exv10w8






Exhibit 10.8

 





Published CUSIP Number:                                         






CREDIT AGREEMENT




Dated as of April [___], 2010



among



PAA NATURAL GAS STORAGE, L.P.,

as the Borrower,



BANK OF AMERICA, N.A.,



as Administrative Agent, Swing Line Lender

and

L/C Issuer,



DNB NOR BANK ASA,

as Syndication Agent,



[                                        ],

as Documentation Agent,



and



The Other Lenders Party Hereto



BANC OF AMERICA SECURITIES LLC and

DNB NOR BANK ASA,



as



Joint Lead Arrangers and Joint Book Managers


 







 









 








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
	 	 	25	 
	1.05 Times of Day
	 	 	25	 
	1.06 Letter of Credit Amounts
	 	 	25	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	25	 
	 
	 	 	 	 
	2.01 Committed Loans
	 	 	25	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	25	 
	2.03 Reserved
	 	 	27	 
	2.04 Letters of Credit
	 	 	27	 
	2.05 Swing Line Loans
	 	 	36	 
	2.06 Prepayments
	 	 	39	 
	2.07 Termination or Reduction of Commitments
	 	 	40	 
	2.08 Repayment of Loans
	 	 	41	 
	2.09 Interest
	 	 	41	 
	2.10 Fees
	 	 	42	 
	2.11 Computation of Interest and Fees; Retroactive Adjustments of Applicable
Rate
	 	 	42	 
	2.12 Evidence of Debt
	 	 	43	 
	2.13 Payments Generally; Administrative Agent’s Clawback
	 	 	44	 
	2.14 Sharing of Payments by Lenders
	 	 	45	 
	2.15 Reserved
	 	 	46	 
	2.16 Increase in Commitments
	 	 	46	 
	2.17 Cash Collateral
	 	 	47	 
	2.18 Defaulting Lenders
	 	 	49	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	51	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	51	 
	3.02 Illegality
	 	 	55	 
	3.03 Inability to Determine Rates
	 	 	55	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	56	 
	3.05 Compensation for Losses
	 	 	57	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	58	 
	3.07 Survival
	 	 	58	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	59	 
	 
	 	 	 	 
	4.01 Conditions Precedent to Closing
	 	 	59	 
	4.02 Conditions Precedent to Initial Credit Extension
	 	 	60	 






i









 






	 	 	 	 	 
	Section	 	Page	 
	4.03 Conditions to all Credit Extensions
	 	 	62	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	62	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	62	 
	5.02 Authorization; No Contravention
	 	 	62	 
	5.03 Governmental Authorization; Other Consents
	 	 	63	 
	5.04 Binding Effect
	 	 	63	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	63	 
	5.06 Litigation
	 	 	64	 
	5.07 No Default
	 	 	64	 
	5.08 Ownership of Property; Liens
	 	 	64	 
	5.09 Environmental Compliance
	 	 	64	 
	5.10 Insurance
	 	 	64	 
	5.11 Taxes
	 	 	65	 
	5.12 ERISA Compliance
	 	 	65	 
	5.13 Subsidiaries; Equity Interests
	 	 	66	 
	5.14 Margin Regulations; Investment Company Act
	 	 	66	 
	5.15 Disclosure
	 	 	66	 
	5.16 Compliance with Laws
	 	 	66	 
	5.17 Taxpayer Identification Number
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	67	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	67	 
	6.02 Certificates; Other Information
	 	 	68	 
	6.03 Notices
	 	 	69	 
	6.04 Payment of Taxes, Etc
	 	 	70	 
	6.05 Preservation of Existence, Etc
	 	 	70	 
	6.06 Maintenance of Properties
	 	 	70	 
	6.07 Maintenance of Insurance
	 	 	70	 
	6.08 Compliance with Laws
	 	 	70	 
	6.09 Books and Records
	 	 	71	 
	6.10 Inspection Rights
	 	 	71	 
	6.11 Use of Proceeds
	 	 	71	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	71	 
	 
	 	 	 	 
	7.01 Liens
	 	 	71	 
	7.02 Reserved
	 	 	73	 
	7.03 Indebtedness
	 	 	73	 
	7.04 Fundamental Changes; Dispositions
	 	 	74	 
	7.05 Reserved
	 	 	74	 
	7.06 Restricted Payments
	 	 	74	 
	7.07 Change in Nature of Business
	 	 	74	 
	7.08 Transactions with Affiliates
	 	 	74	 
	7.09 Burdensome Agreements
	 	 	75	 
	7.10 Use of Proceeds
	 	 	75	 
	7.11 Financial Covenants
	 	 	75	 






ii









 






	 	 	 	 	 
	Section	 	Page	 
	7.12 Unrestricted Subsidiaries
	 	 	77	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	78	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	78	 
	8.02 Remedies Upon Event of Default
	 	 	80	 
	8.03 Application of Funds
	 	 	81	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	82	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	82	 
	9.02 Rights as a Lender
	 	 	82	 
	9.03 Exculpatory Provisions
	 	 	82	 
	9.04 Reliance by Administrative Agent
	 	 	83	 
	9.05 Delegation of Duties
	 	 	83	 
	9.06 Resignation of Administrative Agent
	 	 	83	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	84	 
	9.08 No Other Duties, Etc
	 	 	85	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	85	 
	9.10 Collateral Matters
	 	 	86	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	86	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	86	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	87	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	89	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	90	 
	10.05 Payments Set Aside
	 	 	92	 
	10.06 Successors and Assigns
	 	 	93	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	97	 
	10.08 Right of Setoff
	 	 	98	 
	10.09 Interest Rate Limitation
	 	 	98	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	99	 
	10.11 Survival of Representations and Warranties
	 	 	99	 
	10.12 Severability
	 	 	99	 
	10.13 Replacement of Lenders
	 	 	99	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	100	 
	10.15 Waiver of Jury Trial
	 	 	101	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	101	 
	10.17 No Recourse to Other Persons
	 	 	102	 
	10.18 Electronic Execution of Assignments and Certain Other Documents
	 	 	102	 
	10.19 USA PATRIOT Act
	 	 	102	 
	10.20 Time of the Essence
	 	 	103	 
	10.21 ENTIRE AGREEMENT
	 	 	103	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 






iii









 





SCHEDULES




	 	 	 
	2.01

	 	Commitments and Applicable Percentages
	5.03

	 	Governmental Authorization; Other Consents
	5.06

	 	Litigation
	5.07

	 	No Default
	5.09

	 	Environmental Matters
	5.12

	 	ERISA Matters
	5.13

	 	Subsidiaries; Other Equity Investments
	5.16

	 	Compliance with Laws
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices; Borrower’s U.S.
Taxpayer Number





EXHIBITS








	 	 	 
	 

	 	Form of
	 
	A

	 	Committed Loan Notice
	B

	 	Swing Line Loan Notice
	C

	 	Committed Loan Note
	D

	 	Swing Line Note
	E

	 	Compliance Certificate
	F-1

	 	Assignment and Assumption
	F-2

	 	Administrative Questionnaire






iv









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of April [___], 2010, among PAA
NATURAL GAS STORAGE, L.P., a Delaware limited partnership (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), DNB NOR BANK ASA, as Syndication Agent, [                                        ], as Documentation
Agent, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



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



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and 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:



     “Acquired Indebtedness” means, as to any Person, Indebtedness of a Person acquired in
an acquisition, whether in the acquisition of a Person, of assets or otherwise, in each case,
existing at the time of such acquisition and not incurred in contemplation of such acquisition.



     “Acquisition Period” means the period beginning, at the election of the Borrower, with
the funding date of the purchase price for a Specified Acquisition and ending on the earliest of
(a) the third following fiscal quarter end, (b) Borrower’s receipt of proceeds of a Specified
Equity Offering; and (c) Borrower’s election in writing to terminate such Acquisition Period
(provided, at the time of such election, the Consolidated Leverage Ratio shall not, on a
pro forma basis, exceed 4.75 to 1.00); provided, however, if the Consolidated
Leverage Ratio exceeds 4.75 to 1.00 at the end of the fiscal quarter ending next following such
funding date, then the Acquisition Period shall be deemed to have commenced as of such funding
date; provided, further, during any Acquisition Period, no additional Acquisition
Period shall commence, nor shall such Acquisition Period be extended, by any subsequent Specified
Acquisition until the current Acquisition Period shall have expired and Borrower shall be in
compliance with Section 7.11(b)(ii).



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent appointed in accordance with
Section 9.06.



     “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 pursuant to
Section 10.02.


     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit F-2 or any other form approved by the Administrative Agent.



1









 






     “Affiliate” means, with respect to any 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
Aggregate Commitments as of the Closing Date are $400,000,000.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.18. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable Rate	 	 	 	 
	 	 	Consolidated Leverage	 	 	 	Eurodollar Rate +	 	 
	Pricing Level	 	Ratio	 	Commitment Fee	 	Letters of Credit	 	Base Rate +
	 
	1
	 	<2.50:1
	 	0.350%
	 	2.250%
	 	1.250%
	2
	 	3 2.50:1 but <3.50:1
	 	0.400%
	 	2.500%
	 	1.500%
	3
	 	3 3.50:1 but <4.50:1
	 	0.500%
	 	2.750%
	 	1.750%
	4
	 	3 4.50:1
	 	0.625%
	 	3.250%
	 	2.250%






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Level 4 shall apply as of the
first Business Day after the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the date on which such Compliance Certificate is
delivered. Subject to the foregoing, the Applicable Rate in effect from the IPO Closing Date
through the first date on which a Compliance Certificate is delivered pursuant to Section
6.02(b) shall be determined based upon the Consolidated Leverage Ratio set forth in the
certificate to be delivered on the IPO Closing Date pursuant to Section 4.02(a).



2









 





     Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of Section 2.11(b).



     “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.



     “Arrangers” means each of BAS and DnB, in its capacity as co-lead arranger and joint
book manager.



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



     “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 F-1 or any other form approved by the Administrative Agent.



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower (or its predecessor) and its Subsidiaries for the fiscal year ended December 31, 2009, and
the related consolidated statements of income or operations, shareholders’ equity and cash flows
for such fiscal year of the Borrower (or its predecessor) and its Subsidiaries, including the notes
thereto.



     “Availability Period” means the period from and including the IPO Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.07, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.



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



     “BAS” means Banc of America Securities LLC and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the
highest of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%, (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank of America as its
“prime rate,” and (c) the Eurodollar Rate in effect on such day as determined pursuant to clause
(b) of the definition thereof plus 1.00%. The “prime rate” is a rate set by Bank of America based
upon various factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at,



3









 




above, or below such announced rate. Any change in such prime rate announced by Bank of
America shall take effect at the opening of business on the day specified in the public
announcement of such change.




     “Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.



     “Base Rate Loan” means (i) a Committed Loan that bears interest based on the Base Rate
or (ii) a Swing Line Loan that bears interest based on the Base Rate.



     “Bluewater” means Bluewater Natural Gas Holding, LLC, a Delaware limited liability
company.



     “Bluewater Storage Facility” means the natural gas storage facility owned by Bluewater
and located in St. Clair County, Michigan, which facility includes certain buildings, equipment,
compressors, structures and pipelines located on a substantially depleted reservoir known as the
Columbus III Reservoir.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



     “Business Day” means (a) 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 (b) if such day relates to any Eurodollar
Rate Loan, means any such day that satisfies clause (a) hereof that is also a London Banking Day.



     “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.



     “Cash and Carry Purchases” means purchases of Petroleum Products for physical storage
or in storage or in transit in pipelines which has been hedged by either a NYMEX contract, an OTC
contract, an Intercontinental Exchange contract, or a contract for physical delivery.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as
collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of
Lenders to fund participations in respect of either thereof (as the context may require), cash or
deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such
collateral shall agree in its sole discretion, other credit support, in each case pursuant to
documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b)
the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash collateral and other
credit support.



4









 





     “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 an event or series of events by which PAA or its Affiliates
cease to be, directly or indirectly, the beneficial owner (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) of a majority of the outstanding general
partnership interests in the Borrower, or cease to control, directly or indirectly, the election of
a majority of the directors of the General Partner.



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



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



     “Commitment” means, (a) as to each Lender other than the Swing Line Lender, such
Lender’s obligation to (i) make Committed Loans to the Borrower pursuant to Section 2.01,
(ii) purchase participations in L/C Obligations, and (iii) purchase participations in Swing Line
Loans and (b) as to the Swing Line Lender, its obligation to make Swing Line Loans to the Borrower
pursuant to Section 2.05; in each case, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule
2.01, as such amount may from time to time be increased pursuant to Section 2.16 or
decreased pursuant to Section 2.07, 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.



     “Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of Eurodollar Rate Committed Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.



     “Committed Loan” has the meaning specified in Section 2.01.



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



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



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



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated



5









 




Interest Charges and other interest charges and expenses for such period, (ii) the provision for
Federal, state, local and foreign income taxes (or franchise taxes, to the extent based upon net
income) payable by the Borrower and its Subsidiaries for such period, (iii) depreciation, depletion
and amortization expense, (iv) costs or expenses resulting from distributions or redemptions of the
Borrower’s units issued pursuant to the Borrower’s long-term incentive plan and (v) other
non-recurring expenses of the Borrower and its Subsidiaries reducing such Consolidated Net Income
which do not represent a cash item in such period or any future period and minus (b) the
following to the extent included in calculating such Consolidated Net Income: (i) Federal, state,
local and foreign income tax credits of the Borrower and its Subsidiaries for such period and (ii)
all non-cash items increasing Consolidated Net Income for such period; provided, that, only
for purposes of determining compliance with the financial covenants set forth in Section
7.11, if, since the beginning of the period ending on the date for which Consolidated EBITDA is
determined, the Borrower or its Subsidiaries shall have made any asset Disposition or acquisition,
shall have consolidated or merged with or into any Person (other than Borrower or another
Subsidiary), or shall have made any Disposition or acquisition of a Restricted Person or of any
partial ownership interest in any other Person, 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, and such calculation shall be determined (i) in good faith by a
financial officer of the Borrower and (ii) without giving effect to any anticipated or proposed
change in operations, revenues, expenses or other items included in the computation of Consolidated
EBITDA, except cost reductions specifically identified at the time of Disposition, acquisition,
consolidation or merger that are attributable to personnel reductions, non-recurring maintenance
and environmental costs and allocated corporate overhead. The Borrower shall deliver on or prior
to the last day of any fiscal quarter for which the Borrower desires to include such adjustments,
in form and substance reasonably satisfactory to Administrative Agent and certified by a financial
officer of the Borrower, written pro forma projections of Consolidated EBITDA attributable to any
such adjustments, and such other related information and documentation reasonably requested by and
reasonably satisfactory to Administrative Agent in all respects.




     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis (excluding, for the avoidance of doubt,
Unrestricted Subsidiaries), the sum of (without duplication): (i) the outstanding principal amount
of all Indebtedness which is classified as “long-term indebtedness” on a consolidated balance sheet
of the Borrower and its Subsidiaries on a consolidated basis (excluding, for the avoidance
of doubt, Unrestricted Subsidiaries) prepared as of such date in accordance with GAAP (subject
to year-end audit adjustments with respect to non-year end periods) 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; (ii) the outstanding principal amount of
Indebtedness for borrowed money of the Borrower and its Subsidiaries on a consolidated basis
(excluding, for the avoidance of doubt, Unrestricted Subsidiaries) outstanding under a revolving
credit, term or similar agreement (and renewals and extensions thereof); and (iii) the outstanding
principal amount of Indebtedness in respect of Capital Leases of the Borrower and its Subsidiaries
on a consolidated basis (excluding, for the avoidance of doubt, Unrestricted Subsidiaries);
provided, however, Consolidated Funded Indebtedness shall not, if otherwise
applicable, include (x) Indebtedness in respect of letters of credit, (y) Indebtedness incurred to
finance Cash and Carry Purchases or (z) margin deposits.



6









 





     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis (excluding, for the avoidance of doubt, Unrestricted
Subsidiaries), the sum of (a) all interest, premium payments, debt discount, fees, charges and
related expenses of the Borrower and its Subsidiaries (excluding, for the avoidance of doubt,
Unrestricted Subsidiaries) in connection with borrowed money (excluding, for the avoidance of
doubt, capitalized interest) or in connection with the deferred purchase price of assets, in each
case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense
of the Borrower and its Subsidiaries (excluding, for the avoidance of doubt, Unrestricted
Subsidiaries) with respect to such period under Capital Leases that is treated as interest in
accordance with GAAP.



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



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for such period, as
Consolidated EBITDA may be adjusted pursuant to Section 7.11(b).



     “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis (excluding, for the avoidance of doubt, Unrestricted Subsidiaries), the net
income of the Borrower and its Subsidiaries (excluding, for the avoidance of doubt, Unrestricted
Subsidiaries) for that period (excluding extraordinary gains and extraordinary losses).
“Consolidated Net Income” shall not include (i) any gain or loss from the sale of assets other than
in the ordinary course of business, or (ii) any non-cash gains or losses resulting from mark to
market activity as a result of the implementation of SFAS 133 or EITF 98-10. In addition,
“Consolidated Net Income” shall not include the cost or proceeds of purchasing or selling options
which are used to hedge future activity, until the period in which such hedged future activity
occurs.



     “Consolidated Tangible Net Worth” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis (excluding, for the avoidance of doubt,
Unrestricted Subsidiaries), Shareholders’ Equity of the Borrower and its Subsidiaries
(excluding, for the avoidance of doubt, Unrestricted Subsidiaries) on that date minus the
Intangible Assets of the Borrower and its Subsidiaries (excluding, for the avoidance of doubt,
Unrestricted Subsidiaries) on that date.



     “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.



     “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.



7









 





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



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



     “Default Rate Period” means (a) any period during which an Event of Default, other
than pursuant to Section 8.01(a), is continuing, provided that such period shall not begin
until notice of the commencement of the Default Rate has been given to the Borrower by the
Administrative Agent upon the instruction by the Required Lenders and (b) any period during which
any Event of Default pursuant to Sections 8.01(a) is continuing unless the Borrower has
been notified otherwise by the Administrative Agent upon the instruction by the Required Lenders.



     “Defaulting Lender” means, subject to Section 2.18(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder, (b)
has notified the Borrower or the Administrative Agent that it does not intend to comply with its
funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder or under other agreements in which it commits to extend credit, (c) has
failed, within three Business Days after request by the Administrative Agent, to confirm in a
manner satisfactory to the Administrative Agent that it will comply with its funding obligations,
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership
or acquisition of any equity interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale,



8









 




assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.




     “DnB” means DnB NOR Bank ASA and its successors.



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



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), and (v) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “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, 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, excluding, however, all debt 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).



     “ERISA” means the Employee Retirement Income Security Act of 1974.



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in



9









 




Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of
proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan
in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or
Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.




     “Eurodollar Rate” means:



     (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal
to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or such other commercially available source providing quotations of BBA LIBOR as may be designated
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London
Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii)
if such rate is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement
of such Interest Period; and



     (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two London
Banking Days prior to such date for Dollar deposits being delivered in the London interbank market
for a term of one month commencing that day or (ii) if such published rate is not available at such
time for any reason, the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made, continued or converted and with a term equal
to one month would be offered by Bank of America’s London Branch to major banks in the London
interbank Eurodollar market at their request at the date and time of determination.



     “Eurodollar Rate Committed Loan” means a Committed Loan that bears interest at a rate
based on clause (a) of the definition of “Eurodollar Rate.”



     “Eurodollar Rate Loan” means (i) a Eurodollar Rate Committed Loan or (ii) a Swing Line
Loan that bears interest at a rate based on the Eurodollar Rate.



     “Event of Default” has the meaning specified in Section 8.01.



10









 





     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
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 or net profits
(however denominated), and franchise taxes or capital taxes imposed on it (in lieu of or in
addition to net income or net profits 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, (c) any backup withholding tax that is required by
the Code to be withheld from amounts payable to a Lender, and (d) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 10.13), any
United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign
Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office), 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)(ii) or (c), or (ii) is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with clause (B) of Section
3.01(e)(ii).



     “FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



     “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 Bank of America on such day on such transactions as determined
by the Administrative Agent.



     “Fee Letters” means each of the letter agreements dated February 23, 2010 (i) among
the Borrower, the Administrative Agent, and BAS, and (ii) between the Borrower and DnB.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than the United States (including such a Lender when acting in the capacity of the L/C
Issuer). For purposes of this definition, the term “United States” shall include the United
States, each State thereof and the District of Columbia.



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



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C



11









 




Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.




     “Fund” means any Person (other than a natural person) that is 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 Subsidiaries on a consolidated basis, 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 Audited Financial Statements.



     “General Partner” means PNGS GP LLC, a Delaware limited liability company, in its
capacity as the sole general partner of the Borrower.



     “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).



     “Guarantee” means, as to any Person, (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 amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as



12









 




determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.




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



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) its obligations for the repayment of borrowed money,




     (b) its obligations to pay the deferred purchase price of property or services
(excluding trade account payables arising in the ordinary course of business), other than
contingent purchase price or similar obligations incurred in connection with an acquisition
and not yet earned or determinable,




     (c) its obligations evidenced by a bond, debenture, note or similar instrument,




     (d) its obligations, as lessee, constituting principal under Capital Leases,




     (e) its direct or contingent reimbursement obligations with respect to the face amount
of letters of credit pursuant to the applications or reimbursement agreements therefor,




     (f) its obligations for the repayment of outstanding banker’s acceptances, whether
matured or unmatured,




     (g) Synthetic Lease Obligations, or




     (h) its obligations under guaranties of any obligations of any other Person described
in the foregoing clauses (a) through (g).



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, except to the
extent that such Indebtedness is expressly made non-recourse to such Person. The amount of any
Capital Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



13









 





     “Initial Pro Forma Financial Statements” means the pro forma financial projections and
forecasts prepared by or at the direction of the Borrower and delivered by the Borrower to the
Administrative Agent for the second half of the fiscal year ending December 31, 2010 and for the
fiscal years ending December 31, 2011, December 31, 2012, and December 31, 2013, in each case,
including adjustments for scheduled commencement of commercial operations for Pine Prairie Storage
Facility caverns #3, #4 and #5.



     “Intangible Assets” means assets that are considered to be intangible assets under
GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks,
patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.



     “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 Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the
date of such Borrowing or the date such Eurodollar Rate Loan is converted to or continued as a
Eurodollar Rate Loan and ending on the date seven days, fourteen days, one month, two months,
three months or six months thereafter, as selected by the Borrower in its Committed Loan Notice or
such other period that is twelve months or less requested by the Borrower and consented to by all
the Lenders; provided that:




     (i) 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, in the case of a Eurodollar
Rate Loan, such Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;




     (ii) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “IPO Closing Date” means the date on which the Borrower consummates its initial public
offering as contemplated by and pursuant to the Registration Statement, and all conditions
precedent to the initial Credit Extension under Section 4.02 have been satisfied.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



14









 





     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.



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



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



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date as required pursuant to Section 2.04(c)
or refinanced as a Committed Borrowing.



     “L/C 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.



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



     “L/C 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
Unreimbursed Amounts, including (without duplication) all L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of
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 ISP, such
Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “Lender Parties” means the Administrative Agent, L/C Issuer and all Lenders.



     “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 in accordance with
the terms hereof.



     “Letter of Credit” means any letter of credit issued at the request of the Borrower
hereunder. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.



15









 





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



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



     “Letter of Credit Fee” has the meaning specified in Section 2.04(h).



     “Letter of Credit Sublimit” means an amount equal to the Aggregate Commitments. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Committed Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17
of this Agreement, Fee Letters and any guaranty of the Obligations delivered in connection
herewith.



     “Loan Party” means each of (i) the Borrower and (ii) any Subsidiary of the Borrower
that, at such time, is obligated under or pursuant to a guaranty of the Obligations.



     “London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities (actual or
contingent) or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a
whole; (b) a material impairment (i) of the rights or remedies of the Administrative Agent or any
Lender under any Loan Document, determined without regard to any event, circumstance or the like
that exists or may exist solely by reason of any actions, operations, activities or status of any
Lender or the Administrative Agent, as the case may be; or (ii) of the ability of the Borrower to
perform its obligations under any Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against Borrower of any
material terms of any Loan Document to which it is a party.



     “Maturity Date” means such date that is three years from the IPO Closing Date;
provided, however, that if such date does not satisfy clause (a) of the definition
of “Business Day,” the Maturity Date shall be the next preceding Business Day.



16









 





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



     “Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not under common control
at such times and meeting the requirements of such a plan as described in Section 4064 of ERISA.



     “Notes” means, collectively, the Committed Loan Notes and the Swing Line Note.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party 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 Loan Party or any of its
Affiliates of any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.



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



     “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.



     “Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of
such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.



     “PAA” means Plains All American Pipeline, L.P., a Delaware limited partnership.



17









 





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



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Act” means the Pension Protection Act of 2006.



     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.



     “Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower
and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the
minimum funding standards under Section 412 of the Code.



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



     “Petroleum Products” means crude oil, condensate, natural gas, natural gas liquids
(NGL’s), liquefied petroleum gases (LPG’s), refined petroleum products or any blend thereof.



     “Pine Prairie” means Pine Prairie Energy Center, LLC, a Delaware limited liability
company.



     “Pine Prairie Lease” means, collectively, that certain Agreement to Lease With Option
to Purchase, dated as of May 1, 2006, and that certain Conveyance and Lease Addendum No. 1, dated
as of November 12, 2007, each by and between Industrial Revenue Board No. 1 of the Parish of
Louisiana, Inc. and Pine Prairie.



     “Pine Prairie Storage Facility” means the natural gas storage facility owned by Pine
Prairie and located in Evangeline Parish, Louisiana, which facility includes certain buildings,
equipment, compressors, structures and pipelines located on a salt-dome storage cavern.



     “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any
such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.



     “Platform” has the meaning specified in Section 6.02.



     “Pre-IPO Commitment Termination Date” means September 30, 2010.



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



18









 





     (a) any Storage Facility, including all storage caverns and reservoirs, injection, compression
and production wells, injection and withdrawal sites and facilities, transportation and gathering
pipelines, treating and processing plants and facilities, compressors and compression units, and
other facilities, equipment and other assets owned or leased by Borrower and its Subsidiaries
employed in the injection, storage, withdrawal, transportation, gathering, terminalling, treating,
processing, distribution, transportation and marketing of natural gas, natural gas liquids, crude
oil and refined petroleum products;



     (b) all rights, titles, interests and estates in and to oil and gas leases, oil, gas and
mineral leases, or other liquid or gaseous Hydrocarbon leases, and mineral fee interests associated
with the foregoing; and



     (c) all volumes of natural gas stored at any Storage Facility required to remain in such
Storage Facility (“base gas”) in order to provide necessary pressurization sufficient to extract
(i) all third-party natural gas stored therein (“third-party gas”) and (ii) any other volumes of
natural gas owned by the Borrower and its Subsidiaries and stored in such Storage Facility
(“working gas”). For the avoidance of doubt, “Principal Property” shall not include third-party
gas or working gas;


except, in the case of either clause (a) or (b): (i) any such assets consisting of inventories,
furniture, office fixtures and equipment, including data processing equipment, vehicles and
equipment used on, or useful with, vehicles, and (ii) any such asset, plant or terminal (other than
the Bluewater Storage Facility or the Pine Prairie Storage Facility) which, in the good faith
opinion of the Board, is not material in relation to the activities of the Borrower and its
Subsidiaries, taken as a whole.




     “Public Lender” has the meaning specified in Section 6.02.



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



     “Registration Statement” means the Borrower’s Form S-1 Registration Statement filed
January 25, 2010 with the SEC, including exhibits thereto, as amended by Amendment No. 1 to Form
S-1 Registration Statement filed March 3, 2010 with the SEC, [Amendment No. 2 to Form S-1
Registration Statement filed                      ___, 2010,] as may be further amended, supplemented or
restated.



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



19









 





     “Required 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 L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party, or any general partner
thereof or any general partner of any such general partner or any sole member thereof, as the case
may be, solely for purposes of the delivery of incumbency certificates and other certificates in
respect of certain documents to be attached thereto pursuant to Sections 2.16, 4.01
and 4.02, the secretary or any assistant secretary of such Loan Party, or any general
partner thereof or any general partner of any such general partner or any sole member thereof, as
the case may be, and solely for purposes of notices given pursuant to Article II, any other
officer or employee of the Borrower, or any general partner thereof or any general partner of any
such general partner or any sole member thereof, as the case may be, designated by any of the
foregoing officers in a notice to the Administrative Agent. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party, or any general partner thereof or any general
partner of any such general partner or any sole member thereof, as the case may be, shall be
conclusively presumed to have been authorized by all necessary corporate, partnership or other
equivalent action on the part of such Loan Party, and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash or
other property, but excluding dividends or other distributions payable in Equity Interests in the
Borrower) with respect to any Equity Interest of the Borrower, or any payment (whether in cash or
other property, but excluding dividends or other distributions payable in Equity Interests in the
Borrower), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination for value of any Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).



     “Restricted Person” means any of the Borrower and each Subsidiary of the Borrower,
including but not limited to Bluewater and Pine Prairie, but excluding, for the avoidance of doubt,
Unrestricted Subsidiaries.



     “Restriction Exception” means (a) any applicable Law or any instrument governing
Indebtedness or Equity Interests, or any applicable Law or any other agreement relating to any
property, assets or operations of a Person whose Equity Interests are acquired, in whole or part,
by a Restricted Person pursuant to an acquisition (whether by merger, consolidation, amalgamation
or otherwise), as such instrument or agreement is in effect at the time of such acquisition (except
with respect to Indebtedness incurred in connection with, or in contemplation of, such
acquisition), or such applicable Law is then or thereafter in effect (as applicable), which



20









 




is not applicable to the acquiring Restricted Person, or the property, assets or operations of the
acquiring Restricted Person, other than the acquired Person, or the property, assets or operations
of such acquired Person or such acquired Person’s Subsidiaries; provided that in the case
of Indebtedness, the incurrence of such Indebtedness is not prohibited hereunder, (b) provisions
with respect to the disposition or distribution of assets in joint venture agreements or other
similar agreements entered into in the ordinary course of business, (c) (i) a lease, license or
similar contract, which restricts in a customary manner the subletting, assignment, encumbrance or
transfer of any property or asset that is subject thereto or the assignment, encumbrance or
transfer of any such lease, license or other contract, (ii) mortgages, deeds of trust, pledges
or other security instruments, the entry into which does not result in a Default, securing
Indebtedness of a Restricted Person, which restricts the transfer of the property subject to such
mortgages, deeds of trust, pledges or other security instruments, or (iii) customary provisions
restricting disposition of, or encumbrances on, real property interests set forth in any reciprocal
easements of any Restricted Person, (d) restrictions imposed pursuant to this Agreement and the
other Loan Documents, (e) restrictions on the transfer or encumbrance of property or assets which
are imposed by the holder of Liens on property or assets of a Restricted Person, provided
that neither the incurrence of such Lien nor any related Indebtedness results in a Default, (f) any
agreement to, directly or indirectly, sell or otherwise dispose of assets or Equity Interests to
any Person pending the closing of such sale, provided that such sale is consummated in
compliance with any applicable provisions of this Agreement, (g) net worth provisions in leases and
other agreements entered into by any Restricted Person in the ordinary course of business, and (h)
an agreement governing Indebtedness incurred to refinance the Indebtedness issued, assumed or
incurred pursuant to an agreement referred to in clauses (d) and (e) above; provided,
however, that the provisions relating to such encumbrance or restriction contained in any
such Indebtedness are no less favorable to the such Restricted Person in any material respect as
determined by the Board in its reasonable and good faith judgment than the provisions relating to
such encumbrance or restriction contained in agreements referred to in such clauses (d) and (e).




     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance
with GAAP.



     “Significant Restricted Persons” means the Borrower, Bluewater, Pine Prairie, and each
other subsidiary of the Borrower (other than Unrestricted Subsidiaries) that would be a
“significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant
to the Securities Exchange Act of 1934 and the Securities Act of 1933, each as amended.



     “Specified Acquisition” means one or more acquisitions of assets or entities or
operating lines or divisions in any rolling 12-month period for an aggregate purchase price of not
less than $50,000,000.



21









 





     “Specified Equity Offering” means one or more issuances of equity by the Borrower for
aggregate net cash proceeds of not less than fifty percent (50%) of the aggregate purchase price of
the Specified Acquisition.



     “Storage Facilities” means each of the Bluewater Storage Facility, the Pine Prairie
Storage Facility and any other gas storage facility from time to time owned by the Borrower and its
Subsidiaries.



     “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; provided,
however, that no Unrestricted Subsidiary shall be deemed to be a Subsidiary of any
Restricted Person for purposes of any Loan Document except as provided in Section 7.12
hereof. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap 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 Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.05.



22









 





     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.05(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.05(b), which, if in writing, shall be substantially in the form of Exhibit
B.



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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



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



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



     “Threshold Amount” means $20,000,000.



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



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



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



     “Unreimbursed Amount” has the meaning specified in Section 2.04(c)(i).



     “Unrestricted Subsidiary” has the meaning specified in Section 7.12.



     “Working Capital Borrowing” has the meaning specified in Section 2.02(a).




     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 word “or” is not exclusive and the



23









 




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 (including any Organization 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 permitted assigns,
(iii) the words “hereto,” “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, unless expressly so limited,
(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 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 Audited 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 Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between



24









 




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 herein, 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 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; provided, further, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic reductions in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the amount available to be drawn under such Letter of
Credit at such time.



ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS




          2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower from
time to time, on any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Within the limits of
each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.01, prepay under Section 2.06, and reborrow under this
Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.



          2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurodollar Rate Committed Loans shall be made upon the Borrower’s
irrevocable (subject to Section 3.03) notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any




25











 




Borrowing of, conversion to
or continuation of Eurodollar Rate Committed Loans or of any
conversion of Eurodollar Rate Committed Loans to Base Rate Committed Loans, and (ii) on the
requested date of any Borrowing of Base Rate Committed Loans; provided, however,
that if the Borrower wishes to request Eurodollar Rate Committed Loans having an Interest Period
other than seven days, fourteen days, one month, two months, three months or six months in duration
as provided in the definition of “Interest Period,” the applicable notice must be received by the
Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of
such Borrowing, conversion or continuation, whereupon the Administrative Agent (x) shall give
prompt notice to the Lenders of such request and determine whether the requested Interest Period is
acceptable to all of them and (y) not later than 11:00 a.m., three Business Days before the
requested date of such Borrowing, conversion or continuation, shall notify the Borrower (which
notice may be by telephone) whether or not the requested Interest Period has been consented to by
all the Lenders; provided, further, if any requested Committed Borrowing or portion
thereof is to be utilized exclusively for working capital purposes (such Committed Borrowing or
such portion being called a “Working Capital Borrowing”), the Borrower shall specify in the
Committed Loan Notice that such Committed Borrowing or such portion is a Working Capital Borrowing.
In addition, any repayment of a Loan that is intended as a repayment of all or any part of the
outstanding amount of one or more Working Capital Borrowings shall be so identified to the
Administrative Agent at the time of such repayment. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Committed Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof. Except as provided in Sections 2.04(c) and 2.05(c),
each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing,
a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate
Committed Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate
Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar Rate Committed Loans.
If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Committed Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.




     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of a
Committed Borrowing, each Lender shall make the amount of its Committed Loan available to



26









 





the
Administrative Agent in immediately available funds at the Administrative Agent’s Office not later
than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing
is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the Administrative Agent,
at the Borrower’s election, either by (i) crediting the account of the Borrower on the books of
Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the Borrower as set forth in
the Committed Loan Notice; provided, however, that if, on the date the Committed
Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings, and second, shall be made available to the Borrower as
provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Committed Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate Committed Loan. Upon
the occurrence and during the continuation of an Event of Default, no Loans may be requested as,
converted to or continued as Eurodollar Rate Committed Loans without the consent of the Required
Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Committed Loans upon
determination of such interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s
prime rate used in determining the Base Rate and the effective date thereof promptly following the
public announcement of such change.



     (e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Committed Loans.



     2.03 Reserved.



     2.04 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, for its
use and the use of any of its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters
of Credit issued for the account of the Borrower, for its use and the
use of any of its Subsidiaries and any drawings thereunder; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the
Total



27









 




Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not
exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso
to the preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.





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




     (A) subject to Section 2.04(b)(iii), the expiry date of the requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved such expiry date; or




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




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




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or the Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to the Letter of Credit
any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the L/C Issuer in good faith deems material to it;




     (B) the issuance of the Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally;
provided that, upon request of the Borrower, the L/C Issuer shall provide to the Borrower a
reasonably detailed description thereof;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
the Letter of Credit is in an initial stated amount less than $100,000;



28









 






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




     (E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to
eliminate the L/C Issuer’s Fronting Exposure (after giving effect to Section
2.18(a)(iv)) with respect to the Defaulting Lender arising from either the
Letter of Credit then proposed to be issued or that Letter of Credit and all other
L/C Obligations as to which the L/C Issuer has Fronting Exposure, as it may elect in
its sole discretion; or




     (F) the Letter of Credit contains any provisions for automatic reinstatement of
the stated amount after any drawing thereunder.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue the Letter of Credit in its amended form under the terms
hereof.




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




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



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed
by a Responsible Officer of the Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least
two Business Days (or such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in
form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date



29









 






of
the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other
matters as the L/C Issuer may reasonably require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form
and detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature
of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably
require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender (who hereby agrees to provide
contemporaneous notice to the Borrower), the Administrative Agent (who hereby agrees to
provide contemporaneous notice to the Borrower) or any Loan Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Article IV shall not then be
satisfied, specifying in reasonable detail the relevant condition or conditions not then
satisfied, and the basis for such assertion, and such condition or conditions, as
applicable, remain unsatisfied on such requested date of issuance or amendment, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or
enter into the applicable amendment, as the case may be, in each case in accordance with the
L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an
amount equal to the product of such Lender’s Applicable Percentage times the amount
of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit
that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving written prior
notice to the beneficiary thereof not later than a day (the “Non-Extension Notice
Date”) in each such twelve-month period to be agreed upon between the Borrower and the
L/C Issuer at the time such Letter of Credit is issued. The L/C Issuer of any
Auto-Extension Letter of Credit hereby agrees to contemporaneously furnish to the Borrower a
copy of any denial of the extension of such Auto-Extension Letter of Credit. Unless
otherwise directed by



30









 






the L/C Issuer, the Borrower shall not be required to make a specific
request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit
has been issued, the Lenders shall be deemed to have authorized (but may not require) the
L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date; provided, however, that
the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.04(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is seven Business
Days before the Non-Extension Notice Date (1) from the Administrative Agent (who hereby
agrees to provide contemporaneous notice to the Borrower) that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent (who hereby agrees
to provide contemporaneous notice to the Borrower), any Lender (who hereby agrees to provide
contemporaneous notice to the Borrower) or the Borrower that one or more of the applicable
conditions specified in Section 4.03 is not then satisfied, specifying in reasonable
detail the relevant condition or conditions not then satisfied, and such condition or
conditions, as applicable, are unsatisfied on such extension date, and the basis for such
assertion, and in each such case directing the L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. If the L/C Issuer shall give notice to the Borrower prior to
11:00 a.m. on the date of any payment by such L/C Issuer under a Letter of Credit (each such
date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing (and if the L/C Issuer
shall give notice to the Borrower at or after such time, the Borrower shall reimburse the
L/C Issuer by such time on the following Business Day). If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage
thereof. In such event, the Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.03 (other than the delivery of a Committed Loan Notice and without giving effect to
the Borrower’s failure to so reimburse the L/C Issuer as provided in this Section
2.04(c)(i)). Any notice given by the L/C Issuer or the Administrative Agent pursuant to



31









 






this Section 2.04(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.




     (ii) Each Lender shall, upon any notice pursuant to Section 2.04(c)(i) prior to
11:00 a.m., make funds available (and the Administrative Agent may apply Cash Collateral
provided for this purpose) for the account of the L/C Issuer at the Administrative Agent’s
Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent
(and, if such notice pursuant to Section 2.04(c)(i) is at or after 11:00 a.m., each
such Lender shall make such funds available not later than 1:00 p.m. on the following
Business Day), whereupon, subject to the provisions of Section 2.04(c)(iii), each
Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan
to the Borrower in such amount. The Administrative Agent shall remit the funds so received
to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.03 (other than the delivery of a Committed Loan Notice and without giving effect to
the Borrower’s failure to reimburse the L/C Issuer as provided in Section
2.04(c)(i)) cannot be satisfied because the L/C Issuer’s notice pursuant to Section
2.04(c)(i) is at or after 11:00 a.m. or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on the second Business Day following the corresponding Honor Date (together with interest)
and shall bear interest on the amount thereof from time to time outstanding at the Base Rate
in effect from time to time, and if not repaid by 11:00 a.m. on such second succeeding
Business Day, shall thereafter bear interest on the amount thereof from time to time
outstanding at the Default Rate. In such event, each Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.04(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.04.




     (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.04(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.




     (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.04(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed Loans
pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 4.03 (other than delivery



32









 






by the Borrower of a Committed Loan Notice and
without giving effect to the Borrower’s failure to so reimburse the L/C Issuer as provided
in this Section 2.04(c)(i)). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount
of any payment made by the L/C Issuer under any Letter of Credit, together with interest as
provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the portion thereof equal to such Lender’s Applicable Percentage of
the Unreimbursed Amount shall constitute such Lender’s Committed Loan included in the
relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the
case may be. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.04(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent
will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.



33









 





     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




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




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer and the L/C
Issuer will correct such claim in conformity with the Borrower’s instructions or as otherwise
agreed between the Borrower and the L/C Issuer, subject to the terms hereof. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents
unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant



34









 




or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.04(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the
L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by the L/C Issuer’s willful misconduct, gross negligence or
the material breach of any of its obligations hereunder or under any Issuer Document or under any
Letter of Credit issued on the Borrower’s behalf or the L/C Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.




     (g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.



     (h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each commercial or standby Letter of Credit equal to the
Applicable Rate times the daily amount available to be drawn under such Letter of Credit;
provided, however, any Letter of Credit Fees otherwise payable for the account of a
Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender or the
Borrower has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this
Section 2.04 shall be payable, to the maximum extent permitted by applicable Law, to the
other Lenders in accordance with the upward adjustments in their respective Applicable Percentages
allocable to such Letter of Credit pursuant to Section 2.18(a)(iv), with the balance of
such fee, if any, payable to the L/C Issuer for its own account. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. Such Letter of Credit Fees shall be
(i) due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first



35









 




such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly
basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily
amount available to be drawn under each standby Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such Applicable Rate was
in effect. Notwithstanding anything to the contrary contained herein, during any Default Rate
Period, all Letter of Credit Fees shall accrue at the Default Rate.




     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect
to each commercial Letter of Credit, at the rate specified in the Fee Letter among the Borrower,
the Administrative Agent, and BAS, computed on the amount of such Letter of Credit, and payable
upon the issuance thereof, and (ii) with respect to each standby Letter of Credit, at the rate per
annum specified in the Fee Letter among the Borrower, the Administrative Agent, and BAS, computed
on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in
arrears. Such fronting fee with respect to standby Letters of Credit shall be due and payable on
the tenth Business Day after the end of each March, June, September and December in respect of the
most recently-ended quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters
of credit as from time to time in effect, effective schedules of which
will be provided to the Borrower upon its request. Such customary fees and standard costs and
charges are due and payable quarterly in arrears on the first Business Day after the end of each
March, June, September and December and are nonrefundable.



     (j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of a Subsidiary, the
Borrower (and not any such Subsidiary) shall be obligated to reimburse the L/C Issuer hereunder for
any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the
issuance of Letters of Credit in support of the obligations of any of its Subsidiaries inures to
the benefit of the Borrower, and that the Borrower’s business derives benefits from the business of
such Subsidiary.



     2.05 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.05, to make loans (each such loan, a “Swing Line Loan”) to the Borrower
from time to time on any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such



36









 




Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after giving effect to
any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment, and provided, further, that the Borrower shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.05, prepay under Section 2.06, and reborrow under this
Section 2.05. Swing Line Loans may be either Base Rate Loans or Eurodollar Rate Loans.
Immediately upon the making of a Swing Line Loan to the Borrower, each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable
Percentage times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $1,000,000, (ii) whether such Swing Line Loan is a Base Rate
Loan or a Eurodollar Rate Loan (and if a Eurodollar Rate
Loan, either (x) the applicable Interest Period thereof or (y) that the daily floating
Eurodollar Rate provided in clause (b) of the definition thereof shall apply) and (iii) the
requested borrowing date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the
date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence
of Section 2.05(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, specifying in reasonable detail the relevant condition or
conditions not then satisfied and the basis for such assertion, and such condition or conditions,
as applicable, remain unsatisfied on such requested date of issuance or amendment, then, subject to
the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Borrower, at the Borrower’s election, either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to the Administrative Agent by
the Borrower as set forth in the Swing Line Loan Notice.



37









 





     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole discretion may request, on behalf of
the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.03. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds (and the Administrative
Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan)
for the account of the Swing Line Lender at the Administrative Agent’s Office not later than
1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to
Section 2.05(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.05(c)(i) or pursuant to a Borrowing requested
in accordance with Section 2.02, as the case may be, the request for Base Rate
Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be
a request by the Swing Line Lender that each of the Lenders fund its risk participation in
the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.05(c) by the time specified in Section
2.05(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the portion thereof
equal to such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall constitute such Lender’s Committed Loan included in the relevant Committed
Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A
certificate of the Swing Line



38









 






Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




     (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.05(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.05(c) is
subject to the conditions set forth in Section 4.03. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s risk participation was funded) in the same funds as those
received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.05 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.06 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium or



39









 




penalty;
provided that (i) such notice must be received by the Administrative Agent not later than
11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Committed
Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurodollar Rate Committed Loans shall be in a principal amount of $2,500,000 or a whole multiple of
$250,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a
principal amount of $250,000 or a whole multiple of $50,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if
Eurodollar Rate Committed Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on
the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
Subject to Section 2.18, each such prepayment shall be applied to the Committed Loans of
the Lenders in accordance with their respective Applicable Percentages.




     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



     (c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrower shall immediately upon demand prepay Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided, however,
that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.06(c) unless after the prepayment in full of the Committed Loans and Swing Line
Loans the Total Outstandings exceed the Aggregate Commitments then in effect.



     (d) For an economically meaningful period of time in each fiscal year of the Borrower, as
reasonably determined by General Partner, the aggregate outstanding principal balance of all
Working Capital Borrowings shall be reduced to a relatively small amount as may be reasonably
specified by General Partner.



     2.07 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. two Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate



40









 




Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing
Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.




     2.08 Repayment of Loans. (a) The Borrower shall repay to the Lenders on the Maturity
Date the aggregate principal amount of Committed Loans outstanding on such date.



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.



     2.09 Interest. (a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Committed Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period
plus the Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate plus the Applicable Rate; (iii) each Eurodollar Rate Swing Line Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and
(iv) each Base Rate Swing Line Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due, whether at stated maturity, by acceleration or
otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.




     (iii) During any Default Rate Period, the Borrower shall pay interest on the principal
amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



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



41









 




hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.




     2.10 Fees. In addition to certain fees described in subsections (h) and (i) of Section
2.04:



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the
sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.18. The commitment fee shall
accrue at all times during the Availability Period, including at any time during the Availability
Period during which one or more of the conditions in Section 4.03 is not met, and shall be
due and payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date, and on the last day
of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect.



     (b) Ticking Fee. The Borrower shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a ticking fee equal to 0.20% per annum
times the actual daily amount of the Aggregate Commitments. The ticking fee shall accrue
at all times during the period from and including the 90th day after the Closing Date
through the earlier of (i) the IPO Closing Date and (ii) the Pre-IPO Commitment Termination Date,
and shall be due and payable in arrears on the last day of such period.



     (c) Other Fees. (i) The Borrower shall pay to the Arrangers and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in their
respective Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for
any reason whatsoever, except as expressly set forth therein.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon between the Borrower and the Administrative Agent and/or Lenders, as the case
may be, in writing in the amounts and at the times so specified. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever, except as expressly
agreed to in writing.



     2.11 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All
computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to
the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or such portion is paid, provided



42









 




that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.13(a), bear interest for one
day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.




     (b) If, prior to the delivery of any Compliance Certificate pursuant to Section
6.02(b), as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower pursuant to the most recently delivered
Compliance Certificate was inaccurate and (ii) a proper calculation of the Consolidated Leverage
Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account of the applicable
Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with respect to the
Borrower under the Bankruptcy Code of the United States, automatically and without further action
by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the
amount of interest and fees that should have been paid for such period over the amount of interest
and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.04(c)(iii), 2.04(h) or 2.09(b) or under Article VIII. The Borrower’s
obligations under this paragraph shall survive the termination of the Aggregate Commitments but
shall terminate upon the repayment of all other Obligations hereunder.



     2.12 Evidence of Debt.



     (a) 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
Committed Loan Note and/or a Swing Line Note, as applicable, which shall 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) 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 and Swing
Line Loans. 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.



43









 





     2.13 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 to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 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 such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 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
Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base
Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not
make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans,
that such Lender has made such share available in accordance with and at the time required by
Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Committed 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, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (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 Committed Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed 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.




     (ii) 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



44









 






or the L/C 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 L/C 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 L/C 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 L/C 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
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender
to make any Committed 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 Committed Loan, to purchase its participation or to make its payment under
Section 10.04(c).



     (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.



     2.14 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 Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Committed 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 Committed Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so



45









 




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 Committed Loans and other
amounts owing them, provided that:





     (i) 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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in Section
2.17, or (z) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any permitted assignee or participant, other than an
assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this
Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.



     2.15 Reserved.



     2.16 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon (i) notice to the
Administrative Agent (which shall promptly notify the Lenders) and (ii) substantially
contemporaneous notice (with copy thereof to the Administrative Agent) to Eligible Assignees not
then Lenders (each such Eligible Assignee, a “Proposed Lender”), the Borrower shall have
the right promptly to effectuate from time to time and at any time, in accordance with the terms
hereof, an increase in the aggregate amount of the then Aggregate Commitments provided that
(y) the aggregate amount of the Aggregate Commitments as so increased shall not at any time exceed
$600,000,000, and (z) each such increase shall be in a minimum amount of $50,000,000. At the time
of sending such notices, the Borrower (in consultation with the Administrative Agent) shall specify
the time period within which each Lender and Proposed Lender is requested to respond (which shall
in no event be less than five Business Days from the date of delivery of such notice to the
Lenders, and which may be extended upon agreement by the Borrower and the Administrative Agent).



     (b) Lender Elections to Increase. Each Lender shall promptly notify the
Administrative Agent and the Borrower within such time period whether or not it agrees to increase
the amount of its Commitment and, if so, whether by an amount equal to, greater than, or less than
its Applicable Percentage (as it existed immediately prior to such proposed increase)



46









 




of such
proposed increase. Each Proposed Lender shall promptly notify the Administrative Agent and the
Borrower within such time period whether or not it agrees to participate in such increased amount
of the Aggregate Commitments, and at what amount it proposes to participate in such increased
amount. Any Lender or Proposed Lender not responding within such time period shall be deemed to
have declined to increase its Commitment, or participate in the increase in the aggregate amount of
the Aggregate Commitments, as the case may be.




     (c) Effective Date and Allocations. If the aggregate amount of Aggregate Commitments
are increased in accordance with this Section 2.16, the Administrative Agent and the
Borrower shall promptly thereafter determine the effective date thereof (the “Increase
Effective Date”) and the final allocation of such increase, and the Administrative Agent shall
promptly notify the Borrower and the Lenders (including Proposed Lenders that have agreed to
participate in such increase) of the final allocation of such increase and the Increase Effective
Date.



     (d) Conditions to Effectiveness of Increase. As conditions precedent to each
increase, (i) the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the applicable Increase Effective Date, signed by a Responsible Officer of such
Loan Party, (y) certifying and attaching the resolutions adopted by such Loan Party authorizing or
consenting to such increase, as the case may be, and (z) in the case of the Borrower, certifying
that, immediately before and after giving effect to such increase, (A) the representations and
warranties of the Loan Parties contained in Article V of this Agreement and the other Loan
Documents are true and correct in all material respects on and as of such applicable Increase
Effective Date, except to the extent that such representations and warranties specifically refer to
an earlier date, in which case they are true and correct in all material respects as of such
earlier date, and except that for purposes of this Section 2.16, the representations and
warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, and (B) no Default or Event of Default exists, and (ii) each Proposed Lender
that is becoming a Lender shall (y) be subject to the reasonable approval of the Administrative
Agent , the L/C Issuer and the Swing Line Lender, which approvals shall not be unreasonably
withheld, delayed or conditioned, and (z) execute and deliver a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent, the L/C Issuer, the Swing Line
Lender and the Borrower. The Borrower shall prepay any Committed Loans outstanding on such
applicable Increase Effective Date (and pay any additional amounts required pursuant to Section
3.05) to the extent necessary to keep the outstanding Committed Loans ratable with the
Applicable Percentages resulting from any non-ratable increase in the amount of the Aggregate
Commitments under this Section 2.16 and in effect after giving effect thereto.



     (e) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.14 or 10.01 to the contrary.



     2.17 Cash Collateral.



     (a) Certain Credit Support Events. Within one Business Day following the request of
the Administrative Agent or the L/C Issuer (i) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing



47









 




that
remains outstanding for more than two Business Days, or (ii) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. At any
time that there shall exist a Defaulting Lender, within one Business Day following the request of
the Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to
the Administrative Agent Cash Collateral in an amount equal to the Fronting Exposure (after giving
effect to Section 2.18(a)(iv) and any Cash Collateral provided by the Defaulting Lender).




     (b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, interest bearing deposit
accounts at Bank of America. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.17(c). If at any time the Administrative Agent reasonably determines
that (i) Cash Collateral is subject to any right or claim of any Person (other than a claim of a
nature residual to the claim of the Administrative Agent) other than the Administrative Agent as
herein provided, or (ii) the total amount of such Cash Collateral is less than the applicable
Fronting Exposure (and, following the Letter of Credit Expiration Date, all outstanding L/C
Obligations), the Borrower or the relevant Defaulting Lender will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral (x) not
subject to any such right or claim or (y) in an amount sufficient to eliminate such deficiency.



     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, but subject to subsection (d) below, Cash Collateral provided under any of this
Section 2.17 or Sections 2.04, 2.05, 2.06, 2.18or
8.02 in respect of Letters of Credit or Swing Line Loans shall be held and applied to the
satisfaction of the specific L/C Obligations, Swing Line Loans and obligations to fund
participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation), prior to any other application of such property as may be
provided for herein.



     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure (and, following the Letter of Credit Expiration Date, to secure all outstanding
L/C Obligations) shall be released promptly following (i) the elimination of the applicable
Fronting Exposure (or, following the Letter of Credit Expiration Date, all secured L/C Obligations)
(including by the termination of Defaulting Lender status of the applicable Lender
(or, as appropriate, its assignee following compliance with Section 10.06(b)(vi))) or
(ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral;
provided, however, (x) that Cash Collateral furnished by or on behalf of a Loan Party shall
not be released during the continuance of a Default or Event of Default (and following application
as provided in this Section 2.17 may, during the continuance of an Event of Default, be
otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash
Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral
shall not be



48









 




released but instead held to support future anticipated Fronting Exposure or other
obligations, and any such future Fronting Exposure shall be reduced by the amount so held.




     2.18
Defaulting Lenders. (a) Adjustments. Notwithstanding anything to the
contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such
time as that Lender is no longer a Defaulting Lender, to the extent not prohibited by applicable
Law:




     (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.01.




     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.08), shall, following application by Administrative
Agent of any such payment by or on behalf of a Loan Party to the account of such Defaulting
Lender with respect to such Obligation paid (and in lieu of being distributed to such
Defaulting Lender pursuant to Section 2.12(a) or such other provision of this
Agreement applicable with respect to the distribution thereof), be applied at such time or
times as may be determined by the Administrative Agent as follows: first, to the payment of
any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second,
to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C
Issuer or Swing Line Lender hereunder; third, if so determined by the Administrative Agent
or requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for
future funding obligations of that Defaulting Lender of any participation in any outstanding
Swing Line Loan or outstanding Letter of Credit; fourth, as the Borrower may request (so
long as no Default or Event of Default exists), to the funding of any Loan in respect of
which that Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in an interest bearing deposit account and
released in order to satisfy obligations of that Defaulting Lender to fund Loans under this
Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or
Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained
by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender as a
result of that
Defaulting Lender’s breach of its obligations under this Agreement; seventh, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result
of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to
that Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of any Loans
or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its
appropriate share and (y) such Loans or L/C Borrowings were made at a time when the
conditions set forth in Section 4.03 were satisfied or waived, such payment shall be
applied solely to pay the Loans of, and L/C Borrowings owed to, all non-



49









 






Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings
owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable
to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid
to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.




     (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.10(a) for any period during which
that Lender is a Defaulting Lender and (y) shall be limited in its rights to receive Letter
of Credit Fees as provided in Section 2.04(h) and, in each case, the Borrower shall
not be required to pay to the Administrative Agent for the account of the Defaulting Lender
or the Defaulting Lender any such fee, and no such fees shall accrue for the account of the
Defaulting Lender, that otherwise would have been required to have been paid to that
Defaulting Lender.




     (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.04
and 2.05, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender;
provided, that, (A) each such reallocation shall be given effect only if (x) on the
date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default has
occurred and is continuing, or (y) if a Default or Event of Default occurred and was
continuing on such date, on a subsequent Business Day no Default or Event of Default has
occurred and is continuing, and (B) the aggregate obligation of each non-Defaulting Lender
to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall
not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting
Lender minus (2) the aggregate Outstanding Amount of the Committed Loans of that
Lender.




     (v) Replacement of Defaulting Lender. The Borrower may replace any Defaulting
Lender in accordance with Section 10.13.



     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determine to be necessary to cause the
Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without
giving effect to Section 2.18(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrower



50









 




while that Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.




ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Borrower hereunder or under any
other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require the Borrower
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted
in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case
may be, upon the basis of the information and documentation to be delivered pursuant to subsection
(e) below.




     (ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document, then (A) the Administrative Agent shall withhold
or make such deductions as are determined by the Administrative Agent to be required based
upon the information and documentation it has received pursuant to subsection (e) below, (B)
the Administrative Agent shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.



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



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent, each Lender and
the L/C Issuer, and shall make payment in respect thereof within 10 Business Days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid
by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The Borrower shall also, and does hereby,



51









 




indemnify the Administrative
Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any
amount which a Lender or the L/C Issuer (other than a Lender or L/C Issuer that is an affiliate of
the Administrative Agent) for any reason fails to pay indefeasibly to the Administrative Agent as
required by clause (ii) of this subsection. A certificate as to the amount of any such payment or
liability delivered to the Borrower by a Lender or the L/C 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 L/C Issuer, shall be conclusive absent manifest error. However, neither the Administrative
Agent, any Lender, nor the L/C Issuer shall be entitled to receive any payment with respect to
Indemnified Taxes or Other Taxes that are incurred or accrued more than 180 days prior to the date
the Administrative Agent, such Lender, or the L/C Issuer gives notice and demand thereof to the
Borrower.





     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and the
L/C Issuer shall, and does hereby, indemnify the Borrower and the Administrative Agent, and
shall make payment in respect thereof within 10 days after demand therefor, against any and
all Taxes and any and all related losses, claims, liabilities, penalties, interest and
expenses (including the fees, charges and disbursements of any counsel for the Borrower or
the Administrative Agent) incurred by or asserted against the Borrower or the Administrative
Agent by any Governmental Authority as a result of the failure by such Lender or the L/C
Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by such Lender or the L/C Issuer,
as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e).
Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and
apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case
may be, under this Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any assignment of
rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. As soon as reasonably practicable after request by the
Borrower or the Administrative Agent, as the case may be, and after any payment of Indemnified
Taxes or Other Taxes by the Borrower or by the Administrative Agent to a Governmental Authority as
provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or
the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of any return required by Laws to report such payment or other evidence of such payment reasonably
satisfactory to the Borrower or the Administrative Agent, as the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, (A) to determine (1) whether or not payments made to such
Lender hereunder or under any other Loan Document are subject to



52









 




Taxes or information reporting,
(2) if applicable, the required rate of withholding or deduction with respect to such payments, and
(3) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in
respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or any
other Loan Document or (B) to establish such Lender’s status for withholding tax purposes in the
applicable jurisdiction.





     (ii) Without limiting the generality of clause (i) above, if the Borrower is resident
for tax purposes in the United States,




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




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document 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
(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,
or at such times prescribed by applicable Law), whichever of the following is
applicable:




     (I) executed originals of Internal Revenue Service Form W-8BEN, or
successor applicable form, claiming eligibility for benefits of an income
tax treaty to which the United States is a party,




     (II) executed originals of Internal Revenue Service Form W-8ECI, or
successor applicable form,




     (III) executed originals of Internal Revenue Service Form W-8IMY, or
successor applicable form, and all required supporting documentation,




     (IV) 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



53









 






881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or successor applicable form, or




     (V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary documentation as
may be prescribed by applicable Laws to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to
be made.




     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed exemption or
reduction in withholding taxes, (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any requirement of
applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any
withholding or deduction for taxes from amounts payable to such Lender, and (C) deliver to
the Borrower and the Administrative Agent (1) such other documentation or information
prescribed by applicable Law following the occurrence of any event requiring a change in the
most recent documentation previously delivered pursuant to clause (ii) above so as to
maintain compliance with such Lender’s obligations thereunder, and (2) prior to the date on
which any documentation delivered pursuant to clause (ii) above expires or becomes obsolete,
such documentation as may be necessary to maintain compliance with such Lender’s obligations
thereunder.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any
refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C
Issuer, as the case may be. If the Administrative Agent, any Lender or the L/C 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 3.01, 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 3.01with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender
or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that the Borrower,
upon the request of the Administrative Agent, such Lender or the L/C 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 L/C Issuer in the
event the Administrative Agent, such Lender or the L/C 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 L/C 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.



54









 





     3.02 Illegality. If any Lender determines that any Change in 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 Loans whose interest is determined by reference to the
Eurodollar Rate, 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, (i) any obligation of such
Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Committed Loans shall be suspended, and (ii) if such notice asserts the illegality
of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by
reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate
Loans of such Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each
case until such Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate
on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined
by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate),
either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of
such Lender determining or charging interest rates based upon the Eurodollar Rate, the
Administrative Agent shall during the period of such suspension compute the Base Rate applicable to
such Lender without reference to the Eurodollar Rate component thereof until the Administrative
Agent is
advised in writing by such Lender that it is no longer illegal for such Lender to determine
or charge interest rates based upon the Eurodollar Rate. 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 Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate 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 Rate 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 Rate Committed Loan or in connection with an existing or
proposed Base Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Committed 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, (x) the obligation of the Lenders to make or maintain Eurodollar Rate
Loans (i) in respect to the applicable amount and Interest Period referred to in the preceding
clause (a), or (ii) in the circumstances referred to in the preceding clauses (b) and (c), shall be
suspended, and (y) in the event of a determination described in the preceding sentence with respect
to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component
in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any



55









 




pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Committed Loans or, failing that, will be deemed to have converted such request
into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.




     3.04 Increased Costs; Reserves on Eurodollar Rate 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 L/C Issuer;




     (ii) subject any Lender or the L/C 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 Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C 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 L/C Issuer); or




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


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of
maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the
L/C 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 L/C Issuer hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to
such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or
reduction suffered.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C 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 L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will



56









 




compensate such Lender or
the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.




     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof. Upon request by the Borrower, a Lender or the L/C Issuer, as
the case may be, shall also provide a certificate that such Lender or L/C Issuer is generally
requesting such compensation from its other borrowers.



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than 180 days prior to the date that such Lender or the L/C 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 L/C 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 180-day period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate 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 Rate 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 absent manifest error), 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



57









 





     (c) any assignment of a Eurodollar Rate 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;


excluding any loss of anticipated profits but including any loss (other than loss of anticipated
profits) 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. The Borrower shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.



A certificate of such Lender setting forth the amount of any such loss, cost or expense, including
reasonably detailed calculations thereof, shall be delivered to the Borrower and the Administrative
Agent and be conclusive absent manifest error. 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 Rate Committed 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 Rate Committed 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,
the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer
pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender or the L/C Issuer, 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 or the L/C Issuer, as the case may be, to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case
may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender
or the L/C Issuer in connection with any such designation or assignment.



     (b) Replacement of Lenders. If (i) any Lender requests compensation under Section
3.04, or gives a notice pursuant to Section 3.02 (which notice is not given by other similarly
situated Lenders) and does not subsequently designate a different Lending Office or assign its
rights and obligations hereunder to another of its offices, branches or affiliates as provided
above, (ii) 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 (iii) any Lender
becomes a Defaulting Lender, 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, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



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ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions Precedent to Closing. This Agreement shall become effective upon the
satisfaction of the following conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals,
telecopies or other electronic copies (followed promptly by originals) unless otherwise specified,
each properly executed by a Responsible Officer of the Borrower, if applicable, 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 reasonably satisfactory to the Administrative Agent:




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




     (ii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, and
a Committed Loan Note executed by the Borrower in favor of each Lender requesting a
Committed Loan Note;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may
reasonably 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 each of the Borrower, General Partner, Bluewater and Pine Prairie
is duly organized or formed, and that the Borrower is validly existing, in good standing and
qualified to engage in business in each jurisdiction as required by Section 5.01;




     (v) favorable opinions of Tim Moore, Esq., General Counsel of the sole member of the
General Partner, and Fulbright & Jaworski L.L.P., special counsel for the Borrower,
addressed to the Administrative Agent and each Lender;




     (vi) the Audited Financial Statements and the Initial Pro Forma Financial Statements;




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the condition specified in Section 4.03(a) has been satisfied, (B) the Initial Pro
Forma Financial Statements were prepared in good faith upon assumptions deemed reasonable by
the Borrower at the time made, (C) that no Default shall have occurred and be continuing,
and (D) that there has been no event or circumstance since the date of the most recent
Audited Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;




     (viii) evidence that all insurance required to be maintained pursuant to Section
6.07 has been obtained and is in effect;



59









 






     (ix) environmental assessment reports, audits and certifications as reasonably
requested by Administrative Agent identifying existing and potential environmental concerns
and quantifying related costs and liabilities, associated with any Storage Facilities; and




     (x) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent may reasonably require.



     (b) 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 shall have been obtained and shall be in full force and effect.



     (c) There shall not have occurred during the period from the date of the most recent Audited
Financial Statements through and including the Closing Date any event or condition that has had or
could reasonably be expected, either individually or in the aggregate, to have a Material Adverse
Effect, and there shall be no actions, suits, investigations, proceedings, claims
or disputes pending or, to the knowledge of the Borrower, threatened in writing, at law, in
equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of
its Subsidiaries or against any of their properties or revenues that either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.



     (d) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to
the Administrative Agent to the extent invoiced prior to or on the Closing Date.



     (e) Copies (or electronic access to copies pursuant to the Borrower’s website or EDGAR) of the
Registration Statement, including exhibits thereto, as amended through the Closing Date, with any
material amendment to any financial statements, projections or forecasts contained therein, or any
other material amendment to the Borrower’s operations, business, assets, properties, liabilities
(actual or contingent) or condition (financial or otherwise) as described in the initial
Registration Statement filed with the SEC reasonably satisfactory in form and substance to
Administrative Agent.



     (f) The Closing Date shall have occurred on or before April 30, 2010.



     Without limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed 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 and the Administrative Agent hereby agrees to promptly provide the Borrower with
a copy of any such notice received by the Administrative Agent.



     4.02 Conditions Precedent to Initial Credit Extension. The obligation of the L/C Issuer and
each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:



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     (a) The Administrative Agent’s receipt on the IPO Closing Date, in form and substance
reasonably satisfactory to the Administrative Agent, a certificate signed by a Responsible Officer
of the Borrower certifying (i) that the conditions specified in Sections 4.03(a) and
(b) have been satisfied, (ii) that there has been no event or circumstance since the
Closing Date that has had or could be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect; (iii) that the Borrower has consummated its initial public
offering, substantially on the terms set forth in the Registration Statement, (iv) an attached pro
forma consolidated balance sheet of the Borrower as at the last day of the most recent fiscal
quarter of the Borrower prior to the IPO Closing Date for which quarterly financials have been
delivered to the Administrative Agent, after giving effect to the consummation of the Borrower’s
initial public offering and the initial drawing hereunder, (v) calculation of Consolidated EBITDA
for the four fiscal quarter period ending the last day of the most recent fiscal quarter of the
Borrower prior to the IPO Closing Date for which quarterly financials have been delivered to the
Administrative Agent, with (A) such pro forma adjustments as may be approved by Administrative
Agent with respect to Dispositions, acquisitions, consolidations or mergers as described in the
proviso of the first sentence of (and subject to the delivery of information with respect thereto
as required pursuant to the second sentence of) the definition of “Consolidated EBITDA” and (B) any
New Cavern EBITDA Adjustments or Material Project EBITDA Adjustments as may be approved by
Administrative Agent pursuant to (and subject to the delivery of information with respect thereto
as required by) Section 7.11(b), and (vi) calculation of the Consolidated Leverage Ratio as
of the IPO Closing Date.



     (b) On and as of the IPO Closing Date, Administrative Agent shall have received copies (or
electronic access to copies pursuant to the Borrower’s website or EDGAR) of any amendments to the
Registration Statement filed with the SEC after the Closing Date, any exhibits to the Registration
Statement, as amended through the IPO Closing Date, not previously delivered prior to the IPO
Closing Date, and a copy of the Borrower’s prospectus with respect to its initial public offering,
all certified by a Responsible Officer of the Borrower.



     (c) Any material amendment to any financial statements, projections or forecasts contained in
the Registration Statement, or any other material amendment to the Borrower’s operations, business,
assets, properties, liabilities (actual or contingent) or condition (financial or otherwise) as
described in the Registration Statement, and any agreements described in Section 7.08(c)
attached as exhibits thereto, filed with the SEC after the Closing Date and prior to the IPO
Closing Date shall be reasonably satisfactory in form and substance to Administrative Agent.



     (d) There shall not have occurred during the period from the Closing Date through and
including the IPO Closing Date any event or condition that has had or could reasonably be expected,
either individually or in the aggregate, to have a Material Adverse Effect.



     (e) Any fees, including any arrangement fees, agency fees and upfront fees, and any expenses
of the Arrangers and Administrative Agent, in each case, as agreed in writing by the Borrower,
required to be paid on or before the IPO Closing Date shall have been paid.



     (f) 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 IPO Closing Date.



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     (g) The IPO Closing Date shall have occurred on or before the Pre-IPO Commitment Termination
Date.



     4.03 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurodollar Rate Committed Loans) is subject to the
following conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V or any
other Loan Document, or which are contained in any document furnished by or at the request of the
Borrower or any Subsidiary at any time under or in connection herewith or therewith, shall
be true and correct in all material respects on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct in all material respects as of such earlier
date, and except that for purposes of this Section 4.03, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.



     (b) No Default shall have occurred and be continuing, or would immediately result from such
proposed Credit Extension or from the application of the proceeds thereof.



     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall
have received a Request for Credit Extension in accordance with the requirements hereof.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Committed
Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.03(a) and (b) have been satisfied on and as of
the date of the applicable Credit Extension.



ARTICLE V. REPRESENTATIONS AND WARRANTIES




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



     5.01 Existence, Qualification and Power. Each Significant Restricted Person (a) is duly
organized or formed, validly existing and, as applicable, in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite corporate or equivalent
power and authority and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is
licensed and, as applicable, in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party have been duly



62









 




authorized by all
necessary corporate or other organizational action, and do not and will not (a) violate (i) the
terms of such Person’s Organization Documents, (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject, or
(iii) any provision of Law applicable to it; (b) result in the acceleration of any Indebtedness
owed by it; or (c) result in any breach of, or a default under, or the creation of any consensual
Lien under, any material Contractual Obligation to which such Person is a party or to which its
properties are bound.




     5.03 Governmental Authorization; Other Consents. Except as expressly contemplated in or
permitted by the Loan Documents, disclosed in Schedule 5.03 or disclosed pursuant to
Section 6.03, no approval, consent, exemption or authorization of, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is required to be made or
obtained by any Restricted Person a party thereto pursuant to the provisions of any material Law
applicable to it as a condition to its execution, delivery or performance of this Agreement or any
other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document to which a Loan
Party is a party, when delivered hereunder, will have been, duly executed and delivered by such
Loan Party. This Agreement constitutes, and each other such Loan Document when so executed and
delivered will constitute, a legal, valid and binding obligation of the Loan Party a party hereto
or thereto, as the case may be, enforceable against such Loan Party that is party thereto in
accordance with its terms.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Borrower (or its predecessor, as the case may be) and
its Subsidiaries as of the respective dates thereof and their results of operations for the period
covered thereby in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) as required by GAAP, reflect all material
Indebtedness of the Borrower and its Subsidiaries as of the respective dates thereof, including, if
applicable, liabilities for taxes, material commitments and Indebtedness.



     (b) The unaudited consolidated balance sheets of the Borrower and its Subsidiaries most
recently delivered pursuant to Section 6.01(b), and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.



     (c) As of the Closing Date, for the period from December 31, 2009 through the Closing Date,
there exists no event or circumstance with respect to the Borrower and its Subsidiaries taken as a
whole, either individually or in the aggregate, that has then resulted in, or could then reasonably
be expected to have, a Material Adverse Effect.



63









 





     (d) As of the IPO Closing Date, for the period from December 31, 2009 through the IPO Closing
Date, there exists no event or circumstance with respect to the Borrower and its Subsidiaries taken
as a whole, either individually or in the aggregate, that has then resulted in, or could then
reasonably be expected to have, a Material Adverse Effect.



     5.06 Litigation. Except as disclosed in the Audited Financial Statements, in Schedule
5.06 or pursuant to Section 6.03, (a) there are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of the Borrower, overtly threatened in writing, at law, in
equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of
its Subsidiaries or against any of their properties or revenues that (i) purport to adversely
affect this Agreement or any other Loan Document, or any of the transactions contemplated hereby,
or (ii) either individually or in the aggregate, if determined adversely, could reasonably be
expected to have a Material Adverse Effect, and (b) there has been no adverse change to the
Borrower or its Subsidiaries or any other Loan Party in the status, or financial effect on the
Borrower or its Subsidiaries or any other Loan Party, of the matters described in Schedule
5.06 or disclosed pursuant to Section 6.03, which either individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. Except as disclosed in the Audited Financial Statements, in Schedule
5.07 or pursuant to Section 6.03, neither the Borrower nor its Subsidiaries nor any
other Loan Party is in default of its express and existing obligations under any Contractual
Obligation to which it is a party that could, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. No Default has occurred and is continuing, except
as has been waived in accordance with this Agreement, or as of the Closing Date or the IPO Closing
Date, would result upon the consummation of the transactions contemplated by this Agreement or any
other Loan Document.



     5.08 Ownership of Property; Liens. The Borrower and its Subsidiaries have good and defensible
title to all of their respective material property necessary or used in the ordinary conduct of its
business, free and clear of any (a) impediments in such use of such property except for such
impediments that could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect and (b) Liens, other than Liens permitted by Section 7.01.



     5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct their businesses in
material compliance with applicable Environmental Laws and in the ordinary course of business,
review claims received by, and made against, them which overtly allege liability or responsibility
on any of them for violation by any of them of any material Environmental Law on their respective
businesses, operations and material properties, and as a result thereof, the Borrower reasonably
believes that, except as specifically disclosed in Schedule 5.09 or pursuant to Section
6.03, its non-compliance with any such Environmental Laws and such claims could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Significant Restricted Persons are insured in
compliance with the provisions of Section 6.07.



64









 





     5.11 Taxes. Except as disclosed in accordance with Section 6.03, all Significant
Restricted Persons have complied with and are in compliance with Section 6.04. As of the
Closing Date, neither the Borrower nor any of its Subsidiaries is party to any tax sharing
agreement.



     5.12 ERISA Compliance.



     (a) Except as disclosed in the Audited Financial Statements, in Schedule 5.12 or
pursuant to Section 6.03, each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other applicable Federal or state laws, to the extent
that any non-compliance therewith could reasonably be expected to result in a Material Adverse
Effect. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code
has received a favorable determination letter from the IRS to the effect that the form of such Plan
is qualified under Section 401(a) of the Code and the trust related thereto has been determined by
the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application
for such a letter has been submitted to the IRS. To the knowledge of the Borrower, nothing has
occurred with respect to the Borrower or any ERISA Affiliate that would prevent or cause the loss
of such tax-qualified status.



     (b) Except as disclosed in the Audited Financial Statements, in Schedule 5.12 or
pursuant to Section 6.03, there are no pending or, to the knowledge of the Borrower,
overtly threatened in writing, claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse
Effect. Except as disclosed in the Audited Financial Statements, in Schedule 5.12 or
pursuant to Section 6.03, there has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or, actually known to the
Borrower, could reasonably be expected to result in a Material Adverse Effect.



     (c) Except as disclosed in the Audited Financial Statements, in Schedule 5.12 or
pursuant to Section 6.03, (i) no ERISA Event has occurred, and neither the Borrower nor any
ERISA Affiliate has actual knowledge of any fact, event or circumstance that could reasonably be
expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the
Borrower and each ERISA Affiliate has met, in all material respects, all applicable requirements
under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum
funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the
most recent valuation date for any Pension Plan, the funding target attainment percentage (as
defined in Section 430(d)(2) of the Code) is 60% or higher, and neither the Borrower nor any ERISA
Affiliate has actual knowledge of any facts or circumstances that could reasonably be expected to
cause the funding target attainment percentage for any such plan to drop below 60% as of the most
recent valuation date; (iv) neither the Borrower nor any ERISA Affiliate has incurred any liability
to the PBGC other than for the payment of premiums or obligations of immaterial amounts, and there
are no premium payments which have become due that are delinquent or are being contested in good
faith; (v) neither the Borrower nor any ERISA Affiliate has, to its actual knowledge, engaged in a
transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) to
Borrower’s actual knowledge, no Pension Plan has been terminated by the plan administrator thereof
nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be
expected to cause the PBGC to institute proceedings



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under Title IV of ERISA to terminate any
Pension Plan; in each case with respect to each of the foregoing clauses (i) through (vi) of this
Section 5.12(c), except as disclosed in the Audited Financial Statements, in Schedule
5.12 or pursuant to Section 6.03.




     5.13 Subsidiaries; Equity Interests. As of the Closing Date and the IPO Closing Date, the
Borrower has no Subsidiaries other than those listed in Part (a) of Schedule 5.13, and all
of the outstanding Equity Interests in such Subsidiaries have been validly issued, are (to the
extent applicable or required) fully paid and nonassessable and are owned by the Borrower in the
amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens. As of the
Closing Date and the IPO Closing Date, the Borrower has no equity investments in any corporation or
entity other than those disclosed in Part (b) of Schedule 5.13. As of the IPO Closing
Date, all of the Equity Interests in the Borrower issued pursuant to the Borrower’s initial public
offering pursuant to the Registration Statement have been validly issued and are fully paid and
nonassessable, subject to customary statutory exceptions.



     5.14 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 FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



     (b) Neither the Borrower nor any other Loan Party is regulated under the Investment Company
Act of 1940.



     5.15 Disclosure. There is no fact known to any Restricted Person that has not been disclosed
to the Administrative Agent and the Lenders in writing which, individually or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect. No report, financial
statement, certificate or other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement (including those delivered hereunder or under any other Loan Document
(in each case, as modified or supplemented by other information so furnished, when so modified or
supplemented)) 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 the light of the circumstances
under which they were made, not misleading as of the date made or deemed made (or if such
information expressly relates or refers to an earlier date, as of such earlier date);
provided that, with respect to projected and forecast financial information, the Borrower
represents only that such projections and forecasts were prepared in good faith based upon
assumptions deemed reasonable by it at the time.



     5.16 Compliance with Laws. Except as set forth in Schedule 5.16 or in accordance with
Section 6.03, each Loan Party and each Subsidiary thereof is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith, and if necessary, by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either



66









 




individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.




     5.17 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02, as may be updated or modified from
time to time by notice from the Borrower to the Administrative Agent and Lenders.



ARTICLE VI. AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or (unless a collateral arrangement satisfactory to
the L/C Issuer has been entered into) any Letter of Credit shall remain outstanding, the Borrower
shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, and 6.03, and except in the case of the covenants set forth in Sections
6.04, 6.05, 6.06, 6.07, and 6.08, which shall be limited to
Significant Restricted Persons) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender the following
statements and reports, at the Borrower’s expense:



     (a) (i) promptly upon the filing thereof, and in any event within ninety (90) days after the
end of each fiscal year, a copy of the Borrower’s Form 10-K, which report shall include the
Borrower’s complete Consolidated financial statements together with all notes thereto, prepared in
reasonable detail in accordance with GAAP, together with an opinion, without material
qualification, based on an audit using generally accepted auditing standards, by
PricewaterhouseCoopers LLP, or other independent certified public accountants selected by General
Partner, stating that such Consolidated financial statements have been so prepared, and these
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, and such Consolidated financial
statements shall set forth in comparative form the corresponding figures for the preceding fiscal
year; and (ii) within ninety (90) days after the end of each fiscal year, internally-prepared,
unaudited consolidating balance sheets and income statements for the Significant Restricted Persons
(other than the Borrower); and



     (b) (i) promptly upon the filing thereof, and in any event within sixty (60) days after the
end of each of the first three fiscal quarters of each fiscal year, a copy of the Borrower’s Form
10-Q, which report shall include the Borrower’s unaudited Consolidated balance sheet as of the end
of such fiscal quarter and Consolidated statements of the Borrower’s earnings 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; and (ii) within sixty (60) days after the end of each of the first
three fiscal quarters of each fiscal year, internally-prepared unaudited consolidating balance
sheets and income statements for the Significant Restricted Persons (other than the Borrower).


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







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     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender
(except as otherwise provided in subsection (g) below), in form and detail reasonably satisfactory
to the Administrative Agent:



     (a) within sixty (60) days after the end of each fiscal quarter ending prior to the IPO
Closing Date (commencing with the fiscal quarter ended March 31, 2010), (i) the Borrower’s
unaudited Consolidated balance sheet as of the end of such fiscal quarter and Consolidated
statements of the Borrower’s earnings 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; and (ii)
internally-prepared unaudited consolidating balance sheets and income statements for the
Significant Restricted Persons (other than the Borrower).



     (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter in which the IPO Closing Date occurs), a duly completed Compliance Certificate
signed by the chief financial officer, principal accounting officer or treasurer of General Partner
(i) stating that such Consolidated financial statements are accurate and complete in all material
respects (subject to normal year-end adjustments), (ii) stating that he has reviewed the Loan
Documents, (iii) containing calculations showing compliance (or non compliance) at the end of such
fiscal quarter with the requirements of Section 7.11, (iv) stating that, to the best of his
knowledge, 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, and (v) identifying any
Subsidiary designated as an Unrestricted Subsidiary since the date of the most-recently delivered
prior certificate under this Section 6.02(b) (which delivery may, unless the Administrative
Agent or a Lender requests executed originals, be by electronic communication including fax or
email and shall be deemed to be an original authentic counterpart thereof for all purposes);



     (c) Reserved.



     (d) promptly after the same are publicly available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Borrower, and
copies of all annual, regular, periodic and special reports and registration statements which the
Borrower filed with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and
not otherwise required to be delivered to the Administrative Agent pursuant hereto; and



     (e) Reserved.



     (f) Reserved.



     (g) promptly, to either the Administrative Agent or any Lender who may from time to time
reasonably request, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, in
each case which are not subject to confidentiality restrictions or attorney-client privilege.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) or (g) (to the extent any such documents are included in materials
otherwise filed with the SEC)



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may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower posts such documents, or provides a
link thereto on the Borrower’s website on the Internet at the website address listed on
Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent), and
in either case, the Borrower notifies the Administrative Agent of such posting or link. The
Administrative Agent shall have no obligation to request the delivery of or to maintain paper
copies of the documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.




     The Borrower hereby acknowledges that (a) the Administrative Agent or its authorized
Affiliates will make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks or another similar electronic system (the
“Platform”) and (b) certain of the Lenders (each, a “Public Lender”) do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
that (w) all Borrower Materials that it instructs to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent or its authorized Affiliates, the L/C Issuer and the Lenders to treat such Borrower Materials
as not containing any material non-public information with respect to the Borrower or its
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials so marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Administrative Agent or its authorized Affiliates shall be entitled to
treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Side Information.”



     6.03 Notices. Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event; and



69









 





     (d) within the time frames therein provided, the occurrences with respect to an Unrestricted
Subsidiary which are set forth in Section 7.12(d) and the last paragraph of Section
7.12.



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



     6.04 Payment of Taxes, Etc. (a) Timely file all required tax returns (including any
extensions), (b) timely pay all taxes, assessments, and other governmental charges or levies
imposed upon it or upon its income, profits or property, and (c) maintain appropriate accruals and
reserves for all of the foregoing as required by GAAP, except to the extent that (i) it is in good
faith contesting the validity thereof by appropriate proceedings, if necessary, diligently
conducted and has set aside on its books adequate reserves therefor which are required by GAAP or
(ii) such non-filing, non-payment or non-maintenance would not reasonably be expected to result in
a Material Adverse Effect.



     6.05 Preservation of Existence, Etc. (a) Preserve and maintain its legal existence and good
standing under the Laws of the jurisdiction of its organization; (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary in the normal conduct
of its business; and (c) preserve all of its registered patents, trademarks, trade names and
service marks, except, in each case (i) where the failure so to maintain or preserve (as the case
may be) would not reasonably be expected to cause a Material Adverse Effect or (ii) as permitted in
Section 7.04 or as a result of statutory conversions.



     6.06 Maintenance of Properties. Maintain all of its material properties and equipment that
are necessary in the operation of its business in good working order and condition, ordinary wear
and tear and obsoleteness excepted, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.



     6.07 Maintenance of Insurance. Maintain, with financially sound and reputable insurance
companies, insurance or, at its option, self-insure in such amounts (after giving effect to any
self-insurance compatible with the following standards) and against such risks as are customarily
insured by other Persons engaged in the same or similar businesses and owning similar properties.
The insurance coverages and amounts will be reasonably determined by the Borrower, based on
coverages carried by prudent owners of similar property, and with respect to each other Significant
Restricted Person, may be maintained by the Borrower.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings, if necessary, diligently conducted; or
(b) the failure to comply therewith could not reasonably be expected to have a Material Adverse
Effect.



70









 





     6.09 Books and Records. Maintain full and accurate books of record and account in conformity
with GAAP consistently applied.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and to make copies thereof or abstracts therefrom, and to discuss
its affairs, finances and accounts with its officers and independent public accountants, all at
such reasonable times during normal business hours, upon reasonable advance notice to the Borrower.
Each of the foregoing inspections and examinations shall be made subject to compliance with
applicable safety standards and the same conditions applicable to any Restricted Person in respect
of property of that Restricted Person on the premises of Persons other than a Restricted Person or
an Affiliate of a Restricted Person, and all information, books and records furnished or requested
to be made, all information to be investigated or verified, all copies and abstracts of all
information, books and records and all discussion conducted with any officer, employee or
representative of any Restricted Person, in each case, shall be subject to any applicable
attorney-client privilege exceptions which the Restricted Person determines is reasonably necessary
and compliance with conditions to disclosures under non-disclosure agreements between any
Restricted Person and Persons other than a Restricted Person or an Affiliate of a Restricted Person
and the express undertaking of each Person acting at the direction of or on behalf of any Lender
Party to be bound by the confidentiality provisions of Section 10.07 of this Agreement.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital, capital
expenditures, repayment of intercompany debt, acquisitions not in contravention of Section
7.07, and other general corporate purposes not in violation of any Law applicable to it and not
resulting in a Default or Event of Default.



ARTICLE VII. NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or (unless a collateral arrangement satisfactory to
the L/C Issuer has been entered into) any Letter of Credit shall remain outstanding, the Borrower
shall not, nor shall it permit (except in the case of the covenant set forth in Section
7.04, which shall be limited to Significant Restricted Persons, and in the case of the covenant
in Section 7.06, which shall be limited to the Borrower) any Subsidiary to:



     7.01 Liens. Create, incur, assume or permit to exist any Lien upon (I) any of its property or
upon the Equity Interests of any Subsidiary, whether now owned or hereafter acquired, securing any
Indebtedness owing to PAA or any of its Affiliates, or (II) any of its
Principal Property or upon the Equity Interests of any Subsidiary (other than Unrestricted
Subsidiaries), whether now owned or hereafter acquired, other than the following:



     (a) Liens (i) pursuant to any Loan Document or securing any of the Obligations and (ii) if
required in connection with the foregoing, on a pari-passu basis, any Swap Contracts with Lenders
or their Affiliates;



     (b) Liens pursuant to the Pine Prairie Lease and extensions, renewals and replacements
thereof;



71









 





     (c) Liens for taxes, assessments and levies not yet delinquent or which are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business for amounts which are not overdue for a period of more
than 60 days or which are being contested in good faith and by appropriate proceedings, if
necessary, diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation (other than any Lien
imposed by ERISA), or to secure letters of credit issued with respect thereto;



     (f) deposits to secure the performance of bids, trade contracts, leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business (or to secure letters of
credit issued in connection therewith);



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting 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 materially interfere with the ordinary conduct of the business of the applicable Person;



     (h) inchoate Liens in respect of pending litigation, or Liens securing judgments for the
payment of money (or securing letters of credit, appeal or other surety bonds related to such
judgments) not constituting an Event of Default under Section 8.01(h);



     (i) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided, that (i) such deposit account is
not a dedicated cash collateral account and is not subject to restrictions against access by the
Borrower or any Subsidiary in excess of those set forth by regulations promulgated by the Board of
Governors of the Federal Reserve System or pursuant to the Security Documents, and (ii) such
deposit account is not intended by the Borrower or any Subsidiary to provide collateral to the
depository institution;



     (j) Liens arising out of all presently existing and future division and transfer orders,
advance payment agreements, processing contracts, gas processing plant agreements, operating
agreements, gas balancing or deferred production agreements, pooling, unitization or
communitization agreements, pipeline, gathering or transportation agreements, platform agreements,
drilling contracts, injection or repressuring agreements, cycling agreements, construction
agreements, salt water or other disposal agreements, leases or rental agreements, farm-out and
farm-in agreements, exploration and development agreements, and any and all other contracts or
agreements covering, arising out, used or useful in connection with or pertaining to the
exploration, development, operation, production, sale, use, purchase, exchange,



72









 




storage,
separation, dehydration, treatment, compression, gathering, transportation, processing,
improvement, marketing, disposal, or handling of any oil and gas property of any Loan Party;




     (k) Liens in respect of operating leases;



     (l) Liens securing Acquired Indebtedness, provided that (i) each such Lien (A) existed
at the time of its acquisition and was not created in anticipation thereof, or (B) was created
solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or
refund, the cost (including the cost of construction) of such property or asset, (ii) no such Lien
shall extend to or cover any property or asset other than the property or asset so acquired (or
constructed), and any extension, renewal, refinancing, refunding or replacement (or successive
extensions, renewals, refinancings, refundings or replacements), in whole or part, of the
foregoing, and (iii) such Lien shall not secure any additional Indebtedness and obligations;



     (m) 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;



     (n) 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 any Restricted Person or the use thereof
or the rights and interests of any Restricted Person therein, in any manner under any and all Laws;



     (o) rights reserved to the grantors of any properties of any Restricted Person, 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; and



     (p) Liens otherwise not permitted herein which secure obligations in an aggregate principal
amount not to exceed at any time outstanding 10% of Borrower’s Consolidated Tangible Net Worth.



     7.02 Reserved.



     7.03 Indebtedness. No Subsidiary will create, incur, assume or permit to exist any
Indebtedness, except:



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness of any wholly-owned Restricted Subsidiary owing to the Borrower or any other
wholly-owned Restricted Subsidiary;



     (c) Acquired Indebtedness of any Subsidiary that is a Loan Party;



     (d) Indebtedness incurred to finance Cash and Carry Purchases;



73









 





     (e) Indebtedness under the Pine Prairie Lease and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such extensions, renewals and replacements; and



     (f) other Indebtedness not otherwise permitted pursuant to the foregoing clauses (a), (b),
(c), (d) and (e) in an aggregate principal amount at any time outstanding not to exceed 10% of the
Borrower’s Consolidated Tangible Net Worth, calculated without regard to the Indebtedness permitted
pursuant to the immediately preceding clauses (a), (b), (c), (d) and (e).



     7.04 Fundamental Changes; Dispositions. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of related transactions)
all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of
any Person, except that, so long as no Default exists or, upon giving pro forma effect thereto,
would result therefrom:



     (a) the Borrower or any of its Subsidiaries may merge with another Person, provided
that the Borrower or the applicable Subsidiary is the acquiring or surviving entity (or, with
respect to any merger by a wholly-owned Subsidiary of the Borrower, the surviving entity becomes a
wholly-owned Subsidiary in the transaction); and



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must either be
the Borrower or a wholly-owned Subsidiary.


     7.05 Reserved.




     7.06 Restricted Payments. Declare or make any Restricted Payment unless no Default or
Event of Default has occurred and is continuing or, immediately after giving effect thereto, would
result therefrom.



     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from (a) any of those lines of business conducted by the Borrower and its Subsidiaries as
described in the Registration Statement or (b) the businesses of any of transportation, supply and
logistics, and in each case with respect to the foregoing clauses (a) and (b), any business,
activities or services reasonably related or incidental thereto, but in no event will enter into
Swap Contracts except in the ordinary course of its business, with the intent and for the purpose
of mitigating and managing risks and in accordance with the policies described in the Borrower’s
most-recently filed Annual Report on Form 10-K (or, prior to the filing of the Borrower’s initial
Annual Report on Form 10-K, the Registration Statement), and not for speculative purposes.



     7.08 Transactions with Affiliates. Enter into any material transaction of any kind with any
Affiliate of the Borrower, whether or not in the ordinary course of business, other than on fair
and reasonable terms that are no less favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in an arm’s length



74









 




transaction with a
Person other than an Affiliate, provided that the foregoing restriction shall not apply to
any of the following transactions: (a) transactions between or among the Borrower and any of its
Subsidiaries or between and among any Subsidiaries; (b) any employment, equity award, equity option
or equity appreciation agreement or plan entered into by the Borrower or any of its Subsidiaries in
the ordinary course of business of the Borrower or such Subsidiary; (c) transactions effected in
accordance with the terms of tax sharing, management services, indemnification, omnibus and other
agreements with PAA and its Affiliates contemplated in and/or attached as exhibits to the
Registration Statement; (d) customary compensation, indemnification and other benefits made
available to officers, directors or employees of the Borrower, any of its Subsidiaries or the
General Partner, including reimbursement or advancement of out-of-pocket expenses and provisions of
officers’ and directors’ liability insurance; and (e) transactions as contemplated by the
Borrower’s agreement of limited partnership.




     7.09 Burdensome Agreements. Except as expressly provided for in the Loan Documents, as
described in any Schedule hereto or pursuant to a Restriction Exception, the substance of which, in
detail reasonably satisfactory to the Administrative Agent, is promptly reported to Administrative
Agent, enter into any Contractual Obligation that limits the ability (a) of any Subsidiary to make
Restricted Payments to the Borrower or otherwise to transfer property to the Borrower, (b) of any
Subsidiary to redeem Equity Interests held in it by the Borrower, (c) of any Subsidiary to repay
loans and other Indebtedness owing by it to the Borrower, (d) of any Subsidiary to Guarantee the
Indebtedness of the Borrower or (e) of the Borrower or any Subsidiary to create, incur, assume or
permit to exist Liens on property of such Person, provided, however, that this
clause (e) shall not prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness secured by (i) Liens permitted under Section 7.01(l), solely to the extent any
such negative pledge relates to the property financed by or the subject of such
Indebtedness, or (ii) Liens securing Indebtedness in respect of Capital Leases, Synthetic
Lease Obligations and purchase money obligations for fixed or capital assets, solely to the extent
any such Lien relates to the property leased thereunder or financed thereby.



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



     7.11 Financial Covenants.



     (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as
of the end of any fiscal quarter of the Borrower (the “Test Quarter”), commencing with the
fiscal quarter next following the fiscal quarter in which the IPO Closing Date occurs (the
“Initial Test Quarter”), to be less than 3.00:1.00, calculated on a trailing four-quarter
basis; provided, for the Initial Test Quarter, and for the next three following fiscal
quarters, the Consolidated Interest Coverage Ratio shall be calculated based on Consolidated EBITDA
and Consolidated Interest Charges for the period commencing with the Initial Test Quarter and
through the end of such Test Quarter.



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     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any
fiscal quarter of the Borrower, commencing with the fiscal quarter in which the IPO Closing Date
occurs, to be greater than the ratio set forth below opposite such period, calculated, with respect
to Consolidated EBITDA, on a trailing four-quarter basis:



	 	 	 
	 	 	
	Applicable Period	 	Maximum Consolidated Leverage Ratio
	(i) During an Acquisition Period
	 	5.50:1.0
	(ii) Other than during an Acquisition Period
	 	4.75:1.0





provided; for purposes of this Section 7.11(b), Consolidated EBITDA may include, at
Borrower’s option, any New Cavern EBITDA Adjustments and Material Project EBITDA Adjustments as
provided below.




     As used herein, “New Cavern EBITDA Adjustments” means, with respect to each new gas
storage cavern at the Pine Prairie Storage Facility which achieves commercial operation (the date
on which such commercial operation is achieved, the “New Cavern Commercial Operations
Date”) after the Closing Date, an amount submitted by the Borrower and approved by
Administrative Agent as the projected Consolidated EBITDA attributable to the additional storage
capacity attributable to such new gas storage cavern (initially giving pro forma effect as if such
New Cavern Commercial Operations Date occurred on the first day of the fiscal quarter in which it
occurred, and thereafter such pro forma quarterly adjustments rolling off and being replaced by
actual performance on a quarterly basis). New Cavern EBITDA Adjustments shall
be based only on (i) projected revenues from firm fixed-fee storage contracts (subject to
adjustments for customer creditworthiness) and tariffs relating to such new cavern, less expenses,
(ii) the New Cavern Commercial Operations Date with respect to each such new cavern, and (iii)
other factors reasonably deemed appropriate by Administrative Agent.



     As used herein, “Material Project EBITDA Adjustments” means, with respect to the
construction or expansion of any capital project of the Borrower or any of its Subsidiaries
(excluding, for the avoidance of doubt, Unrestricted Subsidiaries), the aggregate capital cost of
which (inclusive of capital costs expended prior to the acquisition thereof) is reasonably expected
by Borrower to exceed, or exceeds, $20,000,000 (a “Material Project”):




     (A) prior to the date on which a Material Project has achieved commercial operation
(the “Commercial Operation Date”) (but including the fiscal quarter in which such
Commercial Operation Date occurs), a percentage (based on the then-current completion
percentage of such Material Project) of an amount to be approved by Administrative Agent as
the projected Consolidated EBITDA attributable to such Material Project for the first
12-month period following the scheduled Commercial Operation Date of such Material Project,
such amount based only on (i) projected revenues from firm fixed-fee contracts (subject to
adjustments for customer creditworthiness) and tariffs relating to such Material Project,
less expenses, (ii) projected Commercial Operations Date (to be no more than 18 months from
the fiscal quarter in which such Material Project EBITDA Adjustment is initially proposed),
and (iii) other



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factors reasonably deemed appropriate by Administrative Agent, which may, at
Borrower’s option, be added to actual Consolidated EBITDA for the fiscal quarter in which
construction or expansion of such Material Project commences and for each fiscal quarter
thereafter until the Commercial Operation Date of such Material Project (including the
fiscal quarter in which such Commercial Operation Date occurs, but net of any actual
Consolidated EBITDA attributable to such Material Project following such Commercial
Operation Date); provided that if the actual Commercial Operation Date does not
occur by the scheduled Commercial Operation Date, then the foregoing amount shall be
reduced, for quarters ending after the scheduled Commercial Operation Date to (but
excluding) the first full quarter after its Commercial Operation Date, by the following
percentage amounts depending on the period of delay (based on the period of actual delay or
then-estimated delay, whichever is longer): (i) 90 days or less, 0%, (ii) longer than 90
days, but not more than 180 days, 25%, (iii) longer than 180 days but not more than 270
days, 50%, (iv) longer than 270 days but not more than 365 days, 75%, and (v) longer than
365 days, 100%;




     (B) beginning with the first full fiscal quarter following the Commercial Operation
Date of a Material Project and for the two immediately succeeding fiscal quarters, an amount
equal to the projected Consolidated EBITDA attributable to such Material Project for the
balance of the four full fiscal quarter period following such Commercial Operation Date,
which may, at Borrower’s option, be added to actual Consolidated EBITDA for such fiscal
quarters; and




     (C) the aggregate amount of all Material Project EBITDA Adjustments during any period
shall be limited to 15% of the total actual Consolidated EBITDA for such period (which total
actual Consolidated EBITDA shall be determined without including any pro forma adjustments
of any kind).



     Borrower shall, prior to the last day of any fiscal quarter for which Borrower desires to
include New Cavern EBITDA Adjustments or Material Project EBITDA Adjustments, deliver to
Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent and
certified by a financial officer of the Borrower, written pro forma projections of Consolidated
EBITDA attributable to New Cavern EBITDA Adjustments or Material Project EBITDA Adjustments, and
such other related information and documentation reasonably requested by and reasonably
satisfactory to Administrative Agent in all respects, including with respect to Material Project
EBITDA Adjustments, certification as to Material Project completion percentage, expected Commercial
Operations Date and no material delays with respect thereto.



     7.12 Unrestricted Subsidiaries. So long as no Default or Event of Default has occurred and is
continuing, and after giving effect to such designation on a pro forma basis, no Default or Event
of Default would result therefrom, the Borrower or any wholly-owned Subsidiary of the Borrower may
designate one or more Subsidiaries as unrestricted Subsidiaries (each such Subsidiary, and each of
its Subsidiaries, an “Unrestricted Subsidiary”), which Unrestricted Subsidiaries shall be
subject to the following:



     (a) No Unrestricted Subsidiary shall be deemed to be a “Restricted Person” or a “Subsidiary”
of the Borrower for purposes of this Agreement or any other Loan Document, and



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no Unrestricted
Subsidiary shall be subject to or included within the scope of any provision herein or in any other
Loan Document, including without limitation any representation, warranty, covenant or Event of
Default herein or in any other Loan Document, except as set forth in this Section 7.12.




     (b) No Restricted Person shall guarantee or otherwise become liable in respect of any
Indebtedness of, grant any Lien on any of its property (other than its Equity Interests in an
Unrestricted Subsidiary) to secure any Indebtedness of or other obligation of, or provide any other
form of credit support to, any Unrestricted Subsidiary, and no Restricted Person shall enter into
any contract or agreement with any Unrestricted Subsidiary, except on terms no less favorable to
such Restricted Person, as applicable, than could be obtained in a comparable arm’s length
transaction with a non-Affiliate of such Restricted Person; provided, Restricted Persons
may guarantee trade accounts payable of Unrestricted Subsidiaries that arise in the ordinary course
of business in an amount not to exceed five percent (5%) of Consolidated Tangible Net Worth.



     (c) Borrowers shall at all times maintain, as between Restricted Persons and Unrestricted
Subsidiaries, the separate existence of each Unrestricted Subsidiary.



     (d) Restricted Persons shall notify each Lender Party, not later than five (5) Business Days
after any executive officer of Restricted Persons has knowledge of, any claim, including
any claim under any Environmental Law, or any notice of potential liability under any
Environmental Law, asserted against any Unrestricted Subsidiary or with respect to any Unrestricted
Subsidiary’s properties that would reasonably be expected to result in a Material Adverse Effect,
stating that such notice is being given pursuant to this Section 7.12.



     Borrower may designate any Unrestricted Subsidiary to become a Restricted Person if a Default
or Event of Default is not continuing, such designation would not, immediately after giving effect
thereto, result in a Default or an Event of Default, and immediately thereafter such Subsidiary has
no outstanding Indebtedness. Immediately thereafter, Borrower shall promptly notify Administrative
Agent of such designation and provide to it an officer’s certificate that such designation was made
in compliance with this Section 7.12.



ARTICLE
VIII. EVENTS OF DEFAULT AND REMEDIES




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



     (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when due and
payable, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business
Days after the same becomes due and payable, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder pursuant to Section 2.10, or (iii) within five Business Days after
the same becomes due, any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.03 or Article VII; or



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     (c) Other Defaults. Any Loan Party fails to perform or comply with any of its
obligations under any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document to which it is a party on its part to be performed or complied with
and such failure continues for 30 days after notice of such failure is given by the Administrative
Agent to the Borrower; or



     (d) Representations and Warranties. Any representation or warranty made or deemed
made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or
in any document delivered in connection herewith or therewith shall be incorrect or misleading when
made or deemed made in any material respect; or



     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any payment
when due and payable (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) of any principal of or interest on any Indebtedness (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) in an aggregate principal amount exceeding the Threshold
Amount, and such failure continues after the passing of the applicable notice and grace periods,
(other than such Indebtedness the validity of which is being contested in good faith, by
appropriate proceedings (if necessary) and for which adequate reserves with respect thereto are
maintained on the books of such Restricted Person as required by GAAP) or (B) fails to observe or
perform any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, in each case, beyond the applicable grace, cure, extension,
forbearance or similar period, if the effect of which failure or other event is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder
or holders) to cause, with the giving of notice 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, prior to its stated
maturity; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which
the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount
(other than such hedging obligations the validity of which is being contested in good faith, by
appropriate proceedings (if necessary) and for which adequate reserves with respect thereto are
maintained on the books of such Restricted Person as required by GAAP); or



     (f) Insolvency Proceedings, Etc. Any Loan Party, any other Significant Restricted
Person or the General Partner institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents
to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all
or any material part of its property is instituted without the consent of such Person and



79









 




continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any other Significant
Restricted Person becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process
is issued or levied against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 60 days after its issue or levy; or



     (h) Judgments. There is entered against any Significant Restricted Person a final
judgment for the payment of money in an aggregate amount (as to all such judgments or orders)
exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as
to which the insurer has not disputed coverage) and prior to the discharge thereof, (i) enforcement
proceedings are lawfully commenced by any creditor upon such judgment, or (ii) there is a period of
30 consecutive days after the entry of such judgment during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



     (j) Change of Control. There occurs any Change of Control.



     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 Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated or suspended (as the case may be), whereupon such
commitments and obligation shall be terminated or suspended (as the case may be);



     (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 L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



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



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provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts that have accrued and are owing as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C
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 L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.17 and 2.18, 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, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer (including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) and amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the 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 L/C Borrowings, ratably among the Lenders and the L/C 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 L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections
2.04 and 2.17; 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.


Subject to Sections 2.04(c) and 2.17, amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to
satisfy drawings




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under such Letters of Credit as they occur. If any amount remains on deposit as
Cash 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 L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of
any of such provisions (other than the right to reasonably approve a successor Administrative
Agent pursuant to Section 9.06).



     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 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 Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; 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.




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     The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall
be necessary, under the circumstances as provided in Sections 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 L/C Issuer.



     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 L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C 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. (a) The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower, which



83









 




notice shall set
forth the proposed date of resignation. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right to appoint a successor (subject to the approval of the
Borrower, unless an Event of Default has occurred and is continuing, which approval shall not be
unreasonably withheld), which shall be a bank with an office in the United States, or an Affiliate
of any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the L/C 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 collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such collateral security 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 L/C Issuer directly, until such time as the Required 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.




     (b) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender. 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 L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C 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 arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C 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



84









 




decision to enter into this Agreement. Each
Lender and the L/C 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 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
Bookrunners, Arrangers, Syndication Agents or Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations 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 L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.04(i) and (j), 2.10 and 10.04) 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 L/C 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 L/C 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 2.10 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 L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer in any such proceeding.



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     9.10 Collateral Matters. The Lenders and the L/C Issuer irrevocably authorize the Administrative
Agent, at its option and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit (other than Letters of Credit as to which
other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have
been made), (ii) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document, or (iii) subject to Section
10.01, if approved, authorized or ratified in writing by the Required Lenders; and




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



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property pursuant to this Section 9.10.



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 or any other Loan Party therefrom, shall
be effective unless in writing signed by the Required Lenders and the Borrower or the applicable
Loan Party, 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
(excluding mandatory prepayments) 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 L/C
Borrowing, or (subject to clause (iv) 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 Required Lenders shall be necessary (i) 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 or (ii)



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to amend any financial covenant hereunder (or any defined term used therein) even if the effect of
such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce
any fee payable hereunder;




     (e) change Section 2.14 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 “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C 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 Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letters may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the applicable Lenders other
than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be
increased or extended without the consent of such Lender and (y) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender that by its terms affects
any Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.




     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 L/C Issuer or the Swing Line
Lender, 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 (including, as
appropriate, notices delivered solely to the Person designated by a Lender on its



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Administrative Questionnaire then in effect for the delivery of notices that may contain
material non-public information relating to the Borrower).


Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices and other
communications 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 and other communications
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 L/C 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 L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent and the Borrower 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 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) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to



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the
extent that such losses, claims, damages, liabilities or expenses have resulted from such Agent
Party’s gross negligence, willful misconduct or material breach of any of its obligations under any
Loan Document; provided, however, that in no event shall any party hereto, Related
Party of any party hereto or Agent Party have any liability to each other party hereto, its Related
Parties, any Agent Party or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).




     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender 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, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available through the
“Public Side Information” portion of the Platform and that may contain material non-public
information with respect to the Borrower or its securities for purposes of United States Federal or
state securities laws.



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line 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 L/C 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,
as provided in Section 10.04(b). All telephone notices to and other telephonic
communications with the Administrative Agent may be recorded by any person a party thereto, and
each of the parties hereto consent to such recording.



     10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C 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.



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     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.08 (subject to the terms of Section 2.14), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.



     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
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the L/C 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 L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative
Agent, any Lender or the L/C 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 L/C Issuer (each such Person being called an
“Indemnitee”) against any and all liabilities, obligations, claims, losses, damages,
penalties, fines, actions, judgments, suits, settlements, costs, expenses or disbursements
(including reasonable fees of attorneys, accountants, experts and advisors) of any kind or nature
whatsoever (in this section collectively called “liabilities and costs”) which to any extent (in
whole or in part) may be imposed on, incurred by, or asserted against such Lender Party growing out
of, resulting from or in any other way associated with the Loan Documents and the



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     transactions and
events (including the enforcement or defense thereof) at any time associated therewith or
contemplated therein and the Borrower’s use of Loan proceeds (whether arising in contract or in
tort or otherwise and including any violation or noncompliance with any Environmental Laws by any
Indemnitee or any other Person or any liabilities or duties of any Indemnitee or any other Person
with respect to Hazardous Materials found in or released into the environment). In the case of an
investigation, litigation or proceeding to which the indemnity in this Section 10.04
applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, any of its equity holders, Affiliates or creditors or an
Indemnitee or any third party and whether or not an Indemnitee is otherwise a party thereto.



     (c) THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN
ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY
OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE ,
provided only that no Indemnitee shall be entitled under this section to receive indemnification
for that portion, if any, of any liabilities and costs which (i) is proximately caused by its own
(A) individual gross negligence or willful misconduct, as determined in a final judgment, or (B)
material breach of any of its obligations hereunder or under any other Loan Documents, as
determined in a final judgment or (ii) arises by reason of a claim (A) by any one or more
Indemnitees against any one or more other Indemnitees or (B) by an equity-interest owner of any
Indemnitee against any one or more Indemnitees, so long as in either such case, such claim is not
proximately caused solely by the breach hereunder or under any other Loan Document by the Borrower
or its Affiliates. If any Person (including the Borrower or any of its Affiliates) ever alleges
gross negligence or willful misconduct pursuant to the preceding clause (i)(A) (but, for the
avoidance of doubt, not with respect to an allegation of a material breach pursuant to the
preceding clause (i)(B)) by any Indemnitee, the indemnification provided for in this section shall
nonetheless be paid upon demand, subject to later adjustment or reimbursement, until such time
as a court of competent jurisdiction enters a final judgment as to the extent and effect of the
alleged gross negligence or willful misconduct. As used in this section the term “Indemnitee”
shall refer not only to each Person designated as a Lender Party in Section 1.01 but also
to each director, officer, trustee, agent, attorney, employee, representative and Affiliate of such
Persons. So long as no Default has occurred and is continuing and the Borrower is financially
solvent, no Indemnitee may settle any claim to be indemnified without the consent of the Borrower,
such consent not to be unreasonably withheld; provided that the Borrower may not reasonably
withhold consent to any settlement that an Indemnitee proposes, if the Borrower does not have the
financial ability to pay all its obligations outstanding and asserted against the Borrower at that
time, including the maximum potential claims against the Indemnitee to be indemnified pursuant to
this Section 10.04.



     (d) 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 L/C Issuer or any applicable Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed



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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) or the L/C 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) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.13(d).




     (e) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no party hereto or Related Party of any party hereto shall assert, and hereby
waives, any claim against each other party hereto and its Related Parties (including, as
applicable, each 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 other than as a result of such Indemnitee’s gross negligence, willful misconduct
or material breach of any of its obligations under any Loan Document.



     (f) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor and the Borrower’s receipt of reasonably detailed invoices or
statements related thereto.



     (g) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, 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 L/C Issuer or any Lender, or the Administrative Agent, the L/C 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 to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent, the L/C
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 L/C 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



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the Lenders and the L/C 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 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 L/C 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 L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, 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, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee



93









 






Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of the Swing Line Lender’s rights and
obligations in respect of Swing Line Loans;




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




     (A) the consent of the Borrower (such consent not to be unreasonably withheld)
shall be required unless (1) an Event of Default has occurred and is continuing at
the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund; provided that the Borrower shall be
deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within five (5) Business Days after
having received notice thereof;




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




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
such assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.




     (iv) Assignment and Assumption. The parties to each assignment permitted by
Section 10.06(b) shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount of $3,500;
provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.




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



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


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 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 (and such agency being solely for tax purposes), 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 L/C Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative
Agent shall maintain on the Register information regarding the designation, and revocation of
designation, of any Lender as a Defaulting Lender. The Register shall be



95









 




available for inspection
by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.




     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender 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 L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C 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 and the obligations imposed by such Sections and shall be
subject to replacement pursuant to Section 3.06 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 2.14 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, 3.04 or 3.05 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) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America



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may, (i) upon 30 days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to
the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or
Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C
Issuer or Swing Line Lender hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C
Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.04(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of
the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.05(c). Upon the appointment of a successor L/C Issuer and/or
Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be,
and (b) the successor L/C 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 arrangements satisfactory to Bank of America to effectively assume
the obligations of Bank of America with respect to such Letters of Credit.




     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the
Lenders and the L/C Issuer (for itself and each of its Related Parties) 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, trustees, 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 and will maintain such confidences), (b) to the
extent requested or required by applicable laws or regulations or by any subpoena or similar legal
process, (c) subject to this Section 10.07, to any other party hereto, (d) 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 in connection with any Default
or anticipated Default, the enforcement of rights hereunder or thereunder, (e) 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 any Proposed Lender invited to be a Lender pursuant to
Section 2.16(c) or (ii) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to, and requested by, the Borrower and its obligations, (f)
with the consent of the Borrower or (g) 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 L/C 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 relating to the Borrower or any Subsidiary or any Affiliate of any of them, or
any of their respective businesses, other than any such information that is available to



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the
Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure
by the Borrower or any Subsidiary, provided that, in the case of information received from the
Borrower or any 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.




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



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender,
the L/C 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 L/C 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 L/C Issuer, irrespective of whether or
not such Lender or the L/C 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 L/C Issuer different from the branch or office holding
such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting
Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over
immediately to the Administrative Agent for further application in accordance with the provisions
of Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender
from its other funds and deemed held in trust for the benefit of the Administrative Agent and the
Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to
which it exercised such right of setoff. The rights of each Lender, the L/C 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 L/C Issuer or their respective Affiliates may have.
Each Lender and the L/C 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)



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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. 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 or other electronic
imaging means 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. Without limiting the foregoing provisions of this Section
10.12, if and to the extent that the enforceability of any provisions in this Agreement
relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith
by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such
provisions shall be deemed to be in effect only to the extent not so limited.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04 or
gives a notice pursuant to Section 3.02 (which notice is not given by other similarly
situated Lenders) and does not subsequently designate a different Lending Office or assign its
rights and obligations hereunder to another of its offices, branches or affiliates as provided in
Section 3.06(a), or if the Borrower is required to pay any additional amount to any Lender
or any



99









 




Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender is a Defaulting Lender, or if any other circumstance exists hereunder that gives the
Borrower the right to replace a Lender as a party hereto, 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 100% of the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees 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, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.



     (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



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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 L/C 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 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 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this Agreement
provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions
between the Borrower and its Affiliates, on the one hand, and the Administrative Agent and the
Arrangers, on the other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is capable of
evaluating, and understands and accepts, the




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terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (b) (i) the Administrative Agent and the Arrangers each is and has been acting solely as
a principal and, except as expressly agreed in writing by the relevant parties, has not been, is
not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its
Affiliates, or any other Person and (ii) neither the Administrative Agent nor any Arranger has any
obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c)
the Administrative Agent and the Arrangers and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor any Arranger has any obligation to disclose
any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law,
the Borrower hereby waives and releases any claims that it may have against the Administrative
Agent and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.




     10.17 No Recourse to Other Persons. No past, present or future director, officer, partner,
employee, incorporator, manager, stockholder, unitholder or member of the Borrower, General
Partner, PAA, PAA GP LLC, a Delaware limited liability company, Plains AAP, L.P., a Delaware
limited partnership, or Plains All American GP LLC, a Delaware limited liability company, and no
past, present or future director, officer, partner, employee, incorporator, manager, stockholder,
unitholder or member of any Subsidiary of the Borrower or PAA shall have any liability for any
Obligations or for any claim based on, in respect of, or by reason of, the Obligations or their
creation. Each party hereto, for itself and each of its Related Parties, waives and releases all
such liability. The waiver and release are part of the consideration for the incurrence of
Indebtedness by the Borrower hereunder and, as applicable, the making of the Notes.



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



     10.19 USA PATRIOT Act. 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 shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other information that is in its
or any of its Subsidiary’s possession or control which the Administrative Agent or such Lender
requests in order to comply with its ongoing



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obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act (and if any of such requested documentation and other information is
not in the Borrower’s or any of its Subsidiary’s possession or control, will use its commercially
reasonable efforts to obtain such information and other documentation).




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



     10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



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



	 	 	 	 	 
	 	PAA NATURAL GAS STORAGE, L.P.

 	 
	 	By:  	PNGS GP LLC, its general partner
 	 



	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

	 	 
	 

	 	 	Name:  	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	Title:	 	 	 
	 

	 	 	 	 

	 	 






S - 1









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as

Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

	 	 
	 

	 	 	Name:  	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	Title:	 	 	 
	 

	 	 	 	 

	 	 






S - 2









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender, L/C

Issuer and Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

	 	 
	 

	 	 	Name:  	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	Title:	 	 	 
	 

	 	 	 	 

	 	 






S - 3









 






	 	 	 	 	 	 	 
	 	 	DNB NOR BANK ASA, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

	 	 
	 

	 	 	Name:  	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	Title:	 	 	 
	 

	 	 	 	 

	 	 






S - 4









 






OTHER LENDERS





S - 5