition the
Borrower will, together with each such set of financial statements and each set of financial
statements furnished under subsection (a) of this section, furnish a Compliance Certificate, signed
on behalf of the Borrower by the chief financial officer, principal accounting officer or treasurer
of the General Partner, setting forth that such financial statements are accurate and complete in
all material respects (subject, in the case of
Fiscal Quarter-end statements, to normal year-end adjustments), stating that he has reviewed
the Loan Documents, containing calculations showing compliance (or non-compliance) at the end of
such Fiscal Quarter with the requirements of Section 7.11, and stating that no Default
exists at the end of such Fiscal Quarter or at the time of such certificate or specifying the
nature and period of existence of any such Default.



     (c) Promptly upon their becoming available, one copy of (i) each financial statement, report,
notice or proxy statement sent by the Borrower or any of its Subsidiaries to public securities
holders generally, and (ii) each regular or periodic report, each registration statement (without
exhibits except as expressly requested by such Lender), and each prospectus and all amendments
thereto filed by the Borrower or any of its Subsidiaries with the Commission and of all press
releases and other statements made available generally by the Borrower or any of its Subsidiaries
to the public concerning material developments; provided that the Borrower shall be deemed
to have furnished the information specified in this clause (e) above on the date that such



56









 







information is posted at the Borrower’s website on the Internet or at such other website as
notified to the Lenders.



     6.02 Other Information and Inspections. The Borrower will furnish to Administrative Agent any information which the Administrative
Agent, at the request of any Lender, may from time to time reasonably request concerning any
representation, warranty, covenant, provision or condition of the Loan Documents or any matter in
connection with businesses and operations of the Borrower or any of its subsidiaries. The Borrower
will permit representatives appointed by the Administrative Agent (including independent
accountants, auditors, agents, attorneys, appraisers and any other Persons) to visit and inspect
during normal business hours (which right to visit and inspect shall be limited to once during any
Fiscal Year unless a Default has occurred and is continuing) any of the Borrower property,
including its books of account, other books and records, and any facilities or other business
assets, and to make extra copies therefrom and photocopies and photographs thereof, and to write
down and record any information such representatives obtain, and the Borrower shall permit the
Administrative Agent or its representatives to investigate and verify the accuracy of the
information furnished to the Administrative Agent or any Lender in connection with the Loan
Documents and to discuss all such matters with its officers, employees and, upon prior notice to
the Borrower, its representatives.



     6.03 Notice of Material Events. The Borrower will notify the Administrative Agent, LC Issuer and each Lender promptly, and
not later than five (5) Business Days in the case of subsection (b) below and not later than thirty
(30) days in the case of any other subsection below, after any Responsible Officer or general
counsel of the Borrower has knowledge thereof, stating that such notice is being given pursuant to
this Agreement, of:



     (a) the occurrence of any event or circumstance that has had, or could reasonably be expected
to have, a Material Adverse Effect,



     (b) the occurrence of any Default,



     (c) the acceleration of the maturity of any Indebtedness owed by the Borrower or any of its
Subsidiaries or of any default by the Borrower or any of its Subsidiaries under any Contractual
Obligation of the Borrower or such Subsidiary, if such acceleration or default has had or could
reasonably be expected to have a Material Adverse Effect,



     (d) the occurrence of any Termination Event,



     (e) the filing of any suit or proceeding, or the assertion in writing of a claim against the
Borrower or any Material Subsidiary or with respect to the Borrower’s or any Material Subsidiary’s
properties which could reasonably be expected to result in liability to Borrower or such Material
Subsidiary in excess of $75,000,000;



57









 





     (f) the occurrence of any event of default by the Borrower or any of its Subsidiaries in the
payment or performance of (i) any material obligations such Person is required to pay or perform
under the terms of any indenture, mortgage, deed of trust, security agreement, lease, and
franchise, or other agreement, contract or other instrument or obligation to which it is a party or
by which it or any of its properties is bound, or (ii) any Indebtedness, to the extent, in the case
of clauses (i) and (ii), such event of default could reasonably be expected to have a Material
Adverse Effect on the consolidated financial condition, business, operations, assets or prospects
of the Borrower; and



     (g) any announcement of any change in a Rating.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to herein and stating what
action the Borrower, Subsidiary or Material Subsidiary, as applicable, has taken and proposes to
take with respect thereto. Each notice pursuant to Section 6.03(b) shall describe with
particularity any all provisions of this Agreement and if, applicable, other Loan Documents, that
have been breached.



     6.04 Maintenance of Properties. Except where it will not have a Material Adverse Effect, the Borrower and each Subsidiary
will (a) maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted,
(b) make all necessary repairs thereto and renewals and replacements thereof, and (c) use the
standard of care typical in the industry in the operation and maintenance of its facilities.



     6.05 Maintenance of Existence and Qualifications. The Borrower and each Subsidiary will maintain and preserve its existence and its rights
and franchises in full force and effect and will qualify to do business in all states or
jurisdictions where required by applicable Law, except where the failure so to qualify has not had,
and could not reasonably be expected to have, a Material Adverse Effect.



     6.06 Payment of Obligations. The Borrower and each Subsidiary will pay, before the same shall become delinquent or in
default, its obligations, including tax liabilities, except where (a) the validity or amount
thereof is being contested by the Borrower or such Subsidiary in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, and (c) the failure to make payment pending such contest
could not reasonably be expected to have a Material Adverse Effect.



     6.07 Insurance. The Borrower shall at all times maintain at its own expense with financially sound and
reputable insurance companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in the same or similar
locations.



58









 





     6.08 Compliance with Law. The Borrower and each Subsidiary will comply in all material respects with the requirements
of all Laws applicable to it or to its business or property, except in such instances in which (a)
such requirement of Law is being contested in good faith or a bona fide dispute exists with respect
thereto, or (b) the failure to comply therewith could not be reasonably expected to have a Material
Adverse Effect.



     6.09 Subsidiaries and Unrestricted Subsidiaries.



     (a) The Borrower may designate any Unrestricted Subsidiary to be a Subsidiary, provided that
the Borrower may not make such designation unless at the time of such action and after giving
effect thereto, (i) none of such Unrestricted Subsidiaries have outstanding Indebtedness or
Guarantees, other than Indebtedness permitted under Section 7.01, or Liens on any of their
property, other than Permitted Liens (in each case taking into account the other Indebtedness and
Liens of the Borrower and its Subsidiaries), (ii) no Default or Event of Default shall exist, (iii)
all representations and warranties herein will be true and correct in all material respects as if
remade at the time of such designation, except to the extent such representations and warranties
specifically refer to an earlier date, in which case they were true and correct in all material
respects as of such earlier date, and (iv) the Borrower has provided to the Administrative Agent
and officer’s certificate in form satisfactory to the Administrative Agent to the effect that each
of the foregoing conditions has been satisfied.



     (b) The Borrower may designate any Person who becomes a Subsidiary of the Borrower after the
date hereof to be an Unrestricted Subsidiary, provided that all Investments in such
Subsidiary at the time of such designation shall be treated as Investments made on the date of such
designation, and provided further that the Borrower may not make such a designation
unless such designation is made not later than 30 days after the date such Person becomes a
Subsidiary and, at the time of such action and after giving effect thereto, (i) such Subsidiary
does
not own, directly or indirectly, any Indebtedness or Equity Interests of the Borrower or any
Subsidiary, (ii) no Default or Event of Default shall exist, (iii) all representations and
warranties herein will be true and correct in all material respects if remade at the time of such
designation, except to the extent such representations and warranties specifically refer to an
earlier date, in which case they were true and correct in all material respects as of such earlier
date, (iv) the Investment represented by such designation is permitted under clause (i) of the
definition of Permitted Investments and (v) the Borrower has provided to the Administrative Agent
an officer’s certificate in form satisfactory to the Administrative Agent to the effect that each
of the foregoing conditions have been satisfied.



ARTICLE VII



NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation shall
remain unpaid, or any Letter of Credit shall remain outstanding, the Borrower covenants and agrees
that:



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     7.01 Indebtedness. No Subsidiary will in any manner owe or be liable for Indebtedness except:



     (a) the Obligations;



     (b) Indebtedness of any Subsidiary owing to the Borrower or another Subsidiary;



     (c) Indebtedness in respect of bonds that are performance bonds, bid bonds, appeal bonds,
surety bonds and similar obligations, in each case provided in the ordinary course of business,
including those incurred to secure health, safety and environmental obligations in the ordinary
course of business;



     (d) Indebtedness in respect to future payment for non-competition covenants and similar
payments under agreements governing a Permitted Acquisition by a Subsidiary;



     (e) unsecured Indebtedness of any Person that becomes a Subsidiary after the date hereof
incurred prior to the time such Person becomes a Subsidiary; provided that (i) such
Indebtedness is not created in contemplation of such Person becoming a Subsidiary and (ii) such
Indebtedness is not assumed or Guaranteed by any other Subsidiary; and



     (f) Permitted Priority Debt.



     7.02 Limitation on Liens. Neither the Borrower nor any Subsidiary will create, assume or permit to exist any Lien
upon or with respect to any of its properties or assets now owned or hereafter acquired, except the
following Liens (to the extent permitted by this Section, herein called “Permitted Liens”):



     (a) Liens existing on the date of this Agreement and listed in the Disclosure Schedule;



     (b) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due
or the validity of which is being contested in good faith and by appropriate proceedings, if
necessary, for which adequate reserves are maintained on the books of the Borrower or any
Subsidiary in accordance with GAAP;



     (c) pledges or deposits of cash or securities under worker’s compensation, unemployment
insurance or other social security legislation;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other
like Liens (including, without limitation, Liens on property of the Borrower or any Subsidiary in
the possession of storage facilities, pipelines or barges) arising in the ordinary course of
business for amounts which are not more than 60 days past due or the validity of which is being
contested in good faith and by appropriate proceedings, if necessary, and for which adequate
reserves are maintained on the books of the Borrower or any Subsidiary in accordance with GAAP;



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     (e) deposits of cash or securities to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;



     (f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business and encumbrances consisting of zoning restrictions, easements,
licenses, restrictions on the use of real property or minor imperfections in title thereto which,
in the aggregate, are not material in amount, and which do not in any case materially detract from
the value of the property subject thereto or interfere with the ordinary conduct of the business of
the Borrower or any Subsidiary;



     (g) rights reserved to or vested in any Governmental Authority by the terms of any right,
power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any
such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain
or similar process;



     (h) rights reserved to or vested by Law in any Governmental Authority to in any manner,
control or regulate in any manner any of the properties of the Borrower or any Subsidiary or the
use thereof or the rights and interests of the Borrower or any Subsidiary therein, in any manner
under any and all Laws;



     (i) rights reserved to the grantors of any properties of the Borrower or any Subsidiary, and
the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant
to the terms, conditions and provisions of any rights-of-way agreements, contracts or other
agreements therewith;



     (j) inchoate Liens in respect of pending litigation or with respect to a judgment which has
not resulted in an Event of Default under Section 8.01;



     (k) statutory Liens in respect of payables;



     (l) any Lien existing on any property prior to the acquisition thereof by the Borrower or any
Subsidiary or existing on any property of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is
not created in contemplation of or in connection with such acquisition or such Person becoming a
Subsidiary, (ii) such Lien shall not apply to any other property of the Borrower or any Subsidiary,
(iii) such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be; and (iv) such Liens
do not secure Indebtedness other than Permitted Priority Debt;



     (m) Liens on cash margin collateral securing Hedging Contracts permitted under Section
7.10;



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     (n) Liens in respect of operating leases covering only the property subject thereto; and



     (o) Liens in respect of Permitted Priority Debt.



     7.03 Limitation on Mergers, Sale of Assets. Neither the Borrower nor any Subsidiary will merger into or consolidate with any other
Person, or permit any other Person to merger into or consolidate with it, or sell, transfer, lease
(as a lessor) or otherwise dispose (in one transaction or in a series of related transactions) all
(or substantially all) of its assets, or all or substantially all of the stock or other equity
interest in any of its (a) subsidiaries, in the case of a Subsidiary, or (b) Subsidiaries, in the
case of the Borrower (in each case, whether now owned or hereafter acquired), unless (i) at the
time thereof and immediately after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing, and (ii) if the Borrower is involved in any such transaction, it is the
surviving or resultant entity or the recipient of any such sale, transfer, lease or other
disposition of assets, and if a Subsidiary is involved in any such transaction, such Subsidiary is
the surviving or resultant entity or the recipient of any such sale, transfer, lease or other
disposition of assets; 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 7.03, have the effect of releasing Borrower from any of its obligations or
liabilities under this Agreement.



     7.04 Reserved.



     7.05 Distributions. During the existence of a Default under Section 8.01(b) or (j) or of any Event of Default,
neither the Borrower nor any Subsidiary will declare, pay or make any Distribution (in
cash, property or obligations) on any interests (now or hereafter outstanding) in the Borrower
or any Subsidiary or apply any of its funds, property or assets to the purchase of any partnership
interests in the Borrower or any Subsidiary.



     7.06 Investments. Neither the Borrower nor any of its Subsidiaries will purchase or otherwise acquire the
capital stock or other equity of any other Person if (a) such purchase or other acquisition
violates the Borrower’s or such Subsidiary’s partnership or other governing agreement, and (b)
after giving effect to such purchase or other acquisition, the Borrower or such Subsidiary is not
in compliance with Section 7.07.



     7.07 Change in Nature of Businesses. Neither the Borrower nor any Subsidiary will engage in any material line of business
substantially different from those lines of business conducted by the Borrower and its Subsidiaries
on the date hereof or, if substantially different therefrom, not permitted by the Borrower’s or
such Subsidiary’s partnership or other governing agreement.



     7.08 Transactions with Affiliates. Neither the Borrower nor any Subsidiary will directly or indirectly engage in any material
transaction or material group of related transactions (including without limitation the purchase,
lease, sale or exchange of properties of any kind or



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the rendering of any service) with any of its
Affiliates except: (a) transactions among the Borrower and it Subsidiaries or among the
Subsidiaries, subject to the other provisions of this Agreement and (b) transactions entered into
in the ordinary course of business of the Borrower or such Subsidiary on terms which are no less
favorable to the Borrower or such Subsidiary than those which would have been obtainable at the
time in arm’s-length transactions with Persons that are not Affiliates.



     7.09 Burdensome Agreements. Neither the Borrower nor any Subsidiary will enter into any material Contractual Obligation
that by its express terms prohibits the Borrower or any Subsidiary or any Unrestricted Subsidiary
to create, incur, assume or suffer to exist Liens on any material property of such Person to secure
the Obligations; or enter into any agreement (other than (a) agreements permitted by Section
7.01(e) and (b) the TWP Note Purchase Agreements) restricting the ability of any Subsidiary to
any payments, directly or indirectly, to the Borrower or a Material Subsidiary by way of
Distributions, loans, advances, repayments of loans or advances, reimbursements of management and
other intercompany changes, expenses and accruals or other returns on investments, or any other
agreement or arrangement which restricts the ability of any Subsidiary to make any payment,
directly or indirectly, to the Borrower or a Material Subsidiary.



     7.10 Hedging Contracts. Neither the Borrower nor any Subsidiary shall enter into or permit to exist any obligations
under any Hedging Contracts for purposes of speculation.



     7.11 Leverage Ratio. (i) On each Quarterly Testing Date using the Consolidated Funded Indebtedness outstanding
on such day and using Consolidated EBITDA for the four Fiscal Quarter period ending on such day,
(ii) on the date of each Specified Acquisition using the Consolidated Funded Indebtedness that will
be outstanding after giving effect to such Specified Acquisition and using Consolidated EBITDA for
the four Fiscal Quarter period most recently ending prior to such Specified Acquisition for which
financial statements contemplated by Section 6.01(b) are available to the Borrower (and
giving pro forma effect to such Specified Acquisition as provided in the definition of Consolidated
EBITDA), and (iii) on each date on which the Borrower makes a Distribution permitted under
Section 7.05, after giving effect thereto and using Consolidated EBITDA for the four Fiscal
Quarter period most recently ending prior to such date for which financial statements contemplated
by Section 6.01(b) are available to the Borrower, the Leverage Ratio will not exceed (A)
5.00 to 1.00 at any time other than during a Specified Acquisition Period and (B) 5.50 to 1.00
during a Specified Acquisition Period.



ARTICLE VIII



EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Each of the following events constitutes an Event of Default under this Agreement (each an
“Event of Default”):



     (a) The Borrower fails to pay the principal component of any Loan or any reimbursement
obligation with respect to any Letter of Credit when due and payable, whether at



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a date for the
payment of a fixed installment or as a contingent or other payment becomes due and payable or as a
result of acceleration or otherwise;



     (b) The Borrower fails to pay any Obligation (other than the Obligations in subsection (a)
above), whether at a date for the payment of a fixed installment or as a contingent or other
payment becomes due and payable or as a result of acceleration or otherwise, within five Business
Days after the same becomes due;



     (c) Any event defined as a “default” or “event of default” in any Loan Document (other than
this Agreement) occurs, and the same is not remedied within the applicable period of grace (if any)
provided in such Loan Document;



     (d) The Borrower fails to duly observe, perform or comply with any covenant, agreement or
provision of Section 6.03 or Article VII;



     (e) The Borrower fails (other than as referred to in subsections (a), (b), (c) or (d) above)
to duly observe, perform or comply with any covenant, agreement, condition or provision of any Loan
Document to which it is a party, and such failure remains unremedied for a period of thirty (30)
days after notice of such failure is given by the Administrative Agent to the Borrower;



     (f) Any representation or warranty previously, presently or hereafter made in writing by the
Borrower in connection with any Loan Document shall prove to have been false or incorrect in any
material respect on any date on or as of which made;



     (g) Any Loan Document at any time ceases to be valid, binding and enforceable as warranted in
Section 5.05 for any reason, or shall be declared null and void or the Borrower shall
repudiate in writing its obligations thereunder, or the Borrower shall contest the validity or
enforceability of any Loan Document in writing or deny in writing that it has any further
liability, under any Loan Document to which it is a party;



     (h) (i) The Borrower or any Subsidiary (A) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Hedging
Contracts) having an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated credit arrangement)
of more than $50,000,000, or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, in each case, following any
applicable cure period, the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made,



64









 







prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Hedging Contract an Early Termination Date (as defined in such Hedging Contract)
resulting from (A) any event of default under such Hedging Contract as to which the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Hedging Contract) or (B) any Termination
Event (as defined in such Hedging Contract) under such Hedging Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event, the Hedging Termination
Value owed by the Borrower or such Subsidiary to a single counterparty as a result thereof is
greater than $50,000,000 for such Hedging Contract;



     (i) Either (i) any “accumulated funding deficiency” (as defined in Section 412(a) of the Code)
in excess of $50,000,000 with respect to any ERISA Plan, whether or not waived by the Secretary of
the Treasury or his delegate, or (ii) any Termination Event occurs with respect to any ERISA Plan
and the then current value of such ERISA Plan’s benefit liabilities exceeds the then current value
of such ERISA Plan’s assets available for the payment of such benefit liabilities by more than
$5,000,000 (or in the case of a Termination Event involving the withdrawal of a substantial
employer, the withdrawing employer’s proportionate share of such excess exceeds such amount);



     (j) The Borrower or any Material Subsidiary:




     (i) has entered against it a judgment, decree or order for relief by a Tribunal of
competent jurisdiction in an involuntary proceeding commenced under any applicable
bankruptcy, insolvency or other similar Law of any jurisdiction now or hereafter in effect,
including the federal Bankruptcy Code, as from time to time amended, or has any such
proceeding commenced against it, in each case, which remains undismissed for a period of
sixty days; or




     (ii) commences a voluntary case under any applicable bankruptcy, insolvency or similar
Law now or hereafter in effect, including the federal Bankruptcy Code, as from time to time
amended; or applies for or consents to the entry of an order for relief in an involuntary
case under any such Law; or makes a general assignment for the benefit of creditors; or is
generally unable to pay (or admits in writing its inability to so pay) its debts as such
debts become due; or takes corporate or other action to authorize any of the foregoing; or




     (iii) has entered against it the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of all or a
substantial part of its assets in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor discharged within sixty
days after the making thereof, or such appointment or taking possession is at any time
consented to, requested by, or acquiesced to by it; or



65









 






     (iv) has entered against it a final judgment for the payment of money in excess of
$75,000,000 (in each case not covered by insurance or third party indemnification
obligations satisfactory to the Administrative Agent), unless the same is discharged within
sixty days after the date of entry thereof or an appeal or appropriate proceeding for review
thereof is taken within such period and a stay of execution pending such appeal is obtained;
or




     (v) suffers a writ or warrant of attachment or any similar process to be issued by any
Tribunal against all or any substantial part of its assets, and such writ or warrant of
attachment or any similar process is not stayed or released within sixty days after the
entry or levy thereof or after any stay is vacated or set aside; or



     (k) Any Change of Control occurs.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Majority Lenders, take any or all of the following
actions:



     (a) declare the commitment of each Lender to make Loans and any obligation of the LC Issuer to
make LC Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



     (c) require that the Borrower Cash Collateralize the LC Obligations (in an amount equal to the
then outstanding amount thereof); and



     (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents;


provided, however, that upon the occurrence of an Event of Default described in
subsections (j)(i), (j)(ii) or (j)(iii) of Section 8.01, the
obligation of each Lender to make Loans and any obligation of the LC Issuer to make LC Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the LC Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans
have automatically become immediately due and payable and the LC Obligations have automatically
been required to be Cash Collateralized as set forth in the



66









 







proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied by the Administrative Agent in the
following order:



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



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders and the LC Issuer
(including fees, charges and disbursements of counsel to the respective Lenders and the LC Issuer
(including fees and time charges for attorneys who may be employees of any Lender or the LC Issuer)
and amounts payable under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;



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



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and Matured LC Obligations, ratably among the Lenders and the LC Issuer in proportion to
the respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the LC Issuer, to Cash
Collateralize that portion of LC Obligations comprised of the aggregate undrawn amount of Letters
of Credit; and



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



     Amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant
to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as
they occur. If any amount remains on deposit as LC Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.



ARTICLE IX



ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the LC Issuer hereby irrevocably appoints Wachovia Bank, National
Association to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions



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and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent, the Lenders and the LC Issuer, and
the Borrower shall not have rights as a third party beneficiary of any of such provisions.



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



     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly
set forth herein and in the other Loan Documents. Without limiting the generality of the
foregoing, the Administrative Agent:



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



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Majority Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;
and



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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Majority Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the LC Issuer.



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



     9.04 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, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the making
of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the LC Issuer, the Administrative Agent may presume that such condition
is satisfactory to such Lender or the LC Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the LC Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the
LC Issuer and the Borrower. Upon receipt of any such notice of resignation, the Majority Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Majority Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the




69










 




retiring Administrative Agent may on behalf of the Lenders and the LC Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if
the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any Cash
Collateral held by the Administrative Agent on behalf of the Lenders or the LC Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such Cash Collateral
until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the LC Issuer directly, until such time as the
Majority Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.




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



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



70









 







based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Book
Manager, Arrangers, Syndication Agents, Co-Documentation Agents, Senior Managing Agents, Managing
Agents, or other Agents named herein shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the LC Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Borrower or any Material Subsidiary, the Administrative Agent
(irrespective of whether the principal of any Loan or LC Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, LC Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the LC Issuer and the Administrative Agent allowed in such judicial proceeding; and



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the LC Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the LC Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.12 and 10.04.




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



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ARTICLE X

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower therefrom, shall be effective unless in
writing signed by the Majority Lenders and the Borrower, as the case may be, and acknowledged by
the Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that no
such amendment, waiver or consent shall:



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



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



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or LC
Obligation, or (subject to clause (iii) of the second proviso to this Section 10.01) any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that only the
consent of the Majority Lenders shall be necessary to amend the definition of “Default Rate” or to
waive any obligation of the Borrower to pay interest or letter of credit fees at the Default Rate;



     (e) change Section 2.15 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender; or



     (f) change any provision of this Section or the definition of “Majority Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the LC Issuer in addition to the Lenders required above, affect the rights or
duties of the LC Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan Document; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in
addition to the Lenders required above, affect the rights or duties of the Swingline Lender under


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this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.




     10.02 Notices; Effectiveness; Electronic Communication.



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




     (i) if to the Borrower, the Administrative Agent, the Swingline Lender or the LC
Issuer, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


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




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



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



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intranet website
shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of notification that such notice
or communication is available and identifying the website address therefor.



     (c) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually signed originals and
shall be binding on the Borrower, the Administrative Agent, the LC Issuer, and the Lenders. The
Administrative Agent may also require that any such documents and signatures be confirmed by a
manually signed original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or signature.



     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent and the LC
Issuer may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to the
Borrower, the Administrative Agent and the LC Issuer.



     (e) Reliance by Administrative Agent, LC Issuer and Lenders. The Administrative
Agent, the LC Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, the
LC Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by or on
behalf of the Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.



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



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,



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delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the LC Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Lender or the LC Issuer (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the LC Issuer), and shall
pay all fees and time charges for attorneys who may be employees of the Administrative Agent, any
Lender or the LC Issuer, in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the LC Issuer, 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 or any Subsidiary arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the LC Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by the Borrower or any
of its Subsidiaries, or any Liability under Environmental Law related in any way to the Borrower or
any of its Subsidiaries, (iv) any civil penalty or fine assessed by the U. S. Department of the
Treasury’s Office of Foreign Assets Control against, and all reasonable costs and expenses
(including counsel fees and disbursements) incurred in connection with defense thereof by the
Administrative Agent or any Lender as a result of the funding of Loans, the issuance of Letters of
Credit, the acceptance of payments under the Loan Documents, or (v) 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 or any
Subsidiary, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or
not caused by or arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; 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



75









 







gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower or any Subsidiary against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower or such Subsidiary has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the LC Issuer, the Swingline Lender, or any
Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the LC Issuer, the Swingline Lender, or such Related Party, as the
case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent),
the Swingline Lender, or the LC Issuer in its capacity as such, or against any Related Party of any
of the foregoing acting for the Administrative Agent (or any such sub-agent), the Swingline Lender,
or LC Issuer in connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.14(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest 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
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to
the Administrative Agent, the LC Issuer or any Lender, or the Administrative Agent, the LC Issuer
or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared



76









 







to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent, the LC
Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and the LC Issuer severally agrees to pay to the Administrative Agent
upon demand its applicable share (without duplication) of any amount so recovered from or repaid by
the Administrative Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders and the LC Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that 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 Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (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 subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the LC Issuer and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in LC Obligations) at the time owing to it); provided that, except in the
case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to such assignment
is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,



77









 







the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);




     (i) 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 or the Commitment assigned;




     (ii) any assignment of a Commitment must be approved by the Administrative Agent and
the LC Issuer unless the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee); and




     (iii) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



     Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.



     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and LC Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each of the Borrower and the LC Issuer
at any reasonable time and from time to time upon reasonable prior notice. In addition, at any
time that a request for a consent for a material or substantive change to the Loan Documents



78









 







is pending, any Lender wishing to consult with other Lenders in connection therewith may request and
receive from the Administrative Agent a copy of the Register.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the 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 (including such Lender’s
participations in LC Obligations) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the LC Issuer shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.15 as
though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 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 3.01(e) as though it were a Lender.



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



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to



79









 







include electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (h) Resignation as LC Issuer after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Wachovia Bank, National Association assigns all of its
Commitment and Loans pursuant to subsection (b) above, Wachovia Bank, National Association may,
upon 30 days’ notice to the Borrower and the Lenders, resign as LC Issuer. In the event of any
such resignation as LC Issuer, the Borrower shall be entitled to appoint from among the Lenders a
successor LC Issuer hereunder; provided, however, that no failure by the Borrower
to appoint any such successor shall affect the resignation of Wachovia Bank, National Association
as LC Issuer. If Wachovia Bank, National Association resigns as LC Issuer, it shall retain all the
rights and obligations of the LC Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation as LC Issuer and all LC Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Matured LC Obligations pursuant to Section 2.09).



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the
Lenders and the LC Issuer agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it or its Affiliates or to any such regulatory authority in accordance with such
Lender’s regulatory compliance policy, (c) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, any
Lender, the LC Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary or any Unrestricted Subsidiary relating to the Borrower or any
Subsidiary or any Unrestricted Subsidiary or any of their respective businesses, other than any



80









 







such information that is available to the Administrative Agent, any Lender or the LC Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary or any Unrestricted
Subsidiary, provided that, in the case of information received from the Borrower or any
Subsidiary or any Unrestricted Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender,
the LC Issuer and each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such Lender, the LC
Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this Agreement or any other
Loan Document to such Lender or the LC Issuer, irrespective of whether or not such Lender or the LC
Issuer shall have made any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of
such Lender or the LC Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the LC Issuer and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the LC Issuer or their respective Affiliates may have. Each Lender and the LC
Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest contracted for, charged,
or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount
of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and
by different parties hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.



81









 







This Agreement and the
other Loan Documents constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made hereunder
and in any other Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Administrative Agent and
each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on
their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or
knowledge of any Default at the time of any Credit Extension, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or
any Letter of Credit shall remain outstanding.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04, 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 3.01, if any Lender is a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:



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



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and Letter of Credit participations, accrued interest thereon, accrued fees



82









 







and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.05) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);



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



     (d) such assignment does not conflict with applicable Laws.



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



     10.14 Governing Law; Jurisdiction; Etc.



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



     (b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT
ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE LC ISSUER 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) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR



83









 







RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



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



     10.16 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) 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 “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 Act. The Borrower will comply with reasonable
requests of any Lender for such information.



     10.17 Time of the Essence. . Time is of the essence of the Loan Documents.



     10.18 No Recourse. The parties hereto hereby acknowledge and agree that neither the General Partner
nor any director, officer, employee, limited partner or shareholder of the Borrower or the General
Partner shall have any personal liability in respect of the obligations of the Borrower under this
Agreement and the other Loan Documents by reason of his, her or its status.



84









 





     10.19 Existing Credit Agreement. In connection with the amendment and restatement of the Existing Credit
Agreement pursuant hereto, the Borrower, the Administrative Agent and the Lenders shall, as of the
Closing Date make adjustments to the outstanding principal amount of “Loans” under the Existing
Credit Agreement (as such term is defined therein) (but not any interest accrued thereon prior to
the Closing Date or any accrued commitment fees under the Existing Credit Agreement prior to the
Closing Date), including the borrowing of additional Loans hereunder and the repayment of “Loans”
under the Existing Credit Agreement (as such term is defined therein) plus all applicable accrued
interest, fees and expenses as shall be necessary to provide for Loans by each Lender in proportion
to, and in any event not in excess of, the amount of its Commitment as of the Closing Date, but in
no event shall such adjustment of any Eurodollar Loans entitle any Lender to any reimbursement
under Section 3.05 hereof; provided that the foregoing is not intended to relieve
the Borrower for paying any such costs to lenders under the Existing Credit Agreement to the extent
such lenders are not Lenders under this Agreement, and each Lender shall be deemed to have made an
assignment of its outstanding Loans and commitments under the Existing Credit Agreement, and
assumed outstanding Loans and commitments under the Existing Credit Agreement, and assumed
outstanding Loans and commitments of other Lenders under the Existing Credit Agreement as may be
necessary to effect the foregoing.



[The remainder of this page is intentionally left blank.]



85









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.



	 	 	 	 	 
	 	ENERGY TRANSFER PARTNERS, L.P.

 	 
	 	By:  	Energy Transfer Partners GP, L.P.,
its general partner
 	 
	 	 	 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                  Energy Transfer Partners, L.L.C.,
its general partner
 	 
	 	 	 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                                              /s/  Brian J. Jennings
 	 
	 	 	Brian J. Jennings 	 
	 	 	Chief Financial Officer 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-1









 








	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as

Administrative Agent, LC Issuer, Swingline Lender,

and a Lender

 	 
	 	By:  	/s/  Hank Biedrzycki
 	 
	 	 	Name:  	Hank Biedrzycki 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-2









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,



as Syndication Agent and a Lender

 	 
	 	By:  	/s/  Christen A. Lacey
 	 
	 	 	Name:  	Christen A. Lacey 	 
	 	 	Title:  	Principal 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-3









 








	 	 	 	 	 
	 	BNP PARIBAS,



as a Co-Documentation Agent and a Lender

 	 
	 	By:  	/s/  Gregory George
 	 
	 	 	Name:  	Gregory George 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                        /s/  Larry Robinson
 	 
	 	 	Name:  	Larry Robinson 	 
	 	 	Title:  	Director 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-4









 








	 	 	 	 	 
	 	CITIBANK, N.A.,



as a Senior Managing Agent and a Lender

 	 
	 	By:  	/s/  John F. Miller
 	 
	 	 	Name:  	John F. Miller 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-5









 








	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS



BRANCH,



as a Senior Managing Agent and a Lender

 	 
	 	By:  	/s/  Cassandra Droogan
 	 
	 	 	Name:  	Cassandra Droogan 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                         /s/  Nupur Kumar
 	 
	 	 	Name:  	Nupur Kumar 	 
	 	 	Title:  	Associate 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-6









 








	 	 	 	 	 
	 	DEUTSCHE BANK SECURITIES INC.,

as a Senior Managing Agent

 	 
	 	By:  	/s/  Ming K Chu
 	 
	 	 	Name:  	Ming K Chu 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                        /s/  Rainer Meier
 	 
	 	 	Name:  	Rainer Meier 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,



as a Lender

 	 
	 	By:  	/s/  Marcus Tarkington
 	 
	 	 	Name:  	Marcus Tarkington 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                        /s/  Rainer Meier
 	 
	 	 	Name:  	Rainer Meier 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-7









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,



as a Co-Documentation Agent and a Lender

 	 
	 	By:  	/s/  Tara Narasiman
 	 
	 	 	Name:  	Tara Narasiman 	 
	 	 	Title:  	Associate 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-8









 








	 	 	 	 	 
	 	MORGAN STANLEY BANK,



as a Senior Managing Agent and a Lender

 	 
	 	By:  	/s/  Daniel Twenge
 	 
	 	 	Name:  	Daniel Twenge 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-9









 








	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND plc,



as a Co-Documentation Agent and as a Lender

 	 
	 	By:  	/s/  Matthew Main
 	 
	 	 	Name:  	Matthew Main 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-10









 








	 	 	 	 	 
	 	SUNTRUST BANK,



as a Senior Managing Agent and a Lender

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



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-11









 








	 	 	 	 	 
	 	UBS LOAN FINANCE LLC,



as a Lender

 	 
	 	By:  	/s/  Richard L. Tavrow
 	 
	 	 	Name:  	Richard L. Tavrow 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                      /s/  Irja R. Olsa
 	 
	 	 	Name:  	Irja R. Olsa 	 
	 	 	Title:  	Associate Director 	 
	 



	 	 	 	 	 
	 	UBS SECURITIES LLC,



as a Senior Managing Agent

 	 
	 	By:  	/s/  Richard L. Tavrow
 	 
	 	 	Name:  	Richard L. Tavrow 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                      /s/  Irja R. Olsa
 	 
	 	 	Name:  	Irja R. Olsa 	 
	 	 	Title:  	Associate Director 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-12









 








	 	 	 	 	 
	 	BMO CAPITAL MARKETS FINANCING, INC.,



as a Lender

 	 
	 	By:  	/s/  Mary Lou Allen
 	 
	 	 	Name:  	Mary Lou Allen 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-13









 








	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,



as a Lender

 	 
	 	By:  	/s/  Kelton Glasscock
 	 
	 	 	Name:  	Kelton Glasscock 	 
	 	 	Title:  	Vice President & Manager 	 
	 
	 	 	 
	 	By:  	                  /s/  Jay Font
 	 
	 	 	Name:  	Jay Font 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-14









 








	 	 	 	 	 
	 	DnB NOR BANK ASA,


as a Lender

 	 
	 	By:  	/s/  Cathleen Buckley             /s/  Barbara Gronquist
 	 
	 	 	Name:  	Cathleen Buckley                   Barbara Gronquist 	 
	 	 	Title:  	Vice President             Senior Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-15









 








	 	 	 	 	 
	 	FORTIS CAPITAL CORP., 



as a Lender

 	 
	 	By:  	/s/  Casey Lowary
 	 
	 	 	Name:  	Casey Lowary 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	                      /s/  Darrell Holley
 	 
	 	 	Name:  	Darrell Holley 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-16









 








	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.,



as a Lender

 	 
	 	By:  	/s/  Raymond Ventura
 	 
	 	 	Name:  	Raymond Ventura 	 
	 	 	Title:  	Deputy General Manager 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-17









 








	 	 	 	 	 
	 	ROYAL BANK OF CANADA,



as a Lender

 	 
	 	By:  	/s/  Jason S. York
 	 
	 	 	Name:  	Jason S. York 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-18









 








	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.,



as a Lender

 	 
	 	By:  	/s/  William S. Rogers
 	 
	 	 	Name:  	William S. Rogers 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-19









 








	 	 	 	 	 
	 	COMPASS BANK,



as a Lender

 	 
	 	By:  	/s/  Dorothy Marchand
 	 
	 	 	Name:  	Dorothy Marchand 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-20









 








	 	 	 	 	 
	 	CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH,



as a Lender

 	 
	 	By:  	/s/  Jim C.Y. Chen
 	 
	 	 	Name:  	Jim C.Y. Chen 	 
	 	 	Title:  	V.P. & General Manager 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-21









 








	 	 	 	 	 
	 	COMERICA BANK,



as a Lender

 	 
	 	By:  	/s/  Rebecca L. Wilson
 	 
	 	 	Name:  	Rebecca L. Wilson 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-22









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,



as a Lender

 	 
	 	By:  	/s/  Tyler Fauerbach
 	 
	 	 	Name:  	Tyler Fauerbach 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-23









 








	 	 	 	 	 
	 	FIRST COMMERCIAL BANK NEW YORK AGENCY,



as a Lender

 	 
	 	By:  	/s/  Bruce Ju
 	 
	 	 	Name:  	Bruce Ju 	 
	 	 	Title:  	SVP & General Manager 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-24









 








	 	 	 	 	 
	 	BANK OF TAIWAN, NEW YORK AGENCY,

as a Lender

 	 
	 	By:  	/s/  Eunice Shiou-Jsu Yeh
 	 
	 	 	Name:  	Eunice Shiou-Jsu Yeh 	 
	 	 	Title:  	SVP & General Manager 	 
	 



Signature Page to Credit Agreement -

Energy Transfer Partners, L.P.





S-25










 





Schedule 1




COMMITMENTS




	 	 	 	 	 
	Lender	 	Commitment	 
	Wachovia Bank, National Association
	 	$	117,500,000	 
	Bank of America, N.A.
	 	$	117,500,000	 
	BNP Paribas
	 	$	114,000,000	 
	Citibank, N.A.
	 	$	114,000,000	 
	Credit Suisse, Cayman Islands Branch
	 	$	114,000,000	 
	Deutsche Bank AG New York Branch
	 	$	114,000,000	 
	JPMorgan Chase Bank, N.A.
	 	$	114,000,000	 
	Morgan Stanley Bank
	 	$	114,000,000	 
	The Royal Bank of Scotland plc
	 	$	114,000,000	 
	SunTrust Bank
	 	$	114,000,000	 
	UBS Loan Finance LLC
	 	$	114,000,000	 
	BMO Capital Markets Financing, Inc.
	 	$	84,000,000	 
	Bank of Tokyo-Mitsubishi UFJ
	 	$	84,000,000	 
	DNB NOR Bank ASA
	 	$	84,000,000	 
	Fortis Capital Corp.
	 	$	84,000,000	 
	Mizuho Corporate Bank, Ltd.
	 	$	84,000,000	 
	Royal Bank of Canada
	 	$	84,000,000	 
	Wells Fargo Bank, N.A.
	 	$	75,000,000	 
	Compass Bank
	 	$	50,000,000	 
	Chang Hwa Commercial Bank, Ltd. New
York
Branch
	 	$	25,000,000	 
	Comercia Bank
	 	$	25,000,000	 
	U.S. Bank National Association
	 	$	25,000,000	 
	First Commercial Bank New York Agency
	 	$	20,000,000	 
	Bank of Taiwan, New York Agency
	 	$	15,000,000	 
	TOTAL:
	 	$	2,000,000,000	 






 









 






DISCLOSURE SCHEDULE




Section 5.04 No Conflicts or Consents




          None.




Section 5.09 Litigation




          None.




Section 5.10 ERISA




          None.




Section 7.02(a) Limitation on Liens




          None.




 









 








Schedule 10.02




Notices




If to Borrower:
 

Energy
Transfer Partners, L.P.

738 Oak Lawn Avenue, Dallas, Texas 75219

Attention: Brian J. Jennings, Chief Financial Officer

Phone: (214) 981-0726

Facsimile: (214) 981-0701
 

If
to Administrative Agent:
 

Wachovia
Bank, National Association

301 South College Street

Sixth Floor

Charlotte, NC 28288

Attention: Hank Biedrzycki

Phone: (704) 715-1789

Facsimile: (704) 383-6647
 

If
to Swingline Lender:
 

Wachovia
Bank, National Association

301 South College Street

Sixth Floor

Charlotte, NC 28288

Attention: Hank Biedrzycki

Phone: (704) 715-1789

Facsimile: (704) 383-6647
 

If
to LC Issuer:
 

Wachovia
Bank, National Association

301 South College Street

Sixth Floor

Charlotte, NC 28288

Attention: Hank Biedrzycki

Phone: (704) 715-1789

Facsimile: (704) 383-6647





 










 








EXHIBIT A




ASSIGNMENT AND ASSUMPTION





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



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




	1.	 	Assignor:                                          
	 
	2.	 	Assignee:                                          [and is an Affiliate/Approved Fund of [identify Lender] 1 ]
	 
	3.	 	Borrower(s): Energy Transfer Partners, L.P., a Delaware limited partnership
	 
	4.	 	Administrative Agent: Wachovia Bank, National Association, as the Administrative Agent under the Credit Agreement
	 
	5.	 	Credit Agreement: Amended and Restated Credit Agreement, dated as of July 20, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing







 




			
	1	 	Select as applicable.




A-1 









 












	 	 	from time to time, the “Credit Agreement”), among Energy Transfer Partners, L.P., a
Delaware limited partnership (the “Borrower”), Wachovia Bank, National Association,
as the Administrative Agent, the LC Issuer and Swingline Lender, the Syndication Agent, the
Co-Documentation Agents and the Senior Managing Agents named therein and the Lenders from
time to time party thereto
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Assigned of	 	 	 	 
	Facility Assigned	 	for all Lenders*	 	 	Assigned*	 	 	Commitment/Loans2	 	 	CUSIP Number	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	[7. Trade Date:                     ]3





     Effective Date:                     , 20___[TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



[The remainder of this page is intentionally left blank.]






 




			
	*	 	Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	2	 	 Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	3	 	 To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.




A-2 









 










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



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	 	By:   	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE


[NAME OF ASSIGNEE]

 	 
	 	 	By:   	 
	 	 	Title: 	 
	 	 	 	 
	 




     [Consented to and]4 Accepted:



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,


    as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     [Consented to:]5



     ENERGY TRANSFER PARTNERS, L.P.



     By: Energy Transfer Partners GP, L.P., its general partner



     By: Energy Transfer Partners, L.L.C., its general partner



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	 	 
	 	 	 	 
	 





 




			
	4	 	 To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the
Borrower and/or other parties (e.g. the Swingline Lender or the LC Issuer) is
required by the terms of the Credit Agreement.




A-3 









 










STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





  1. Representations and Warranties.



  1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



  1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



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



  3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute



A-4 









 







one instrument. Delivery of an executed counterpart of a signature page of this Assignment
and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.



A-5 









 






EXHIBIT B




FORM OF COMPLIANCE CERTIFICATE




     To:
Wachovia Bank, National Association, as the Administrative Agent



     Ladies and Gentlemen:



  Reference is made to that certain Amended and Restated Credit Agreement, dated as of July 20,
2007 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement”), among Energy Transfer Partners, L.P., a Delaware limited
partnership (the “Borrower”), Wachovia Bank, National Association, as the Administrative
Agent, the LC Issuer and Swingline Lender, the Syndication Agent, the Co-Documentation Agents and
the Senior Managing Agents named therein and the Lenders from time to time party thereto. Terms
that are defined in the Agreement are used herein with the meanings given them in the Agreement.



  The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
[the chief financial officer/principal accounting officer/treasurer] of Energy Transfer Partners,
L.L.C., the general partner of General Partner and that, as such, he/she is authorized to execute
and deliver this Compliance Certificate to the Administrative Agent on behalf of the General
Partner, in its capacity as the general partner of the Borrower, and that:



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




     • Attached hereto as Schedule 1 are the year-end audited financial statements
(the “Financial Statements”) required by Section 6.01(a) of the Agreement for the
Fiscal Year of the Borrower ended as of August 31, 200___(the “Reporting Date”), together
with the report and opinion of an independent certified public accountant required by such section.
Such Financial Statements are accurate and complete in all material respects and satisfy the
requirements of the Agreement.



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




     1. Attached hereto as Schedule 1 are the unaudited financial statements (the
“Financial Statements”) required by Section 6.01(b) of the Agreement for the Fiscal
Quarter of the Borrower ended as of ___, 200[ ] (the “Reporting Date”). Such
Financial Statements are accurate and complete in all material respects (subject to normal year-end
adjustments) and satisfy the requirements of the Agreement.



     2. Attached hereto as Schedule 2 are calculations showing the Borrower’s compliance as
of the Reporting Date with the requirements of Section 7.11(iii)(A) and Section
7.11(iii)(B) of the Agreement *[and the Borrower’s non-compliance as of such date with the
requirements of Section(s) 7.11[(iii)(A)/(iii)(B)] of the Agreement]. The financial
covenant analyses and information set forth on Schedule 2 attached hereto are true and
accurate on and as of the date of this Certificate. A review of the activities of the Borrower
during such fiscal
period has been made under the supervision of the undersigned with a view to determining
whether during such fiscal period the Borrower performed and observed all its obligations under the
Loan Documents.



B-1 









 





     3. On the Reporting Date, the Borrower was, and on the date hereof is, in full compliance with
the disclosure requirements of Section 6.03 of the Agreement, and no Default or Event of
Default otherwise existed on the Reporting Date or otherwise exists on the date of this instrument
*[except for Default(s)/ Event(s) of Default under Section(s)                      of the Agreement, which
*[is/are] more fully described on Schedule 3 attached hereto].


[Use following paragraph 4 for fiscal year end or quarter-end financial statements, so long as any
of the HOLP Companies are Unrestricted Subsidiaries]




     4. The undersigned has reviewed the Loan Documents and the Financial Statements and has
otherwise undertaken such inquiry as is in his/her opinion necessary to enable him/her to express
an informed opinion with respect to the above representations, warranties and acknowledgments of
the Borrower and, to the best of his/her knowledge, such representations, warranties, and
acknowledgments are true, correct and complete in all material respects.



     IN WITNESS WHEREOF, this instrument is executed as of                     ,                     .



	 	 	 	 	 
	 	 	ENERGY TRANSFER PARTNERS, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Energy Transfer Partners GP, L.P., its
general partner
	 

	 	By:
	 	Energy Transfer Partners, L.L.C., its
general partner
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Brian J. Jennings
	 	 	Chief Financial Officer







B-2 









 





For the Fiscal Quarter/Year ended                                         (“Reporting Date”)




SCHEDULE 2



to the Compliance Certificate



($ in 000’s)




	 	 	 	 	 	 	 	 	 
	I.	 	Section 7.12(a) — Leverage Ratio.
	 
	 	 	 	 	 	 	 	 
	 	 	A.	 	Consolidate Funded Indebtedness:	 	$                    
	 
	 	 	 	 	 	 	 	 
	 	 	B.	 	Consolidated EBITDA for the four Fiscal Quarter
period ending on the Reporting Date (“Subject Period”):
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	1.
	 	Consolidated Net Income for Subject
Period (adjustments made as described
on the attached schedules for
(a) any gain or loss from the
sale of assets other than in
the ordinary course of
business, (b) any
extraordinary gains or losses,
or (c) any non-cash gains or
losses resulting from mark to
market activity as a result of
SFAS 133, (d) net income of
any Subsidiary to the extent,
but only to the extent, that
the declaration or payment of
cash Distributions by such
Subsidiary of such net income
is not, as of the date of
determination, permitted by
the operation of the terms of
its charter or any Contractual
Obligation, judgment, decree,
order, statute, rule or
governmental regulation
applicable to such Subsidiary,
and (e) income or losses
attributable to Unrestricted
Subsidiaries, joint ventures,
any Person accounted for by
the equity method of
accounting, or any other
Person that is not a
Subsidiary, provided that
Consolidated Net Income shall
include the lesser of (i) any
cash distributions received by
the Borrower or its
Subsidiaries from Unrestricted
Subsidiaries, joint ventures,
any Person accounted for by
the equity method of
accounting, or any other
Person that is not a
Subsidiary, in each case
during such period or (ii) 15%
of Consolidated EBITDA for
such period):
	 	$                    






B-3









 






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	2.
	 	Consolidated Interest Expense for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	3.
	 	Provision for income taxes for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	4.
	 	Depreciation expenses for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	5.
	 	Amortization expenses for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	6.
	 	Non-cash charges or losses deducted in
determining Consolidated Net Income for
Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	7.
	 	General and administrative expenses of
the Borrower (on an unconsolidated basis)
to the extent allocated to the HOLP
Companies (not to exceed $5,000,000 for any
period of four Fiscal Quarters):
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	8.
	 	Non-cash income or gain included in
determining Consolidated Net Income for
Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	9.
	 	Cash payments in respect of items
included in Line 6 subsequent to the Fiscal
Quarter in which such non-cash charges or
losses were made:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	10.
	 	Pro forma adjustments for dispositions,
acquisitions, consolidations or mergers as
described on the attached schedules:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	11.
	 	Material Project EBITDA Adjustments as
described on the attached schedules:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	12.
	 	Consolidated EBITDA (Lines I.B.1 + 2 +
3 + 4 + 5 + 6 + 7 — 8 — 9 [+/ — ] 10 [+/-] 11):
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 	 	C.	 	Leverage Ratio (Line I.A  ̧ Line I.B.12):	 	                     to 1
	 
	 	 	 	 	 	 	 	 
	Maximum permitted:	 	                     to 1






B-4









 








For the Fiscal Quarter/Year ended                                         (“Reporting Date”)




Quarterly Information for Schedule 2

to the Compliance Certificate

($ in 000’s)




Consolidated EBITDA

(in accordance with the definition of Consolidated EBITDA

as set forth in the Agreement)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Twelve	 
	Consolidated	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Months	 
	EBITDA	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 
	Consolidated
Net Income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ Consolidated
Interest Expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ income taxes
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ depreciation
expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ amortization
expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ non-cash expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ HOLP general and
administrative
expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- non-cash income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- cash payments in
respect of non-cash
expense previously
deducted
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[+/-] pro forma
adjustments for
dispositions,
acquisitions,
consolidations or
mergers
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[+/-] Material
Project EBITDA
Adjustments
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	= Consolidated
EBITDA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







B-5









 








EXHIBIT C




FORM OF LC APPLICATION




[SEE ATTACHED]




C-1









 





EXHIBIT D




FORM OF LOAN NOTICE




Date: ___________, _____




	 	 	 	 	 
	 

	 	To:
	 	Wachovia Bank, National Association, as the Administrative Agent

[Wachovia Bank, National Association, as the Swingline Lender]






     Ladies and Gentlemen:


 Reference is made to that certain Amended and Restated Credit Agreement, dated as of July 20,
2007 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement”), among Energy Transfer Partners, L.P., a Delaware limited
partnership (the “Borrower”), Wachovia Bank, National Association, as the Administrative
Agent, the LC Issuer and Swingline Lender, the Syndication Agent, the Co-Documentation Agents and
the Senior Managing Agents named therein and the Lenders from time to time party thereto. Terms
that are defined in the Agreement are used herein with the meanings given them in the Agreement.



[Pursuant to the terms of the Agreement, the Borrower hereby requests the [Lenders/Swingline
Lender] to make [Revolving Credit/Swingline] Loans to Borrower in the aggregate principal amount of
$                      and specifies                     , ___, as the date Borrower desires for the
[Lenders/Swingline Lender] to make such Revolving Credit/Swingline] Loans and for the
Administrative Agent to deliver to the Borrower the proceeds thereof. [Such Revolving Credit Loans
are hereby designated as follows:




Type of Loans: [Eurodollar Loans][Base Rate Loans][Swingline Loans]

Length of Interest Periods for Eurodollar Loan: ___months.]

[Borrower hereby requests a conversion or continuation of existing Loans into a new Borrowing

pursuant to Section 2.04 of the Agreement as follows:

Existing Borrowing(s) of Loans to be Continued or Converted:




          $                     of Eurodollar Loans with Interest Period ending                     




          $                     of Base Rate Loans




	 	 	 
	Aggregate amount of new Borrowing:

	 	$                    
	Type of Loans in new Borrowing:

	 	[Eurodollar Loans][Base Rate Loans]
	Date of Continuation or Conversion:

	 	                    
	Length of Interest Period for Eurodollar Loans:

	 	                     months]







D-1









 









To induce the [Lenders/Swingline Lender] to [make/continue/convert] such Loans, the Borrower
hereby represents, warrants, acknowledges, and agrees to and with the Administrative Agent
and each Lender that




(a) The undersigned is the duly elected, qualified and acting officer of Energy Transfer
Partners, L.L.C., the general partner of General Partner, as indicated below such officer’s
signature hereto having all necessary authority to act for the Borrower in making the
request herein contained.




(b) The representations and warranties made by the Borrower in the Agreement are true and
correct in all material respects on and as of the date hereof, with the same effect as
though such representations and warranties had been made on and as of the date hereof,
except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they were true and correct as of such earlier date, and except,
for the purposes of this Loan Notice, that the representations and warranties contained in
Section 5.06(a) of the Credit Agreement shall be deemed to refer to the most recent
financial statements furnished to the Lenders by the Borrower.




(c) There does not exist on the date hereof any condition or event that constitutes a
Default or Event of Default that has not been waived in writing as provided in Section 10.01
of the Agreement; nor will any such Default or Event of Default exist upon the Borrower’s
receipt and application of the Loans requested hereby.




(d) The Borrowings requested herein comply with the requirements set forth in Section [2.03]
of the Agreement.


The undersigned hereby certifies that, to the best of his knowledge after due inquiry, the above
representations, warranties, acknowledgments, and agreements of the Borrower are true, correct and
complete in all material respects.




[The remainder of this page is intentionally left blank.]




D-2









 







IN WITNESS WHEREOF, this instrument is executed as of ___, ___.




	 	 	 	 	 
	 	 	ENERGY TRANSFER PARTNERS, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Energy Transfer Partners GP, L.P., its
	 

	 	 	 	general partner
	 

	 	By:
	 	Energy Transfer Partners, L.L.C., its
	 

	 	 	 	general partner
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Brian J. Jennings

Chief Financial Officer








D-3









 








EXHIBIT E




FORM OF NOTE




			
	 	 	 
	$                    
	 	                    , 200___






     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                     or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Amended and Restated Credit
Agreement, dated as of July 20, 2007 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement”), by and among Borrower, Wachovia
Bank, National Association, as the Administrative Agent, the LC Issuer and Swingline Lender, the
Syndication Agent, the Co-Documentation Agents and the Senior Managing Agents named therein and the
Lenders from time to time party thereto. Terms that are defined in the Agreement are used herein
with the meanings given them in the Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.02 of the
Agreement with respect to Swingline Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall
be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the
date, amount and maturity of its Loans and payments with respect thereto.



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



E-1









 





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



	 	 	 	 	 
	 	 	  ENERGY TRANSFER PARTNERS, L.P.
	 
	 	 	 	 
	 

	 	  By:
	 	Energy Transfer Partners GP, L.P., its
	 

	 	 	 	general partner
	 
	 	 	 	 
	 

	 	  By:
	 	Energy Transfer Partners, L.L.C., its
	 

	 	 	 	general partner
	 
	 	 	 	 
	 

	 	  By:	 	 
	 

	 	 	 	 
	 	 	Brian J. Jennings

	 	 	Chief Financial Officer







E-2









 








EXHIBIT F




FORM OF LEGAL OPINION FOR VINSON & ELKINS




[SEE ATTACHED]





F-1









 








July 20, 2007




Wachovia Bank, National Association, as Administrative Agent

     on behalf of the Lenders defined below




1001 Fannin Street, Suite 2255

Houston, Texas 77002




     Re: $2,000,000,000 Amended and Restated Senior Unsecured Revolving Credit Facility



Dear Ladies and Gentlemen:




     We have acted as special counsel to Energy Transfer Partners, L.P., a Delaware limited
partnership, as the borrower (the “Company”), in connection with that certain Amended and
Restated Credit Agreement dated as of July 20, 2007 (the “Credit Agreement”) among the
Company, Wachovia Bank, National Association, as Administrative Agent, LC Issuer and Swingline
Lender (the “Administrative Agent”), the Syndication Agent, the Co-Documentation Agents and
the Senior Managing Agents named therein and the financial institutions from time to time party
thereto as lenders (collectively, the “Lenders” and each individually, a “Lender”).
Capitalized terms used herein, but not otherwise defined herein, shall have the meanings ascribed
to such terms in the Credit Agreement. This opinion letter is delivered to you at the Company’s
request pursuant to Section 4.01(a)(v) of the Credit Agreement.



     In rendering the opinions set forth herein, we have examined:



          (i) the Credit Agreement;




          (ii) the Notes executed by the Company in favor of each Lender requesting a Note and delivered
to the Administrative Agent on the date hereof;




          (iii) the Company’s certificate of limited partnership and limited partnership agreement, as
amended through the date hereof; and




          (iv) resolutions of the board of directors of Energy Transfer Partners, L.L.C., the general
partner of Energy Transfer Partners GP, L.P., the general partner of the Company with respect to
the transactions referred to herein;




	 	 	 
	Vinson & Elkins LLP Attorneys at Law

	 	First City Tower, 1001 Fannin Street, Suite 2500
	Austin Beijing Dallas Dubai Hong Kong Houston

	 	Houston, TX 77002-6760
	London Moscow New York Shanghai Tokyo Washington

	 	Tel 713.758.2222 Fax 713.758.2346 www.velaw.com






 









 








July 20, 2007 Page 5




          The documents listed in clauses (i) and (ii) above are referred to herein as the
“Transaction Documents”. Additionally, in rendering the opinions set forth below, we have
reviewed such other records, certificates and documents as we have deemed appropriate for the
purposes of such opinions. As to any facts material to our opinions, we have made no independent
investigation of such facts and have relied, to the extent that we deem such reliance proper, upon
statements of public officials and officers or other representatives of the Company and on the
representations and warranties set forth in the Transaction Documents.




          In rendering the opinions expressed below, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to authentic original documents of all documents submitted to us as
copies, which assumptions we have not independently verified. In addition, we have assumed that
(i) each party to the Transaction Documents (other than the Company) is a corporation, partnership,
limited liability company or other entity duly organized and validly existing under the laws of the
jurisdiction of its organization; (ii) each party to the Transaction Documents (other than the
Company) has full power and authority (corporate, partnership, limited liability company or
otherwise) to execute, deliver and perform its obligations under the Transaction Documents to which
it is a party; (iii) each Transaction Document has been duly executed and delivered by each party
to the Transaction Documents (other than the Company); (iv) the execution, delivery and performance
by each party to the Transaction Documents (other than the Company) of the Transaction Documents to
which it is a party have been duly authorized by all necessary action (corporate, partnership,
limited liability company or otherwise) and do not contravene the bylaws or other constituent
documents of such party; (v) the execution, delivery and performance of the Transaction Documents
by each party thereto do not (A) conflict with or result in the breach of any document or
instrument binding on it, or (B) contravene any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to any of them (except that
we have not made such assumption with respect to Applicable Laws (as defined below) applicable to
the Company as to which we express our opinion in paragraph 5(b); (vi) no authorization, approval,
consent, order, license, franchise, permit or other action by, and no notice to or filing with, any
Governmental Authority or any other third party is required for the due execution, delivery and
performance of the Transaction Documents by each party thereto that has not been duly obtained or
made and that is not in full force and effect (except that we have not made such assumption with
respect to Governmental Approvals (as defined below) required to be obtained or taken by the
Company as to which we express our opinion in paragraph 6); (vii) the Transaction Documents
constitute valid, binding and enforceable obligations of each party thereto (other than the
Company); and (viii) the laws of any jurisdiction other than the laws that are the subject of this
opinion letter do not affect the terms of the Transaction Documents. With respect to certain of the
foregoing matters as they relate to the Company, please refer to the opinion letter, dated as of
the date hereof, delivered to you by Thomas P. Mason, General Counsel of the Company.




 









 








          Based upon the foregoing, and subject to the assumptions, qualifications, exceptions and
limitations set forth herein, it is our opinion that:





	1.	 	The Company is validly existing and is in good standing under the laws of the State of
Delaware.






	2.	 	(a) The Company has the power and authority under the Delaware Revised Uniform Limited
Partnership Act and its agreement of limited partnership to execute and deliver each of the
Transaction Documents and to perform its obligations thereunder.





	 	 	(b) The execution and delivery by the Company of each Transaction Document and the
performance by it of its obligations thereunder have been duly authorized by the general
partner of the Company acting in its capacity as such pursuant to the terms of the
agreement of limited partnership of the Company, which vests the management of the Company
with the general partner.







	3.	 	Each Transaction Document has been duly executed and delivered by the Company.







	4.	 	Each Transaction Document constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.






	5.	 	The execution and delivery by the Company of each Transaction Document does not, and the
performance by the Company of its obligations thereunder will not (a) violate the Company’s
agreement of limited partnership or the agreement of limited partnership of Energy Transfer
Partners GP, L.P. or (b) result in any violation by the Company of any Applicable Law (as
defined below).
	 
	 	 	     “Applicable Laws” means those laws, rules and regulations of the State of New
York and the United States of America and the rules and regulations adopted thereunder,
that, in our experience, are normally applicable to transactions of the type contemplated
by the Transaction Documents. However, the term “Applicable Laws” does not include, and we
express no opinion with regard to any state or federal laws, rules or regulations relating
to: (A) pollution or protection of the environment; (B) zoning, land use, building or
construction; (C) occupational safety and health or other similar matters; (D) labor,
employee rights and benefits, including the Employment Retirement Income Security Act of
1974, as amended; (E) the regulation of utilities and the Public Utility Regulatory Policy
Act of 1978, as amended; (F) antitrust and trade regulation; (G) tax; (H) securities,
including, without limitation, federal and state securities laws, rules or regulations and
the Investment Company Act of 1940, as amended; or (I) copyrights, patents and trademarks.




 









 











July 20, 2007 Page 7





	6.	 	No Governmental Approval (as defined below) which has not been obtained or taken and is not
in full force and effect, is required to be obtained or taken by the Company to authorize, or
is required in connection with, the execution and delivery by the Company of each Transaction
Document to which it is a party or the performance by the Company of its obligations
thereunder except those routine Governmental Approvals not required to consummate the
transactions occurring on the Closing Date (as defined in the Amended Credit Agreement) but
required to be obtained or made after the date of this opinion to enable the Company to comply
with the requirements of Applicable Law (such as those required to maintain the existence and
good standing or foreign qualification of the Company).
	 
	 	 	     “Governmental Approvals” means any consent, approval, license, authorization
or validation of, or filing, recording or registration with, any Governmental Authority
pursuant to any Applicable Laws (as defined in paragraph 5 above).
	 
	7.	 	Assuming that the Company will comply with the provisions of the Credit Agreement relating to
the use of proceeds, the execution and delivery of the Credit Agreement by the Company and the
making of the Loans under the Credit Agreement and the application of the proceeds thereof
does not violate Regulation U or X of the Board of Governors of the Federal Reserve System.





     The opinions set forth above are subject to the following qualifications and exceptions:



     (a) With respect to our opinion set forth in paragraph 1 above, we have relied solely on the
certificate, dated July 20, 2007, of the Secretary of State of the State of Delaware and we have
assumed that the information set forth in such certificate is true and correct as of the date
hereof.



     (b) The enforceability of each Transaction Document and the provisions thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other laws now or
hereafter in effect relating to or affecting enforcement of creditors’ rights generally and by
general principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether such enforcement is considered
in a proceeding in equity or at law.



     (c) With respect to our opinion set forth in paragraph 4 above, we express no opinion with
respect to the validity or enforceability of the following provisions to the extent that they are
contained in the Transaction Documents: (i) provisions releasing, exculpating or exempting a party
from, or requiring indemnification or contribution of a party for, liability for its own negligence
or to the extent that the same are inconsistent with public



 









 





July 20, 2007 Page 8




policy; (ii) provisions purporting to waive, subordinate or not give effect to rights to
notice, demands, legal defenses or other rights or benefits that cannot be waived, subordinated or
rendered ineffective under applicable law; (iii) provisions purporting to provide remedies
inconsistent with applicable law; (iv) provisions relating to the creation, attachment, perfection
or enforceability of any security interest; (v) provisions relating to powers of attorney,
severability or set-offs; (vi) provisions restricting access to courts or purporting to affect the
jurisdiction or venue of courts (other than the courts of the State of New York with respect to
Transaction Documents governed by the laws of the State of New York); (vii) provisions purporting
to exclude all conflicts-of-law rules; (viii) provisions pursuant to which a party agrees that a
judgment rendered by a court or other tribunal in one jurisdiction may be enforced in any other
jurisdiction; (ix) provisions providing that decisions by a party are conclusive or may be made in
its sole discretion; (x) provisions purporting to limit or restrict the rights of any Person to
file a petition seeking the voluntary bankruptcy of such Person or any other Person; and (xi)
provisions relating to electronic signatures.



          (d) Insofar as our opinion set forth in paragraph 4 above relates to the enforceability under
New York law of the provisions of the Transaction Documents choosing New York law as the governing
law thereof, such opinion is rendered solely in reliance upon the Act of July 19, 1984, ch. 421,
1984 McKinney’s Sess. Law of N.Y. 1406 (codified at N.Y. Gen. Oblig. Law §§5-1401 (McKinney 1989))
(the “Act”) and is subject to the qualifications that such enforceability (i) as specified
in the Act, does not apply to the extent provided to the contrary in subsection two of Section
1-105 of the NY UCC, (ii) may be limited by public policy considerations of any jurisdiction in
which enforcement of such provisions is sought, and (iii) is subject to any U.S. Constitutional
requirement under the Full Faith and Credit Clause or the Due Process Clause thereof or the
exercise of any applicable judicial discretion in favor of another jurisdiction.




          (e) We express no opinion herein regarding the enforceability of any provision in a
Transaction Document that purports to prohibit, restrict or condition the assignment of such
Transaction Document to the extent that such restriction on assignability is governed by Sections
9-406 through 9-409 of the NY UCC.




          We express no opinion as to the laws of any jurisdiction other than: (i) the laws of the State
of New York; (ii) with respect to our opinions in paragraphs 2 and 3 above the Delaware Revised
Uniform Limited Partnership Act, and (iii) the federal laws of the United States of America.




          This opinion letter is rendered as of the date set forth above. We expressly disclaim any
obligation to update this letter after such date.




     This opinion letter is given solely for your benefit in connection with the transactions
contemplated by the Transaction Documents and may not be furnished to, or relied upon by, any other
person or for any other purpose without our prior written consent, provided that at



 









 





July 20, 2007 Page 9



your request, we hereby consent to reliance hereon by any Person who becomes a Lender under
the Credit Agreement pursuant to an assignment that is made and consented to in accordance with the
express provisions of Section 10.6 of the Credit Agreement, on the condition and understanding that
(i) this opinion letter speaks only as of the date hereof, (ii) we have no responsibility or
obligation to update this letter, to consider its applicability or correctness to any person other
than its addressee(s), or to take into account changes in law, facts or any other developments of
which we may later become aware, and (iii) any such reliance by such Person who becomes a Lender
must be actual and reasonable under the circumstances existing at the time of assignment, including
any changes in law, facts or any other developments known to or reasonably knowable by the assignee
at such time.




	 	 	 	 	 
	 	     Very truly yours,





Vinson & Elkins L.L.P.