exv10w1



 




Exhibit 10.1




 





CREDIT AGREEMENT




Dated as of ____________, 2005




among




DCP MIDSTREAM OPERATING, LP

as the Borrower,




DCP MIDSTREAM PARTNERS, LP

and its subsidiaries

as Guarantors,




THE LENDERS PARTY HERETO




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent




 





SUNTRUST BANK,




as Syndication Agent,




and




WACHOVIA CAPITAL MARKETS, LLC




and




SUNTRUST CAPITAL MARKETS, INC.,




as Co-Lead Arrangers and Joint Book Runners




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	SECTION 1. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.1	 	  Definitions
	 	 	1	 
	1.2	 	  Computation of Time Periods
	 	 	17	 
	1.3	 	  Accounting Terms
	 	 	18	 
	1.4	 	  Time
	 	 	18	 
	 	 	 
	 	 	 	 
	SECTION 2. LOANS	 	 	18	 
	2.1	 	  Revolving and Term Loan Commitments
	 	 	18	 
	2.2	 	  Letters of Credit
	 	 	18	 
	2.3	 	  Method of Borrowing for Revolving Loans and Term Loans
	 	 	23	 
	2.4	 	  Funding of Revolving Loans and Term Loans
	 	 	23	 
	2.5	 	  Continuations and Conversions
	 	 	23	 
	2.6	 	  Minimum Amounts
	 	 	24	 
	2.7	 	  Reductions of Revolving Committed Amount
	 	 	24	 
	2.8	 	  Swingline Loans
	 	 	24	 
	2.9	 	  Notes
	 	 	26	 
	2.10	 	  Increases in Revolving Committed Amount
	 	 	26	 
	 	 	 
	 	 	 	 
	SECTION 3. PAYMENTS	 	 	27	 
	3.1	 	  Interest
	 	 	27	 
	3.2	 	  Prepayments
	 	 	27	 
	3.3	 	  Payment of Loans in full at Maturity
	 	 	28	 
	3.4	 	  Fees
	 	 	28	 
	3.5	 	  Place and Manner of Payments
	 	 	29	 
	3.6	 	  Pro Rata Treatment
	 	 	30	 
	3.7	 	  Computations of Interest and Fees
	 	 	30	 
	3.8	 	  Sharing of Payments
	 	 	31	 
	3.9	 	  Evidence of Debt
	 	 	31	 
	 	 	 
	 	 	 	 
	SECTION 4. ADDITIONAL PROVISIONS	 	 	32	 
	4.1	 	  Eurodollar Loan Provisions
	 	 	32	 
	4.2	 	  Capital Adequacy
	 	 	34	 
	4.3	 	  Compensation
	 	 	34	 
	4.4	 	  Taxes
	 	 	35	 
	4.5	 	  Replacement of Lenders
	 	 	37	 
	 	 	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT	 	 	37	 
	5.1	 	  Closing Conditions
	 	 	37	 
	5.2	 	  Conditions to Loans and Issuances of Letters of Credit
	 	 	40	 
	 	 	 
	 	 	 	 
	SECTION 6. REPRESENTATIONS AND WARRANTIES	 	 	40	 
	6.1	 	  Organization and Good Standing
	 	 	40	 
	6.2	 	  Due Authorization
	 	 	41	 
	6.3	 	  No Conflicts
	 	 	41	 
	6.4	 	  Consents
	 	 	41	 
	6.5	 	  Enforceable Obligations
	 	 	41	 
	6.6	 	  Financial Condition/Material Adverse Effect
	 	 	41	 
	6.7	 	  Taxes
	 	 	41	 






i









 






	 	 	 	 	 	 	 
	6.8	 	  Compliance with Law
	 	 	42	 
	6.9	 	  Use of Proceeds; Margin Stock
	 	 	42	 
	6.10	 	  Government Regulation
	 	 	42	 
	6.11	 	  Solvency
	 	 	42	 
	6.12	 	  Environmental Matters
	 	 	42	 
	6.13	 	  Subsidiaries
	 	 	42	 
	6.14	 	  Litigation
	 	 	43	 
	6.15	 	  Collateral
	 	 	43	 
	6.16	 	  Material Contracts
	 	 	43	 
	6.17	 	  Anti-Terrorism Laws
	 	 	43	 
	6.18	 	  Compliance with OFAC Rules and Regulations
	 	 	43	 
	6.19	 	  Compliance with FCPA
	 	 	43	 
	 	 	 
	 	 	 	 
	SECTION 7. AFFIRMATIVE COVENANTS	 	 	44	 
	7.1	 	  Information Covenants
	 	 	44	 
	7.2	 	  Preservation of Existence and Franchises
	 	 	46	 
	7.3	 	  Books and Records
	 	 	46	 
	7.4	 	  Compliance with Law
	 	 	46	 
	7.5	 	  Payment of Taxes and Other Indebtedness
	 	 	46	 
	7.6	 	  Maintenance of Property; Insurance
	 	 	47	 
	7.7	 	  Use of Proceeds
	 	 	47	 
	7.8	 	  Audits/Inspections
	 	 	47	 
	7.9	 	  Maintenance of Ownership
	 	 	47	 
	7.10	 	  Financial Covenants
	 	 	48	 
	7.11	 	  Material Contracts
	 	 	48	 
	7.12	 	  Additional Guarantors
	 	 	48	 
	7.12	 	  Cash Collateral
	 	 	49	 
	 	 	 
	 	 	 	 
	SECTION 8. NEGATIVE COVENANTS	 	 	50	 
	8.1	 	  Nature of Business
	 	 	51	 
	8.2.	 	  Liens
	 	 	51	 
	8.3	 	  Consolidation and Merger
	 	 	52	 
	8.4	 	  Dispositions
	 	 	53	 
	8.5	 	  Transactions with Affiliates
	 	 	53	 
	8.6	 	  Indebtedness
	 	 	54	 
	8.7	 	  Investments
	 	 	54	 
	8.8	 	  Restricted Payments
	 	 	55	 
	 	 	 
	 	 	 	 
	SECTION 9. EVENTS OF DEFAULT	 	 	56	 
	9.1	 	  Events of Default
	 	 	56	 
	9.2	 	  Acceleration; Remedies
	 	 	58	 
	9.3	 	  Allocation of Payments After Event of Default
	 	 	59	 
	 	 	 
	 	 	 	 
	SECTION 10. AGENCY PROVISIONS	 	 	60	 
	10.1	 	  Appointment
	 	 	60	 
	10.2	 	  Delegation of Duties
	 	 	60	 
	10.3	 	  Exculpatory Provisions
	 	 	60	 
	10.4	 	  Reliance on Communications
	 	 	61	 
	10.5	 	  Notice of Default
	 	 	61	 
	10.6	 	  Non-Reliance on Agent and Other Lenders
	 	 	61	 
	10.7	 	  Indemnification
	 	 	62	 






ii









 






	 	 	 	 	 	 	 
	10.8	 	  Agent in Its Individual Capacity
	 	 	62	 
	10.9	 	  Successor Agent
	 	 	62	 
	 	 	 
	 	 	 	 
	SECTION 11. MISCELLANEOUS	 	 	63	 
	11.1	 	  Notices
	 	 	63	 
	11.2	 	  Right of Set-Off
	 	 	63	 
	11.3	 	  Benefit of Agreement
	 	 	63	 
	11.4	 	  No Waiver; Remedies Cumulative
	 	 	65	 
	11.5	 	  Payment of Expenses, etc.
	 	 	66	 
	11.6	 	  Amendments, Waivers and Consents
	 	 	66	 
	11.7	 	  Counterparts/Telecopy
	 	 	67	 
	11.8	 	  Headings
	 	 	67	 
	11.9	 	  Defaulting Lender
	 	 	67	 
	11.10	 	  Survival of Indemnification and Representations and Warranties
	 	 	68	 
	11.11	 	  Governing Law; Venue
	 	 	68	 
	11.12	 	  Waiver of Jury Trial; Waiver of Consequential Damages
	 	 	68	 
	11.13	 	  Severability
	 	 	69	 
	11.14	 	  Further Assurances
	 	 	69	 
	11.15	 	  Entirety
	 	 	69	 
	11.16	 	  Binding Effect; Continuing Agreement
	 	 	69	 
	11.17	 	  Confidentiality; USA PATRIOT Act
	 	 	69	 
	 	 	 
	 	 	 	 
	SECTION 12. GUARANTY	 	 	70	 
	12.1	 	  The Guaranty
	 	 	70	 
	12.2	 	  Obligations Unconditional
	 	 	70	 
	12.3	 	  Reinstatement
	 	 	71	 
	12.4	 	  Certain Additional Waivers
	 	 	71	 
	12.5	 	  Remedies
	 	 	72	 
	12.6	 	  Rights of Contribution
	 	 	72	 
	12.7	 	  Guarantee of Payment; Continuing Guarantee
	 	 	72	 






	 	 	 
	 
	 	 
	SCHEDULES
	 	 
	 
	 	 
	Schedule 1.1

	 	Commitment Percentages
	Schedule 6.13

	 	Subsidiaries
	Schedule 8.5

	 	Affiliate Transactions
	Schedule 11.1

	 	Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit 1.1

	 	Form of Rating Agency Designation
	Exhibit 2.3

	 	Form of Notice of Borrowing
	Exhibit 2.5

	 	Form of Notice of Continuation/Conversion
	Exhibit 2.9(a)

	 	Form of Revolving Note
	Exhibit 2.9(b)

	 	Form of Term Loan Note
	Exhibit 2.9(c)

	 	Form of Swingline Loan Note
	Exhibit 5.1

	 	Form of Account Designation Letter
	Exhibit 7.1(d)

	 	Form of Officer’s Certificate






iii









 






	 	 	 
	Exhibit 7.12

	 	Form of Joinder Agreement
	Exhibit 11.3(b)

	 	Form of Assignment Agreement







iv









 






CREDIT AGREEMENT




     THIS CREDIT AGREEMENT (this “Credit Agreement”), dated as of                     , 2005, is
entered into among DCP MIDSTREAM OPERATING, LP, a Delaware limited partnership (the
“Borrower”), DCP MIDSTREAM PARTNERS, LP, a Delaware limited partnership (the
“Parent”) and all Subsidiaries of the Parent (collectively, the “Guarantors”), the
Lenders (as defined herein) and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for
the Lenders (in such capacity, the “Agent”).



RECITALS




     WHEREAS, the Borrower has requested that the Lenders make available to it a credit facility in
the aggregate initial amount of $400 million for the purposes set forth herein; and



     WHEREAS, the Lenders have agreed to provide the requested credit facility to the Borrower on
the terms, and subject to the conditions, set forth herein.



     NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:



SECTION 1.




DEFINITIONS AND ACCOUNTING TERMS




     1.1 Definitions.



     As used herein, the following terms shall have the meanings herein specified unless the
context otherwise requires. Defined terms herein shall include in the singular number the plural
and in the plural the singular:




     “Account Control Agreement” means that certain Account Control Agreement, dated
as of the Effective Date, among the Borrower (as Debtor), Intermediary (as Intermediary) and
the Agent (as Bank).




     “Account Designation Letter” means the Notice of Account Designation Letter
dated the Closing Date from the Borrower to the Agent in substantially the form attached
hereto as Exhibit 5.1.




     “Acquisition” by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of property or assets (other than
capital expenditures or acquisitions of inventory or supplies in the ordinary course of
business) of, or of a business unit or division of, another Person or at least a majority of
the securities having ordinary voting power for the election of directors, managing general
partners or the equivalent of another Person, in each case whether or not involving a merger
or consolidation with such other Person and whether for cash, property, services, assumption
of Indebtedness, securities or otherwise.




     “Adjusted Base Rate” means the Base Rate plus the Applicable Margin for Base
Rate Loans.



 









 






     “Adjusted Eurodollar Rate” means the Eurodollar Rate plus the Applicable Margin
for Eurodollar Loans.




     “Affiliate” means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control with such
Person. A Person shall be deemed to control a corporation if such Person possesses,
directly or indirectly, the power to direct or cause direction of the management and
policies of such corporation, whether through the ownership of voting securities, by
contract or otherwise.




     “Agency Services Address” means Wachovia Bank, National Association, as
Administrative Agent, 201 South College Street, CP-8, Charlotte, North Carolina 28288-0680,
or such other address as may be identified by written notice from the Agent to the Borrower
and the Lenders.




     “Agent” means Wachovia Bank, National Association and any successors and
assigns in such capacity.




     “Applicable Margin” means, at any time:




     (a) with respect to Term Loans, (i) for Eurodollar Loans, .15% and (ii) for Base Rate
Loans, 0%.




     (b) with respect to Loans (other than Term Loans) and applicable fees, if the Parent
does not have a Debt Rating from S&P or Moody’s, the rate per annum set forth below based on
the Consolidated Leverage Ratio:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	 	 	 
	 	 	 	 	Margin for	 	Applicable Margin	 	Applicable
	Pricing	 	Consolidated	 	Facility	 	for Margin for	 	Base Rate
	Level	 	Leverage Ratio	 	Fees	 	Eurodollar Loans	 	Loans
	I	 	< 2.75 to 1.0	 	 	.150	%	 	 	.500	%	 	 	0	%
	II	 	> 2.75 to 1.0 but
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	< 3.25 to 1.0	 	 	.175	%	 	 	.575	%	 	 	0	%
	III	 	>3.25 to 1.0 but
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	< 3.75 to 1.0	 	 	.225	%	 	 	.650	%	 	 	0	%
	IV	 	>3.75 to 1.0 but
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	< 4.25 to 1.0	 	 	.275	%	 	 	.850	%	 	 	0	%
	V	 	>4.25 to 1.0	 	 	.350	%	 	 	1.025	%	 	 	.025	%







Any increase or decrease in the Applicable Margin resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day immediately
following the date that the officer’s certificate is required to be delivered pursuant to
Section 7.1(d) evidencing calculation of the Consolidated Leverage Ratio; provided,
however, that if such certificate is not delivered when due in accordance with such
Section 7.1(d), then Pricing Level V shall apply as of the first Business Day after the date
on which such certificate was required to have been delivered and shall continue to apply
until the first Business Day immediately following the date a certificate is delivered in
accordance with Section 7.1(d), whereupon the Applicable Margin shall be adjusted based upon
the calculation of the Consolidated Leverage Ratio contained in such certificate. The
Applicable Margin in effect from the Effective Date through the first Business Day
immediately



2









 







following the date a certificate is required to be delivered pursuant to Section 7.1(d) for
the fiscal quarter ending March 31, 2006 shall be determined based upon Pricing Tier II.




     (c) with respect to Loans (other than Term Loans) and applicable fees, if the Parent
has at least one Debt Rating from S&P or Moody’s, the rate per annum set forth in the table
below opposite the Debt Rating of the Parent:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Parent’s Debt Rating*	 	 	 	Applicable Margin	 	Applicable Margin
	 	 	Applicable Margin	 	for	 	for Base
	 	 	for Facility Fees	 	Eurodollar Loans	 	Rate Loans
	>BBB+/Baal	 	 	.080	%	 	 	.270	%	 	 	0	%
	BBB/Baa2	 	 	.100	%	 	 	.350	%	 	 	0	%
	BBB-/Baa3	 	 	.125	%	 	 	.500	%	 	 	0	%
	BB+/Ba1	 	 	.150	%	 	 	.600	%	 	 	0	%
	<BB/Ba2	 	 	.250	%	 	 	.900	%	 	 	0	%







* If any Designated Rating Agency is other than S&P and
Moody’s, then the equivalent Debt Rating given by such rating agency
shall be used. If there is only one Designated Rating Agency it must be
either S&P or Moody’s.




     The Applicable Margin shall, in each case, be determined and adjusted on the date
on which there is a change in the Parent’s Debt Rating and shall be effective until a future
change in the Parent’s Debt Rating.




     Notwithstanding the above, if at any time (i) there is a split in Debt Ratings between
the two Designated Rating Agencies, the higher Debt Rating (i.e. the lower pricing) will
apply unless there is more than one level between the Debt Ratings and then one level below
the higher rating will apply and (ii) the Parent is not rated by S&P or Moody’s, the pricing
grid above based on the Consolidated Leverage Ratio shall apply.




     (d) Any adjustment in the Applicable Margin shall be applicable to all existing
Eurodollar Loans and Letters of Credit as well as any new Eurodollar Loans made or Letters
of Credit issued.




     (e) The Borrower shall promptly deliver to the Agent, at the address set forth on
Schedule 11.1 and at the Agency Services Address, information regarding any change
in the Consolidated Leverage Ratio or the Parent’s Debt Rating that would change the
existing Pricing Level pursuant to clause (a) or (b) above.




     “Approved Officer” means the president, a vice president, the treasurer or the
assistant treasurer of the applicable Credit Party or such other authorized representative
of such Credit Party as may be designated by any one of the foregoing.




     “Assignment Agreement” means an Assignment Agreement executed and delivered
pursuant to Section 11.3(b).




     “Available Cash” has the meaning ascribed to such term in the First Amended and
Restated Agreement of Limited Partnership of the Borrower as in effect on the Effective
Date, with such amendments thereto as agreed to by the Required Lenders.



3









 






     “Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to time.




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




     “Base Rate Loan” means a Loan (other than a Swingline Loan) which bears
interest based on the Base Rate.




     “Borrower” means DCP Midstream Operating, LP a Delaware limited partnership.




     “Business Day” means any day other than a Saturday, a Sunday, a legal holiday
or a day on which banking institutions are authorized or required by law or other
governmental action to close in New York, New York or Charlotte, North Carolina;
provided, that in the case of Eurodollar Loans, such day is also a day on which
dealings between banks are carried on in U.S. dollar deposits in the London interbank
market.




     “Businesses” has the meaning set forth in Section 6.12.




     “Capital Lease” means, as applied to any Person, any lease of any Property
(whether real, personal or mixed) by that Person as lessee that, in accordance with GAAP, is
required to be accounted for as a capital lease on the balance sheet of that Person.




     “Capital Stock” means (a) in the case of a corporation, all classes of capital
stock of such corporation, (b) in the case of a partnership, partnership interests (whether
general or limited), (c) in the case of a limited liability company, membership interests
and (d) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.




     “Cash Collateral” means all assets and property maintained in the Cash
Collateral Account.




     “Cash Collateral Account” means the account of the Borrower numbered                     
with the Intermediary.




     “Cash Equivalents” means, as at any date, (a) securities guaranteed or insured
by the United States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized
standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose
short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “Approved
Bank”), in each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed
by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1
(or the equivalent thereof) or better by Moody’s and maturing within six months of the date
of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust
company (including any of the Lenders)



4









 






or recognized securities dealer having capital and surplus in excess of $500,000,000
for direct obligations issued by or fully guaranteed by the United States in which such
Person shall have a perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations and (e) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the Investment
Company Act of 1940 which are administered by reputable financial institutions having
capital of at least $500,000,000 or having portfolio assets of at least $5,000,000,000 and
the portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).




     “Change of Control” means as of any date, the failure of (a) the Parent to own,
directly or indirectly, 100% of the equity of the Borrower or (b) Duke Energy Field
Services, LLC to own, directly or indirectly, a majority of the voting equity of the general
partner of the Parent.




     “Closing Date” means the date hereof.




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




     “Co-lead Arrangers” means Wachovia Capital Markets, LLC and SunTrust Capital
Markets, Inc.




     “Collateral Documents” means (i) the Account Control Agreement and (ii) each
other document executed and delivered in connection with the granting, attachment and
perfection of the Agent’s security interest in the Cash Collateral, including, without
limitation, Uniform Commercial Code financing statements.




     “Commitment” means, as to each Lender, the commitment of such Lender with
respect to the Revolving Committed Amount and the commitment of such Lender with respect to
the Term Loan Committed Amount and “Commitments” means, collectively, all such
commitments of the Lenders.




     “Commitment Percentage” means, for each Lender, the percentage identified as
its Commitment Percentage opposite such Lender’s name on Schedule 1.1, as such
percentage may be modified by assignment or by an increase in Commitments in accordance with
Section 2.10.




     “Conflicts Committee” has the meaning ascribed thereto in the First Amended and
Restated Agreement of Limited Partnership of the Parent, as amended or restated from time to
time.




     “Consolidated EBITDA” means, for any period, an amount equal to Consolidated
Net Income for such period plus, to the extent deducted in determining Consolidated Net
Income for such period, the aggregate amount of (a) taxes based on or measured by income,
(b) Consolidated Interest Expense and (c) depreciation and amortization expense.




     “Consolidated Indebtedness” means, without duplication, all Indebtedness of the
Parent and its Subsidiaries on a consolidated basis minus the principal amount of Cash
Collateral then held by the Agent.




     “Consolidated Interest Coverage Ratio” means, as of the last day of each fiscal
quarter of the Parent, the ratio of (a) Consolidated EBITDA for the period of four
consecutive fiscal quarters



5









 






ending on such day to (b) Consolidated Interest Expense for the period of four
consecutive fiscal quarters ending on such day.




     “Consolidated Interest Expense” means interest expense as would appear on a
consolidated statement of income of the Parent and its Subsidiaries prepared in accordance
with GAAP; provided, that Consolidated Interest Expense associated with the Term
Loans for any period shall be reduced by any interest income earned on the Cash Collateral
during such period.




     “Consolidated Leverage Ratio” means, as of the last day of each fiscal quarter
of the Parent, the ratio of (a) Consolidated Indebtedness on such day to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on such day.




     “Consolidated Net Income” means, for any period, the net income of the Parent
and its Subsidiaries for such period determined on a consolidated basis in accordance with
GAAP; provided, that Consolidated Net Income shall not include (i) extraordinary
gains or extraordinary losses, (ii) net gains and losses in respect of disposition of assets
other than in the ordinary course of business, (iii) gains or losses attributable to
write-ups or write-downs of assets other than hedging and derivative activities in the
ordinary course of business and (iv) the cumulative effect of a change in accounting
principles, all as reported in the Parent’s consolidated statement(s) of income for the
relevant period(s) prepared in accordance with GAAP.




     “Consolidated Net Tangible Assets” means, at any date of determination, the
total amount of consolidated assets of the Parent and its Subsidiaries after deducting
therefrom the value (net of any applicable reserves) of all goodwill, trade names,
trademarks, patents and other like intangible assets, all as set forth, or on a pro forma
basis would be set forth, on the consolidated balance sheet of the Parent and its
Subsidiaries for the most recently completed fiscal quarter, in accordance with GAAP.




     “Credit Documents” means this Credit Agreement, the Notes, the LOC Documents,
the Collateral Documents, any Notice of Borrowing, any Notice of Continuation/Conversion and
all other related agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto.




     “Credit Exposure” means, as applied to each Lender (a) at any time prior to the
termination of the Commitments, the sum of (i) Commitment Percentage of such Lender
multiplied by the Revolving Committed Amount plus (ii) the Commitment Percentage of such
Lender multiplied by to the principal balance of the outstanding Term Loans and (b) at any
time after the termination of the Commitments, the sum of (i) the principal balance of the
outstanding Loans of such Lender plus (ii) such Lender’s Participation Interest in the face
amount of outstanding Letters of Credit and Swingline Loans.




     “Credit Facility Swap Contract” means any interest rate Swap Contract entered
into by a Credit Party with a Lender or an Affiliate of a Lender with respect to the
Obligations.




     “Credit Parties” means the Borrower and the Guarantors.




     “Debt Rating” means, the long-term senior unsecured, non-credit enhanced debt
rating of the Parent by the Designated Rating Agencies.




     “Default” means any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.



6









 






     “Defaulting Lender” means, at any time, any Lender that, at such time (a) has
failed to make a Loan required pursuant to the term of this Credit Agreement, (b) has failed
to pay to the Agent or any Lender an amount owed by such Lender pursuant to the terms of
this Credit Agreement or (c) has been deemed insolvent by a court of competent jurisdiction
or has become subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or
similar official.




     “Designated Rating Agencies” shall mean any two of S&P, Moody’s or any other
rating agency selected by the Parent which is recognized by the Securities and Exchange
Commission and identified by the Parent from time to time in a Rating Agency Designation and
“Designated Rating Agency” shall mean any one of the foregoing. Until such time as
the Parent shall have delivered a Rating Agency Designation to the Agent, the Designated
Rating Agencies shall be S&P and Moody’s.




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




     “Dollars” and “$” means dollars in lawful currency of the United States
of America.




     “Effective Date” means the date on which the conditions set forth in Section
5.1 shall have been fulfilled (or waived in the sole discretion of the Lenders).




     “Eligible Assignee” means (a) any Lender approved by the Borrower, the Agent
and the Issuing Lenders and (b) any other Person approved by the Borrower, the Issuing
Lenders and the Agent (in each case, which approval by the Borrowers, the Issuing Lenders
and the Agent shall not be unreasonably withheld or delayed); provided, that (A) the
Borrower’s consent is not required during the existence and continuation of an Event of
Default and (B) neither the Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee.




     “Environmental Laws” means any legal requirement of any Governmental Authority
pertaining to (a) the protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, or use of natural resources and wildlife, (c) the
protection or use of surface water and groundwater or (d) the management, manufacture,
possession, presence, use, generation, transportation, treatment, storage, disposal,
release, threatened release, abatement, removal, remediation or handling of, or exposure to,
any hazardous or toxic substance or material or (e) pollution (including any release to land
surface water and groundwater) and includes, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid
Waste Amendment of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act, as amended, 42
USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and Health Act
of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq.,
Emergency Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National
Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as
amended, 42 USC 300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued thereunder.



7









 






     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended,
and any successor statute thereto, as interpreted by the rules and regulations thereunder,
all as the same may be in effect from time to time. References to sections of ERISA shall
be construed also to refer to any successor sections.




     “ERISA Affiliate” means an entity, whether or not incorporated, which is under
common control with the Parent or any of its Subsidiaries within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes the Parent or any of its
Subsidiaries and which is treated as a single employer under Sections 414(b), (c), (m), or
(o) of the Code.




     “Eurodollar Loan” means a Loan bearing interest at the Adjusted Eurodollar
Rate.




     “Eurodollar Rate” means with respect to any Eurodollar Loan, for the Interest
Period applicable thereto, a rate per annum equal to the London Interbank Offered Rate.




     “Eurodollar Reserve Percentage” means, for any day, that percentage (expressed
as a decimal) which is in effect from time to time under Regulation D as the maximum reserve
requirement (including, without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities, as that term is
defined in Regulation D (or against any other category of liabilities that includes deposits
by reference to which the interest rate of Eurodollar Loans is determined).




     “Event of Default” has the meaning specified in Section 9.1.




     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, as amended, modified, succeeded or replaced
from time to time.




     “Extension of Credit” means, as to any Lender, the making of a Loan by such
Lender (or a participation therein by a Lender) or the issuance of, or participation in, a
Letter of Credit by such Lender.




     “Facility Fee” has the meaning specified in Section 3.4(a).




     “Fee Letter” means that certain letter agreement, dated as of November 1, 2005,
among the Agent, Wachovia Capital Markets, LLC and the Borrower, as amended, modified,
supplemented or replaced from time to time.




     “Federal Funds Rate” means for any day the rate per annum (rounded upward to
the nearest 1/100th of 1%) 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 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 quoted to the
Agent on such day on such transactions as determined by the Agent.




     “GAAP” means generally accepted accounting principles in the United States
applied on a consistent basis and subject to Section 1.3.




     “Government Acts” has the meaning specified in Section 2.2(k).



8









 






     “Governmental Authority” means any Federal, state, local or foreign court,
monetary authority or governmental agency, authority, instrumentality or regulatory body.




     “Guarantor” means (a) the Parent, (b) each Subsidiary of the Parent in
existence as of the Effective Date (other than the Borrower) and (c) any Person which
becomes a “Guarantor” pursuant to Section 7.11 hereof, in each case, together with their
successors and permitted assigns.




     “Indebtedness” of any Person means, without duplication, (a) all obligations of
such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services purchased, (c) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with respect to the
property acquired, (d) all obligations of such Person under lease obligations which shall
have been, or should be, in accordance with GAAP, recorded as capital leases in respect of
which such Person is liable as lessee, (e) the face amount of all letter of credit
indebtedness available to be drawn (other than letter of credit obligations relating to
indebtedness included in Indebtedness pursuant to another clause of this definition) and,
without duplication, the unreimbursed amount of all drafts drawn thereunder, (f) obligations
of others secured by a Lien on property or assets of such Person, whether or not assumed
(but in any event not exceeding the fair market value of the property or asset), (g) all
guarantees of Indebtedness referred to in clauses (a) through (f) above, (h) all amounts
payable by such Person in connection with mandatory redemptions or repurchases of preferred
stock, (i) any obligations of such Person (in the nature of principal or interest) in
respect of acceptances or similar obligations issued or created for the account of such
Person, (j) all Off Balance Sheet Indebtedness of such Person and (k) obligations
(contingent or otherwise) existing or arising under any interest rate Swap Contract, to the
extent such obligations are classified as “indebtedness” for purposes of GAAP.




     “Initial Asset Acquisition” has the meaning set forth in Section 5.1(d).




     “Interest Payment Date” means (a) as to Base Rate Loans and Swingline Loans,
the first day of each calendar quarter of the Borrower and the Maturity Date and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period and the Maturity Date and,
in addition, where the applicable Interest Period for a Eurodollar Loan is greater than
three months, then also on the last day of each three-month period during such Interest
Period. If an Interest Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business Day, except that in
the case of Eurodollar Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day.




     “Interest Period” means, with respect to Eurodollar Loans, a period of one,
two, three or six months’ duration, as the Borrower may elect, commencing, in each case, on
the date of the borrowing (including continuations and conversions of Eurodollar Loans);
provided, however, (a) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day (except that
where the next succeeding Business Day falls in the next succeeding calendar month, then on
the next preceding Business Day), (b) no Interest Period shall extend beyond the Maturity
Date and (c) where an Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to end, such
Interest Period shall end on the last Business Day of such calendar month.




     “Intermediary” means Wachovia Bank, National Association, as Intermediary under
the Account Control Agreement.



9









 






     “Investment” means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other acquisition of the
Capital Stock of another Person, (b) an Acquisition or (c) a loan, advance or capital
contribution to, guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including any partnership
or joint venture interest in such other Person and any arrangement pursuant to which the
investor guarantees Indebtedness of such other Person.




     “Investment Grade Rating” means BBB- or better from S&P or Baa3 or better from
Moody’s.




     “Investment Grade Rating Date” means the date on which the Parent first
achieves an Investment Grade Rating.




     “Issuing Lender” means Wachovia Bank, National Association or any other Lender
as requested by the Borrower and agreed to by such Lender.




     “Issuing Lender Fees” has the meaning set forth in Section 3.4(b)(ii).




     “Letter of Credit” means a Letter of Credit issued for the account of the
Borrower or one of its Subsidiaries by an Issuing Lender pursuant to Section 2.2, as such
Letter of Credit may be amended, modified, extended, renewed or replaced.




     “Letter of Credit Fees” shall have the meaning assigned to such term in Section
3.4(b)(i).




     “Lender” means any Person identified as a Lender on the signature pages hereto
and any Eligible Assignee which may become a Lender by way of assignment in accordance with
the terms hereof, together with their successors or permitted assigns.




     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or similar statement or
notice filed under the Uniform Commercial Code as adopted and in effect in the relevant
jurisdiction or other similar recording or notice statute, and any lease in the nature
thereof).




     “Loans” means the Revolving Loans, the Swingline Loans and the Term Loans.




     “LOC Documents” means, with respect to any Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection therewith, any
application therefor, and any agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned or at risk or (b) any
collateral security for such obligations.




     “LOC Obligations” means, at any time, the sum of (a) the maximum amount which
is then available to be drawn under Letters of Credit then outstanding, assuming compliance
with all requirements for drawings referred to in such Letters of Credit plus (b) the
aggregate amount of all drawings under Letters of Credit honored by an Issuing Lender but
not theretofore reimbursed.



10









 






     “London Interbank Offered Rate” means, with respect to any Eurodollar Loan for
the Interest Period applicable thereto, the rate of interest per annum appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Telerate Page 3750, the applicable rate shall
be the arithmetic mean of all such rates. If, for any reason, such rate is not available,
the term “London Interbank Offered Rate” shall mean, with respect to any Eurodollar Loan for
the Interest Period applicable thereto, the rate of interest per annum appearing on such
other service as may be nominated by the British Bankers’ Association as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified, the
applicable rate shall be the arithmetic mean of all such rates.




     “Mandatory Borrowing” has the meaning specified in Section 2.2(e).




     “Material Adverse Effect” means a material adverse effect on the business,
financial positions or results of operations of the Parent and its Subsidiaries taken as a
whole.




     “Maturity Date” means                     , 2010.




     “Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee
of the business of such company in the business of rating securities.




     “Multiemployer Plan” means a Plan covered by Title IV of ERISA which is a
multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.




     “Multiple Employer Plan” means a Plan covered by Title IV of ERISA, other than
a Multiemployer Plan, which the Parent or any ERISA Affiliate and at least one employer
other than the Parent or any ERISA Affiliate are contributing sponsors.




     “Non-Excluded Taxes” has the meaning specified in Section 4.4(a).




     “Notes” means the Revolving Notes, the Term Loan Notes and the Swingline Loan
Notes, if any.




     “Notice of Borrowing” means a request by the Borrower for a Loan in the form of
Exhibit 2.3.




     “Notice of Continuation/Conversion” means a request by the Borrower for the
continuation or conversion of a Loan in the form of Exhibit 2.5.




     “Obligations” means, without duplication, all of the obligations of the Credit
Parties to the Lenders and the Agent, whenever arising, under this Credit Agreement, the
Notes, the LOC Documents, the Collateral Documents, Credit Facility Swap Contracts, Treasury
Management Agreements or any of the other Credit Documents.




     “Off Balance Sheet Indebtedness” means any obligation of a Person that would be
considered indebtedness for tax purposes but is not set forth on the balance sheet of such
Person, including, but not limited to, (a) any synthetic lease, tax retention operating
lease, off balance sheet



11









 






loan or similar off-balance sheet financing product of such Person, (b) the aggregate
amount of uncollected accounts receivables of such Person subject at such time to a sale of
receivables (or similar transaction) and (c) obligations of any partnership or joint venture
that is recourse to such Person.




     “Original Revolving Commitment” means, as to each applicable Lender (including
any Lender that purchases any portion of the Original Revolving Commitment by assignment),
the Dollar commitment of such Lender with respect to the Original Revolving Committed
Amount, as such Original Revolving Commitment may be modified by assignment.




     “Original Revolving Commitment Percentage” means, for each applicable Lender,
the percentage identified as its Original Revolving Commitment Percentage opposite such
Lender’s name on Schedule 1.1 (or on the applicable Assignment Agreement), as such
percentage may be modified by assignment.




     “Original Revolving Committed Amount” means, the dollar amount of the Revolving
Committed Amount as of the Effective Date (without giving effect to any increase in the
Revolving Committed Amount pursuant to Section 2.10).




     “Parent” means DCP Midstream Partners, LP, a Delaware limited partnership.




     “Participation Interest” means the Extension of Credit by a Lender by way of a
purchase or deemed purchase of a participation in Letters of Credit or LOC Obligations as
provided in Section 2.2 or in any Swingline Loans as provided in Section 2.8 or in any Loans
as provided in Section 3.8.




     “Payment Date” has the meaning set forth in Section 2.2(d).




     “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA and any successor thereto.




     “Permitted Acquisitions” means (a) the Initial Asset Acquisition and (b) any
other Acquisition by any Credit Party, so long as (i) no Default or Event of Default is in
existence or would be created thereby, (ii) the Person or assets being acquired by such
Credit Party are in the midstream energy business, (iii) such Acquisition has been approved
by the Board of Directors or similar governing body of the target of such Acquisition (if
required or applicable) and (iv) immediately after giving effect to such acquisition, the
Borrower is in compliance with Section 7.10 on a pro forma basis.




     “Permitted Cash Collateral” means each of the following instruments and
securities to the extent having maturities (for purposes of this definition, “maturities”
shall mean (i) weighted average life for asset-backed securities, mortgage-backed
securities, commercial mortgage-backed securities and collateralized mortgage obligations,
and the next reset date for auction rate securities and (ii) with respect to mutual funds,
the weighted average maturity of the investments it owns) not greater than six months from
the date of acquisition thereof: (a) cash, (b) investments in money market mutual funds that
are registered with the SEC and subject to Rule 2a-7 of the Investment Company Act of 1940
and have a net asset value of 1.0, (c) U.S. Treasury Notes, (d) direct obligations of the
United States (including obligations of agencies and sponsored enterprises of the United
States) and other obligations whose principal and interest is fully guaranteed by the United
States, (e) money market instruments (including, but not limited to, commercial paper,
banker’s acceptances, time deposits and certificates of deposits) rated at least A-1 by S&P
or P-1 by Moody’s at the time of



12









 






purchase, (f) obligations of corporations or other business entities (including, bonds,
notes and other structured obligations) rated at least AAA by S&P, Aaa by Moody’s or AAA by
Fitch at the time of purchase, (g) asset-backed securities rated at least AAA by S&P, Aaa by
Moody’s or AAA by Fitch at the time of purchase, (h) mortgage-backed securities, commercial
mortgage-backed securities and collateralized mortgage obligations rated at least AAA by
S&P, Aaa by Moody’s or AAA by Fitch at the time of purchase, (i) repurchase obligations that
are collateralized no less than 102% of market value (including accrued interest) by
obligations of the U.S. government or one of its sponsored enterprises or agencies, (j)
municipal obligations issued by any state of the United States of America or any
municipality or other political subdivision of any such state rated at least AAA by S&P, Aaa
by Moody’s or AAA by Fitch at the time of purchase, (k) 7, 28 or 35 day auction rate
securities rated at least AAA by S&P, Aaa by Moody’s or AAA by Fitch at the time of purchase
and (l) shares in bond mutual funds that are registered under the Investment Company Act of
1940 that invest solely in the items set forth in (a)-(k) above and maintain an average
credit quality of at least AAA by S&P, Aaa by Moody’s or AAA by Fitch at the time of
purchase, in each case which is held in the Cash Collateral Account and is subject to the
Account Control Agreement and in which the Agent has, on behalf of the Lenders, a first
priority perfected security interest. Notwithstanding the above, at the time of purchase,
no one issuer will be more than 5% of the value of the Permitted Cash Collateral. This rule
excludes direct obligations of the United States, United States sponsored agencies and
enterprises, money market funds, repurchase agreements and securities that have an effective
maturity no longer than the next business day. United States sponsored agencies and
enterprises are limited to 40% of the value of the Permitted Cash Collateral at time of
purchase, per issuer. For purposes of calculating the amount of Permitted Cash Collateral
on deposit in the Cash Collateral Account hereunder, Permitted Cash Collateral of an issuer
that exceeds the 5% or 40% thresholds set forth above shall be excluded from such
calculation.




     “Person” means any individual, partnership, joint venture, firm, corporation,
association, trust, limited liability company or other enterprise (whether or not
incorporated), or any government or political subdivision or any agency, department or
instrumentality thereof.




     “Plan” means any employee pension benefit plan (as defined in Section 3(2) of
ERISA) which is covered by ERISA and with respect to which the Parent or any ERISA Affiliate
is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an “employer” within the meaning of Section 3(5) of ERISA.




     “Prime Rate” means the per annum rate of interest established from time to time
by the Agent at its principal office in Charlotte, North Carolina as its Prime Rate. Any
change in the interest rate resulting from a change in the Prime Rate shall become effective
as of 12:01 a.m. of the Business Day on which each change in the Prime Rate is announced by
the Agent. The Prime Rate is a reference rate used by the Agent in determining interest
rates on certain loans and is not intended to be the lowest rate of interest charged on any
extension of credit to any debtor.




     “Properties” has the meaning set forth in Section 6.12.




     “Qualified Acquisition” means a Permitted Acquisition, the aggregate purchase
price for which, when combined with the aggregate purchase price for all other Permitted
Acquisitions in any rolling 12-month period, is greater than or equal to $25,000,000.




     “Rating Agency Designation” means a written notice in the form of Exhibit
1.1 provided from time to time by the Parent to the Administrative Agent setting forth
the two current Designated Rating Agencies.



13









 






     “Register” has the meaning set forth in Section 11.3(c).




     “Regulation A, D, T, U, or X” means Regulation A, D, T, U or X, respectively,
of the Board of Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.




     “Reportable Event” means a “reportable event” as defined in Section 4043 of
ERISA with respect to which the notice requirements to the PBGC have not been waived.




     “Required Collateral Amount” has the meaning specified in Section 7.13(b).




     “Required Lenders” means Lenders whose aggregate Credit Exposure constitutes
more than 50% of the aggregate Credit Exposure of all Lenders at such time;
provided, however, that if any Lender shall be a Defaulting Lender at such time then
there shall be excluded from the determination of Required Lenders the aggregate principal
amount of Credit Exposure of such Lender at such time.




     “Responsible Officer” means the president, chief financial officer, treasurer
or assistant treasurer of the applicable Credit Party.




     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to Capital Stock of a Credit Party or any
Subsidiary, or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such Capital Stock or on account of any
return of capital to a Credit Party’s stockholders, partners or members (or the equivalent
Person thereof), or any setting apart of funds or assets for any of the foregoing.




     “Revolving Committed Amount” means TWO HUNDRED                      MILLION Dollars
($2_0,000,000) as such amount may be reduced in accordance with Section 2.7 or increased
pursuant to Section 2.10.




     “Revolving Loans” has the meaning set forth in Section 2.1(a).




     “Revolving Notes” means the promissory notes of the Borrower in favor of each
of the Lenders evidencing the Loans provided pursuant to Section 2.1(a), individually or
collectively, as appropriate, as such notes may be amended or modified from time to time and
substantially in the form of Exhibit 2.9(a).




     “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc.,
or any successor or assignee of the business of such division in the business of rating
securities.




     “Sale and Leaseback Transaction” means, with respect to a Credit Party or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby a Credit Party
or such Subsidiary shall sell or transfer any assets used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such assets or other assets
that it intends to use for substantially the same purpose or purposes as the assets being
sold or transferred.




     “Sanctioned Country” means a country subject to a sanctions program identified
on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement /ofac/sanctions/index.html, or as
otherwise published from time to time.



14









 






     “Sanctioned Person” means (a) a Person named on the list of “Specially
Designated Nationals and Blocked Persons” maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published from
time to time or (b) (i) an agency of the government of a Sanctioned Country, (ii) an
organization controlled by a Sanctioned Country or (iii) a person resident in a Sanctioned
Country, to the extent subject to a sanctions program administered by OFAC.




     “Single Employer Plan” means any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan or a Multiple Employer Plan.




     “Solvent” means, with respect to any Person as of a particular date, that on
such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary
course, (c) such Person is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person’s assets would constitute
unreasonably small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (d) the fair value of the assets
of such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present fair saleable value
of the assets of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and matured. In
computing the amount of contingent liabilities at any time, it is intended that such
liabilities will be computed as the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected
to become an actual or matured liability.




     “Subsidiary” means, as to any Person, (a) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries, (b) any partnership, association, joint venture, limited
liability company or other entity in which such person directly or indirectly through
Subsidiaries has more than 50% equity interest at any time and (c) any other Person that is
controlled by such Person and who for GAAP purposes is required to be consolidated into such
Person’s consolidated financial statements. Unless otherwise provided, as used herein,
“Subsidiary” shall refer to a Subsidiary of the Parent.




     “Swap Contract” means, to the extent entered into on a fair market value basis
at the time of entry, (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



15









 






master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.




     “Swingline Committed Amount” means TWENTY MILLION DOLLARS ($20,000,000).




     “Swingline Lender” means Wachovia Bank, National Association or any successor
Swingline Lender.




     “Swingline Loan” or “Swingline Loans” has the meaning set forth in
Section 2.8(a).




     “Swingline Note” means the promissory note of the Borrower in favor of the
Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.8, as such
promissory note may be amended or modified, from time to time and substantially in the form
of Exhibit 2.9(c).




     “Termination Event” means (a) with respect to any Single Employer Plan, the
occurrence of a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA), (b) the withdrawal of the Parent or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan, (c) the distribution of a notice of intent to terminate or the
actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA, (d) the
institution of proceedings to terminate or the actual termination of a Plan by the PBGC
under Section 4042 of ERISA, (e) any event or condition which might reasonably constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or (f) the complete or partial withdrawal of the Borrower or any
ERISA Affiliate from a Multiemployer Plan.




     “Term Loans” has the meaning specified in Section 2.01(b).




     “Term Loan Committed Amount” means ONE HUNDRED                      MILLION DOLLARS
($1___0, 000,000).




     “Term Loan Note” means the promissory notes of the Borrower in favor of each of
the Lenders evidencing the Loans provided pursuant to Section 2.1(b), individually or
collectively, as appropriate, as such notes may be amended or modified from time to time and
substantially in the form of Exhibit 2.9(b).




     “Tier 1 Permitted Cash Collateral” means Permitted Cash Collateral with
maturities of not more than 30 days from the date of acquisition with the exception of
auction rate securities which may have a re-set date of 35 days or less.




     “Tier 2 Permitted Cash Collateral” means Permitted Cash Collateral with
maturities more than 30 days from the date of acquisition but not more than 90 days from the
date of acquisition.




     “Tier 3 Permitted Cash Collateral” means Permitted Cash Collateral with
maturities more than 90 days from the date of acquisition but not more than 180 days from
the date of acquisition.




     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services provided by a
Lender or




16









 







an Affiliate of a Lender.




     “Utilization Fees” has the meaning set forth in Section 3.4(c).




     “Utilized Revolving Loan Commitment” means, for any period from the Effective
Date to the Maturity Date, the amount equal to the daily average sum for such period of the
aggregate principal amount of all Revolving Loans plus Swingline Loans plus LOC Obligations.




     “Voting Stock” means all classes of the Capital Stock (or other voting
interests) of such Person then outstanding and normally entitled to vote in the election of
directors or other governing body of such Person.



     1.2 Computation of Time Periods.



     For purposes of computation of periods of time hereunder, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding.” References in this Credit
Agreement to “Articles”, “Sections”, “Schedules” or “Exhibits” shall be to Articles, Sections,
Schedules or Exhibits of or to this Credit Agreement unless otherwise specifically provided.



     1.3 Accounting Terms.



     Except as otherwise expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis.



     1.4 Time.



     All references to time herein shall be references to Eastern Standard Time or Eastern Daylight
time, as the case may be, unless specified otherwise.



SECTION 2.




LOANS




     2.1 Revolving and Term Loan Commitments. 



     (a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make revolving loans to the Borrower in Dollars, at any time and from
time to time, during the period from the Effective Date to the Maturity Date (each a “Revolving
Loan” and collectively the “Revolving Loans”); provided, however, that (a) the
sum of the aggregate amount of Revolving Loans outstanding plus the aggregate amount of Swingline
Loans outstanding plus the aggregate amount of LOC Obligations outstanding shall not exceed the
Revolving Committed Amount and (b) with respect to each individual Revolving Lender, such Revolving
Lender’s pro rata share of outstanding Revolving Loans plus such Revolving Lender’s pro rata share
of outstanding LOC Obligations plus its pro rata share of Swingline Loans shall not exceed such
Revolving Lender’s Commitment Percentage of the Revolving Committed Amount. Subject to the terms
of this Credit Agreement, the Borrower may borrow, repay and reborrow Revolving Loans. Unless
earlier terminated pursuant to other provisions of this Credit Agreement, the Commitments hereunder
shall terminate on the Maturity Date.



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     (b) Term Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make term loans to the Borrower in Dollars, at any time and from time to time
during the period from the Effective Date to forty (40) days following the Effective Date (each a
“Term Loan” and collectively, the “Term Loans”); provided, however, that (a) the
Borrower may not request more than two (2) draws with respect to the Term Loans, one of which must
be on the Effective Date, (b) the sum of the aggregate amount of Term Loans outstanding shall not
exceed the Term Loan Committed Amount and (c) with respect to each individual Term Loan Lender,
such Term Loan Lender’s pro rata share of outstanding Term Loans shall not exceed such Term Loan
Lender’s Commitment Percentage of the Term Loan Committed Amount. Any amounts remaining under the
Term Loan Committed Amount subsequent to the date forty (40) days after the Effective Date shall no
longer be available and the Lenders shall have no further obligation to fund any additional Term
Loans. Once repaid, Term Loans may not be reborrowed.



     2.2 Letters of Credit.



     (a) Issuance; Terms. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which an Issuing Lender may reasonably
require (so long as such terms and conditions do not impose any financial obligation on or require
any Lien (not otherwise contemplated by this Credit Agreement) to be given by the Borrower or
conflict with any obligation of, or detract from any action which may be taken by the Borrower or
its Subsidiaries under this Credit Agreement), the applicable Issuing Lender shall from time to
time, upon request, issue in Dollars, and the Revolving Lenders shall participate in, letters of
credit (the “Letters of Credit”) for the account of the Borrower (or, subject to Section
2.2(f), the Parent or any of its Subsidiaries) from the Effective Date until the Maturity Date, in
a form reasonably acceptable to such Issuing Lender; provided, however, that (i) the sum of
the aggregate amount of LOC Obligations outstanding plus Revolving Loans outstanding plus Swingline
Loans outstanding shall not exceed the Revolving Committed Amount and (ii) with respect to each
individual Lender, such Lender’s pro rata share of outstanding Revolving Loans plus its pro rata
share of outstanding LOC Obligations plus its pro rata share of Swingline Loans shall not exceed
such Lender’s Commitment Percentage of the Revolving Committed Amount. The issuance and expiry
date of each Letter of Credit shall be a Business Day. No Letter of Credit shall have an expiry
date extending beyond the date that is five (5) Business Days before the Maturity Date. Each
Letter of Credit shall be either (x) a standby letter of credit issued to support the obligations
(including pension or insurance obligations), contingent or otherwise, of the Borrower, the Parent
or any of its Subsidiaries or (y) a commercial letter of credit in respect of the purchase of goods
or services by the Borrower, the Parent or any of its Subsidiaries in the ordinary course of
business. Each Letter of Credit shall comply with the related LOC Documents.



     (b) Notice and Reports. The request for the issuance of a Letter of Credit shall be
submitted in writing to the applicable Issuing Lender at least three Business Days prior to the
requested date of issuance. Such request shall specify the date such Letter of Credit is to be
issued and describe the terms of such Letter of Credit and shall be accompanied by a completed
application in form and substance satisfactory to such Issuing Lender. Each Issuing Lender will
notify the Agent when a Letter of Credit is issued and the details with respect thereto and shall
provide to the Agent and, upon written request, to the Lenders a detailed report specifying the
Letters of Credit which are then issued and outstanding and any activity with respect thereto which
may have occurred since the date of any prior report, and including therein, among other things,
the account party, the beneficiary, the face amount, and the expiry date as well as any payments or
expirations which may have occurred. Each Issuing Lender will further provide to the Agent,
promptly upon request, copies of the Letters of Credit.



18









 





     (c) Participations. Each Lender, upon issuance of a Letter of Credit, shall be deemed
to have purchased without recourse a risk participation from the applicable Issuing Lender in such
Letter of Credit and the obligations arising thereunder and any collateral relating thereto, in
each case in an amount equal to its Commitment Percentage of the obligations under such Letter of
Credit, and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as
surety, and be obligated to pay to the applicable Issuing Lender therefor and discharge when due,
its Commitment Percentage of the obligations arising under such Letter of Credit. Without limiting
the scope and nature of each Lender’s participation in any Letter of Credit, to the extent that the
applicable Issuing Lender has not been reimbursed as required hereunder or under any such Letter of
Credit, each such Lender shall pay to the applicable Issuing Lender its Commitment Percentage of
such unreimbursed drawing in same day funds on the day of notification by the applicable Issuing
Lender of an unreimbursed drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each Lender to so reimburse the applicable Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an Event of Default, the
Maturity Date or any other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the applicable Issuing Lender under
any Letter of Credit, together with interest as hereinafter provided.



     (d) Reimbursement. In the event of any request for a drawing or any drawing under any
Letter of Credit, the applicable Issuing Lender will promptly notify the Borrower as to the amount
to be paid as a result of such drawing and the date such payment is to be made by the applicable
Issuing Lender (the “Payment Date”). If the Commitments remain in effect on the Payment
Date, the Borrower shall, unless the Borrower otherwise instructs the Agent by not less than one
Business Day’s prior notice, be deemed to have requested a Revolving Loan at the Base Rate in the
amount of the drawing as provided in subsection (e) hereof, the proceeds of which will be used to
satisfy the reimbursement obligations. The Borrower shall reimburse the applicable Issuing Lender
on the Payment Date either with the proceeds of a Revolving Loan obtained hereunder or otherwise in
same day funds as provided herein or in the LOC Documents. If the Borrower shall fail to reimburse
the applicable Issuing Lender as provided hereinabove, the unreimbursed amount of such drawing
shall bear interest at a per annum rate equal to the Base Rate plus two percent (2%). The
Borrower’s reimbursement obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of (but without waiver of) any rights of set-off, counterclaim or
defense to payment that the applicable account party or the Borrower may claim or have against the
Issuing Lenders, the Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any
other Person, including without limitation, any defense based on any failure of the applicable
account party or the Borrower to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The applicable Issuing Lender will promptly notify the
Lenders of the amount of any unreimbursed drawing and each Lender shall promptly pay to the Agent
for the account of the applicable Issuing Lender, in Dollars and in immediately available funds,
the amount of such Lender’s Commitment Percentage of such unreimbursed drawing. Such payment shall
be made on the day such notice is received by such Lender from the applicable Issuing Lender if
such notice is received at or before 2:00 p.m., otherwise such payment shall be made at or before
12:00 Noon on the Business Day next succeeding the day such notice is received. If such Lender
does not pay such amount to the applicable Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Agent for the account of the applicable Issuing Lender interest on the
unpaid amount during the period from the date the Lender received the notice regarding the
unreimbursed drawing until such Lender pays such amount to the applicable Issuing Lender in full at
a rate per annum equal to, if paid within two Business Days of the date of drawing, the Federal
Funds Rate and thereafter at a rate equal to the Base Rate. Each Lender’s obligation to make such
payment to the applicable Issuing Lender, and the right of the applicable Issuing Lender to receive
the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever
and without regard to the termination of this Credit Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the obligations hereunder and
shall be made without any offset, abatement, withholding or reduction whatsoever.



19









 




Simultaneously with the making of each such payment by a Lender to the applicable Issuing
Lender, such Lender shall, automatically and without any further action on the part of the
applicable Issuing Lender or such Lender, acquire a participation in an amount equal to such
payment (excluding the portion of such payment constituting interest owing to the applicable
Issuing Lender) in the related unreimbursed drawing portion of the LOC Obligation and in the
interest thereon and in the related LOC Documents, and shall have a claim against the Borrower with
respect thereto.




     (e) Repayment with Revolving Loans. On any day on which the Borrower shall have
requested, or been deemed to have requested, a Revolving Loan borrowing to reimburse a drawing
under a Letter of Credit, the Agent shall give notice to the Lenders that a Revolving Loan has been
requested or deemed requested in connection with a drawing under a Letter of Credit, in which case
a Revolving Loan borrowing comprised solely of Base Rate Loans (each such borrowing, a
“Mandatory Borrowing”) shall be immediately made from all Lenders (without giving effect to
any termination of the Commitments pursuant to Section 9.2 or otherwise) pro rata based on each
Lender’s respective Commitment Percentage and the proceeds thereof shall be paid directly to the
applicable Issuing Lender for application to the respective LOC Obligations. Each such Lender
hereby irrevocably agrees to make such Revolving Loans immediately upon any such request or deemed
request on account of each such Mandatory Borrowing in the amount and in the manner specified in
the preceding sentence and on the same such date notwithstanding (i) the amount of Mandatory
Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise
required hereunder, (ii) whether any conditions specified in Section 5.2 are then satisfied, (iii)
whether a Default or Event of Default then exists, (iv) failure of any such request or deemed
request for Revolving Loans to be made by the time otherwise required hereunder or (v) any
reduction in the Revolving Committed Amount. In the event that any Mandatory Borrowing cannot be
made on the date otherwise required above, whether because the Commitments have terminated or for
any other reason (including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that
it shall forthwith fund (as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and prior to such
purchase) its Participation Interest in the outstanding LOC Obligations; provided, that in the
event any Lender shall fail to fund its Participation Interest on the day it is required to do so,
then the amount of such Lender’s unfunded Participation Interest therein shall bear interest
payable to the applicable Issuing Lender upon demand, at the rate equal to, if paid within two
Business Days of such date, the Federal Funds Rate, and thereafter at a rate equal to the Base
Rate.



     (f) Designation of Subsidiaries as Account Parties. Notwithstanding anything to the
contrary set forth in this Credit Agreement, a Letter of Credit issued hereunder may contain a
statement to the effect that such Letter of Credit is issued for the account of the Parent or any
of its Subsidiaries; provided, that notwithstanding such statement, the Borrower shall be the
actual account party for all purposes of this Credit Agreement for such Letter of Credit and such
statement shall not affect the Borrower’s reimbursement obligations hereunder with respect to such
Letter of Credit.



     (g) Modification and Extension. Except for non-substantive amendments to any Letter
of Credit for the purpose of correcting errors or ambiguities or to allow for administrative
convenience (which amendments each Issuing Bank may make in its discretion with the consent of the
Borrower), the amendment, modification, supplement, extension or renewal of any Letter of Credit
shall be deemed to be an issuance of such Letter of Credit. If any Letter of Credit contains a
provision pursuant to which it is deemed to be automatically renewed unless notice of termination
is given by the applicable Issuing Lender, such Issuing Lender shall timely give notice of
termination if (i) as of close of business on the seventeenth day prior to the last day upon which
such Issuing Lender’s notice of termination may be given to the beneficiaries of such Letter of
Credit, such Issuing Lender has received a notice of termination from the Borrower or a



20









 







notice from the Agent that the conditions to issuance of such Letter of Credit have not been
satisfied or (ii) the renewed Letter of Credit would have a term not permitted by subsection (a)
above.



     (h) Uniform Customs and Practices. An Issuing Lender may have the Letters of Credit
be subject to The Uniform Customs and Practice for Documentary Credits (the “UCP”) or the
International Standby Practices 1998 (the “ISP98”), in either case as published as of the
date of issue by the International Chamber of Commerce, in which case the UCP or ISP98, as
applicable, may be incorporated therein and deemed in all respects to be a part thereof.



     (i) Responsibility of Issuing Lenders. It is expressly understood and agreed that the
obligations of each Issuing Lender hereunder to the Lenders are only those expressly set forth in
this Credit Agreement and that each Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 5.2 have been satisfied unless it shall have acquired actual
knowledge that any such condition precedent has not been satisfied; provided, however, that nothing
set forth in this Section 2.2 shall be deemed to prejudice the right of any Lender to recover from
an Issuing Lender any amounts made available by such Lender to such Issuing Lender pursuant to
this Section 2.2 in the event that it is determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit constituted gross negligence or willful misconduct on
the part of such Issuing Lender.



     (j) Conflict with LOC Documents. In the event of any conflict between this Credit
Agreement and any LOC Document, this Credit Agreement shall govern.



     (k) Indemnification of Issuing Lenders.




     (i) In addition to its other obligations under this Credit Agreement, the Borrower
hereby agrees to protect, indemnify, pay and save the Issuing Lenders harmless from and
against any and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys’ fees) that the Issuing Lenders may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit
or (B) the failure of an Issuing Lender to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto government or Governmental Authority (all such acts or omissions, herein
called “Government Acts”).




     (ii) As between the Borrower and the Issuing Lenders, the Borrower shall assume all
risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof.
The Issuing Lenders shall not be responsible for: (A) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(B) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (D) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (E) errors in interpretation of technical
terms; (F) any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the proceeds thereof; and (G) any
consequences arising from causes beyond the control of an Issuing Lender, including, without
limitation, any Government Acts. None of the above shall affect, impair, or prevent the
vesting of an Issuing Lender’s rights or powers hereunder.



21









 






     (iii) In furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by an Issuing Lender, under or in
connection with any Letter of Credit or the related certificates, if taken or omitted in
good faith, shall not put such Issuing Lender under any resulting liability to the Borrower.
It is the intention of the parties that this Credit Agreement shall be construed and
applied to protect and indemnify the Issuing Lenders against any and all risks involved in
the issuance of the Letters of Credit, all of which risks are hereby assumed by the
Borrower, including, without limitation, any and all risks of the acts or omissions, whether
rightful or wrongful, of any present or future Government Acts. An Issuing Lender shall
not, in any way, be liable for any failure by such Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts or any other cause
beyond the control of such Issuing Lender.




     (iv) Nothing in this subsection (k) is intended to limit the reimbursement obligation
of the Borrower contained in this Section 2.2. The obligations of the Borrower under this
subsection (k) shall survive the termination of this Credit Agreement. No act or omission
of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair
the rights of an Issuing Lender to enforce any right, power or benefit under this Credit
Agreement.




     (v) Notwithstanding anything to the contrary contained in this subsection (k) or any of
the Credit Documents, the Borrower shall have no obligation to indemnify an Issuing Lender
in respect of any liability incurred by such Issuing Lender arising solely out of the gross
negligence or willful misconduct of such Issuing Lender, as determined by a court of
competent jurisdiction. Nothing in this Credit Agreement shall relieve an Issuing Lender of
any liability to the Borrower in respect of any action taken by such Issuing Lender which
action constitutes gross negligence or willful misconduct of such Issuing Lender or a
violation of the UCP, the ISP98 or Uniform Commercial Code (as applicable), as determined by
a court of competent jurisdiction.



     2.3 Method of Borrowing for Revolving Loans and Term Loans.



     By no later than 11:00 a.m. (a) on the date of the requested borrowing of Loans (other than
Swingline Loans) that will be Base Rate Loans or (b) three Business Days prior to the date of the
requested borrowing of Loans that will be Eurodollar Loans, the Borrower shall submit a written
Notice of Borrowing in the form of Exhibit 2.3 to the Agent setting forth (i) the amount
requested, (ii) whether such Loans shall accrue interest at the Adjusted Base Rate or the Adjusted
Eurodollar Rate, (iii) with respect to Loans that will be Eurodollar Loans, the Interest Period
applicable thereto and (iv) certification that the Borrower has complied in all respects with
Section 5.2.



     2.4 Funding of Revolving Loans and Term Loans.



     Upon receipt of a Notice of Borrowing, the Agent shall promptly inform the Lenders as to the
terms thereof. Each such Lender shall make its Commitment Percentage of the requested Revolving
Loans or Term Loans, as applicable, available to the Agent by 2:00 p.m. on the date specified in
the Notice of Borrowing by deposit, in Dollars, of immediately available funds at the Agency
Services Address. The amount of the requested Loans will then be made available to the Borrower by
the Agent by crediting the account of the Borrower on the books of such office of the Agent, to the
extent the amount of such Loans are made available to the Agent.



     No Lender shall be responsible for the failure or delay by any other Lender in its obligation
to make Loans under this Section 2.4; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other Lender of its obligations hereunder.
Unless the Agent shall have been



22









 







notified by any Lender prior to the date of any such Loan that such Lender does not intend to
make available to the Agent its portion of the Loans to be made on such date, the Agent may assume
that such Lender has made such amount available to the Agent on the date of such Loans, and the
Agent in reliance upon such assumption, may (in its sole discretion but without any obligation to
do so) make available to the Borrower a corresponding amount. If such corresponding amount is not
in fact made available to the Agent, the Agent shall be able to recover such corresponding amount
from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Agent’s
demand therefor, the Agent will promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount within two Business Days to the Agent. The Agent shall also be entitled
to recover from the Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made available by the
Agent to the Borrower to the date such corresponding amount is recovered by the Agent at a per
annum rate equal to (a) from the Borrower at the applicable rate for such Loan pursuant to the
Notice of Borrowing and (b) from a Lender at the Federal Funds Rate.



     2.5 Continuations and Conversions.



     The Borrower shall have the option (subject to the limitations set forth below), on any
Business Day, to continue existing Eurodollar Loans for a subsequent Interest Period, to convert
Base Rate Loans into Eurodollar Loans or to convert Eurodollar Loans into Base Rate Loans;
provided, however, that (a) each such continuation or conversion must be requested by the
Borrower pursuant to a written Notice of Continuation/Conversion, in the form of Exhibit
2.5, in compliance with the terms set forth below, (b) if a Eurodollar Loan is continued or
converted into a Base Rate Loan on any day other than the last day of the Interest Period
applicable thereto, then the Borrower shall be subject to the provisions set forth in Section 4.3,
(c) Eurodollar Loans may not be continued nor may Base Rate Loans be converted into Eurodollar
Loans during the existence and continuation of a Default or Event of Default and (d) any request to
extend a Eurodollar Loan that fails to comply with the terms hereof or any failure to request an
extension of a Eurodollar Loan at the end of an Interest Period shall constitute a conversion to a
Base Rate Loan on the last day of the applicable Interest Period. Each continuation or conversion
must be requested by the Borrower no later than 11:00 a.m. (i) on the date for a requested
conversion of a Eurodollar Loan to a Base Rate Loan or (ii) three Business Days prior to the date
for a requested continuation of a Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar
Loan, in each case pursuant to a written Notice of Continuation/Conversion submitted to the Agent
which shall set forth (A) whether the Borrower wishes to continue or convert such Loans and (B) if
the request is to continue a Eurodollar Loan or convert a Base Rate Loan to a Eurodollar Loan, the
Interest Period applicable thereto.



     2.6 Minimum Amounts.



     Each request for a Revolving Loan or a Term Loan or a conversion or continuation hereunder
shall be subject to the following requirements: (a) each Eurodollar Loan shall be in a minimum
amount of $10,000,000 (and in integral multiples of $1,000,000 in excess thereof), (b) each Base
Rate Loan shall be in a minimum amount of the lesser of $10,000,000 (and in integral multiples of
$1,000,000 in excess thereof) or the remaining amount available to be borrowed and (c) no more than
ten Eurodollar Loans shall be outstanding hereunder at any one time; provided, that the
second draw of the Term Loans may be made in a minimum amount of $1,000,000 (and in integral
multiples of $1,000,000 in excess thereof). For the purposes of this Section, all Eurodollar Loans
with the same Interest Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if they begin on the
same date, shall be considered separate Eurodollar Loans.



23









 





     2.7 Reductions of Revolving Committed Amount.



     Upon at least five (5) Business Days’ notice, the Borrower shall have the right to permanently
terminate or reduce the aggregate unused amount of the Revolving Committed Amount at any time or
from time to time; provided, that (a) each partial reduction shall be in an aggregate
amount at least equal to $10,000,000 and in integral multiples of $1,000,000 above such amount, (b)
no reduction shall be made which would reduce the Revolving Committed Amount to an amount less than
the aggregate amount of the then outstanding Revolving Loans plus the aggregate amount of the then
outstanding LOC Obligations plus the aggregate amount of then outstanding Swingline Loans. Any
reduction in (or termination of) the Revolving Committed Amount shall be permanent and may not be
reinstated.



     2.8 Swingline Loans. 




     (a) Swingline Commitment. Subject to the terms and conditions herein, the
Swingline Lender, in its individual capacity, agrees to make loans to the Borrower in
Dollars, at any time and from time to time, during the period from the Effective Date to the
Maturity Date (each a “Swingline Loan” and collectively, the “Swingline
Loans”); provided, however, that (a) the sum of the aggregate amount of Swingline Loans
outstanding plus Revolving Loans outstanding plus LOC Obligations outstanding shall not
exceed the Revolving Committed Amount and (b) the aggregate amount of Swingline Loans
outstanding at any one time shall not exceed the Swingline Committed Amount. Subject to the
terms and conditions of the Credit Agreement, the Borrower may borrow, repay and reborrow
Swingline Loans.




     (b) Notice of Borrowing and Funding. By no later than 1:00 p.m. on the date of
the requested borrowing of Swingline Loans, the Borrower shall submit a written Notice of
Borrowing in the form of Exhibit 2.3 to the Agent setting forth (i) the amount
requested and (ii) certification that the Borrower has complied in all respects with Section
5.2. Swingline Loan borrowings shall be made in minimum amounts of $500,000 and in integral
amounts of $100,000 in excess thereof. The amount of the requested Swingline Loans will
then be made available to the Borrower by the Swingline Lender by crediting the account of
the Borrower on the books of such office of the Agent.




     (c) Repayment of Swingline Loans. The Swingline Lender may, at any time, in
its sole discretion, by written notice to the Borrower, demand repayment of its Swingline
Loans by way of a Revolving Loan borrowing, in which case the Borrower shall be deemed to
have requested a Revolving Loan borrowing comprised entirely of Base Rate Loans in the
amount of such Swingline Loans; provided, however, that, in the following
circumstances, any such demand shall also be deemed to have been given one (1) Business Day
prior to each of (i) the Maturity Date, (ii) the occurrence of any Event of Default
described in Section 9.1(e), (iii) upon acceleration of the Obligations hereunder, whether
on account of an Event of Default described in Section 9.1(e) or any other Event of Default
and (iv) the exercise of remedies in accordance with the provisions of Section 9.2 hereof
(each such Revolving Loan borrowing made on account of any such deemed request therefor as
provided herein being hereinafter referred to as a “Mandatory Swingline Borrowing”).
Each Lender hereby irrevocably agrees to make such Revolving Loans on the day such notice
is received by the Lenders from the Agent if such notice is received at or before 2:00 p.m.,
otherwise such payment shall be made at or before 12:00 noon on the Business Day next
succeeding the day such notice is received, in the amount and in the manner specified in the
preceding sentence notwithstanding (A) the amount of the Mandatory Swingline
Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise
required hereunder, (B) whether any conditions specified in Section 5.2 are then



24









 







satisfied, (C) whether a Default or an Event of Default then exists, (D) failure of any
such request or deemed request for Revolving Loans to be made by the time otherwise required
in Section 2.3, (E) the date of such Mandatory Swingline Borrowing, or (F) any reduction in
the Revolving Committed Amount or termination of the Commitments immediately prior to such
Mandatory Swingline Borrowing or contemporaneously therewith. In the event that any
Mandatory Swingline Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a proceeding under
the Bankruptcy Code), then each Lender hereby agrees that it shall forthwith purchase (as of
the date the Mandatory Swingline Borrowing would otherwise have occurred, but adjusted for
any payments received from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such Participation Interests in the outstanding Swingline Loans as
shall be necessary to cause each such Lender to share in such Swingline Loans ratably based
upon its respective Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2); provided that (x) all
interest payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective Participation Interests is purchased, and (y) at
the time any purchase of Participation Interests pursuant to this sentence is actually made,
the purchasing Revolving Lender shall be required to pay to the Swingline Lender interest on
the principal amount of such Participation Interests purchased for each day from and
including the day upon which the Mandatory Swingline Borrowing would otherwise have occurred
to but excluding the date of payment for such participation, at the rate equal to, if paid
within two (2) Business Days of the date of the Mandatory Swingline Borrowing, the Federal
Funds Effective Rate, and thereafter at a rate equal to the Base Rate.



     2.9 Notes.




     (a) The Revolving Loans made by a Lender, upon request of such Lender, shall be
evidenced by a duly executed promissory note of the Borrower payable to such Lender in
substantially the form of Exhibit 2.9(a) (the “Revolving Notes”).




     (b) The Term Loans made by a Lender, upon request of such Lender, shall be evidenced by
a duly executed promissory note of the Borrower payable to such Lender in substantially the
form of Exhibit 2.9(b) (the “Term Loan Notes”).




     (c) The Swingline Loans made by the Swingline Lender, upon request of the Swingline
Lender, shall be evidenced by a promissory note of the Borrower payable to the Swingline
Lender in substantially the form of Exhibit 2.9(c) (the “Swingline Loan
Note”).



     2.10 Increases in Revolving Committed Amount.




     (a) Requested Increases. The Borrower shall have the right, prior to the
Maturity Date and with the consent of the Agent and the Issuing Lenders (such consent not to
be unreasonably withheld), from time to time during the term of this Credit Agreement, and
subject to the terms and conditions set forth below, to increase the aggregate amount of the
Revolving Committed Amount; provided that (a) no Default or Event of Default shall exist at
the time of the request or the proposed increase in the Revolving Committed Amount; (b) such
increase must be in a minimum amount of $10,000,000 and in integral multiples of $1,000,000
above such amount, (c) the Revolving Committed Amount shall not be increased to an amount
greater than FIVE HUNDRED FIFTY MILLION DOLLARS ($550,000,000) less any principal amounts
outstanding under the Term Loans, (d) no individual Lender’s Commitment may be increased
without such Lender’s written



25









 







consent, (e) the Borrower shall execute and deliver such Revolving Note(s) as are
necessary to reflect the increase in the Revolving Committed Amount, (f) Schedule
1.1(a) shall be amended to reflect the revised Revolving Committed Amount and revised
Commitments and Commitment Percentages of the Lenders and (g) if any Revolving Loans are
outstanding at the time of an increase in the Revolving Committed Amount, the Borrower will
prepay (provided that any such prepayment shall be subject to Section 4.3) one or more
existing Revolving Loans in an amount necessary such that after giving effect to the
increase in the Revolving Committed Amount each Lender will hold its Commitment Percentage
(based on its share of the revised Revolving Committed Amount) of outstanding Revolving
Loans.




     Any such increase in the Revolving Committed Amount shall apply, at the option of the
Borrower, to (x) the Commitment of one or more existing Lenders; provided that any Lender
whose Commitment is being increased must consent in writing thereto and/or (y) the creation
of a new Commitment to one or more institutions that is not an existing Lender; provided
that any such institution (A) must conform to the definition of Eligible Assignee, (B) must
have a Commitment of at least $10,000,000 unless otherwise agreed to by the Agent and the
Borrower and (C) must become a Lender under this Credit Agreement by execution and delivery
of an appropriate joinder agreement or of counterparts to this Credit Agreement in a manner
acceptable to the Borrower and the Agent.




     (b) Automatic Increases. The Revolving Committed Amount shall be automatically
increased from time to time in accordance with Section 3.2(a)(iii). Upon any such increase,
(i) each applicable Lender’s Original Revolving Commitment shall be increased
automatically in accordance with its Original Revolving Commitment Percentage, (ii)
Schedule 1.1(a) shall be amended to reflect the revised Revolving Committed Amount
and the revised Commitments and, if applicable, Commitment Percentages of the Lenders and
(iii) if the Borrower has previously increased the Revolving Committed Amount pursuant to
Section 2.10(a) and any Revolving Loans are outstanding at the time of such increase in the
Revolving Committed Amount, the Borrower will prepay (provided that any such prepayment
shall be subject to Section 4.3) one or more existing Revolving Loans in an amount necessary
such that after giving effect to the increase in the Revolving Committed Amount each Lender
will hold its Commitment Percentage (as revised due to the increase in the Revolving
Committed Amount) of outstanding Revolving Loans. For the avoidance of doubt, no Commitment
or Commitment Percentage obtained by a Lender pursuant to Section 2.10(a) shall be subject
to increase pursuant to this Section 2.10(b) or Section 3.2(a)(iii).



SECTION 3.




PAYMENTS




     3.1 Interest.




     (a) Interest Rate.




     (i) All Base Rate Loans and all Swingline Loans shall accrue interest at the
Adjusted Base Rate.




     (ii) All Eurodollar Loans shall accrue interest at the Adjusted Eurodollar Rate
applicable to such Eurodollar Loan.



26









 






     (b) Default Rate of Interest. Upon the occurrence, and during the
continuation, of an Event of Default, all past due principal of and, to the extent permitted
by law, past due interest on, the Loans and any other past due amounts owing hereunder or
under the other Credit Documents shall bear interest, payable on demand, at a per annum rate
equal to one percent (1%) plus the rate which would otherwise be applicable (or if no rate
is applicable, then the rate for Loans that are Base Rate Loans plus one percent (1%) per
annum).




     (c) Interest Payments. Interest on Loans shall be due and payable in arrears
on each Interest Payment Date.



     3.2 Prepayments. 




     (a) Voluntary Prepayments. The Borrower shall have the right to prepay Loans
in whole or in part from time to time without premium or penalty; provided, however,
that (i) Eurodollar Loans may only be prepaid on three Business Days’ prior written notice
to the Agent and any prepayment of Eurodollar Loans will be subject to Section 4.3; (ii)
each such partial prepayment of Loans shall be in the minimum principal amount of
$10,000,000; and (iii) any prepayment of the Term Loans in connection with a Permitted
Acquisition or capital expenditure shall cause the Revolving Committed Amount to be
increased in the same dollar amount of such prepayment and shall be subject to Section
2.10(b). Any prepayments made under this Section 3.2(a) shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period maturities and shall
be subject to Section 4.3. The increase in the Revolving Committed Amount pursuant to this
clause (a) may, upon request of the Borrower, occur concurrently with the prepayment of the
Term Loans.




     (b) Mandatory Prepayments. If at any time the amount of Revolving Loans
outstanding plus Swingline Loans outstanding plus the aggregate amount of LOC Obligations
outstanding exceeds the Revolving Committed Amount, the Borrower shall immediately make a
principal payment to the Agent in a manner and in an amount necessary to be in compliance
with Sections 2.1(a), 2.2 and 2.8 and as directed by the Agent. All amounts required to be
paid pursuant to this Section 3.2(b)(i) shall be (A) applied first to Swingline Loans, then
to Revolving Loans (first to Base Rate Loans and then to Eurodollar Loans in the direct
order of Interest Period maturities) and then to a cash collateral account in respect of LOC
Obligations and (B) subject to Section 4.3.



     3.3 Payment of Loans in full at Maturity.




     On the Maturity Date, the entire outstanding principal balance of all Loans, together
with accrued but unpaid interest and all other sums owing under this Credit Agreement, shall
be due and payable in full, unless accelerated sooner pursuant to Section 9.2.



     3.4 Fees.




     (a) Facility Fees. The Borrower shall pay to the Agent, for the pro rata
benefit of the Lenders, a facility fee (the “Facility Fee”) equal to the Applicable
Margin for Facility Fees times the actual daily amount of Revolving Committed Amount
(or, if the Commitments have terminated, on the outstanding amount of all Revolving Loans,
Swingline Loans and LOC Obligations), regardless of usage. The Facility Fee shall accrue at
all times during the period beginning on the Effective Date and ending on the Maturity Date
(and thereafter so long as any Revolving Loans, Swingline Loans or LOC Obligations remain
outstanding), including at any time during which one or more of the conditions in Section
5.2 is not met, and shall be due and payable quarterly in arrears on the15th day



27









 







following the last day of each calendar quarter for the prior calendar quarter,
commencing with the first such date to occur after the Closing Date, and on the Maturity
Date (and, if applicable, thereafter on demand). The Facility Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Margin for Facility Fees
during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Margin for Facility Fees separately for each period during such quarter that such
Applicable Margin for Facility Fees was in effect.




     (b) Letter of Credit Fees.




     (i) Letter of Credit Fees. In consideration of the issuance of Letters
of Credit hereunder, the Borrower agrees to pay to the Agent, for the pro rata
benefit of each Lender, a per annum fee equal to the Applicable Margin for
Eurodollar Loans in effect from time to time on the aggregate stated amount for each
Letter of Credit from the date of issuance to the date of expiration (the
“Letter of Credit Fees”). The accrued Letter of Credit Fees shall be due
and payable in arrears on the 15th day after the end of each calendar
quarter of the Borrower (as well as on the Maturity Date) for the immediately
preceding calendar quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.




     (ii) Issuing Lender Fees. In addition to the Letter of Credit Fees
payable pursuant to subsection (i) above, the Borrower shall pay to the applicable
Issuing Lender for its own account, without sharing by the other Lenders, (A) if the
applicable Issuing Lender is Wachovia Bank, National Association, a fee equal to
one-eighth of one percent (.125%) per annum or (B) if the applicable Issuing Lender
is any other Lender, such other rate as agreed to between such Issuing Lender and
the Borrower, in each case on the total sum of all Letters of Credit issued by the
applicable Issuing Lender and outstanding during the applicable period and (C) the
customary charges from time to time to the applicable Issuing Lender for its
services in connection with the issuance, amendment, payment, transfer,
administration, cancellation and conversion of, and drawings under, such Letters of
Credit (collectively, the “Issuing Lender Fees”). The accrued Issuing
Lender Fees shall be due and payable in arrears on the 15th day following
the last day of each calendar quarter of the Borrower (as well as on the Maturity
Date) for the immediately preceding calendar quarter (or portion thereof), beginning
with the first of such dates to occur after the Closing Date.




     (c) Utilization Fees.




     (i) If on any day the aggregate outstanding principal amount of all Revolving
Loans, Swingline Loans and LOC Obligations exceeds the product of (A) fifty percent
(50%) times (B) the Revolving Committed Amount, the Borrower agrees to pay
to the Agent, for the pro rata benefit of each Lender, a per annum fee equal to .10%
multiplied by the Utilized Revolving Loan Commitment (the “Utilization
Fees”).




     (ii) The accrued Utilization Fees shall be due and payable in arrears on the
15th day following the last day of each calendar quarter of the Borrower
for the immediately preceding calendar quarter (or portion thereof), beginning with
the first of such dates to occur after the Closing Date.




     (d) Administrative Fee. The Borrower agrees to pay to the Administrative Agent
the annual administrative fee as described in the Fee Letter.




28









 






     3.5 Place and Manner of Payments.



     All payments of principal, interest, fees, expenses and other amounts to be made by the
Borrower under this Credit Agreement shall be made without setoff, deduction or counterclaim and
received not later than 2:00 p.m. on the date when due in Dollars and in immediately available
funds by the Agent at the Agency Services Address. The Borrower shall, at the time it makes any
payment under this Credit Agreement, specify to the Agent the Loans, Letters of Credit, fees or
other amounts payable by the Borrower hereunder to which such payment is to be applied (and in the
event that it fails to specify, or if such application would be inconsistent with the terms hereof,
the Agent shall distribute such payment to the Lenders in such manner as it reasonably determines
in its sole discretion). The Agent will distribute such payments to the applicable Lenders on the
same Business Day if any such payment is received prior to 2:00 p.m.; otherwise the Agent will
distribute each payment to the applicable Lenders prior to 12:00 noon on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding Business Day (subject
to accrual of interest and fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the next following
calendar month, then such payment shall be made on the next preceding Business Day.



     3.6 Pro Rata Treatment.




     (a) Loans/Fees. Except to the extent otherwise provided herein, all borrowing
of Revolving Loans (including each Mandatory Borrowing) and Term Loans, each payment or
prepayment of principal of any Revolving Loan or Term Loan, each payment of interest on the
Revolving Loans or Term Loans, each payment of Facility Fees and Utilization Fees, each
payment of Letter of Credit Fees, each reduction of the Revolving Committed Amount and each
conversion or continuation of any Revolving Loan or Term Loan, shall be allocated pro rata
among the Lenders in accordance with their respective Commitment Percentages;
provided, that, if any Lender shall have failed to pay its applicable pro rata share
of any Loan, then any amount to which such Lender would otherwise be entitled pursuant to
this Section 3.6 shall instead be payable to the Agent until the share of such Loan not
funded by such Lender has been repaid and any interest owed by such Lender as result of such
failure to fund has been paid; and provided, further, that in the event any
amount paid to any Lender pursuant to this Section 3.6 is rescinded or must otherwise be
returned by the Agent, each Lender shall, upon the written request of the Agent, repay to
the Agent the amount so paid to such Lender, with interest for the period commencing on the
date such payment is returned by the Agent until the date the Agent receives such repayment
at a rate per annum equal to, during the period to but excluding the date two Business Days
after such request, the Federal Funds Rate, and thereafter, the Base Rate plus one
percent (1%) per annum.




     (b) Letters of Credit. Each payment of unreimbursed drawings in respect of LOC
Obligations shall be allocated to each Lender pro rata in accordance with its Commitment
Percentage; provided, that, if any Lender shall have failed to pay its applicable
pro rata share of any drawing under any Letter of Credit, then any amount to which such
Lender would otherwise be entitled pursuant to this subsection (b) shall instead be payable
to the applicable Issuing Lender; provided, further, that in the event any
amount paid to any Lender pursuant to this subsection (b) is rescinded or must otherwise be
returned by the applicable Issuing Lender, each Lender shall, upon the written request of
the applicable Issuing Lender, repay to the Agent for the account of the applicable Issuing
Lender the amount so paid to such Lender, with interest for the period commencing on the
date such payment is returned by the applicable Issuing Lender until the date the applicable
Issuing Lender receives such repayment at a rate per annum equal to, during the period to



29









 






but excluding the date two Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate plus one percent (1%) per annum.



     3.7 Computations of Interest and Fees. 




     (a) Except for Base Rate Loans that are based upon the Prime Rate, on which interest
shall be computed on the basis of a 365 or 366 day year as the case may be, all computations
of interest and fees hereunder shall be made on the basis of the actual number of days
elapsed over a year of 360 days.




     (b) It is the intent of the Lenders and the Credit Parties to conform to and contract
in strict compliance with applicable usury law from time to time in effect. All agreements
between the Lenders and the Credit Parties are hereby limited by the provisions of this
paragraph which shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of any obligation),
shall the interest taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount permissible
under applicable law. If, from any possible construction of any of the Credit Documents or
any other document, interest would otherwise be payable in excess of the maximum nonusurious
amount, any such construction shall be subject to the provisions of this paragraph and
interest owing pursuant to such documents shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which would, apart from this
provision, be in excess of the maximum lawful amount, an amount equal to the amount which
would have been excessive interest shall, without penalty, be applied to the reduction of
the principal amount owing on the Loans and not to the payment of interest, or refunded to a
Credit Party or the other payor thereof if and to the extent such amount which would have
been excessive exceeds such unpaid principal amount of the Loans. The right to demand
payment of the Loans or any other indebtedness evidenced by any of the Credit Documents does
not include the right to receive any interest which has not otherwise accrued on the date of
such demand, and the Lenders do not intend to charge or receive any unearned interest in the
event of such demand. All interest paid or agreed to be paid to the Lenders with respect to
the Loans shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any renewal or extension)
of the Loans so that the amount of interest on account of such indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.



     3.8 Sharing of Payments.



     Each Lender agrees that, in the event that any Lender shall obtain payment in respect of any
Loan, any unreimbursed drawing with respect to any LOC Obligations or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right of set-off, banker’s lien,
counterclaim or otherwise (including, but not limited to, pursuant to the Bankruptcy Code) in
excess of its pro rata share as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans, LOC Obligations and other
obligations, in such amounts and with such other adjustments from time to time, as shall be
equitable in order that all Lenders share such payment in accordance with their respective ratable
shares as provided for in this Credit Agreement. Each Lender further agrees that if a payment to a
Lender (which is obtained by such Lender through the exercise of a right of set-off, banker’s lien,
counterclaim or otherwise) shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a participation theretofore



30









 




sold, return its share of that benefit to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so purchasing such a participation may, to
the fullest extent permitted by law, exercise all rights of payment, including set-off, banker’s
lien or counterclaim, with respect to such participation as fully as if such Lender were a holder
of such Loan or other obligation in the amount of such participation. Except as otherwise
expressly provided in this Credit Agreement, if any Lender shall fail to remit to the Agent or any
other Lender an amount payable by such Lender to the Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments shall accrue interest thereon,
for each day from the date such amount is due until the day such amount is paid to the Agent or
such other Lender, at a rate per annum equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a
setoff to which this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the rights of the Lenders
under this Section 3.8 to share in the benefits of any recovery on such secured claim.




     3.9 Evidence of Debt.




     (a) Each Lender shall maintain an account or accounts evidencing each Loan made by such
Lender to the Borrower from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Credit Agreement. Each Lender
will make reasonable efforts to maintain the accuracy of its account or accounts and to
promptly update its account or accounts from time to time, as necessary.




     (b) The Agent shall maintain the Register pursuant to Section 11.3(c), and a subaccount
for each Lender, in which Register and subaccounts (taken together) shall be recorded (i)
the amount, type and Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to each Lender hereunder
and (iii) the amount of any sum received by the Agent hereunder from or for the account of
the Borrower and each Lender’s share thereof. The Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as necessary.




     (c) The entries made in the Register and subaccounts maintained pursuant to subsection
(b) of this Section 3.9, and the entries made in the accounts maintained pursuant to
subsection (a) of this Section 3.9, if consistent with the entries of the Agent, shall be
prima facie evidence of the existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of any Lender or the Agent to
maintain any such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay the Loans
made by such Lender in accordance with the terms hereof.



SECTION 4.




ADDITIONAL PROVISIONS




     4.1 Eurodollar Loan Provisions.




     (a) Unavailability. If, on or prior to the first day of any Interest Period,
(i) the Agent shall have determined in good faith (which determination shall be conclusive
and binding upon the Borrower) that (A) Dollar deposits are not generally available in the
London interbank Eurodollar market in the applicable principal amounts and Interest Period
of a requested Eurodollar Loan or (B) by reason of circumstances affecting the relevant
market, adequate and reasonable means do not



31









 






exist for ascertaining the Eurodollar Rate for
such Interest Period, or (ii) the Agent shall have received notice from the Required Lenders
that the Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to the Lenders of making or maintaining Eurodollar
Loans for such Interest Period (as conclusively certified by such Lenders), the Agent shall
give notice thereof to the Borrower and the Lenders as soon as practicable thereafter. Upon
delivery of such notice, (A) any Eurodollar Loans requested to be made on the first day of
such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been
converted to or continued as Eurodollar Loans shall be prepaid by the Borrower or converted
to or continued as Base Rate Loans and (C) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate Loans. Until the Agent
has withdrawn such notice, no further Eurodollar Loans shall be made or continued as such,
nor shall the Borrower have the right to convert Base Rate Loans to Eurodollar Loans.




     (b) Change in Legality. Notwithstanding any other provision herein, if any
change, after the date hereof, in any law, governmental rule, regulation, guideline or order
(including the introduction of any new law or governmental rule, regulation, guideline or
order) or in the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan then, by written notice to the Borrower and
to the Agent, such Lender may:




     (i) declare that Eurodollar Loans and conversions to or continuations of
Eurodollar Loans, will not thereafter be made by such Lender hereunder, whereupon
any request by the Borrower for, or for conversion into or continuation of,
Eurodollar Loans shall, as to such Lender only, be deemed a request for, or for
conversion into or continuation of, Base Rate Loans, unless such declaration shall
be subsequently withdrawn; and




     (ii) require that all outstanding Eurodollar Loans made by it be converted to
Base Rate Loans in which event all such Eurodollar Loans shall be converted to Base
Rate Loans either (A) on the last day of the then current Interest Period applicable
to such Eurodollar Loan if such Lender can lawfully continue to maintain and fund
such Eurodollar Loan or (B) immediately if such Lender shall determine that it may
not lawfully continue to maintain and fund such Eurodollar Loan to such day.




     (c) Requirements of Law. If at any time a Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder with respect to the making,
the commitment to make or the maintaining of any Eurodollar Loan or of agreeing to issue or
participate in any Letters of Credit because of (i) any change after the date hereof in any
law, governmental rule, regulation, guideline or order (including the introduction of any
new law or governmental rule, regulation, guideline or order) or in the interpretation or
administration thereof by any Governmental Authority charged with the interpretation or
administration thereof, including, without limitation, the imposition, modification or
deemed applicability of any reserves, deposits or similar requirements (such as, for
example, but not limited to, a change in official reserve requirements) or (ii) other
circumstances affecting the London interbank Eurodollar market; then the Borrower shall pay
to such Lender promptly upon written demand therefor, such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or otherwise as such
Lender may determine in its sole discretion) as may be required to compensate such Lender
for such increased costs or reductions in amounts receivable hereunder. If any Lender
becomes entitled to claim any additional amounts pursuant to this
Section 4.1(c), it shall
provide prompt notice thereof to the Borrower, through the Agent, certifying (A) that one of
the events described in this Section 4.1(c)



32









 






has occurred and describing in reasonable detail
the nature of such event, (B) as to the increased cost or reduced amount resulting from such
event and (C) as to the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof; provided, that no such amount shall be
payable with respect to any period commencing more than 90 days prior to the date such
Lender first notifies the Borrower of its intention to demand compensation therefor under
this Section.




     (d) Regulation D Compensation. In the event that a Lender is required to
maintain reserves of the type contemplated by the definition of “Eurodollar Reserve
Percentage”, such Lender may require the Borrower to pay, contemporaneously with each
payment of interest on the Eurodollar Loans, additional interest on the related Eurodollar
Loan of such Lender at a rate per annum determined by such Lender up to but not exceeding
the excess of (i)(A) the applicable London Interbank Offered Rate divided by (B) one
minus the Eurodollar Reserve Percentage over (ii) the applicable London Interbank
Offered Rate. Any Lender wishing to require payment of such additional interest (x) shall
so notify the Borrower and the Agent, in which case such additional interest on the
Eurodollar Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period commencing at least three Business Days
after the giving of such notice and (y) shall notify the Borrower at least three Business
Days prior to each date on which interest is payable on the Eurodollar Loans of the amount
then due it under this Section. Each such notification shall be accompanied by such
information as the Borrower may reasonably request.



     Each determination and calculation made by a Lender under this Section 4.1 shall, absent
manifest error, be binding and conclusive on the parties hereto. Any conversions of Eurodollar
Loans made pursuant to this Section 4.1 shall subject the Borrower to the payments required by
Section 4.3 to the extent applicable. This Section shall survive termination of this Credit
Agreement and the other Credit Documents and payment of the Loans and all other amounts payable
hereunder.



     4.2 Capital Adequacy.



     If any Lender has determined that the adoption or becoming effective, after the date hereof,
of any applicable law, rule or regulation regarding capital adequacy, or any change therein (after
the date hereof), or any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender (or its parent corporation) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender (or its parent
corporation) could have achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Lender’s (or parent corporation’s) policies with respect to capital
adequacy), then, upon notice from such Lender (which shall include the basis and calculations in
reasonable detail supporting the compensation requested in such notice), and receipt by the
Borrower of such written notice from such Lender (with a copy to the Agent) the Borrower shall be
obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on
an after tax basis (after taking into account applicable deductions and credits in respect of the
amount so indemnified) for such reduction; provided, that no such amount shall be payable
with respect to any period commencing more than 90 days prior to the date such Lender first
notifies the Borrower of its intention to demand compensation therefor under this Section. Each
determination by any Lender of amounts owing under this Section 4.2 shall, absent manifest error,
be conclusive and binding on the parties hereto. The covenants of this Section 4.2 shall survive
termination of



33









 




this Credit Agreement and the other Credit Documents and the payment of the Loans
and all other amounts payable hereunder.




     4.3 Compensation.



     The Borrower promises to indemnify each Lender and to hold each Lender harmless from any loss
or expense which such Lender may sustain or incur as a consequence of (a) default by the Borrower
in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower
has given a notice requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after the Borrower has
given a notice thereof in accordance with the provisions of this Credit Agreement, (c) the making
of a prepayment of Eurodollar Loans on a day which is not the last day of an Interest Period with
respect thereto and (d) the payment, continuation or conversion of a Eurodollar Loan on a day which
is not the last day of the Interest Period applicable thereto or the failure to repay a Eurodollar
Loan when required by the terms of this Credit Agreement. Such indemnification may include an
amount equal to (i) an amount of interest calculated at the Eurodollar Rate which would have
accrued on the amount in question, for the period from the date of such prepayment or of such
failure to borrow, convert, continue or repay to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of interest for such
Eurodollar Loans provided for herein minus (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurocurrency market. If any
Lender becomes entitled to claim any additional amounts pursuant to this Section 4.3, it shall
provide prompt notice thereof to the Borrower, through the Agent, as to the additional amount
demanded by such Lender and a reasonably detailed explanation of the calculation thereof. The
covenants in this Section 4.3 shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.



     4.4 Taxes.




     (a) Except as provided below in this Section 4.4, all payments made by the Borrower
under this Credit Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any court, or governmental body, agency
or other official, excluding taxes measured by or imposed upon the net income of any Lender
or its applicable lending office, or any branch or affiliate thereof, and all franchise
taxes, branch taxes, taxes on doing business or taxes on the capital or net worth of any
Lender or its applicable lending office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes: (i) by the jurisdiction under the laws of which such
Lender, applicable lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason of any
connection between the jurisdiction imposing such tax and such Lender, applicable lending
office, branch or affiliate other than a connection arising solely from such Lender having
executed, delivered or performed its obligations, or received payment under or enforced,
this Credit Agreement or any Notes. If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be
withheld from any amounts payable to an Agent or any Lender hereunder or under any Notes,
(A) the amounts so payable to the Agent or such Lender shall be increased to the extent
necessary to yield to the Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes; provided, however, that
the Borrower



34









 






shall be entitled to deduct and withhold any Non- Excluded Taxes and shall not
be required to increase any such amounts payable to any Lender that is not organized under
the laws of the United States of America or a state thereof if such Lender fails to comply
with the requirements of paragraph (b) of this Section 4.4 whenever any Non-Excluded Taxes
are payable by the Borrower, and (B) as promptly as possible after requested, the Borrower
shall send to the Agent for its own account or for the account of such Lender, as the case
may be, a certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and any Lender for any
incremental Non-Excluded Taxes, interest or penalties that may become payable by the Agent
or any Lender as a result of any such failure. The agreements in this Section 4.4 shall
survive the termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.




     (b) Each Lender that is not incorporated under the laws of the United States of America
or a state thereof shall:




	 	(i)	 	(A) on or before the date of any payment by the
Borrower under this Credit Agreement or the Notes to such Lender,
deliver to the Borrower and the Agent (x) two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI, or any
successor applicable form, as the case may be, certifying that it is
entitled to receive payments under this Credit Agreement and any Notes
without deduction or withholding of any United States federal income
taxes and (y) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to
an exemption from United States backup withholding tax;
	 
	 	 	 	(B) deliver to the Borrower and the
Agent two further copies of any such form or certification on
or before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered
by it to the Borrower; and
	 
	 	 	 	(C) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the
Borrower or the Agent; or






     (ii) in the case of any such Lender that is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (A) represent to the Borrower
(for the benefit of the Borrower and the Agent) that it is not a bank within the
meaning of Section 881 (c)(3)(A) of the Internal Revenue Code, (B) agree to furnish
to the Borrower, on or before the date of any payment by the Borrower, with a copy
to the Agent, two accurate and complete original signed copies of Internal Revenue
Service Form W-8, or successor applicable form, certifying to such Lender’s legal
entitlement at the date of such certificate to an exemption from U.S. withholding
tax under the provisions of Section 881(c) of the Internal Revenue Code with respect
to payments to be made under this Credit Agreement and any Notes (and to deliver to
the Borrower and the Agent two further copies of such form on or before the date it
expires or becomes obsolete and after the occurrence of any event requiring a change
in the most recently provided form and, if



35









 






necessary, obtain any extensions of time
reasonably requested by the Borrower or the Agent for filing and completing such
forms), and (C) agree, to the extent legally entitled to do so, upon reasonable
request by the Borrower, to provide to the Borrower (for the benefit of the Borrower
and the Agent) such other forms as may be reasonably required in order to establish
the legal entitlement of such Lender to an exemption from withholding with respect
to payments under this Credit Agreement and any Notes.



     Notwithstanding the above, if any change in treaty, law or regulation has occurred after the
date such Person becomes a Lender hereunder which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Agent, then such Lender shall be exempt from such
requirements. Each Person that shall become a Lender or a participant of a Lender pursuant to
Section 11.3 shall, upon the effectiveness of the related transfer, be required to provide all of
the forms, certifications and statements required pursuant to this subsection (b);
provided, that in the case of a participant of a Lender, the obligations of such
participant of a Lender pursuant to this subsection (b) shall be determined as if the participant
of a Lender were a Lender except that such participant of a Lender shall furnish all such required
forms, certifications and statements to the Lender from which the related participation shall have
been purchased.



     4.5 Replacement of Lenders.



     The Agent and each Lender shall use reasonable efforts to avoid or mitigate any increased cost
or suspension of the availability of an interest rate under Sections 4.1 through 4.4 above to the
greatest extent practicable (including transferring the Loans to another lending office or
Affiliate of a Lender) unless, in the opinion of the Agent or such Lender, such efforts would be
likely to have an adverse effect upon it. In the event a Lender makes a request to the Borrower
for additional payments in accordance with Section 4.1, 4.2 or 4.4, or suspends Eurodollar Loans
under Section 4.1, then, provided that no Default or Event of Default has occurred and is
continuing at such time, the Borrower may, at its own expense (such expense to include any transfer
fee payable to the Agent under Section 11.3(b) and any expense pursuant to Section 4) and in its
sole discretion, require such Lender to transfer and assign in whole (but not in part), without
recourse (in accordance with and subject to the terms and conditions of Section 11.3(b)), all of
its interests, rights and obligations under this Credit Agreement to an Eligible Assignee which
shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided, that (a) such assignment shall not conflict with any law, rule
or regulation or order of any court or other Governmental Authority and (b) the Borrower or such
assignee shall have paid to the assigning Lender in immediately available funds the principal of
and interest accrued to the date of such payment on the portion of the Loans hereunder held by such
assigning Lender and all other amounts owed to such assigning Lender hereunder, including amounts
owed pursuant to Sections 4.1 through 4.4.



SECTION 5.




CONDITIONS PRECEDENT




     5.1 Closing Conditions.



     The obligation of the Lenders to enter into this Credit Agreement is subject to satisfaction
(or waiver) of the following conditions:



36









 






     (a) Executed Credit Documents. Receipt by the Agent of duly executed copies of
(i) this Credit Agreement, (ii) the Notes, (iii) the Collateral Documents and (iv) all other
Credit Documents, each in form and substance acceptable to the Lenders.




     (b) Organizational Documents. Receipt by the Agent of the following:




     (i) Partnership Documents. With respect to each Credit Party that is a
partnership, a copy of the partnership agreement of such Credit Party, together with
all amendments thereto certified to be true and complete by the appropriate
Governmental Authority of the State of organization of such Credit Party and
certified by an Authorized Officer of such Credit Party to be true and correct as of
the Effective Date.




     (ii) Limited Liability Company Documents. With respect to each Credit
Party that is a limited liability company, the following:




     (A) Certificate of Formation. A copy of the certificate of
formation of such Credit Party certified to be true and complete by the
appropriate Governmental Authorities of the State of organization of such
Credit Party and certified by an Authorized Officer of such Credit Party to
be true and correct as of the Effective Date.




     (B) LLC Agreement. A copy of the LLC Agreement of such Credit
Party certified by an Authorized Officer of such Credit Party to be true and
correct as of the Effective Date.




     (iii) Corporate Documents. With respect to each Credit Party that is a
corporation, the following:




     (A) Charter Documents. Copies of the articles or certificates
of incorporation or other charter documents of such Credit Party certified
to be true and complete as of a recent date by the appropriate Governmental
Authorities of the state of its incorporation and certified by an Authorized
Officer of such Credit Party to be true and correct as of the Effective
Date.




     (B) Bylaws. A copy of the bylaws of such Credit Party certified an
Authorized Officer of such Credit Party to be true and correct as of the
Effective Date.




     (iv) Resolutions. Copies of resolutions, as appropriate, approving and
adopting the Credit Documents to which each Credit Party is a party, the
transactions contemplated therein and authorizing execution and delivery thereof and
certified by an Authorized Officer of the Borrower to be in full force and effect as
of the Effective Date.




     (v) Good Standing. Copies of certificates of good standing, existence
or their equivalent with respect to each Credit Party certified as of a recent date
by the appropriate Governmental Authorities of the State of organization of such
Credit Party.




     (vi) Incumbency. An incumbency certificate certified by an Authorized
Officer of the applicable Credit Parties to be true and correct as of the Effective
Date.



37









 






     (c) Opinion of Counsel. Receipt by the Agent of an opinion from legal counsel
to the Credit Parties, addressed to the Agent on behalf of the Lenders and dated as of the
Effective Date, in form and substance satisfactory to the Agent.




     (d) Asset Transfer. Receipt by the Lenders of such information as reasonably
requested regarding the transfer of assets from Duke Energy Field Services, LLC and its
Subsidiaries and Affiliates to the Parent as of the Closing Date, including copies of all
documentation evidencing such transfer (the “Initial Asset Acquisition”).




     (e) IPO. Receipt by the Agent of confirmation that an initial public offering
has been consummated by the Parent (or is simultaneously being consummated by the Parent),
on terms acceptable to the Lenders, that results in net cash proceeds to the Parent of not
less than $100,000,000.




     (f) Financial Statements/Ownership Structure. Receipt by the Lenders of such
financial information or other information regarding the Credit Parties and their assets,
and the ownership of same, as the Lenders may reasonably request, including without
limitation, information regarding the Initial Asset Acquisition.




     (g) Collateral. Receipt of the Agent of (i) Permitted Cash Collateral with a
value of not less than the Required Collateral Amount, calculated after giving effect to the
making of the Term Loan on the Closing Date and (ii) such other documentation and
information as required herein or by the Collateral Documents.




     (h) Fees and Expenses. Payment by the Borrower of all fees and expenses owed
by it to the Lenders, the Agent and the Co-Lead Arrangers, including, without limitation,
payment to the Agent of the fees set forth in the Fee Letter.




     (i) Litigation. As of the Closing Date, there shall be no material actions,
suits, investigations or legal, equitable, arbitration or administrative proceedings pending
or threatened against a Credit Party which are likely to be decided adversely to such Credit
Party and if so decided would have a Material Adverse Effect.




     (j) Material Adverse Effect. As of the Closing Date, no event or condition
shall have occurred since December 31, 2004 that would have or would be reasonably expected
to have a Material Adverse Effect.




     (k) Certificate. The Agent shall have received a certificate or certificates
executed by an Approved Officer of the Parent, on behalf of the Credit Parties, as of the
Closing Date stating that (i) each Credit Party is in compliance with all existing financial
obligations, unless such non-compliance would not have a Material Adverse Effect, (ii) no
action, suit, investigation or proceeding is pending or, to such officer’s knowledge,
threatened in any court or before any arbitrator or governmental instrumentality that
purports to affect a Credit Party or any transaction contemplated by the Credit Documents,
if such action, suit, investigation or proceeding is likely to be adversely determined and
if adversely determined would have a Material Adverse Effect, (iii) the financial statements
and information delivered to the Agent on or before the Closing Date were prepared in good
faith and in accordance with GAAP, (iv) all consents and approvals of board of directors,
equity holders, general partners, Governmental Authorities and third parties necessary in
connection with the Initial Asset Acquisition, the IPO and the Credit Documents have been
obtained, and (v) immediately after giving effect to this Credit Agreement, the other Credit
Documents and all the



38









 






transactions contemplated herein and therein to occur on such date,
(A) no Default or Event of Default exists and (B) all representations and warranties
contained herein and in the other Credit Documents are true and correct in all material
respects on and as of the date made.




     (l) Patriot Act. Receipt by the Agent at least five (5) Business Days prior to
the Closing Date of all documentation and other information required by regulatory
authorities under applicable “know your customer” and anti-money laundering rules and
regulations.




     (m) Account Designation Letter. Receipt by the Agent of an executed
counterpart of the Account Designation Letter.




     (n) Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably requested by any Lender.




     (l) Minimum Commitments. The aggregate amount of Commitments of all Lenders on
the Closing Date shall be not less than $400,000,000.



     5.2 Conditions to Loans and Issuances of Letters of Credit.



     In addition to the conditions precedent stated elsewhere herein, the Lenders shall not be
obligated to make new Loans nor shall an Issuing Lender be required to issue, renew or extend a
Letter of Credit (and the Lenders shall not be obligated to participate in any Letter of Credit)
unless:




     (a) Request. The Borrower shall have timely delivered (i) in the case of any
new Revolving Loan or Term Loan, to the Agent, an appropriate Notice of Borrowing, duly
executed and completed, by the time specified in Section 2.1, (ii) in the case of any Letter
of Credit, to the applicable Issuing Lender, an appropriate request for issuance of a Letter
of Credit in accordance with the provisions of Section 2.2 and (iii) in the case of any
Swingline Loan, to the Swingline Lender, an appropriate Notice of Borrowing, duly executed
and completed, by the time specified in Section 2.8.




     (b) Representations and Warranties. The representations and warranties made by
the Credit Parties in this Credit Agreement are true and correct in all material respects at
and as if made as of the date of the funding of the Loans or the issuance, renewal or
extension of the Letters of Credit, as applicable (except to the extent such representations
and warranties expressly and exclusively relate to an earlier date).




     (c) No Default. No Default or Event of Default shall exist or be continuing
either prior to or after giving effect thereto.




     (d) Availability. Immediately after giving effect to the making of a Loan (and
the application of the proceeds thereof) or to the issuance of a Letter of Credit, as the
case may be, the amount of Loans and LOC Obligations outstanding shall not exceed the
maximum permitted by Sections 2.1, 2.2 and 2.8.




     (e) Cash Collateral. In the case of any new Term Loan, the Borrower shall have
deposited into the Cash Collateral Account sufficient Permitted Cash Collateral so that,
after giving effect to the making of such Term Loan, the value of all Permitted Cash
Collateral maintained in the Cash Collateral Account is not less than the Required
Collateral Amount.



39









 






     The delivery of each Notice of Borrowing and each request for a Letter of Credit shall
constitute a representation and warranty by the Borrower of the correctness of the matters
specified in subsections (b), (c) and (d) above.



SECTION 6.




REPRESENTATIONS AND WARRANTIES




     Each Credit Party hereby represents and warrants to each Lender that:



     6.1 Organization and Good Standing.



     Each Credit Party (a) is a limited partnership, limited liability company or a corporation
duly formed, validly existing and in good standing under the laws of the state of its formation,
(b) is duly qualified and in good standing and authorized to do business in every jurisdiction
where the failure to so qualify would have a Material Adverse Effect and (c) has the requisite
power and authority to own its properties and to carry on its business as now conducted and as
proposed to be conducted.



     6.2 Due Authorization.



     Each Credit Party (a) has the requisite power and authority to execute, deliver and perform
this Credit Agreement and the other Credit Documents and to incur the obligations herein and
therein provided for and (b) has been authorized by all necessary corporate, partnership or limited
liability company action to execute, deliver and perform this Credit Agreement and the other Credit
Documents.



     6.3 No Conflicts.



     Neither the execution and delivery of the Credit Documents, nor the consummation of the
transactions contemplated herein and therein, nor performance of and compliance with the terms and
provisions hereof and thereof by any Credit Party will (a) violate or conflict with any provision
of its organizational documents or bylaws, (b) materially violate, contravene or conflict with any
law (including without limitation, the Public Utility Holding Company Act of 1935, as amended),
regulation (including without limitation, Regulation U or Regulation X), order, writ, judgment,
injunction, decree or permit applicable to it, (c) materially violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture, loan agreement,
mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by
which it may be bound or (d) result in or require the creation of any Lien upon or with respect to
its properties other than the Liens hereunder and under the Collateral Documents.



     6.4 Consents.



     No consent, approval, authorization or order of, or filing, registration or qualification
with, any court or Governmental Authority or third party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other Credit Documents
that has not been obtained.



     6.5 Enforceable Obligations.



     This Credit Agreement and the other Credit Documents have been duly executed and delivered and
constitute legal, valid and binding obligations of each Credit Party which is a party thereto
enforceable



40









 




against such Credit Party in accordance with their respective terms, except as may be limited
by bankruptcy or insolvency laws or similar laws affecting creditors’ rights generally or by
general equitable principles.




     6.6 Financial Condition/Material Adverse Effect.



     The financial statements delivered to the Lenders pursuant to Section 7.1(a) and (b): (i)
have been prepared in accordance with GAAP (subject to the provisions of Section 1.3) and (ii)
present fairly the financial condition, results of operations and cash flows of the Parent and its
Subsidiaries as of such date and for such periods (subject, in the case of interim statements, to
normal year-end adjustments and the absence of footnotes). Since the Effective Date, there has
been no event or circumstance that, either individually or collectively, has had or would
reasonably be expected to have a Material Adverse Effect.



     6.7 Taxes.



     Each Credit Party and each of its Subsidiaries has filed, or caused to be filed, all material
tax returns (federal, state, local and foreign) required to be filed and paid all amounts of taxes
shown thereon to be due (including interest and penalties) and has paid all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except (a) for such taxes which are not yet delinquent or
that are being contested in good faith and by proper proceedings, and against which adequate
reserves are being maintained in accordance with GAAP or (b) where such nonfiling or nonpayment
would not have a Material Adverse Effect.



     6.8 Compliance with Law.



     Each Credit Party and each of its Subsidiaries is in compliance with all laws, rules,
regulations, orders, decrees and requirements of Governmental Authorities applicable to it or to
its properties (including, without limitation, ERISA, the Code and Environmental Laws), except
where the necessity of compliance therewith is being contested in good faith by appropriate
proceedings or such failure to comply would not have or would not be reasonably expected to have a
Material Adverse Effect.



     6.9 Use of Proceeds; Margin Stock.



     The proceeds of the Loans hereunder will be used solely for the purposes specified in Section
7.7. None of such proceeds will be used for the purpose of (a) purchasing or carrying any “margin
stock” as defined in Regulation U or Regulation X, (b) for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry “margin stock”, (c) for any other
purpose which might constitute this transaction a “purpose credit” within the meaning of Regulation
U or Regulation X or (d) for the acquisition of another Person unless the board of directors (or
other comparable governing body) or stockholders, as appropriate, of such Person has approved such
acquisition.



     6.10 Government Regulation.



     Each Credit Party and each of its Subsidiaries is exempt from the registration provisions of
the Public Utility Holding Company Act of 1935, as amended. No Credit Party is an “investment
company” registered or required to be registered under the Investment Company Act of 1940, as
amended, or controlled by such a company.



41









 





     6.11 Solvency.



     Each Credit Party is and, after the consummation of the transactions contemplated by this
Credit Agreement, will be Solvent.



     6.12 Environmental Matters.



     Except as would not result or be reasonably expected to result in a Material Adverse Effect:
(a) each of the properties of the Credit Parties (the “Properties”) and all operations at
the Properties are in compliance with all applicable Environmental Laws, (b) there is no violation
of any Environmental Law with respect to the Properties or the businesses operated by the Credit
Parties (the “Businesses”), and (c) there are no conditions relating to the Businesses or
Properties that would reasonably be expected to give rise to a liability under any applicable
Environmental Laws.



     6.13 Subsidiaries.



     Set forth on Schedule 6.13 is a complete and accurate list of all Credit Parties and
their Subsidiaries, and the ownership of same, as such Schedule 6.13 may be updated from
time to time.



     6.14 Litigation.



     There are no actions, suits or legal, equitable, arbitration or administrative proceedings,
pending or, to the knowledge of a Credit Party, threatened against such Credit Party which (a) are
likely to be decided adversely against such Credit Party and (b) if so decided would have or would
reasonably be expected to have a Material Adverse Effect.



     6.15 Collateral.



     This Credit Agreement and the Collateral Documents create valid security interests in, and
Liens on, the Cash Collateral, which security interests and Liens are perfected first priority
Liens prior to all other Liens. The value of the Permitted Cash Collateral is greater than or
equal to the Required Collateral Amount.



     6.16 Material Contracts.



     Each Credit Party and each of its Subsidiaries is in compliance with all contracts necessary
for the ongoing operation and business of such Credit Party or Subsidiary in the ordinary course
except where the failure to comply would not have or would not reasonably be expected to have a
Material Adverse Effect.



     6.17 Anti-Terrorism Laws.



     Neither any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America
(50 U.S.C. App. §§ 1 et seq.), as amended. Neither any Credit Party nor any or its Subsidiaries is
in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto or (c) the Patriot Act (as
defined in Section 11.17(b)). None of the Credit Parties (i) is a blocked person described in
section 1 of the Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings
or transactions, or is otherwise associated, with any



42









 




such blocked person.




     6.18 Compliance with OFAC Rules and Regulations.



     None of the Credit Parties or their Subsidiaries or their respective Affiliates (a) is a
Sanctioned Person, (b) has more than 15% of its assets in Sanctioned Countries, or (c) derives more
than 15% of its operating income from investments in, or transactions with Sanctioned Persons or
Sanctioned Countries. No part of the proceeds of any Extension of Credit hereunder will be used
directly or indirectly to fund any operations in, finance any investments or activities in or make
any payments to, a Sanctioned Person or a Sanctioned Country.



     6.19 Compliance with FCPA.



     Each of the Credit Parties and their Subsidiaries is in compliance with the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign counterpart thereto. None of the
Credit Parties and their Subsidiaries has made a payment, offering, or promise to pay, or
authorized the payment of, money or anything of value (a) in order to assist in obtaining or
retaining business for or with, or directing business to, any foreign official, foreign political
party, party official or candidate for foreign political office, (b) to a foreign official, foreign
political party or party official or any candidate for foreign political office, and (c) with the
intent to induce the recipient to misuse his or her official position to direct business wrongfully
to such Credit Party or its Subsidiary or to any other Person, in violation of the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1, et seq.



SECTION 7.




AFFIRMATIVE COVENANTS




     Each Credit Party hereby covenants and agrees that so long as this Credit Agreement is in
effect and until the Loans and LOC Obligations, together with interest, fees and other obligations
hereunder, have been paid in full and the Commitments and Letters of Credit shall have terminated:



     7.1 Information Covenants.



     The Borrower will furnish, or cause to be furnished, to the Agent for further distribution to
each Lender:




     (a) Annual Financial Statements. As soon as available, and in any event within
95 days after the close of each fiscal year of the Parent, a consolidated balance sheet of
the Parent as of the end of such fiscal year, together with a related consolidated income
statement and related statements of cash flows, capitalization and retained earnings for
such fiscal year, setting forth in comparative form figures for the preceding fiscal year,
all such financial information described above to be audited by independent certified public
accountants of recognized national standing and whose opinion, which shall be furnished to
the Agent, shall be to the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants concur);
provided, that the Parent’s Form 10-K Annual Report as filed with the Securities and
Exchange Commission, without exhibits, will satisfy the requirements of this Section 7.1(a).



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     (b) Quarterly Financial Statements. As soon as available, and in any event
within 50 days after the close of each fiscal quarter of the Parent (other than the fourth
fiscal quarter) a consolidated balance sheet of the Parent as of the end of such fiscal
quarter, together with a related consolidated income statement and related statement of cash
flows for such fiscal quarter in each case setting forth in comparative form figures for the
corresponding period of the preceding fiscal year, and accompanied by a certificate of an
Approved Officer of the Parent to the effect that such quarterly financial statements fairly
present in all material respects the financial condition of the Parent and its Subsidiaries
and have been prepared in accordance with GAAP, subject to changes resulting from audit and
normal year-end audit adjustments to same; provided, that the Parent’s Form 10-Q
Quarterly Report as filed with the Securities and Exchange Commission, without exhibits,
will satisfy the requirements of this Section 7.1(b).




     (c) Operating Budget and Cash Flow Projections. As soon as available, and in
any event no later than the last day of February of each fiscal year of the Parent,
operating budget and cash flow projections of the Parent and its Subsidiaries prepared on a
monthly or quarterly basis and otherwise in such form as the Agent may reasonably request;
provided, however, that such operating budget and cash flow projections shall not be
required if as of the last day of December of the previous fiscal year the Parent has an
Investment Grade Rating.




     (d) Officer’s Certificate. At the time of delivery of the financial statements
provided for in Sections 7.1(a) and 7.1(b) above, a certificate of an Approved Officer of
the Parent, substantially in the Form of Exhibit 7.1(d), (i) demonstrating
compliance with the financial covenants contained in Section 7.10 by calculation thereof as
of the end of each such fiscal period, beginning with the fiscal quarter ending March 31,
2006, (ii) stating that no Default or Event of Default exists, or if any Default or Event of
Default does exist, specifying the nature and extent thereof and what action the Parent or
the Borrower proposes to take with respect thereto, (iii) setting forth the amount of Off
Balance Sheet Indebtedness of the Parent and its Subsidiaries as of the end of each such
fiscal period, (iv) updating Schedule 6.13 with respect to Subsidiaries, if
appropriate, (v) providing information to evidence compliance with Sections 7.12, 8.2(m),
8.4(i), 8.6(g) and 8.7(g) and (vi) providing such other information to evidence compliance
with this Credit Agreement as reasonably requested by the Agent.




     (e) Reports. Promptly upon transmission or receipt thereof, copies of any
material filings and registrations with, and reports to or from, the Securities and Exchange
Commission, or any successor agency.




     (f) Notices. Within five Business Days after any officer of a Credit Party
with responsibility relating thereto obtaining knowledge thereof, such Credit Party will
give written notice to the Agent immediately of (i) the occurrence of a Default or Event of
Default, specifying the nature and existence thereof and what action such Credit Party
proposes to take with respect thereto, and (ii) the occurrence of any of the following with
respect to a Credit Party: (A) the pendency or commencement of any litigation, arbitral or
governmental proceeding against such Credit Party the claim of which is likely to be decided
adversely to such Credit Party and, if adversely determined, would have or would be
reasonably expected to have a Material Adverse Effect or (B) the institution of any
proceedings against such Credit Party with respect to, or the receipt of notice by such
Person of potential liability or responsibility for violation or alleged violation of, any
federal, state or local law, rule or regulation (including, without limitation, any
Environmental Law) that is likely to be decided adversely to such Credit Party and, if
adversely decided, would have a Material Adverse Effect.



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     (g) ERISA. Upon a Credit Party or any ERISA Affiliate obtaining knowledge
thereof, such Credit Party will give written notice to the Agent promptly (and in any event
within five Business Days) of: (i) any event or condition, including, but not limited to,
any Reportable Event, that constitutes, or would be reasonably expected to lead to, a
Termination Event if such Termination Event would have a Material Adverse Effect; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed in ERISA or otherwise
of any withdrawal liability assessed against a Credit Party or any ERISA Affiliate, or of a
determination that any Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which a Credit Party or any of its
Subsidiaries or ERISA Affiliates is required to contribute to each Plan pursuant to its
terms and as required to meet the minimum funding standard set forth in ERISA and the Code
with respect thereto; or (iv) any change in the funding status of any Plan that would have
or would be reasonably expected to have a Material Adverse Effect; together, with a
description of any such event or condition or a copy of any such notice and a statement by
an officer of a Credit Party briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is being taken or is
proposed to be taken with respect thereto. Promptly upon request, a Credit Party shall
furnish the Agent and each of the Lenders with such additional information concerning any
Plan as may be reasonably requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments thereto required
to be filed with the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Code, respectively, for each “plan year” (within the meaning of Section 3(39)
of ERISA).




     (h) Debt Rating Changes. Upon any change in its Debt Rating, the Parent shall
promptly deliver such information to the Agent.




     (i) Other Information. With reasonable promptness upon any such request, such
other information regarding the business, properties or financial condition of the Credit
Parties and their Subsidiaries as the Agent or any Lender may reasonably request.



     Information required to be delivered pursuant to Sections 7.1(a), 7.1(b) and 7.1(e) shall be
deemed to have been delivered on the earlier of (A) the date on which such information is posted by
the Agent on behalf of the Credit Parties on IntraLinks, Syndtrak or other electronic medium chosen
by the Administrative Agent or (B) the date on which a Credit Party provides notice to the Agent
for further delivery to each Lender by the Borrower that such information has been posted on the
Securities and Exchange Commission website on the Internet at
ww.sec.gov/edgar/searchedgar/webusers.htm or at another website identified in such notice and
accessible by the Lenders without charge; provided, that (i) any such notice may be
included in a certificate delivered pursuant to Section 7.1(d) and (ii) the Credit Parties shall
deliver paper copies of the information referred to in Sections 7.1(a), 7.1(b) and 7.1(e), to any
Lender that requests such delivery.



     7.2 Preservation of Existence and Franchises.



     Each Credit Party will, and will cause each Subsidiary to, do all things necessary to preserve
and keep in full force and effect its existence and rights, franchises and authority;
provided, however, that, subject to Section 8.3, a Credit Party shall not be required to
preserve any such existence, right or franchise if it in good faith determines that preservation
thereof is no longer necessary or desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the Lenders.



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     7.3 Books and Records.



     Each Credit Party will keep, and will cause each of its Subsidiaries to keep, complete and
accurate books and records of its transactions in accordance with good accounting practices on the
basis of GAAP (including the establishment and maintenance of appropriate reserves).



     7.4 Compliance with Law.



     Each Credit Party will comply, and will cause each of its Subsidiaries to comply, with all
laws (including, without limitation, all Environmental Laws and ERISA laws), rules, regulations and
orders, and all applicable restrictions imposed by all Governmental Authorities, applicable to it
and its property, unless (a) the failure to comply would not have or would not reasonably be
expected to have a Material Adverse Effect or (b) the necessity of compliance therewith is being
contested in good faith by appropriate proceedings.



     7.5 Payment of Taxes and Other Indebtedness.



     Each Credit Party will, and will cause each of its Subsidiaries to, pay, settle or discharge
(a) all taxes, assessments and governmental charges or levies imposed upon it, or upon its income
or profits, or upon any of its properties, before they shall become delinquent, (b) all lawful
claims (including claims for labor, materials and supplies) which, if unpaid, might give rise to a
Lien upon any of its properties, and (c) all of its other Indebtedness as it shall become due;
provided, however, that a Credit Party shall not be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which (i) is being contested in good faith by
appropriate proceedings and as to which adequate reserves therefor have been established in
accordance with GAAP or (ii) the nonpayment of which would not have a Material Adverse Effect.



     7.6 Maintenance of Property; Insurance.




     (a) Each Credit Party will keep, and will cause each of its Subsidiaries to keep, all
property useful and necessary in its business in good working order and condition, ordinary
wear and tear excepted.




     (b) Each Credit Party will, and will cause each of its Subsidiaries to, maintain
(either in the name of such Credit Party or in such Subsidiary’s own name) with financially
sound and responsible insurance companies, insurance on all their respective properties in
at least such amounts and against at least such risks (and with such risk retention) as are
usually insured against by companies of established repute engaged in the same or a similar
business; provided, that self-insurance by a Credit Party or any such Subsidiary
shall not be deemed a violation of this covenant to the extent that companies engaged in
similar businesses and owning similar properties in the same general areas in which such
Credit Party or such Subsidiary operates self-insure.



     7.7 Use of Proceeds.



     The proceeds of the Revolving Loans may be used solely (a) to help fund the purchase of the
Initial Asset Acquisition, (b) to make cash distributions to the general partner of the Parent on
the Effective Date in connection with the Initial Asset Acquisition and (b) for working capital and
other general corporate purposes of the Credit Parties. The proceeds of the Term Loans shall be
used (a) to make cash distributions to the general partner of the Parent and (b) to make cash
distributions to the Parent who will then make cash distributions to or repurchase limited
partnership interests from an affiliate of the general partner of the Parent that is also a partner
of the Parent. The proceeds of the Swingline Loans may be used solely for working



46









 




capital and other general corporate purposes of the Credit Parties. The Borrower will use the
Letters of Credit solely for the purposes set forth in Section 2.2(a).




     7.8 Audits/Inspections.



     Upon reasonable notice and during normal business hours, each Credit Party will, and will
cause its Subsidiaries to, permit representatives appointed by the Agent, including, without
limitation, independent accountants, agents, attorneys, and appraisers to visit and inspect the
Credit Parties’ and their Subsidiaries’ property, including their books and records, their accounts
receivable and inventory, the Credit Parties’ and their Subsidiaries’ facilities and their other
business assets, and to make photocopies or photographs thereof and to write down and record any
information such representatives obtain and shall permit the Agent or its representatives to
investigate and verify the accuracy of information provided to the Lenders and to discuss all such
matters with the officers, employees and representatives of each Credit Party and its Subsidiaries.



     7.9 Maintenance of Ownership.



     Each Credit Party will maintain ownership of all Capital Stock of each Subsidiary that is a
Credit Party, directly or indirectly, free and clear of all Liens except as permitted by Section
8.3 and Section 8.4.



     7.10 Financial Covenants.




     (a) Consolidated Leverage Ratio. The Consolidated Leverage Ratio, as at the
end of each fiscal quarter of the Parent (beginning with the fiscal quarter ending March 31,
2006), shall be less than or equal to 4.75 to 1.0; provided that subsequent to the
consummation of a Qualified Acquisition, the Consolidated Leverage Ratio, as at the end of
the three consecutive fiscal quarters following such Qualified Acquisition, shall be less
than or equal to 5.25 to 1.0.




     (b) Consolidated Interest Coverage Ratio. The Consolidated Interest Coverage
Ratio, as at the end of each fiscal quarter of the Parent (beginning with the fiscal quarter
ending March 31, 2006), shall (i) prior to the Investment Grade Rating Date, be greater than
or equal to 3.0 to 1.0 and (ii) subsequent to the Investment Grade Rating Date, be greater
than or equal to 2.5 to 1.0.




     For purposes of calculating compliance with the financial covenants set forth in this
Section 7.10:




     (i) with respect to the Initial Asset Acquisition, Consolidated EBITDA and
Consolidated Interest Expense shall, for the first twelve months subsequent to the
Effective Date, be calculated on an annualized 365 day basis for the number of days
actually elapsed since the Effective Date until the date of determination; and




     (ii) with respect to all Permitted Acquisitions subsequent to the Effective
Date, Consolidated EBITDA and Consolidated Interest Expense with respect to such
newly acquired assets shall be calculated on a proforma basis as if such acquisition
had occurred at the beginning of the applicable twelve month period of
determination.



     7.11 Material Contracts.



     Each Credit Party will comply, and will cause its Subsidiaries to comply, with all contracts
necessary for the ongoing operation and business of such Credit Party or Subsidiary in the



47









 




ordinary course, except where the failure to comply would not have or would not reasonably be
expected to have a Material Adverse Effect.




     7.12 Additional Guarantors.



               If (a) as of the end of any fiscal quarter of the Parent or (b) at the time any Qualified
Acquisition is consummated, the Subsidiaries of the Parent that are not Credit Parties hereunder
(the “Non-Guarantor Subsidiaries”) constitute more than either (collectively, the
“Threshold Requirements”):



     (i) twenty percent (20%), in the aggregate, of Consolidated Net Tangible Assets, or



     (ii) twenty percent (20%), in the aggregate, of Consolidated Net Income,


the Borrower shall promptly notify the Agent and shall, within ten Business Days thereof (A) cause
one or more Subsidiaries to become a “Guarantor” pursuant to a Joinder Agreement in the form of
Exhibit 7.12 and to execute and deliver such other documents as requested by the Agent and
(B) deliver to the Agent documents of the types referred to Section 5.1(b) as well as opinions of
counsel to such Subsidiary (which shall cover, among other things, legality, validity, binding
effect and enforceability), all in form, content and scope satisfactory to the Agent, such that
immediately after the joinder of such Subsidiary or Subsidiaries as Guarantors hereunder, the
remaining Non-Guarantor Subsidiaries shall not exceed, in the aggregate, either of the Threshold
Requirements.




     7.13 Cash Collateral.



48









 






     (a) The Borrower shall maintain the Cash Collateral Account at all times that any
portion of the Term Loans shall remain outstanding.




     (b) The Borrower shall, at all times, maintain Permitted Cash Collateral in the Cash
Collateral Account with a value greater than or equal to the following (the “Required
Collateral Amount”): (i) if all Permitted Cash Collateral is comprised entirely of Tier
1 Permitted Cash Collateral, 100% of the principal amount of all outstanding Term Loans,
(ii) if Permitted Cash Collateral is not comprised entirely of Tier 1 Permitted Cash
Collateral but is not composed of any Tier 3 Permitted Cash Collateral, 100.5% of the
principal amount of all outstanding Term Loans or (iii) if any Permitted Cash Collateral is
comprised of any Tier 3 Permitted Cash Collateral, 101% of the principal amount of all outstanding Term Loans. If, at any time, the Required Collateral
Amount exceeds the value of the Permitted Cash Collateral, the Borrower shall immediately
deposit additional Permitted Cash Collateral into the Cash Collateral Account to eliminate
such excess. In accordance with the terms of the Account Control Agreement, the Borrower
shall direct the investment of items deposited into the Cash Collateral Account;
provided, that (1) all Cash Collateral shall consist of Permitted Cash Collateral at
all times and (2) the Borrower shall not be permitted to sell any Permitted Cash Collateral
prior to its stated maturity (if any) during the first two months following the Closing Date
except pursuant to Section 7.13(c). The Borrower shall treat all income, gains or losses
from the investment of items in the Cash Collateral Account as its own income or loss, and
the Agent and the Lenders shall have no liability for any such gain or loss.




     (c) Upon any prepayment of the Term Loans, the Borrower shall be permitted to liquidate
and/or withdraw Cash Collateral from the Cash Collateral Account in an amount up to such
prepayment; provided, that after such withdrawal, the value of the Permitted Cash
Collateral shall be greater than or equal to the Required Collateral Amount, as calculated
after giving effect of such prepayment of the Term Loans. In the event that the Borrower
shall elect to make such a withdrawal, the Agent shall direct the Intermediary to liquidate
the applicable Cash Collateral and remit the proceeds to the Borrower.




     (d) If, at the end of any fiscal quarter of the Parent, the value of the Permitted Cash
Collateral exceeds 102% of the principal amount of the Term Loans outstanding at such time,
then, upon the request of the Borrower, provided no Default or Event of Default has occurred
and is continuing, the Agent shall direct the Intermediary to pay and transfer to the
Borrower cash, to the extent available, in the Cash Collateral Account in an amount equal to
such excess.




     (e) To secure the prompt payment in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Term Loans, the Borrower hereby
grants to the Agent, for the ratable benefit of the Lenders, a continuing security interest
in, and a right to set off against, any and all right, title and interest of the Borrower in
and to the Cash Collateral Account and the Cash Collateral and all other amounts maintained
in the Cash Collateral Account.



SECTION 8.




NEGATIVE COVENANTS




     Each Credit Party hereby covenants and agrees that so long as this Credit Agreement is in
effect and until the Loans and LOC Obligations, together with interest, fees and other obligations
hereunder, have been paid in full and the Commitments and Letters of Credit shall have terminated:



49









 





     8.1 Nature of Business.



     No Credit Party will, nor will it permit any of its Subsidiaries to (whether now owned or
acquired or formed subsequent to the Closing Date), materially alter the character of their
business on a consolidated basis from the midstream energy business.



     8.2. Liens.



     No Credit Party will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it or any of its Subsidiaries, except for the following:




     (a) Liens in favor of the Lenders securing Indebtedness under this Credit Agreement.




     (b) any Lien arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by any of the foregoing clauses of this Section
8.2; provided, that such Indebtedness is not increased and is not secured by any
additional assets.




     (c) Liens for taxes, assessments or other governmental charges or levies not yet due or
which are being contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in accordance with
GAAP.




     (d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and interest owners of oil and gas production and other Liens imposed by law,
created in the ordinary course of business and for amounts not past due for more than 60
days or which are being contested in good faith by appropriate proceedings which are
sufficient to prevent imminent foreclosure of such Liens, are promptly instituted and
diligently conducted and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP.




     (e) Liens incurred or deposits made in the ordinary course of business (including,
without limitation, surety bonds and appeal bonds) in connection with workers’ compensation,
unemployment insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or arising as a result of
progress payments under government contracts.




     (f) easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations, encroachments,
variations and other restrictions, charges or encumbrances (whether or not recorded)
affecting the use of real property.




     (g) Liens with respect to judgments and attachments which do not result in an Event of
Default.




     (h) Liens, deposits or pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of money), leases (permitted under the terms of this
Agreement), public or statutory obligations, surety, stay, appeal, indemnity, performance or
other obligations arising in the ordinary course of business.




     (i) rights of first refusal entered into in the ordinary course of business.




     (j) Liens consisting of any (i) rights reserved to or vested in any municipality or
governmental, statutory or public authority to control or regulate any property of a Credit
Party or



50









 






any Subsidiary or to use such property in any manner which does not materially impair
the use of such property for the purpose for which it is held by a Credit Party or any such
Subsidiary, (ii) obligations or duties to any municipality or public authority with respect
to any franchise, grant, license, lease or permit and the rights reserved or vested in any
Governmental Authority or public utility to terminate any such franchise, grant, license,
lease or permit or to condemn or expropriate any property, or (iii) zoning laws, ordinances
or municipal regulations.




     (k) Liens on deposits required by any Person with whom a Credit Party or any Subsidiary
enters into forward contracts, futures contracts, swap agreements or other commodities
contracts in the ordinary course of business.




     (l) other Liens, including Liens imposed by Environmental Laws, arising in the ordinary
course of its business which (i) do not secure Indebtedness (other than Liens on cash and
cash equivalents that secure letters of credit), (ii) do not secure any obligation in an
amount exceeding $10,000,000 at any time and (iii) do not in the aggregate materially
detract from the value of its assets or materially impair the use thereof in the operation
of its business.




     (m) (i) prior to the Investment Grade Rating Date only, Liens securing, or in respect
of, purchase money obligations for fixed or capital assets and obligations under Capital
Leases; provided, that (A) any such Lien attaches to such property concurrently with such
acquisition; (B) such Lien attaches solely to the property so acquired in such transaction;
(C) the Indebtedness secured thereby does not exceed the cost or fair market value,
whichever is lower, of the property being acquired on the date of such acquisition and (D)
the aggregate Indebtedness being secured by such Liens does not exceed at any one time 3% of
Consolidated Tangible Net Assets or (ii) subsequent to the Investment Grade Debt Rating
only, other Liens securing Indebtedness or obligations in an amount not to exceed, in the
aggregate, at any one time 10% of Consolidated Tangible Net Assets.




     (n) after the Investment Grade Rating Date, any Lien on any asset of any Person
existing at the time such Person is merged or consolidated with or into the Borrower, the
Parent or any Subsidiary and not created in contemplation of such event.




     (o) after the Investment Grade Rating Date, any Lien existing on any asset prior to the
acquisition thereof by the Borrower, the Parent or any Subsidiary and not created in
contemplation of such acquisition.



     8.3 Consolidation and Merger.



     A Credit Party will not, and will not permit any of its Subsidiaries to, (a) enter into any
transaction of merger or (b) consolidate, liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided, that: (i) a Person (including a Subsidiary of the
Borrower) may be merged or consolidated with or into the Borrower or the Parent so long as (A) the
Borrower or the Parent, as the case may be, shall be the continuing or surviving entity, (B) no
Default or Event of Default shall exist or be caused thereby, (C) if the Parent has a Debt Rating
at the time of such merger or consolidation, the Parent is not downgraded by a Designated Rating
Agency as a result of such transaction to a rating below an Investment Grade Rating (or equivalent
rating if the Parent has selected a Designated Rating Agency other than S&P or Moody’s), as
applicable and (D) the Borrower remains liable for its obligations under this Credit Agreement and
all the rights and remedies hereunder remain in full force and effect, and (ii) a Subsidiary of the
Parent may merge with or into another Subsidiary of the Parent; provided that if one of such
Subsidiaries is a Guarantor, the surviving entity must be a Guarantor.



51









 





     8.4 Dispositions.



     A Credit Party will not make, nor permit its Subsidiaries to make any Disposition except:




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




     (b) Dispositions of machinery and equipment no longer used or useful in the conduct of
business of a Credit Party and its Subsidiaries that are Disposed of in the ordinary course
of business;




     (c) Dispositions of assets to a Credit Party;




     (d) Dispositions of Investments permitted under Section 8.7;




     (e) Dispositions of accounts receivable in connection with the collection or compromise
thereof;




     (f) Dispositions of licenses, sublicenses, leases or subleases granted to others not
interfering in any material respect with the business of a Credit Party and its
Subsidiaries;




     (g) Dispositions of Cash Equivalents for fair market value;




     (h) Dispositions in which: (i) the assets being disposed are used
simultaneously in exchange for replacement assets or (ii) the net proceeds
thereof are either (A) reinvested within 180 days from such Disposition in
assets to be used in the ordinary course of the business of the Parent and its
Subsidiaries and/or (B) used to permanently reduce the Revolving Committed
Amount on a dollar for dollar basis.




     (i) other Dispositions not exceeding in the aggregate for all Credit Parties and their
Subsidiaries (i) 10% of Consolidated Net Tangible Assets in any fiscal year and (ii) 25% of
Consolidated Net Tangible Assets during the term of this Credit Agreement.



     8.5 Transactions with Affiliates.



     A Credit Party will not, and will not permit any Subsidiary to, directly or indirectly, pay
any funds to or for the account of, make any investment in, lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to, or participate in, or effect, any transaction
with, any officer, director, employee or Affiliate (other than another Credit Party) unless any and
all such transactions between a Credit Party and its Subsidiaries on the one hand and any officer,
director, employee or Affiliate (other than another Credit Party) on the other hand, shall be on an
arms-length basis and on terms no less favorable to such Credit Party or such Subsidiary than could
have been obtained from a third party who was not an officer, director, employee or Affiliate
(other than another Credit Party); provided, that the foregoing provisions of this Section
shall not (a) prohibit a Credit Party and each Subsidiary from declaring or paying any lawful
dividend or distribution otherwise permitted hereunder, (b) prohibit a Credit Party or a Subsidiary
from providing credit support for its Subsidiaries as it deems appropriate in the ordinary course
of business, (c) prohibit a Credit Party or a Subsidiary from engaging in a transaction or
transactions that are not on an arms-length basis or are not on terms as favorable as could have
been obtained from a third party, provided that such transaction or transactions occurs within a
related series of transactions, which, in the aggregate, are on an arms-length basis and are on
terms as favorable as could have been obtained from a third party, (d) prohibit a Credit Party or a
Subsidiary from engaging in non-material transactions with any Credit Party that are not on an
arms-length



52









 




basis or are not on terms as favorable as could have been obtained from a third party but are
in the ordinary course of such Credit Party’s or such Subsidiary’s business, so long as, in each
case, after giving effect thereto, no Default or Event of Default shall have occurred and be
continuing, (e) prohibit a Credit Party from entering into any of the agreements to be entered into
by various Credit Parties in connection with the Initial Asset Acquisition and the transactions
related thereto, (f) prohibit a Credit Party from engaging in a transaction with an Affiliate if
such transaction has been approved by the Conflicts Committee, or (g) prohibit a Credit Party from
entering into any of the agreements listed on Schedule 8.5.




     8.6 Indebtedness.



     No Credit Party will, nor will it permit its Subsidiaries to, create, incur, assume or suffer
to exist any Indebtedness, except:




     (a) Indebtedness under the Credit Documents;




     (b) Investments permitted under Section 8.7 that would constitute Indebtedness;




     (c) obligations (contingent or otherwise) of a Credit Party or any Subsidiary existing
or arising under (i) any Credit Facility Swap Contract or (ii) any other Swap Contract;
provided that with respect to clauses (i) and (ii) above (A) such obligations are
(or were) entered into by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or taking a “market
view” and (B) such Credit Facility Swap Contract or Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;




     (d) current liabilities of the Credit Parties or their respective Subsidiaries incurred
in the ordinary course of business but not incurred through (i) the borrowing of money or
(ii) the obtaining of credit except for credit on an open account basis customarily extended
and in fact extended in connection with normal purchases of goods and services;




     (e) Indebtedness in respect of taxes, assessments, governmental charges or levies and
claims for labor, materials and supplies to the extent that payment therefor shall not at
the time be required to be made in accordance with the provisions of this Credit Agreement;




     (f) Indebtedness in respect of judgments or awards only to the extent, for the period
and for an amount not resulting in a Default or Event of Default;




     (g) other unsecured Indebtedness in an aggregate amount not to exceed, at any one time
outstanding, the greater of (i) $50,000,000 and (ii) 10% of Consolidate Net Tangible Assets;
and




     (h) secured Indebtedness to the extent permitted by Section 8.2(m).



     8.7 Investments.



     No Credit Party will, nor will it permit its Subsidiaries to, make any Investments, except:




     (a) Investments held by a Credit Party or a Subsidiary in the form of cash or Cash



53









 






Equivalents;




     (b) Investments in any Subsidiary.




     (c) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




     (d) Investments in Permitted Acquisitions and capital expenditures in the ordinary
course.




     (e) Investments in Credit Facility Swap Contracts and other Swap Contracts permitted by
Section 8.6;




     (f) Loans and advances to the general partner of the Borrower or the Parent to enable
such general partner of the to pay general and administrative costs and expenses pursuant to
the partnership agreement of the Borrower or Parent, as applicable; and




     (g) other Investments in an aggregate amount not to exceed, at any one time
outstanding, $25,000,000.



     8.8 Restricted Payments.



     No Credit Party will, nor will it permit its Subsidiaries to, declare or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:




     (a) a Credit Party or Subsidiary may make Restricted Payments to a Credit Party;




     (b) a Credit Party or Subsidiary may declare and make dividend payments or other
distributions payable solely in the Capital Stock of such Person;




     (c) cash distributions may be made and redemption of limited partnership units may
occur with the proceeds of the Term Loan, the initial draw of Revolving Loans on the Closing
Date and the proceeds of the IPO, in each case in connection with the Initial Asset
Acquisition;




     (d) as long as no Default or Event of Default exists and is continuing, the Credit
Parties may make quarterly cash distributions in an amount not to exceed Available Cash for
such period; and




     (e) the Parent or Borrower may repurchase their respective limited partnership units in
an aggregate amount not exceeding $5,000,000 in any fiscal year.




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SECTION 9.




EVENTS OF DEFAULT




     9.1 Events of Default.




     An Event of Default shall exist upon the occurrence of any of the following specified events
(each an “Event of Default”):




     (a) Payment. A Credit Party shall: (i) default in the payment when due of any
principal amount of any of the Loans or of any reimbursement obligation arising from
drawings under any Letters of Credit; or (ii) default, and such default shall continue for
five or more Business Days, in the payment when due of any interest on the Loans or of any
fees or other amounts owing hereunder, under any of the other Credit Documents or in
connection herewith.




     (b) Representations. Any representation, warranty or statement made or deemed
to be made by a Credit Party herein, in any of the other Credit Documents, or in any
statement or certificate delivered or required to be delivered pursuant hereto or thereto
shall prove to have been untrue in any material respect on the date as of which it was
deemed to have been made.




     (c) Covenants. A Credit Party shall:




     (i) default in the due performance or observance of any term, covenant or
agreement contained in Section 7.1(f), 7.8, 7.10, 7.11, 8.1, 8.2, 8.3, 8.4, 8.5,
8.6, 8.7 or 8.8; or




     (ii) default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in subsections (a), (b), or (c)(i) of
this Section 9.1) contained in this Credit Agreement or any other Credit Document
and such default shall continue unremedied for a period of at least 30 days after
the earlier of (A) a Responsible Officer of a Credit Party becoming aware of such
default or (B) notice of such default is given by the Agent or a Lender to the
Borrower.




     (d) Credit Documents.




     (i) Any Credit Document shall fail to be in full force and effect or a Credit
Party shall so assert or any Credit Document shall fail to give the Agent and/or the
Lenders the rights, powers and privileges purported to be created thereby; or




     (ii) The Agent shall cease to have a valid, perfected, first priority Lien on
the Cash Collateral in the Cash Collateral Account for any reason.




     (e) Bankruptcy, etc. The occurrence of any of the following with respect to a
Credit Party or a Subsidiary (i) a court or governmental agency having jurisdiction in the
premises shall enter a decree or order for relief in respect of such Credit Party or
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of such Credit Party or Subsidiary or
for any substantial part of its property or ordering the winding up or liquidation of its
affairs; or (ii) an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect is commenced against such Credit Party or Subsidiary



55









 







and such petition remains unstayed and in effect for a period of 90 consecutive days;
or (iii) such Credit Party or Subsidiary shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any such law, or
consent to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of such Person or any substantial part
of its property or make any general assignment for the benefit of creditors; or (iv) such
Credit Party or Subsidiary shall admit in writing its inability to pay its debts generally
as they become due or any action shall be taken by such Person in furtherance of any of the
aforesaid purposes.




     (f) Defaults under Other Agreements. With respect to any Indebtedness,
including any Off Balance Sheet Indebtedness, in excess of the greater of (i) $10,000,000 or
(ii) the lesser of (x) three percent (3%) of Consolidated Net Tangible Assets and (y)
$100,000,000 (other than Indebtedness outstanding under this Credit Agreement) of a Credit
Party or any Subsidiary such Credit Party or such Subsidiary shall (A) default in any
payment (beyond the applicable grace period with respect thereto, if any) with respect to
any such Indebtedness or fail to timely pay such Indebtedness when due, or (B) default
(after giving effect to any applicable grace period) in the observance or performance of any
covenant or agreement relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or condition shall
occur or condition exist, the effect of which default or other event or condition in this
clause (B) is to cause any such Indebtedness to become due prior to its stated maturity.




     (g) Judgments. One or more judgments, orders, or decrees shall be entered
against a Credit Party or a Subsidiary involving a liability, in the aggregate, in excess of
the greater of (i) $10,000,000 or (ii) the lesser of (x) three percent (3%) of Consolidated
Net Tangible Assets and (y) $50,000,000 (to the extent not paid or covered by insurance
provided by a carrier who has acknowledged coverage) and such judgments, orders or decrees
shall continue unsatisfied, undischarged and unstayed for a period ending on the first to
occur of (i) the last day on which such judgment, order or decree becomes final and
unappealable and, where applicable, with the status of a judicial lien or (ii) 45 days.




     (h) ERISA. The occurrence of:




     (i) any of the following events or conditions which could result in a liability
of a Credit Party or an ERISA Affiliate, in the aggregate, in excess of the greater
of (i) $10,000,000 or (ii) the lesser of (x) three percent (3%) of Consolidated Net
Tangible Assets and (y) $25,000,000: (A) any “accumulated funding deficiency,” as
such term is defined in Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any lien shall arise on the
assets of the Borrower or any ERISA Affiliate in favor of the PBGC or a Plan; or (B)
any prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility shall occur which would be
reasonably expected to subject the Borrower or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which the Borrower or any ERISA
Affiliate has agreed or is required to indemnify any person against any such
liability; or




     (ii) any of the following events or conditions which could result in a
liability of a Credit Party or an ERISA Affiliate, in the aggregate, in excess of
the greater of (i) $10,000,000 or (ii) the lesser of (x) three percent (3%) of
Consolidated Net Tangible



56









 







Assets and (y) $50,000,000: (A) a Termination Event shall occur with respect to
a Single Employer Plan which is, in the reasonable opinion of the Agent, likely to
result in the termination of such Plan for purposes of Title IV of ERISA; or (B) a
Termination Event shall occur with respect to a Multiemployer Plan or Multiple
Employer Plan which is, in the reasonable opinion of the Agent, likely to result in
(x) the termination of such Plan for purposes of Title IV of ERISA, or (y) the
Borrower or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan.




     (i) Change of Control. The occurrence of any Change of Control.



     9.2 Acceleration; Remedies.



     Upon the occurrence of an Event of Default, and at any time thereafter unless and until such
Event of Default has been waived by the Required Lenders (or the Lenders as may be required
hereunder), the Agent may, with the consent of the Required Lenders, and shall, upon the request
and direction of the Required Lenders, by written notice to the Borrower take any of the following
actions without prejudice to the rights of the Agent or any Lender to enforce its claims against
the Borrower, except as otherwise specifically provided for herein:




     (i) Termination of Commitments. Declare the Commitments and the
obligation of the Issuing Bank to issue any Letter of Credit to be terminated
whereupon the Commitments and such obligation of the Issuing Bank to issue any
Letter of Credit shall be immediately terminated.




     (ii) Acceleration of Loans and Letters of Credit. Declare the unpaid
principal of and any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit Parties to any
of the Lenders hereunder to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower.




     (iii) Cash Collateralize Letters of Credit. Direct the Borrower to pay
(and the Borrower agrees that upon receipt of such notice, or upon the occurrence of
an Event of Default under Section 9.1(e), it will immediately pay) to the Issuing
Lender additional cash, to be held by the Issuing Lender, for the benefit of the
Lenders, in a cash collateral account as security for the LOC Obligations in respect
of subsequent drawings under all then outstanding Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all Letters of
Credits then outstanding.




     (iv) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents, including, without limitation, all
rights of set-off.




     (v) Cash Collateral. Liquidate the Cash Collateral and apply the
proceeds thereof to repay the Term Loans then outstanding.


Notwithstanding the foregoing, if an Event of Default specified in Section 9.1(e) shall occur, then
the Commitments and the obligation of the Issuing Bank to issue any Letter of Credit shall
automatically terminate and all Loans, all reimbursement obligations under Letters of Credit, all
accrued interest in


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respect thereof, all accrued and unpaid fees and other indebtedness or obligations owing to the
Lenders and the Agent hereunder shall immediately become due and payable without the giving of any
notice or other action by the Agent or the Lenders.



Notwithstanding the fact that enforcement powers reside primarily with the Agent, each Lender has,
to the extent permitted by law, a separate right of payment and shall be considered a separate
“creditor” holding a separate “claim” within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.




     9.3 Allocation of Payments After Event of Default.



     Notwithstanding any other provision of this Credit Agreement, after the occurrence of an Event
of Default, all amounts collected or received by the Agent or any Lender on account of amounts
outstanding under any of the Credit Documents shall be paid over or delivered as follows:




     FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys’ fees) of the Agent and the Lenders in connection
with enforcing the rights of the Lenders under the Credit Documents, pro rata as set forth
below;




     SECOND, to payment of any fees owed to the Agent, or any Lender, pro rata as set forth
below;




     THIRD, to the payment of all accrued interest payable to the Lenders hereunder, pro
rata as set forth below;




     FOURTH, to the payment of the outstanding principal amount of the Loans and to the
payment or cash collateralization of the outstanding LOC Obligations, pro rata, as set forth
below;




     FIFTH, to all other obligations which shall have become due and payable under the
Credit Documents and not repaid pursuant to clauses “FIRST” through “FOURTH” above; and




     SIXTH, to the payment of the surplus, if any, to whomever may be lawfully entitled to
receive such surplus;




     provided, that all amounts collected from the proceeds of Cash Collateral shall be
used to repay the Term Loans.


In carrying out the foregoing, (a) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; (b) each of the
Lenders shall receive an amount equal to its pro rata share (based on the proportion that the then
outstanding Loans and LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations), of amounts available to be applied; and (c) to the extent that any
amounts available for distribution pursuant to clause “FOURTH” above are attributable to the issued
but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Agent in a
cash collateral account and applied (i) first, to reimburse the Issuing Lender from time to time
for any drawings under such Letters of Credit and (ii) then, following the expiration of all
Letters of Credit, to all other obligations of the types described in clauses “FOURTH”, “FIFTH” and
“SIXTH” above in the manner provided in this Section 9.3.




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SECTION 10.




AGENCY PROVISIONS




     10.1 Appointment.



     Each Lender hereby designates and appoints Wachovia Bank, National Association, as agent of
such Lender to act as specified herein and the other Credit Documents, and each such Lender hereby
authorizes the Agent, as the agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of the other Credit
Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere herein and in the other Credit Documents, the Agent shall
not have any duties or responsibilities, except those expressly set forth herein and therein, or
any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Credit Agreement or any of the other
Credit Documents, or shall otherwise exist against the Agent. The provisions of this Section are
solely for the benefit of the Agent and the Lenders and no Credit Party shall have any rights as a
third party beneficiary of the provisions hereof. In performing its functions and duties under
this Credit Agreement and the other Credit Documents, the Agent shall act solely as agent of the
Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship
of agency or trust with or for any Credit Party. All institutions acting as a Co-Syndication Agent
or Co-Documentation Agent hereunder shall have no obligations in such capacity under the Credit
Documents.



     10.2 Delegation of Duties.



     The Agent may execute any of its duties hereunder or under the other Credit Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible to the Lenders for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.



     10.3 Exculpatory Provisions.



     Neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection herewith or in connection with any of the other Credit Documents
(except for its or such Person’s own gross negligence or willful misconduct), or responsible in
any manner to any of the Lenders for any recitals, statements, representations or warranties made
by any Credit Party contained herein or in any of the other Credit Documents or in any certificate,
report, statement or other document referred to or provided for in, or received by the Agent under
or in connection herewith or in connection with the other Credit Documents, or enforceability or
sufficiency therefor of any of the other Credit Documents, or for any failure of any Credit Party
to perform its obligations hereunder or thereunder. The Agent shall not be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability, collectibility or sufficiency
of this Credit Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by any Credit Party in any
written or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith furnished or made by the
Agent to the Lenders or by or on behalf of any Credit Party to the Agent or any Lender or be
required to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default or Event of Default
or to inspect the



59









 







properties, books or records of any Credit Party. The Agent is not a trustee for the Lenders
and owes no fiduciary duty to the Lenders.



     10.4 Reliance on Communications.



     The Agent shall be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation, counsel to the
Credit Parties, independent accountants and other experts selected by the Agent with reasonable
care). The Agent may deem and treat the Lenders as the owner of its interests hereunder for all
purposes unless a written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent in accordance with Section 11.3(b). The Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance with a request of the
Required Lenders (or to the extent specifically provided in Section 11.6, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall be binding upon all the
Lenders (including their successors and assigns).



     10.5 Notice of Default.



     The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Agent has received notice from a Lender or the Borrower
referring to the Credit Document, describing such Default or Event of Default and stating that such
notice is a “notice of default.” In the event that the Agent receives such a notice, the Agent
shall give prompt notice thereof to the Lenders. The Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required Lenders.



     10.6 Non-Reliance on Agent and Other Lenders.



     Each Lender expressly acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Agent or any Affiliate thereof hereinafter taken, including any review of
the affairs of the Credit Parties, shall be deemed to constitute any representation or warranty by
the Agent to any Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon the Agent or any other Lender, and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation into the business, assets,
operations, property, financial and other conditions, prospects and creditworthiness of the Credit
Parties and made its own decision to make its Extensions of Credit hereunder and enter into this
Credit Agreement. Each Lender also represents that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Credit Parties. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Agent hereunder, the Agent
shall not have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property,



60









 







financial or other conditions, prospects or creditworthiness of the Credit Parties which may
come into the possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.



     10.7 Indemnification.



     Each Lender agrees to indemnify the Agent (including for purposes of this Section 10.7 the
Agent in its capacity as Issuing Lender) in its capacity as such (to the extent not reimbursed by
the Credit Parties and without limiting the obligation of the Credit Parties to do so), ratably
according to its Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time following the payment in
full of the Credit Parties Obligations) be imposed on, incurred by or asserted against the Agent in
its capacity as such in any way relating to or arising out of this Credit Agreement or the other
Credit Documents or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in
connection with any of the foregoing; provided, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose shall, in the
opinion of the Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this Section 10.7 shall survive the payment of the
Obligations and all other amounts payable hereunder and under the other Credit Documents and the
termination of the Commitments.



     10.8 Agent in Its Individual Capacity.



     The Agent and its Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with a Credit Party as though the Agent were not Agent hereunder. With
respect to the Loans made, Letters of Credit issued and all Obligations owing to it, the Agent
shall have the same rights and powers under this Credit Agreement as any Lender and may exercise
the same as though it were not the Agent, and the terms “Lender” and “Lenders” shall include the
Agent in its individual capacity.



     10.9 Successor Agent.



     The Agent may, at any time, resign upon 30 days written notice to the Lenders and the
Borrower. Upon any such resignation, the Borrower with the consent of the Required Lenders (such
consent of the Required Lenders not to be unreasonably withheld or delayed) shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed and shall have
accepted such appointment within 30 days after the notice of resignation, then the retiring Agent
shall select a successor Agent provided such successor is a Lender hereunder or qualifies as an
Eligible Assignee (or if no Eligible Assignee shall have been so appointed by the retiring Agent
and shall have accepted such appointment, then the Lenders shall perform all obligations of the
retiring Agent hereunder until such time, if any, as a successor Agent shall have been appointed
and shall have accepted such appointment as provided for above). Upon the acceptance of any
appointment as Agent hereunder by a successor, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations as Agent, as appropriate, under
this Credit Agreement and the other Credit Documents and the provisions of this Section 10.9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under
this Credit Agreement.



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SECTION 11.




MISCELLANEOUS




     11.1 Notices.




(a) Except as otherwise expressly provided herein, all notices and other communications
shall have been duly given and shall be effective (i) when delivered, (ii) when transmitted
via telecopy (or other facsimile device), (iii) the Business Day following the day on which
the same has been delivered prepaid (or pursuant to an invoice arrangement) to a reputable
national overnight air courier service, or (iv) the third Business Day following the day on
which the same is sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set forth on Schedule 11.1, or
at such other address as such party may specify by written notice to the other parties
hereto.



     (b) Notwithstanding anything herein to the contrary, notices and other communications to the
Agent, the Lenders and the Credit Parties, may be delivered or furnished by electronic
communication (including email, Internet or intranet website) pursuant to procedures approved by
the Agent; provided that the certificate required to be delivered by Section 7.1(d) must be
delivered in original form.



     11.2 Right of Set-Off.



     In addition to any rights now or hereafter granted under applicable law or otherwise, and not
by way of limitation of any such rights, upon the occurrence of an Event of Default and the
commencement of remedies described in Section 9.2, each Lender is authorized at any time and from
time to time, without presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by such Lender
(including, without limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of the Borrower against obligations and liabilities of the
Borrower to the Lenders hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Agent or the Lenders shall have made any demand hereunder and although
such obligations, liabilities or claims, or any of them, may be contingent or unmatured, and any
such set-off shall be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender subsequent thereto.



     11.3 Benefit of Agreement.




     (a) Generally. This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the parties
hereto; provided, that the Borrower may not assign and transfer any of its interests
without the prior written consent of the Lenders; and provided, further,
that the rights of each Lender to transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set forth below in this Section 11.3.




     (b) Assignments. Each Lender may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Credit Agreement (including, without
limitation, all or a portion of its Loans, its Notes, its LOC Obligations and its
Commitment); provided, however, that:



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     (i) each such assignment shall be to an Eligible Assignee;




     (ii) all assignments of the Term Loans or the Original Revolving Committed
Amount must be pro rata among such Lender’s Commitment with respect to the Term
Loans and Original Revolving Committed Amount.




     (iii) except in the case of an assignment to another Lender or an assignment of
all of a Lender’s rights and obligations under this Credit Agreement, any such
partial assignment shall be in an amount at least equal to $10,000,000 (or, if less,
the remaining amount of the Commitment (which for this purpose includes Loans and
LOC Obligations) being assigned by such Lender) and an integral multiple of
$1,000,000 in excess thereof; and




     (iv) the parties to such assignment shall execute and deliver to the Agent for
its acceptance an Assignment Agreement in substantially the form of Exhibit
11.3(b), together with a processing fee from the assignor of $3,500.



     Upon execution, delivery, and acceptance of such Assignment Agreement, the assignee thereunder
shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and
benefits of a Lender hereunder and the assigning Lender shall, to the extent of such assignment,
relinquish its rights (except those rights hereunder which by their terms expressly survive) and be
released from its obligations under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of America or a state thereof, it
shall deliver to the Borrower and the Agent certification as to exemption from deduction or
withholding of taxes in accordance with Section 4.4.



     By executing and delivering an assignment agreement in accordance with this Section 11.3(b),
the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby free and clear of any
adverse claim created by such assigning Lender and the assignee warrants that it is an Eligible
Assignee; (B) except as set forth in clause (A) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto or the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or thereto; (C) such
assigning Lender and such assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (D) such assignee confirms that it has received a copy of this
Credit Agreement, the other Credit Documents and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such assignment
agreement; (E) such assignee will independently and without reliance upon the Agent, such assigning
Lender or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Credit Agreement and the other Credit Documents; (F) such assignee appoints and
authorizes the Agent to take such action on its behalf and to exercise such powers under this
Credit Agreement or any other Credit Document as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto; and (G) such assignee
agrees that it will perform in accordance with their



63









 







terms all the obligations which by the terms of this Credit Agreement and the other Credit
Documents are required to be performed by it as a Lender.




     (c) Register. The Agent shall maintain a copy of each Assignment Agreement
delivered to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to,
each Lender from time to time (the “Register”). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.




     (d) Acceptance. Upon its receipt of an Assignment Agreement executed by the
parties thereto, together with any Note subject to such assignment and payment of the
processing fee, the Agent shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b) hereto, (i) accept such Assignment
Agreement, (ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the parties thereto.




     (e) Participations. Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and obligations under this Credit
Agreement (including all or a portion of its Commitment, its Notes, its LOC Obligations and
its Loans); provided, however, that (i) such Lender’s obligations under this
Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection provisions contained in Sections
4.1 through 4.4, inclusive, but shall not be entitled to receive any amount greater than
such Lender would have been able to receive, and (iv) the Borrower shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Credit Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans, its Notes and its LOC Obligations and to
approve any amendment, modification, or waiver of any provision of this Credit Agreement
(other than amendments, modifications, or waivers decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Notes, extending any scheduled
principal payment date or date fixed for the payment of interest on such Loans or Notes, or
extending its Commitment).




     (f) Nonrestricted Assignments. Notwithstanding any other provision set forth
in this Credit Agreement, any Lender may at any time assign and pledge all or any portion of
its Loans and its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No such
assignment shall release the assigning Lender from its obligations hereunder.




     (g) Information. Subject to Section 11.17, any Lender may furnish any
information concerning the Borrower in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).



     11.4 No Waiver; Remedies Cumulative.



     No failure or delay on the part of the Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing between the
Borrower and the Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the



64









 







exercise of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or remedies which the Agent
or any Lender would otherwise have. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent or the Lenders to any other or further action in any
circumstances without notice or demand.



     11.5 Payment of Expenses, etc.



     The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and expenses of the Agent
in connection with (A) the negotiation, preparation, execution and delivery, syndication and
administration of this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable fees and expenses of
counsel to the Agent) and (B) any amendment, waiver or consent relating hereto and thereto
including, but not limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the Borrower under
this Credit Agreement, (ii) pay all reasonable out-of-pocket costs and expenses of the Agent and
each Lender in connection with (A) enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the Agent and each of the Lenders
(including the allocated cost of internal counsel)) and (B) any bankruptcy or insolvency proceeding
of the Borrower and (iii) indemnify the Agent and each Lender, their respective Affiliates and the
respective officers, directors, employees, representatives and agents of the foregoing from and
hold each of them harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related to, or by reason
of, any investigation, litigation or other proceeding (whether or not the Agent or any Lender is a
party thereto) related to the entering into and/or performance of any Credit Document or the use of
proceeds of any Loans (including other extensions of credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel and settlement costs incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).



     11.6 Amendments, Waivers and Consents.



     Neither this Credit Agreement, nor any other Credit Document nor any of the terms hereof or
thereof may be amended, changed, waived, discharged or terminated unless such amendment, change,
waiver, discharge or termination is in writing and signed by the Required Lenders and the Borrower
(and if the rights or duties of the Issuing Bank are affected thereby, by it); provided,
that no such amendment, change, waiver, discharge or termination shall without the consent of each
Lender affected thereby:




     (a) extend the Maturity Date, or postpone or extend the time for any payment or
prepayment of principal (except pursuant to 
Section 3.3(b)) or the time of payment of any
reimbursement obligation, or any portion thereof, arising from drawings under Letters of
Credit;




     (b) reduce the rate or extend the time of payment of interest thereon or fees or other
amounts payable hereunder;




     (c) reduce or waive the principal amount of any Loan or of any reimbursement
obligation, or any portion thereof, arising from drawings under Letters of Credit;



65









 






     (d) increase or extend the Commitment of a Lender (it being understood and agreed that
a waiver of any Default or Event of Default or a waiver of any mandatory reduction in the
Commitments shall not constitute a change in the terms of any Commitment of any Lender);




     (e) consent to the assignment or transfer by the Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents or release the Borrower from its
obligations under the Credit Documents;




     (f) amend, modify or waive any provision of this Section 11.6 or Section 3.6, 3.8, 5.2,
9.1(a), 11.2, 11.3 or 11.5;




     (g) reduce any percentage specified in, or otherwise modify, the definition of Required
Lenders;




     (h) release the Cash Collateral except as specifically permitted hereunder and by the
Collateral Documents; or




     (i) release the Parent from its obligations under the Credit Documents or release all
or substantially all of the other Guarantors from their obligations.


No provision of Section 10 may be amended or modified without the consent of the Agent.



No provision of Section 2.2 may be amended or modified without the consent of each Issuing Lender
affected thereby.



No provision of Section 2.8 may be amended or modified without the consent of the Swingline Lender.



Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances
as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on any
reorganization plan that affects the Loans or the Letters of Credit, and each Lender acknowledges
that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow the Borrower to use
cash collateral in the context of a bankruptcy or insolvency proceeding.




     11.7 Counterparts/Telecopy.



     This Credit Agreement may be executed in any number of counterparts, each of which where so
executed and delivered shall be an original, but all of which shall constitute one and the same
instrument. Delivery of executed counterparts by telecopy shall be as effective as an original and
shall constitute a representation that an original will be delivered.



     11.8 Headings.



     The headings of the sections and subsections hereof are provided for convenience only and
shall not in any way affect the meaning or construction of any provision of this Credit Agreement.



     11.9 Defaulting Lender.



     Each Lender understands and agrees that if such Lender is a Defaulting Lender then it shall
not be entitled to vote on any matter requiring the consent of the Required Lenders or to object to
any matter




66









 





requiring the consent of all the Lenders; provided, however, that (a) a
Lender’s Commitment may not be increased without its consent whether or not it is a Defaulting
Lender and (b) all other benefits and obligations under the Credit Documents shall apply to such
Defaulting Lender.




     11.10 Survival of Indemnification and Representations and Warranties.



     All indemnities set forth herein and all representations and warranties made herein shall
survive the execution and delivery of this Credit Agreement, the making of the Loans, the issuance
of the Letters of Credit and the repayment of the Loans, LOC Obligations and other obligations and
the termination of the Commitments hereunder.



     11.11 Governing Law; Venue.




     (a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be brought in the courts
of the State of New York, or of the United States for the Southern District of New York,
and, by execution and delivery of this Credit Agreement, the Borrower hereby irrevocably
accepts for itself and in respect of its property, generally and unconditionally, the
jurisdiction of such courts. The Borrower further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to it at the
address for notices pursuant to Section 11.1, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of a Lender to serve process in any
other manner permitted by law or to commence legal proceedings or to otherwise proceed
against the Borrower in any other jurisdiction.




     (b) The Borrower hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Credit Agreement or any other Credit Document brought in the courts
referred to in subsection (a) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.



     11.12 Waiver of Jury Trial; Waiver of Consequential Damages.



     EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY. The Borrower agrees not
to assert any claim against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys or agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise relating to any of
the transactions contemplated hereby or by the other Credit Documents.



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     11.13 Severability.



     If any provision of any of the Credit Documents is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining provisions shall remain in
full force and effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.



     11.14 Further Assurances.



     The Borrower agrees, upon the request of the Agent, to promptly take such actions, as
reasonably requested, as are necessary to carry out the intent of this Credit Agreement and the
other Credit Documents.



     11.15 Entirety.



     This Credit Agreement together with the other Credit Documents represent the entire agreement
of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or
written, if any, including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.



     11.16 Binding Effect; Continuing Agreement.




     (a) This Credit Agreement shall become effective at such time when all of the
conditions set forth in Section 5.1 have been satisfied or waived by the Lenders and it
shall have been executed by the Borrower, the Agent and the Lenders, and thereafter this
Credit Agreement shall be binding upon and inure to the benefit of the Borrower, the Agent
and each Lender and their respective successors and permitted assigns.




     (b) This Credit Agreement shall be a continuing agreement and shall remain in full
force and effect until all Loans, LOC Obligations, interest, fees and other Obligations have
been paid in full and all Commitments and Letters of Credit have been terminated. Upon such
termination, the Borrower shall have no further obligations (other than those provisions
that expressly survive the termination thereof) under the Credit Documents;
provided, that should any payment, in whole or in part, of the Obligations be
rescinded or otherwise required to be restored or returned by the Agent or any Lender,
whether as a result of any proceedings in bankruptcy or reorganization or otherwise, then
the Credit Documents shall automatically be reinstated and all amounts required to be
restored or returned and all costs and expenses incurred by the Agent or any Lender in
connection therewith shall be deemed included as part of the Obligations.



     11.17 Confidentiality; USA PATRIOT Act.




     (a) The Agent and each Lender will keep any information delivered or made available by
the Borrower pursuant to this Credit Agreement confidential from anyone other than persons
employed or retained by the Agent or such Lender and its Affiliates who are engaged in
evaluating, approving, structuring or administering this Credit Agreement; provided,
that the Agent and the Lenders shall be entitled to disclose such information (a) to any
other Lender or to the Agent, (b) upon the order of any court or administrative agency, (c)
upon the request or demand of any regulatory agency or authority, (d) which had been
publicly disclosed other than as a result of a disclosure by the Agent or any Lender
prohibited by this Agreement, (e) in connection with any litigation to which the Agent, any
Lender or its subsidiaries or parent may be a party, (f) to the extent necessary in
connection with the exercise of any remedy under this Agreement, (g) to such Lender’s



68









 






or Agent’s legal counsel and independent auditors and (h) subject to provisions
substantially similar to this Section 11.17, to any actual or proposed participant or
assignee.




     (b) Each 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
“Patriot Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in accordance with
the Patriot Act.



SECTION 12.




GUARANTY




     12.1 The Guaranty.



     Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate
of a Lender that enters into a Credit Facility Swap Contract or a Treasury Management Agreement
with a Credit Party, and the Administrative Agent as hereinafter provided, as primary obligor and
not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of
the Obligations are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors
will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the Obligations, the same
will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.



     Notwithstanding any provision to the contrary contained herein or in any other of the Credit
Documents, Credit Facility Swap Contracts or Treasury Management Agreements, the obligations of
each Guarantor under this Agreement and the other Credit Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations subject to avoidance
under the Bankruptcy Code or any comparable provisions of any applicable state law.



     12.2 Obligations Unconditional.



     The obligations of the Guarantors under Section 12.1 are joint and several, absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of
any of the Credit Documents, Credit Facility Swap Contracts or Treasury Management Agreements, or
any other agreement or instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being
the intent of this Section 12.2 that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall
have no right of subrogation, indemnity, reimbursement or contribution against either the Borrower
or any other Guarantor for amounts paid under this Section 12 until such time as the Obligations
have been paid in full and the Commitments have expired or terminated. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the liability of any
Guarantor hereunder, which shall remain



69









 




absolute and unconditional as described above:





     (a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;




     (b) any of the acts mentioned in any of the provisions of any of the Credit Documents,
any Credit Facility Swap Contract or Treasury Management Agreement between Credit Party and
any Lender, or any Affiliate of a Lender, or any other agreement or instrument referred to
in the Credit Documents, such Credit Facility Swap Contracts or such Treasury Management
Agreements shall be done or omitted;




     (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Credit Facility Swap Contract or Treasury Management
Agreement between any Credit Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents, such Credit Facility Swap
Contracts or such Treasury Management Agreements shall be waived or any other guarantee of
any of the Obligations or any security therefor shall be released, impaired or exchanged in
whole or in part or otherwise dealt with;




     (d) any Lien granted to, or in favor of, the Administrative Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be perfected; or




     (e) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



     With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Credit Documents, any Credit Facility Swap Contract or any Treasury Management
Agreement between any Credit Party and any Lender, or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Credit Documents, such Credit Facility Swap Contracts or
such Treasury Management Agreements, or against any other Person under any other guarantee of, or
security for, any of the Obligations.



     12.3 Reinstatement.



     The obligations of the Guarantors under this Section 12 shall be automatically reinstated if
and to the extent that for any reason any payment by or on behalf of any Person in respect of the
Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, the reasonable fees, charges and
disbursements of counsel) incurred by the Administrative Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.



     12.4 Certain Additional Waivers.



     Each Guarantor further agrees that such Guarantor shall have no right of recourse to security
for the



70









 




Obligations, except through the exercise of rights of subrogation pursuant to Section 12.2 and
through the exercise of rights of contribution pursuant to Section 12.6.




     12.5 Remedies.



     The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said Section 9.2) for
purposes of Section 12.1 notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the Obligations being deemed to
have become automatically due and payable), the Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by the Guarantors for purposes of Section
12.1. The Guarantors acknowledge and agree that their obligations hereunder are secured in
accordance with the terms hereof and of the Collateral Documents and that the Lenders may exercise
their remedies thereunder in accordance with the terms thereof.



     12.6 Rights of Contribution.



     The Guarantors agree among themselves that, in connection with payments made hereunder, each
Guarantor shall have contribution rights against the other Guarantors as permitted under applicable
law. Such contribution rights shall be subordinate and subject in right of payment to the
obligations of such Guarantors under the Credit Documents and no Guarantor shall exercise such
rights of contribution until all Obligations have been paid in full and the Commitments have
terminated.



     12.7 Guarantee of Payment; Continuing Guarantee.



     The guarantee in this Section 12 is a guaranty of payment and not of collection, is a
continuing guarantee, and shall apply to all Obligations whenever arising.




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     Each of the parties hereto has caused a counterpart of this Credit Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 	 	 
	BORROWER:	 	DCP MIDSTREAM OPERATING, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DCP Midstream Operating, LLC its General Partner
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DCP Midstream Partners, LP its Sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DCP Midstream GP, LP its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DCP Midstream GP, LLC its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 
	GUARANTORS:	 	DCP MIDSTREAM PARTNERS, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DCP Midstream GP, LP its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DCP Midstream GP, LLC its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	          Michael J. Bradley	 	 
	 

	 	 	 	          President and Chief Executive Officer	 	 
	 	 	[others]	 	 






2









 






LENDERS:




	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL
ASSOCIATION, as 
Agent and as a Lender
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



3









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




4