EXHIBIT 10.1


 


[EXECUTION]


 




 





Published CUSIP Number (Deal):


Published CUSIP Number (Revolver):


 


AMENDED AND
RESTATED


CREDIT
AGREEMENT


 


dated as of November 22, 2005


 


among


 


WESTERN GAS RESOURCES, INC.


as Borrower


 


BANK OF AMERICA, N.A.


as Administrative Agent and L/C Issuer


 


BNP PARIBAS


JPMORGAN CHASE BANK, N.A.


THE ROYAL BANK OF SCOTLAND plc


WACHOVIA BANK, NATIONAL ASSOCIATION


WELLS FARGO BANK, N.A.


as Co-Syndication Agents


 


FORTIS CAPITAL CORP.


UNION BANK OF CALIFORNIA, N.A.


as Co-Documentation Agents


 


AND


 


THE OTHER LENDERS PARTY HERETO


 










 


BANC OF AMERICA SECURITIES LLC


as Sole Lead Arranger and Sole Book Manager




 





 





















 


 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
  1.01

  	
  Defined
  Terms

  	
   

  
	
  1.02

  	
  Other Interpretive
  Provisions

  	
   

  
	
  1.03

  	
  Accounting Terms

  	
   

  
	
  1.04

  	
  Rounding

  	
   

  
	
  1.05

  	
  References to
  Agreements and Laws

  	
   

  
	
  1.06

  	
  Times
  of Day

  	
   

  
	
  1.07

  	
  Letter of Credit Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.
  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  
	
  2.01

  	
  Loans

  	
   

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
   

  
	
  2.03

  	
  Letters of Credit

  	
   

  
	
  2.04

  	
  Prepayments

  	
   

  
	
  2.05

  	
  Termination or
  Reduction of Commitments

  	
   

  
	
  2.06

  	
  Repayment of Loans

  	
   

  
	
  2.07

  	
  Interest

  	
   

  
	
  2.08

  	
  Fees

  	
   

  
	
  2.09

  	
  Computation of
  Interest and Fees

  	
   

  
	
  2.10

  	
  Evidence of Debt

  	
   

  
	
  2.11

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
   

  
	
  2.12

  	
  Sharing of Payments

  	
   

  
	
  2.13

  	
  Increase in Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  
	
  3.01

  	
  Taxes

  	
   

  
	
  3.02

  	
  Illegality

  	
   

  
	
  3.03

  	
  Inability to Determine
  Rates

  	
   

  
	
  3.04

  	
  Increased
  Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans

  	
   

  
	
  3.05

  	
  Funding Losses

  	
   

  
	
  3.06

  	
  Matters
  Applicable to all Requests for Compensation

  	
   

  
	
  3.07

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  
	
  4.01

  	
  Conditions of
  Initial Credit Extension

  	
   

  
	
  4.02

  	
  Conditions to all
  Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  5.01

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
   

  
	
  5.02

  	
  Authorization; No
  Contravention

  	
   

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
   

  
	
  5.04

  	
  Binding Effect

  	
   

  
	
  5.05

  	
  Financial
  Statements; No Material Adverse Effect

  	
   

  
	
  5.06

  	
  Litigation

  	
   

  
	
  5.07

  	
  No Default

  	
   

  
	
  5.08

  	
  Ownership of Property;
  Liens

  	
   

  
	
  5.09

  	
  Environmental Compliance

  	
   

  



 


i





















 


	
  5.10

  	
  Insurance

  	
   

  
	
  5.11

  	
  Taxes

  	
   

  
	
  5.12

  	
  ERISA Compliance

  	
   

  
	
  5.13

  	
  Subsidiaries

  	
   

  
	
  5.14

  	
  Margin
  Regulations; Investment Company Act; Public Utility Holding Company Act

  	
   

  
	
  5.15

  	
  Disclosure

  	
   

  
	
  5.16

  	
  Compliance with Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.
  AFFIRMATIVE COVENANTS

  	
   

  
	
  6.01

  	
  Financial Statements

  	
   

  
	
  6.02

  	
  Certificates; Other
  Information

  	
   

  
	
  6.03

  	
  Notices

  	
   

  
	
  6.04

  	
  Payment of Obligations

  	
   

  
	
  6.05

  	
  Preservation of
  Existence, Etc.

  	
   

  
	
  6.06

  	
  Maintenance of Properties

  	
   

  
	
  6.07

  	
  Maintenance of Insurance

  	
   

  
	
  6.08

  	
  Compliance with Laws

  	
   

  
	
  6.09

  	
  Books and Records

  	
   

  
	
  6.10

  	
  Inspection Rights

  	
   

  
	
  6.11

  	
  Use of Proceeds

  	
   

  
	
  6.12

  	
  Guaranties of
  Borrower’s Subsidiaries

  	
   

  
	
  6.13

  	
  Additional Guarantors

  	
   

  
	
  6.14

  	
  Stock Pledge

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.
  NEGATIVE COVENANTS

  	
   

  
	
  7.01

  	
  Liens

  	
   

  
	
  7.02

  	
  Investments

  	
   

  
	
  7.03

  	
  Indebtedness

  	
   

  
	
  7.04

  	
  Fundamental
  Changes; Issuance of Stock

  	
   

  
	
  7.05

  	
  Dispositions

  	
   

  
	
  7.06

  	
  Restricted Payments

  	
   

  
	
  7.07

  	
  Change in Nature of
  Business

  	
   

  
	
  7.08

  	
  Transactions with
  Affiliates

  	
   

  
	
  7.09

  	
  Burdensome Agreements

  	
   

  
	
  7.10

  	
  Use of Proceeds

  	
   

  
	
  7.11

  	
  Limitation for Net
  Products Exposure

  	
   

  
	
  7.12

  	
  Financial Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  
	
  8.01

  	
  Events of Default

  	
   

  
	
  8.02

  	
  Remedies Upon Event of
  Default

  	
   

  
	
  8.03

  	
  Application of Funds

  	
   

  



 


	
  ARTICLE IX.
  ADMINISTRATIVE AGENT

  	
   

  
	
  9.01

  	
  Appointment
  and Authorization of Administrative Agent

  	
   

  
	
  9.02

  	
  Delegation of Duties

  	
   

  
	
  9.03

  	
  Liability of Administrative
  Agent

  	
   

  
	
  9.04

  	
  Reliance by Administrative
  Agent

  	
   

  
	
  9.05

  	
  Notice of Default

  	
   

  
	
  9.06

  	
  Credit
  Decision; Disclosure of Information by Administrative Agent

  	
   

  
	
  9.07

  	
  Indemnification
  of Administrative Agent

  	
   

  
	
  9.08

  	
  Administrative
  Agent in its Individual Capacity

  	
   

  



 


ii





















 


	
  9.09

  	
  Successor Administrative
  Agent

  	
   

  
	
  9.10

  	
  Administrative
  Agent May File Proofs of Claim

  	
   

  
	
  9.11

  	
  Collateral and Guaranty
  Matters

  	
   

  
	
  9.12

  	
  Other Agents;
  Arrangers and Managers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.
  MISCELLANEOUS

  	
   

  
	
  10.01

  	
  Amendments, Etc.

  	
   

  
	
  10.02

  	
  Notices
  and Other Communications; Facsimile Copies

  	
   

  
	
  10.03

  	
  No Waiver; Cumulative
  Remedies

  	
   

  
	
  10.04

  	
  Attorney Costs,
  Expenses and Taxes

  	
   

  
	
  10.05

  	
  Indemnification by the
  Borrower

  	
   

  
	
  10.06

  	
  Reimbursement by Lenders

  	
   

  
	
  10.07

  	
  Payments Set Aside

  	
   

  
	
  10.08

  	
  Successors and Assigns

  	
   

  
	
  10.09

  	
  Confidentiality

  	
   

  
	
  10.10

  	
  Set-off

  	
   

  
	
  10.11

  	
  Interest Rate Limitation

  	
   

  
	
  10.12

  	
  Counterparts;
  Integration; Effectiveness

  	
   

  
	
  10.13

  	
  Integration

  	
   

  
	
  10.14

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  10.15

  	
  Severability

  	
   

  
	
  10.16

  	
  Tax Forms

  	
   

  
	
  10.17

  	
  Replacement of Lenders

  	
   

  
	
  10.18

  	
  Governing Law

  	
   

  
	
  10.19

  	
  Waiver of Right to
  Trial by Jury

  	
   

  
	
  10.20

  	
  Waiver of
  Consequential Damages, Etc.

  	
   

  
	
  10.21

  	
  ENTIRE AGREEMENT

  	
   

  
	
  10.22

  	
  Restatement

  	
   

  
	
  10.23

  	
  USA PATRIOT Act Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  



 


iii





















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitments and Pro Rata Shares

  	
   

  
	
  5.05

  	
  Material Indebtedness

  	
   

  
	
  5.12

  	
  Erisa Compliance

  	
   

  
	
  5.13

  	
  Subsidiaries and Other Equity Investments

  	
   

  
	
  7.01

  	
  Existing Liens

  	
   

  
	
  7.02

  	
  Joint Ventures

  	
   

  
	
  7.03

  	
  Existing Indebtedness

  	
   

  
	
  10.02

  	
  Administrative Agent’s Office, Certain Addresses for
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Form of

  	
   

  
	
  A

  	
  Loan Notice

  	
   

  
	
  B

  	
  Note

  	
   

  
	
  C

  	
  Compliance Certificate

  	
   

  
	
  D

  	
  Assignment and Assumption

  	
   

  
	
  E

  	
  Guaranty

  	
   

  
	
  F

  	
  Opinion Matters

  	
   

  



 


iv





















 


AMENDED AND
RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED
CREDIT AGREEMENT (“Agreement”) is entered into as of November 22,
2005, among WESTERN GAS RESOURCES, INC., a Delaware corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent and L/C Issuer.


 


The Borrower entered into
an Amended and Restated Credit Agreement, dated as of June 29, 2004, among
the Borrower, Bank of America, N.A., as agent, and a syndicate of lenders, as
from time to time supplemented or amended (the “Existing Credit Agreement”)
pursuant to which such lenders made revolving loans to the Borrower.


 


The Borrower has
requested that the Lenders amend and restate the Existing Credit Agreement in
its entirety, and the Lenders are willing to do so on the terms and conditions
set forth herein.


 


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


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


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


 


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


 


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


 


“Affiliate” means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.  “Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto. 
Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person possesses,
directly or indirectly, power to vote 15% or more of the securities having
ordinary voting power for the election of directors, managing general partners
or the equivalent.


 





















 


“Agent-Related Persons”
means the Administrative Agent, together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, the
Arranger and the L/C Issuer), and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.


 


“Aggregate Commitments”
means as of the date hereof the Commitments of all the Lenders in the aggregate
amount of $700,000,000 as increased from time to time pursuant to Section 2.13.


 


“Agreement” means
this Credit Agreement.


 


“Applicable Rate”
means, from time to time, the following percentages per annum for each category
of Commitment Fee, Eurodollar Rate, Letters of Credit and Base Rate set forth
below, respectively, based upon the Debt to Capitalization Ratio as set forth
below:


 


Applicable Rate


 




	
  Pricing

  Level

  	
   

  	
  Debt to Capitalization

  Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurodollar

  Rate +

  Letters of

  Credit

  	
   

  	
  Base Rate

  +

  	
   

  
	
  1

  	
   

  	
  <0.30:1

  	
   

  	
  0.100

  	
  %

  	
  0.600

  	
  %

  	
  0.00

  	
  %

  
	
  2

  	
   

  	
  >0.30:1 <0.35:1

  	
   

  	
  0.150

  	
  %

  	
  0.725

  	
  %

  	
  0.00

  	
  %

  
	
  3

  	
   

  	
  >0.35:1 <0.40:1

  	
   

  	
  0.175

  	
  %

  	
  0.850

  	
  %

  	
  0.00

  	
  %

  
	
  4

  	
   

  	
  >0.40:1 <0.45:1

  	
   

  	
  0.200

  	
  %

  	
  0.975

  	
  %

  	
  0.00

  	
  %

  
	
  5

  	
   

  	
  >0.45:1

  	
   

  	
  0.300

  	
  %

  	
  1.200

  	
  %

  	
  0.20

  	
  %

  






 


Any increase or decrease
in the Applicable Rate resulting from a change in the Debt to Capitalization
Ratio shall become effective as of the first Business Day immediately following
the date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that (i) if the Borrower or a Subsidiary
is making a significant acquisition or selling significant assets, the Borrower
may request a decrease or increase in the Applicable Rate during a fiscal
quarter and deliver to the Administrative Agent and Lenders with such request
proforma financial statements in form acceptable to Administrative Agent
together with a calculation of the Debt to Capitalization Ratio based upon such
financial statements and if Administrative Agent determines that the Borrower’s
calculation is correct, the reduced or increased Applicable Rate shall become
effective on the fifth Business Day following the date on which notice thereof
is given to Administrative Agent and to Lenders, and (ii) if a Compliance
Certificate is not delivered when due in accordance with Section 6.02(b),
then Pricing Level 5 shall apply as of the first Business Day after the date on
which such Compliance Certificate was required to have been delivered up to and
including the date on which such Compliance Certificate is subsequently
delivered.  The Applicable Rate in effect
from the Closing Date through the first Business Day thereafter on which such a
Compliance Certificate is received by Agent (whether such Compliance Certificates
is based on Borrower’s financial statements for its fiscal quarter ended September 30,
2005 or a subsequent fiscal quarter), shall be determined based upon


 


2





















 


Pricing Level 4 up
to and including the date on which such Compliance Certificate is subsequently
delivered.


 


“Arranger” means
Banc of America Securities LLC, in its capacity as sole lead arranger and sole
book manager.


 


“Assignment and
Assumption” means an Assignment and Assumption substantially in the form of
Exhibit D.


 


“Attorney Costs”
means and includes all reasonable fees, expenses and disbursements of external
counsel.


 


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


 


“Audited Financial
Statements” means the audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended December 31, 2004, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year of the
Borrower and its Subsidiaries, including the notes thereto.


 


“Availability Period”
means the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.05, and (c) the date of termination of
the commitment of each Lender to make Loans and of the obligation of the of the
L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


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


 


“Base Rate” means
for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its “prime
rate.”  The “prime rate” is a rate set by
Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate.  Any change in
such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


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


 


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


 


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


 


3





















 


“Borrowing” means
a Committed Borrowing.


 


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


 


“Cash Collateralize”
has the meaning specified in Section 2.03(g).


 


“Change of Control”
means an event or series of events by which:


 


(a)                                  any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan) after the Closing Date becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that
such person or group has the right to acquire (such right, an “option right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 25% or more of the equity securities of the
Borrower entitled to vote for members of the board of directors of the Borrower
on a fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or


 


(b)                                 during
any period of 24 consecutive months, a majority of the members of the board of
directors of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at
the time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group other than
a solicitation for the election of one or more directors by or on behalf of the
board of directors).


 


“Closing Date”
means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive
the applicable payment).


 


“Code” means the
Internal Revenue Code of 1986.


 


4





















 


“Collateral” means
all real and personal property subject to the Security Documents.


 


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


 


“Commitment Fee”
has the meaning specified in Section 2.08(a)


 


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


 


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


 


“Consolidated EBITDA”
means, for any period, EBITDA of the Borrower and its Subsidiaries for such
period on a consolidated basis


 


“Consolidated Funded
Indebtedness” means, as of any date of determination, for the Borrower and
its Subsidiaries calculated on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness (e.g., seller
financings), (c) all direct obligations arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments, (d) all obligations in respect of
the deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business), (e) Attributable Indebtedness
in respect of capital leases and operating leases (but only the aggregate amount thereof which at the time in question
exceeds $35,000,000 excluding Obligations arising under oil and gas leases, gas
compressor and gas processing plant site leases, real estate leases for office
space used by the Borrower and leases for vehicles, office equipment and data
processing equipment) and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other
than the Borrower or any Subsidiary, and (g) all Indebtedness of the types
referred to in clauses (a) through (f) above of any partnership or
joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which the Borrower or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to the Borrower or such Subsidiary.


 


“Consolidated Interest
Charges” means, for any period, Interest Charges for the Borrower and its
Subsidiaries calculated on a consolidated basis.


 


“Consolidated Net
Income” means, for any period, Net Income for the Borrower and its
Subsidiaries calculated on a consolidated basis.


 


5





















 


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


 


“Control” has the
meaning specified in the definition of “Affiliate.”


 


“CP Debt” means
unsecured Indebtedness in the form of commercial paper issued by Borrower which
meets the following requirements: (i) such Indebtedness has a maturity of
not more than 270 days after the date of issuance thereof, (ii) the
offering of such Indebtedness is not required to be registered under the
Securities Act of 1933, as amended, (iii) such Indebtedness is not the
subject of a Guarantee of any Loan Party or Foreign Subsidiary, (iv) at
the time Borrower incurs such Indebtedness, no Default or Event of Default
shall have occurred and be continuing hereunder, and (v) the documentation
evidencing such Indebtedness shall contain no terms, conditions or defaults
(other than pricing and back-up availability under this Agreement) which are
more favorable to the third party creditor than those contained in this
Agreement are to Lenders, as determined by Required Lenders in their discretion
(provided that Required Lenders shall make any such determination at the time
the initial documentation covering the issuance of CP Debt is executed and
delivered and each time such documentation is modified, taking into
consideration any amendments or modifications to this Agreement then in
effect), and shall not contain any provision which attempts to modify, amend or
restrict any of the rights or remedies of Administrative Agent or Lenders
hereunder or under any of the other Loan Documents.


 


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


 


“Debt Rating”
means, as of any date of determination, the rating as determined by either
S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s
Indebtedness under this Agreement.


 


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


 


“Debt Securities”
means the $50,000,000 aggregate principal amount of 7.61% Senior Notes due July 28,
2007, $100,000,000 aggregate principal amount of 5.92% Senior Notes, Series I,
due June 30, 2011, $25,000,000 aggregate principal amount of 5.57% Senior
Notes, Series J, due January 18, 2015, and all other senior notes
from time to time hereafter issued by the Borrower pursuant to that certain
Third Amended and Restated Master Shelf Agreement effective as of January 13,
2003, between the Borrower and The Prudential Insurance Company of America,
Prudential Investment Management, Inc. (“Prudential”), Pruco Life
Insurance Company and certain Prudential Affiliates, as amended, supplemented,
modified and restated from time to time in an aggregate principal amount not to
exceed $375,000,000, outstanding at any time.


 


6





















 


“Debt to
Capitalization Ratio” means, at the time of determination, the ratio of (a) Consolidated
Funded Indebtedness to (b) the sum of the Consolidated Funded Indebtedness
plus Shareholders’ Equity.


 


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


 


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


 


“Defaulting Lender”
means any Lender that, at the time of determination, (a) has failed  to fund any portion of the Loans or
participations in L/C Obligations required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


“Disposition” or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction) of any property by any Person, including any
sale, assignment, transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims associated therewith.


 


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


 


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


 


“EBITDA” means for
any Person for any period, an amount equal to Consolidated Net Income of such
Person for such period plus (a) the following to the extent
deducted in calculating such Consolidated Net Income: (i) Interest Charges
for such period, (ii) the provision for federal, state, local and foreign
income taxes payable by such Person for such period, (iii) the amount of
depreciation and amortization expense deducted in determining such Consolidated
Net Income and (iv) other non cash items deducted in determining such
Consolidated Net Income and minus (b) other non-cash items
increasing such Consolidated Net Income for such period.


 


“Eligible Assignee”
has the meaning specified in Section 10.08.


 


“Environmental Laws”
means any and all federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the


 


7





















 


protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges
to waste or public systems.


 


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


 


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


 


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


 


“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Sections 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; or (e) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.


 


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


 


8





















 


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


 


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


 


“Existing Credit
Agreement” has the meaning specified in the preamble of this Agreement.


 


“Existing Letters of
Credit” means those letters of credit issued by Administrative Agent under
the Existing Credit Agreement prior to the date hereof that are outstanding as
of the date hereof.


 


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


 


“Fee Letter” means
the letter agreement, dated October 12, 2005, among the Borrower, the
Administrative Agent and the Arranger.


 


“FERC” means any
federal energy regulatory commission.


 


“Foreign Lender”
has the meaning specified in Section 10.16(a)(i).


 


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


 


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


 


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


 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.


 


9





















 


“Guarantee” means,
as to any Person, any (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien (other than Permitted Liens as defined in Section 7.01) on any
assets of such Person securing any Indebtedness or other obligation of any
other Person, whether or not such Indebtedness or other obligation is assumed
by such Person.  The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.  The term “Guarantee”
as a verb has a corresponding meaning.


 


“Guarantors”
means MIGC, MGR, WGRT, WGW, Lance and any other Domestic Subsidiaries of the
Borrower required to deliver a Guarantee of the Obligations pursuant to Section 6.12.


 


“Guaranty”
means the Guaranty made by the Guarantors in favor of the Administrative Agent
on behalf of the Lenders, substantially in the form of Exhibit E.


 


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


 


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


 


(a)                                  all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;


 


(b)                                 all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)                                  net
obligations of such Person under any Swap Contract;


 


10





















 


(d)                                 all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business);


 


(e)                                  indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;


 


(f)                                    capital
leases, operating leases and Synthetic Lease Obligations;


 


(g)                                 all
Guarantees of such Person in respect of any of the foregoing;


 


(h)                                 obligations
with respect to payments received in consideration of oil, gas, or other
minerals yet to be acquired or produced at the time of payment (including
obligations under “take-or-pay” contracts to deliver gas in return for payments
already received and the undischarged balance of any production payment created
by such Person or for the creation of which such Person directly or indirectly
received payment); or


 


(i)                                     obligations
to deliver goods or services in consideration of advance payments therefor.


 


For all purposes hereof,
the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general partner or a
joint venturer, unless such Indebtedness is expressly made non-recourse to such
Person.  The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination
Value thereof as of such date.  The
remaining amount of any capital lease, operating lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.


 


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


 


“Indemnitees” has
the meaning set forth in Section 10.05.


 


“Information” has the
meaning specified in Section 10.09.


 


“Initial Financial
Statements” means the unaudited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal quarter ended June 30, 2005, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal quarter of the Borrower and its Subsidiaries,
including the notes thereto.


 


“Intercreditor
Agreement” means the Intercreditor Agreement of even date herewith among
Administrative Agent, Lenders, The Prudential Insurance Company of America,
Pruco Life Insurance Company, Prudential Investment Management, Inc.,
Pruco Life Insurance Company of New Jersey, Gibralter Life Insurance Co., Ltd.,
RGA Reinsurance Company, 


 


11





















 


American Bankers Life
Assurance Company of Florida, Inc., Fortis Benefits Insurance Company, and
Connecticut General Life Insurance Company.


 


“Interest Charges”
means for any Person for any Period, all interest accrued during such Period by
such Person in connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in each case to
the extent treated as interest in accordance with GAAP.


 


“Interest Coverage
Ratio” means, as of the end of any fiscal quarter, the ratio of (a) Consolidated
EBITDA for the four consecutive fiscal quarters then ended to (b) Consolidated Interest Charges
for such period.  For purposes of the “Interest
Coverage Ratio,” EBITDA shall be calculated excluding gains and losses on asset
sales and other extraordinary items.


 


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


 


“Interest Period”
means as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar
Rate Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrower in its Loan Notice; provided that:


 


(i)                                     any Interest
Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless, in the case of a
Eurodollar Rate Loan, such Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding Business Day;


 


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


 


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


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance
or capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute a
business unit.  For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such Investment.


 


12





















 


“IRS” means the
United States Internal Revenue Service.


 


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


 


“Lance” means
Lance Oil & Gas Company, Inc., a Delaware corporation.


 


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


 


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


 


“L/C Borrowing”
means an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a
Committed Borrowing.


 


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


 


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


 


“L/C Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 10.07.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Lender” has the
meaning specified in the introductory paragraph hereto and, as the context
requires, includes the L/C Issuer.


 


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


 


“Letter of Credit”
means any letter of credit issued hereunder and shall include the Existing
Letters of Credit.  A Letter of Credit
may be a commercial letter of credit or a standby letter of credit.


 


13





















 


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


 


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


 


“Letter of Credit Fees”
means the fees described in Section 2.03(i).


 


“Letter of Credit
Sublimit” means an amount equal to $50,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Commitments.


 


“Lien” means, with
respect to any property or assets, any right or interest therein of a creditor
to secure Indebtedness owed to him or any other arrangement with such creditor
which provides for the payment of such Indebtedness out of such property or
assets or which allows him to have such Indebtedness satisfied out of such
property or assets prior to the general creditors of any owner thereof,
including any lien, mortgage, security interest, pledge, deposit, production
payment, rights of a vendor under any title retention or conditional sale
agreement or lease substantially equivalent thereto, tax lien, mechanic’s or
materialman’s lien, or any other charge or encumbrance for security purposes,
whether arising by law or agreement or otherwise, but excluding any right of
offset which arises without agreement in the ordinary course of business.  “Lien” also means any filed financing
statement, any registration of a pledge (such as with an issuer of
uncertificated securities), or any other arrangement or action which would
serve to perfect a Lien described in the preceding sentence, regardless of
whether such financing statement is filed, such registration is made, or such
arrangement or action is undertaken before or after such Lien exists.


 


“Loan” has the
meaning specified in Section 2.01.


 


 “Loan Documents” means this Agreement,
each Note, the Letters of Credit, the Letter of Credit Applications, the Fee
Letter, the Guaranty, the Security Documents and all other agreements,
certificates, documents, instruments and writings at any time delivered in
connection herewith or therewith (excluding term sheets, commitment letters,
correspondence and similar documents used in the negotiation hereof and further
excluding all offering memorandums prepared by Administrative Agent or its
Affiliates for use in connection with the Loans).


 


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


 


“Loan Parties”
means, collectively, the Borrower and each Guarantor.


 


“Material Adverse
Effect” means (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, liabilities (actual or
contingent), or financial condition of the Borrower or the Borrower and its
Subsidiaries taken as a whole, provided, however, that a downgrade by S&P
and/or Moody’s of their respective Debt Rating shall not, in and of itself, be
deemed to be a Material Adverse Effect; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or


 


14





















 


(c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.


 


“Material Subsidiary”
means a Subsidiary which has EBITDA in any fiscal quarter of Borrower which
constitutes ten percent (10%) or more of Borrower’s Consolidated EBITDA for
such fiscal quarter or which has assets at any time with a book value equal to
or exceeding (10%) of the book value of Borrower’s consolidated assets at such
time.


 


“Maturity Date”
means November 22, 2010.


 


 “MGR” means Mountain Gas Resources, Inc.,
a Delaware corporation.


 


“MIGC” means MIGC, Inc.,
a Delaware corporation.


 


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


 


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


 


“Net Income”
means, for any period, for any Person, the net income of the Borrower and its
Subsidiaries for that period.


 


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


 


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


 


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


 


15





















 


“Outstanding Amount”
means (i) with respect to Loans, on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of Loans, occurring on such date; and (ii) with respect to
any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and
any other changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such date.


 


“Participant” has
the meaning specified in Section 10.08(d).


 


“PBGC” means the
Pension Benefit Guaranty Corporation.


 


“Pension Plan”
means any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
plan years.


 


“Permitted Lien”
has the meaning set forth in Section 7.01.


 


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


 


“Plan” means any “employee
benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject
to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.


 


“Platform” has the
meaning set forth in Section 6.02.


 


“Preferred Stock”
means all issued and outstanding preferred stock of the Borrower, which has
been approved in writing by Required Lenders, as the same may change from time
to time.


 


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


 


 “PUC Subsidiary” means any Subsidiary
that is required to be regulated as a public utility under applicable Law and
that is prohibited under such applicable Law from incurring a


 


16





















 


Guaranty and/or
granting Liens or security interests in any Collateral, in each case without
the approval of the applicable public utility commission having regulatory
authority over such PUC Subsidiary or FERC.


 


“Register” has the
meaning set forth in Section 10.08(c).


 


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


 


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


 


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


 


“Responsible Officer”
means (i) for all Loan Documents, including Loan Notices, the chief
executive officer, president, executive vice president, chief financial
officer, treasurer or assistant treasurer of a Loan Party and (ii) in
addition, for Loan Notices , the treasury director or senior credit analyst of
the Borrower.  Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.


 


“Restricted Payment”
means (i) any dividend or other distribution (whether in cash, securities
or other property) with respect to any capital stock or other equity interest
of the Borrower 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 other equity interest or of any
option, warrant or other right to acquire any such capital stock or other
equity interest or (ii) any purchase, repurchase, defeasance or prepayment
of the Debt Securities or the Subordinated Debt, excluding regularly scheduled
payments of principal and interest.


 


“Risk Management
Policy” means that certain Western Gas Resources, Inc. Market Risk
Management Policy, as approved by the Board of Directors on September 20,
2002 and modified and approved by the Board of Directors on November 20,
2003, as supplemented or amended from time to time, a true and correct copy of
which has been delivered to the Administrative Agent.


 


17





















 


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


 


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


 


“Security Documents”
means all security agreements, deeds of trust, mortgages, chattel mortgages,
pledges, guaranties, financing statements, continuation statements, extension
agreements and other agreements or instruments now, heretofore, or hereafter
delivered by Borrower or any Subsidiary to Administrative Agent in connection
with this Agreement or any transaction contemplated hereby to secure or
guarantee the payment of any part of the Obligations or the performance of the
other duties and obligations of Borrower or any Subsidiary under the Loan
Documents.


 


“Senior Debt”
means all of the Obligations and all Indebtedness owing by Borrower and its
Subsidiaries under the Debt Securities.


 


“Shareholders’ Equity”
means the remainder of (i) Borrower’s Consolidated assets minus (ii) the
sum of (x) Borrower’s Consolidated liabilities plus (y) all treasury stock of
Borrower and its Subsidiaries plus (z) all intangible assets of Borrower and
its Subsidiaries (including without limitation all patents, copyrights,
licenses, franchises, goodwill, trade names and trade secrets); provided that
the term “Shareholder’s Equity” shall include the book value of long-term gas
contracts with producers that Borrower assumes in connection with acquisitions
that are reflected on the books of Borrower as assets.


 


“Stock Pledge”
means, collectively the Security Documents that are necessary to grant to
Administrative Agent a Lien on one hundred percent (100%) of the equity
interests in the Guarantors and sixty-five percent (65%) of the equity
interests in the Foreign Subsidiaries that are Material Subsidiaries, in form
and substance acceptable to Administrative Agent.


 


“Subordinated Debt”
means unsecured Indebtedness issued by Borrower that is subordinated by its
terms to the Obligations and the Debt Securities on terms acceptable to
Required Lenders and guarantees thereof by Borrower’s Subsidiaries each of which
is subordinated by its terms to the Obligations and the Debt Securities on
terms acceptable to Required Lenders.


 


“Subsidiary” of a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person,
provided that associations, joint ventures or other relationships (a) which
are established pursuant to a standard form operating agreement or similar
agreement or which are partnerships for purposes of federal income taxation
only, (b) which are not corporations or partnerships (or subject to the
Uniform Partnership Act) under applicable state law, and (c) whose
businesses are limited to the


 


18





















 


exploration,
development and operation of oil, gas, mineral, gas gathering or gas processing
properties and interests owned directly by the parties in such associations,
joint ventures or relationships, shall not be deemed to be “Subsidiaries” of
such Person.  Unless otherwise specified,
all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Borrower.


 


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


 


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


 


“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment), excluding with respect to
this clause (ii) agreements entered into in the ordinary course of such
Person’s business.


 


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


 


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


 


“Unfunded Pension
Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Pension Plan’s assets,


 


19





















 


determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.


 


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


 


“Unreimbursed Amount”
has the meaning set forth in Section 2.03(c)(i).


 


“WGRT” means
Western Gas Resources - Texas, Inc., a Texas corporation and wholly-owned
subsidiary of Borrower.


 


“WGW” means
Western Gas Wyoming, L.L.C., a Wyoming limited liability company.


 


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


 


(a)                                  The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


(b)                                 (i)                                     The
words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.


 


(ii)                                  Article,
Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.


 


(iii)                               The
term “including” is by way of example and not limitation.


 


(iv)                              The
term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.


 


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


 


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


 


1.03                        Accounting
Terms.


 


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


 


20





















 


(b)                                 If
at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, all reports and financial
statements required hereunder with respect to Borrower or with respect to
Borrower and its consolidated subsidiaries may be prepared in accordance with
such change but, if such change is material, all calculations and
determinations to be made hereunder may be made in accordance with such change
only after notice of such change is given to each Lender and Required Lenders
agree to such change insofar as it affects the accounting of Borrower or of
Borrower and its consolidated subsidiaries.


 


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


 


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


 


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


 


1.07                        Letter of
Credit Amounts.  Unless otherwise
specified, all references herein to the amount of a Letter of Credit at any
time shall be deemed to be the stated amount of such Letter of Credit in effect
at such time; provided, however, that with respect to any Letter of Credit
that, by its terms or the terms of any agreement related thereto, provides for
one or more automatic increases in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                        Loans.  Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a “Loan”)
to the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender’s Commitment; provided, however, that after giving
effect to any Committed Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Loans of any Lender, plus such Lender’s Pro Rata Share of
the Outstanding Amount of all L/C Obligations, shall not exceed such Lender’s
Commitment.  Within the limits of each
Lender’s Commitment, and subject to the


 


21





















 


other terms and conditions hereof, the Borrower may
borrow under this Section 2.01, prepay under Section 2.04,
and reborrow under this Section 2.01.  Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.


 


2.02                        Borrowings,
Conversions and Continuations of Loans.


 


(a)                                  Each
Committed Borrowing, each conversion of Loans from one Type to the other, and
each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing
of Base Rate Loans.  Each telephonic
notice by the Borrower pursuant to this Section 2.02 must be
confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 3.02
and 3.03, each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $250,000 or a whole multiple of $100,000 in excess
thereof.  Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is
requesting a Committed Borrowing, a conversion of Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) the requested date
of the Borrowing, conversion or continuation, as the case may be (which shall
be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. 
If the Borrower fails to specify a Type of Loan in a Loan Notice or if
the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Loans shall be made as, or converted to, Base
Rate Loans.  Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans.  If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.


 


(b)                                 Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection.  In the case of a Committed Borrowing, each
Lender shall make the amount of its Loan available to the Administrative Agent
in immediately available funds at the Administrative Agent’s Office not later
than 1:00 p.m. on the Business Day specified in the applicable Loan
Notice.  Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in


 


22





















 


accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by the Borrower; provided, however, that
if, on the date the Loan Notice with respect to such Borrowing is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing shall be applied, first, to the payment in full of any such
L/C Borrowings, second, to the Borrower as provided above.


 


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


 


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


 


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


 


2.03                        Letters
of Credit.


 


(a)                                  The
Letter of Credit Commitment.


 


(i)                                     Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the
Closing Date until the earlier of the (x) Letter of Credit Expiration Date or
(y) the last day of the Availability Period, to issue Letters of Credit for the
account of the Borrower or certain Subsidiaries, and to amend or renew Letters
of Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drafts under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of
Credit, and no Lender shall be obligated to participate in any Letter of Credit
if as of the date of such L/C Credit Extension, (x) the Total Outstandings
would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of
the Loans of any Lender, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations, would exceed such Lender’s
Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed
the Letter of Credit Sublimit.  Within
the foregoing limits, and subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon
and


 


23





















 


reimbursed.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.


 


(ii)                                  The
L/C Issuer shall be under no obligation to issue any Letter of Credit if:


 


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


 


(B)                                subject
to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit would occur more than 12 months after the date of issuance or last
renewal, unless the Required Lenders have approved such expiry date;


 


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


 


(D)                               the
issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer; or


 


(E)                                 such
Letter of Credit is in an initial amount less than $100,000, in the case of a
commercial Letter of Credit, or $500,000, in the case of a standby Letter of
Credit, or denominated in a currency other than Dollars.


 


(F)                                 a
default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender.


 


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


 


(iv)                              The
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer
shall have all of the benefits and immunities (A) provided to the
Administrative Agent in


 


24





















 


Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and
Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Article IX included the L/C Issuer with respect
to such acts or omissions, and (B) as additionally provided herein with
respect to the L/C Issuer.


 


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


 


(i)                                     Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and
time as the L/C Issuer may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be.  In the case of a request for
an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the L/C Issuer may
require.  In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment;
and (D) such other matters as the L/C Issuer may require.


 


(ii)                                  Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof.  Upon receipt
by the L/C Issuer of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, the L/C Issuer shall,
on the requested date, issue a Letter of Credit for the account of the Borrower
or enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter
of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Lender’s Pro
Rata Share times the amount of such Letter of Credit.


 


25





















 


(iii)                               If the Borrower so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an “Auto-Renewal Letter of Credit”); provided
that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to
prevent any such renewal at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued.  Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such renewal.  Once an Auto-Renewal Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the renewal of such Letter of Credit at any
time prior to an expiry date not later than the Letter of Credit Expiration
Date; provided, however, that the L/C Issuer shall not permit any
such renewal if (A) the L/C Issuer has determined that it would have no
obligation at such time to issue such Letter of Credit in its renewed form
under the terms hereof (by reason of the provisions of Section 2.04(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is two Business Days before the Nonrenewal
Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such renewal or (2) from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied.


 


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


 


(c)                                  Drawings
and Reimbursements; Funding of Participations.


 


(i)                                     Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later
than 11:00 a.m. on the date of any payment by the L/C Issuer under a
Letter of Credit (each such date, an “Honor Date”), the Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount equal to
the amount of such drawing.  If the
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Pro Rata Share thereof.  In such
event, the Borrower shall be deemed to have requested a Committed Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Loan Notice).  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing;


 


26





















 


provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


(ii)                                  Each
Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative
Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrower in such amount. 
The Administrative Agent shall remit the funds so received to the L/C
Issuer.


 


(iii)                               With
respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing
of Base Rate Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
Default Rate.  In such event, each Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this Section 2.03.


 


(iv)                              Until
each Lender funds its Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.


 


(v)                                 Each
Lender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Loan Notice). 
No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.


 


(vi)                              If
any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled
to recover from such Lender (acting through the


 


27





















 


Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available to the
L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate
and a rate determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation.  A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.


 


(d)                                 Repayment
of Participations.


 


(i)                                     At
any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to such
Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.


 


(ii)                                  If
any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. 
The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


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


 


(i)                                     any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;


 


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


 


28





















 


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


 


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


 


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


 


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


 


(f)                                    Role
of L/C Issuer.  Each Lender and the
Borrower agree that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document (other than any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.  None of the L/C Issuer, any
Agent-Related Person nor any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the approval
of the Lenders or the Required Lenders, as applicable; (ii) any action
taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit
Application.  The Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. 
None of the L/C Issuer, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful


 


29





















 


failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. 
In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.


 


(g)                                 Cash
Collateral.  Upon the request of the
Administrative Agent, (i) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any
Letter of Credit may for any reason remain outstanding and partially or wholly
undrawn, the Borrower shall immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations (in an amount equal to such Outstanding Amount
determined as of the date of such L/C Borrowing or the Letter of Credit
Expiration Date, as the case may be). 
For purposes hereof, “Cash Collateralize” means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory
to the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). 
Derivatives of such term have corresponding meanings.  The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing.  Cash
collateral shall be maintained in blocked, non-interest bearing deposit
accounts by Administrative Agent.


 


(h)                                 Applicability
of ISP98 and UCP.  Unless otherwise
expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the ISP published by the Institute of
International Banking Law & Practice (or such later version thereof as
may be in effect at the time of issuance) shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the “ICC”) at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6,
1998 regarding the European single currency (euro)) shall apply to each
commercial Letter of Credit.


 


(i)                                     Letter
of Credit Fees.  The Borrower shall
pay to the Administrative Agent for the account of each Lender in accordance
with its Pro Rata Share a Letter of Credit Fee for each Letter of Credit equal
to the Applicable Rate for Letters of Credit times the daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit).  Such letter of credit fees shall be computed
on a quarterly basis in arrears.  Such
letter of credit fees shall be due and payable on the first Business Day after
the end of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate
during any quarter, the daily maximum amount of each Letter of Credit shall be
computed and multiplied by the


 


30





















 


Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect. 
Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter
of Credit fees shall accrue at the Default Rate.


 


(j)                                     Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C
Issuer for its own account a fronting fee with respect to each Letter of Credit
at a rate equal to one-eighth of one percent per annum in each case times the
actual daily maximum amount available to be drawn under each Letter of Credit,
which such fee shall be due and payable on the first Business Day of each
March, June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit and on the Letter of
Credit Expiration Date.  In addition, the
Borrower shall pay directly to the L/C Issuer for its own account reasonable
customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. 
Such reasonable customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.


 


(k)                                  Conflict
with Letter of Credit Application. 
In the event of any conflict between the terms hereof and the terms of
any Letter of Credit Application, the terms hereof shall control.


 


2.04                        Prepayments.


 


(a)                                  The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on
the date of prepayment of Base Rate Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base
Rate Loans shall be in a principal amount of $250,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding.  Each
such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid.  The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s Pro Rata Share of such
prepayment.  If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective Pro Rata Shares.


 


(b)                                 If
for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrower shall immediately prepay Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that the Borrower shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b) unless
after the prepayment in full of the Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.


 


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2.05                        Termination
or Reduction of Commitments.  The
Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to
the date of termination or reduction, (ii) any such partial reduction
shall be in an aggregate amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof, (iii) the Borrower shall not terminate or
reduce the Aggregate Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Outstandings would exceed the
Aggregate Commitments, and (iv) if, after giving effect to any reduction
of the Aggregate Commitments, the Letter of Credit Sublimit exceeds the amount
of the Aggregate Commitments, such Sublimit shall be automatically reduced by
the amount of such excess.  The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments.  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Pro Rata
Share.  All Commitment Fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of
such termination.


 


2.06                        Repayment
of Loans.  The Borrower shall repay
to the Lenders on the Maturity Date the aggregate principal amount of Loans
outstanding on such date.


 


2.07                        Interest.


 


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


 


(b)                                 If
any amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.  Furthermore, while any Event of Default exists, the Borrower shall pay interest
on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.  Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand.


 


(c)                                  Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.


 


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2.08                        Fees.  In addition to certain fees described in
subsections (i) and (j) of Section 2.03:


 


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


 


(b)                                 Other
Fees.  The Borrower shall pay to the
Arranger and the Administrative Agent for their own respective accounts fees in
the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


2.09                        Computation
of Interest and Fees.  All
computations of interest for Base Rate Loans when the Base Rate is determined
by Bank of America’s “prime rate” shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall, subject to Section 10.11, bear interest
for one day.


 


2.10                        Evidence
of Debt.


 


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


 


33





















 


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


 


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


 


2.11                        Payments
Generally; Administrative Agent’s Clawback.


 


(a)                                  General.  All
payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided
herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein.  The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. 
All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. 
If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.


 


(b)                                 (i)  Funding
by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Committed
Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing
of Base Rate Loans, prior to 12:00 noon on the date of such Committed
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Committed Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed Borrowing
of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount.  In such event, if a Lender has
not in fact made its share of the applicable Committed Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case
of a payment to be made by such Lender, the greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (B) in the case of a payment to be
made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay
such interest to the Administrative Agent


 


34





















 


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


 


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


 


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


 


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


 


(d)           Obligations
of Lenders Several.  The obligations of the Lenders hereunder to
make Loans, to fund participations in Letters of Credit and to make payments
pursuant to Section 10.06 are several and not joint.  The failure of any Lender to make any Loan,
to fund any such participation or to make any payment under Section 10.06
on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 10.06.


 


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


 


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2.12                        Sharing of
Payments.  If, other than as
expressly provided elsewhere herein, any Lender shall obtain on account of the
Loans made by it, or the participations in L/C Obligations held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact, and (b) purchase from the other
Lenders such participations in the Loans made by them and/or such subparticipations
in the participations in L/C Obligations held by them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans or such participations, as the case may be, pro rata
with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from the purchasing Lender under
any of the circumstances described in Section 10.06 (including
pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required
repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered, without further interest
thereon.  The Borrower agrees that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off, but subject to Section 10.10) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. 
The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under
this Section and will in each case notify the Lenders following any such
purchases or repayments.  Each Lender
that purchases a participation pursuant to this Section shall from and
after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.


 


2.13                        Increase
in Commitments.


 


(a)                                  Borrower
shall have the right, without the consent of any of the Lenders but with the
prior approval of the Administrative Agent, such approval not to be
unreasonably withheld, to cause from time to time an increase in the Aggregate
Commitments by adding to this Agreement one or more additional Lenders or by
allowing one or more Lenders to increase their respective Commitments, provided,
however, (i) no Default shall exist, (ii) no such increase
shall result in the Aggregate Commitments exceeding $900,000,000, (iii) no
such increase shall be in an amount less than $10,000,000, and (iv) no
Lender’s Commitment shall be increased without such Lender’s consent.


 


(b)                                 If
the Aggregate Commitments are increased in accordance with this Section, the
Administrative Agent and the Borrower shall determine the effective date (the “Increase
Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase
and the Increase Effective Date.  As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date


 


36





















 


(in sufficient copies for each Lender) signed by a Responsible Officer
of such Loan Party (i) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such increase, and (ii) in the
case of the Borrower, certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V
and the other Loan Documents are true and correct on and as of the Extension
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.13,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01,
and (B) no Default exists.  The
Borrower shall prepay any Loans outstanding on the Increase Effective Date (and
pay any additional amounts required pursuant to Section 3.05) to
the extent necessary to keep the outstanding Loans ratable with any revised Pro
Rata Shares arising from any nonratable increase in the Commitments under this
Section.


 


(c)                                  Lenders
hereby authorize the Borrower to make non-ratable borrowings and prepayments of
the Loans, and if any such prepayment requires the payment of Eurodollar Loans,
Borrowers shall pay any required amounts pursuant to Section 3.05 other
than on the last day of the applicable Interest Period, in order to ensure that
the Loans of the Lenders shall be outstanding on a ratable basis in accordance
with their Pro Rata Shares, the Commitments shall be as set forth in a revised Schedule 2.01
and no such borrowing or prepayment shall violate any provisions of this
Agreement.


 


(d)                                 This
Section shall supersede any provisions in Section 10.01 to the
contrary.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                        Taxes.


 


(a)                                  Any
and all payments by the Borrower to or for the account of the Administrative
Agent or any Lender under any Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as “Taxes”).  If the Borrower shall be required by any Laws
to deduct any Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent or any Lender, (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section), each of the Administrative Agent and such Lender receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the


 


37





















 


Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Laws, and (iv) within 30 days after the date
of such payment, the Borrower shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof.


 


(b)                                 In
addition, the Borrower agrees to pay any and all present or future stamp, court
or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under any Loan Document or
from the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, any Loan Document (hereinafter referred to as “Other
Taxes”).


 


(c)                                  If
the Borrower shall be required to deduct or pay any Taxes or Other Taxes from
or in respect of any sum payable under any Loan Document to the Administrative
Agent or any Lender, the Borrower shall also pay to the Administrative Agent or
to such Lender, as the case may be, at the time interest is paid, such additional
amount that the Administrative Agent or such Lender specifies is necessary to
preserve the after-tax yield (after factoring in all taxes, including taxes
imposed on or measured by net income) that the Administrative Agent or such
Lender would have received if such Taxes or Other Taxes had not been imposed.


 


(d)                                 The
Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the
full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by the Administrative Agent and such Lender, (ii) amounts payable
under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority.  Payment under this subsection (d) shall
be made within 30 days after the date the Lender or the Administrative Agent
makes a demand therefor.


 


3.02                        Illegality.  If any Law has made it unlawful, or any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
InterBank Market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such determination no
longer exist.  Upon receipt of such
notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.  Each Lender agrees to designate a different
Lending Office if such designation


 


38





















 


will avoid the need for such notice and will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous
to such Lender.


 


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


 


3.04                        Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.


 


(a)                                  If
any Lender determines that as a result of the introduction of or any change in
or in the interpretation of any Law, or such Lender’s compliance therewith, there
shall be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding
for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01
shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements
contemplated by Section 3.04(c), then from time to time upon demand
of such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.


 


(b)                                 If
any Lender determines that the introduction of any Law regarding capital
adequacy or any change therein or in the interpretation thereof, or compliance
by such Lender (or its Lending Office) therewith, has the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy and such
Lender’s desired return on capital), then from time to time upon demand of such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.


 


39





















 


(c)                                  The
Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Loan, provided the Borrower shall
have received at least 15 days’ prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender.  If a Lender fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 15 days from receipt of such notice.


 


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


 


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


 


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


 


(c)                                  any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.17;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan
or from fees payable to terminate the deposits from which such funds were
obtained.  The Borrower shall also pay
any reasonable customary administrative fees charged by such Lender in
connection with the foregoing.


 


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


 


3.06                        Matters
Applicable to all Requests for Compensation.


 


(a)                                  A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.  In determining such
amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.


 


(b)                                 Upon
any Lender’s making a claim for compensation under Section 3.01 or 3.04,
the Borrower may replace such Lender in accordance with Section 10.17.


 


40





















 


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


 


For purposes of this Article III
only, the term “Laws” shall include any and all guidelines of any Governmental
Authority and the interpretation or administration of the Laws by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


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


 


(a)                                  The
Administrative Agent’s receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and each of the Lenders:


 


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


 


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


 


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


 


(iv)                              such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly
existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect;


 


(v)                                 a
favorable opinion of John Walter, general counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters set
forth in Exhibit F;


 


41





















 


(vi)                              a
favorable opinion of Thompson & Knight L.L.P., counsel to
Administrative Agent, addressed to the Administrative Agent and each Lender, as
to the enforceability of the Credit Agreement, the Notes and the Guaranty under
Texas law;


 


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


 


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


 


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


 


(x)                                   projections
of Borrower and its Consolidated Subsidiaries for the fiscal years 2005 through
2009, prepared by the Financial Planning Department of Borrower and reviewed by
the Chief Financial Officer of Borrower;


 


(xi)                                such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer or the Required Lenders reasonably may
require.


 


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


 


(c)                                  The
Indebtedness under the Existing Credit agreement shall be refinanced with
proceeds of the initial Credit Extension.


 


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


 


(e)                                  Without
limiting the generality of the provisions of Section 10.01, for
purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


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


 


(a)                                  The
representations and warranties of the Borrower and each other Loan Party contained
in Article V or any other Loan Document, or which are contained in
any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.


 


(b)                                 No
Default shall exist, or would result from such proposed Credit Extension.


 


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


 


Each Request for Credit
Extension (other than a Loan Notice requesting only a conversion of Loans to
the other Type or a continuation of Eurodollar Rate Loans) submitted by the
Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


5.02                        Authorization;
No Contravention.  The execution,
delivery and performance by each Loan Party of each Loan Document to which such
Person is party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of
any of such Person’s Organization Documents; (b) conflict with or


 


43





















 


result in any breach or contravention of, in any
material respect, or the creation of any Lien under, (i) any Contractual
Obligation to which such Person is a party or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which
such Person or its property is subject; or (c) violate any Law; except,
with respect to clause (b) or (c), as could not reasonably be expected to
have a Material Adverse Effect.


 


5.03                        Governmental
Authorization; Other Consents.  No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document.


 


5.04                        Binding
Effect.  This Agreement has been, and
each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms; except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar Laws affecting the enforcement of creditors’ rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at Law).


 


5.05                        Financial
Statements; No Material Adverse Effect.


 


(a)                                  The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of
the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other material
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including material liabilities for taxes, material
commitments and material Indebtedness.


 


(b)                                 Each
of the Initial Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby.  Schedule 5.05
(as hereafter supplemented from time to time in writing) sets forth all
material indebtedness and other material liabilities, direct or contingent, of
the Borrower and its consolidated Subsidiaries as of the date of the Initial
Financial Statements (but not disclosed therein), including material
liabilities for taxes, material commitments and material Indebtedness.


 


(c)                                  Since
the date of the Initial Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.


 


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(d)                                 The
representations made in subsections (a) and (b) of this Section 5.05
are qualified in their entirety by reference to the press release and the Form 12b-25
Notification of Late Filing filed with the Securities and Exchange Commission
by the Borrower, on November 10, 2005, copies of which were previously
delivered to the Administrative Agent as required hereunder.


 


5.06                        Litigation.  Except as disclosed in the Borrower’s most
recent Annual Report filed on Form 10-K with the SEC or the Borrower’s
most recent Quarterly Report filed on Form 10-Q with the SEC, there are no
actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Responsible Officers after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to
this Agreement or any other Loan Document, or any of the transactions
contemplated hereby, or (b) if it could reasonably be expected that any
such action, suit, proceeding, claim or dispute would be determined adversely,
such action, suit, proceeding, claim or dispute could reasonably be expected to
have a Material Adverse Effect, either individually or in the aggregate.


 


5.07                        No Default.  Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  No Default has occurred
and is continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.


 


5.08                        Ownership
of Property; Liens.  Each of Borrower
and each Subsidiary has good and defensible title to all of its material
properties and assets, free and clear of any Liens other than Permitted Liens
and of all impediments to the use of such properties and assets in such Person’s
business, except that (i) with regard to easements and rights-of-way
relating to any such Person’s gathering systems, to the best of such Person’s
knowledge, there exist no Liens that a reasonable and prudent operator in the
gas processing business would consider to be a material impairment of title and
such Person has such title as is reasonably necessary to permit the use and
enjoyment of such gathering systems, and (ii) no representation or
warranty is made with respect to any oil, gas or mineral property or interest
to which no proved oil or gas reserves are properly attributed.


 


5.09                        Environmental
Compliance.  The Borrower and its
Subsidiaries conduct in the ordinary course of business a review of the effect
of existing Environmental Laws and claims alleging potential liability or
responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that, except as disclosed in the Borrower’s most recent
Annual Report filed on Form 10-K with the SEC or the Borrower’s most
recent Quarterly Report filed on Form 10-Q with the SEC, there are no such
Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


5.10                        Insurance.  The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such


 


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amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.


 


5.11                        Taxes.  The Borrower and its Subsidiaries have filed
all Federal, state and other material tax returns and reports required to be
filed, and have paid all Federal, state and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with
GAAP.  To the best of Responsible
Officers’ knowledge, there is no proposed tax assessment against the Borrower
or any Subsidiary that would, if made, have a Material Adverse Effect.


 


5.12                        ERISA
Compliance.


 


(a)                                  Each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Laws.  The
Borrower and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412
of the Code has been made with respect to any Plan.


 


(b)                                 There
are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan that could be reasonably be expected to have a Material Adverse
Effect.  Except as specifically disclosed
on Schedule 5.12, there has
been no prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan that has resulted or could reasonably be expected to result
in a Material Adverse Effect.


 


(c)                                  (i) 
No ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither
the Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.


 


5.13                        Subsidiaries.  As of
the Closing Date, the Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13
and has no material equity investments in any other corporation or entity other
than those specifically disclosed in Part (b) of Schedule 5.13.


 


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5.14                        Margin
Regulations; Investment Company Act; Public Utility Holding Company Act.


 


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


 


(b)                                 None
of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is
a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate”
of a “holding company” or of a “subsidiary company” of a “holding company”
within the meaning of the Public Utility Holding Company Act of 1935 or subject
to regulation thereunder, or (ii) is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.


 


5.15                        Disclosure.  The Borrower has disclosed to the
Administrative Agent and the Lenders all agreements, instruments and corporate
or other restrictions to which it or any of its Subsidiaries is subject, and
all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.  For purposes of this Section 5.15,
information that is disclosed in reports on Forms 10-K, 10-Q and 8-K or in
definitive proxy materials filed by the Borrower with the SEC shall be deemed
to have been disclosed to the Administrative Agent and the Lenders.  No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf
of any Loan Party to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


 


5.16                        Compliance
with Laws.  Each of the Borrower and
each Subsidiary is in compliance in all material respects with the requirements
of all Laws and all orders, writs, injunctions and decrees applicable to it or
to its properties, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain


 


47





















 


outstanding, the
Borrower shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:


 


6.01                        Financial
Statements.  Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:


 


(a)                                  as
soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit;


 


(b)                                 as
soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion
of the Borrower’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer of the Borrower
as fairly presenting, in all material respects, the financial condition,
results of operations, shareholders’ equity and cash flows of the Borrower and
its Subsidiaries and prepared in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes;


 


(c)                                  by
April 29 of each year, a projection of the cash flows of Borrower and its
Subsidiaries for the next five years, in form and scope acceptable to
Administrative Agent;


 


(d)                                 by
March 1, 2006, a budget of Borrower and its Consolidated Subsidiaries for
the fiscal year 2006, prepared by the Financial Planning Department of the
Borrower and approved by the Board of Directors of the Borrower; and


 


(e)                                  within
60 days after the Closing Date, Borrower’s financial statements for the fiscal
quarter ending September 30, 2005 as described in Section 6.01(b) and
the related Compliance Certificate.


 


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


 


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6.02                        Certificates;
Other Information.  Deliver to the
Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:


 


(a)                                  concurrently
with the delivery of the financial statements referred to in Section 6.01(a) (or
if such financial statements are delivered electronically, within two (2) Business
Days of such electronic delivery), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or, if any such Default shall exist, stating the nature and status of
such event;


 


(b)                                 concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and
(b) (or if such financial statements are delivered electronically,
within two (2) Business Days of such electronic delivery), a duly
completed Compliance Certificate signed by a Responsible Officer of the
Borrower;


 


(c)                                  promptly
after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of the
Borrower by independent certified public accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;


 


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


 


(e)                                  promptly,
such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request;


 


(f)                                    As
soon as delivered to holders of the Debt Securities, copies of all reports,
statements and notices delivered generally to holders of Debt Securities
(excluding data which Borrower deems duplicative, immaterial or inapplicable
for delivery to Administrative Agent and Lenders).


 


Documents required to be
delivered pursuant to Section 6.01(a) , (b) or (c) or
Section 6.02(c) or (d) (to the extent any such documents
are included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a
link thereto on the Borrower’s website on the Internet at the website address
listed on Schedule 10.02; or (ii) on
which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency
or another relevant website, if any, including, but not limited to any filings
made on EDGAR to


 


49





















 


which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (i) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent and
each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents.  Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 6.02(b) to
the Administrative Agent and each of the Lenders.  Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


 


The Borrower hereby
acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof;
provided that the Borrower shall have no obligation to mark any document “PUBLIC”;
(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of United
States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
“Public Investor;” and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”


 


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


 


(a)                                  of
the occurrence of any Default;


 


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


 


50





















 


their respective property is the subject, including pursuant to any
applicable Environmental Laws;


 


(c)                                  of
the occurrence of any ERISA Event;


 


(d)                                 of
any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary; and


 


(e)                                  of
any announcement by Moody’s or S&P of any downward change in a Debt Rating
of which Responsible Officer has knowledge.


 


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


 


6.04                        Payment of
Obligations.  Pay and discharge as
the same shall become due and payable, all its obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate reserves
in accordance with GAAP are being maintained by the Borrower or such
Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.


 


6.05                        Preservation
of Existence, Etc..  (a) Preserve,
renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 7.04 or 7.05; (b) take
all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.


 


6.06                        Maintenance
of Properties.  (a) Maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary
wear and tear excepted; and (b) make
all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.


 


6.07                        Maintenance
of Insurance.  Maintain with
financially sound and reputable insurance companies not Affiliates of the
Borrower, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under


 


51





















 


similar circumstances by such other Persons.  Borrower and its Subsidiaries shall maintain
business interruption insurance in an amount providing not less than
$10,000,000 coverage.


 


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


 


6.09                        Books and
Records.  Maintain proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Borrower or such Subsidiary,
as the case may be; provided, however that this covenant is qualified by
reference to the press release issued and the Form 12b-25 Notification of
Late Filing filed with the Securities and Exchange Commission by the Borrower,
on November 10, 2005, copies of which were previously delivered to the
Administrative Agent as required hereunder.


 


6.10                        Inspection
Rights.  Permit representatives and
independent contractors of the Administrative Agent on behalf of Lenders to
visit and inspect any of its properties, to examine its corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice.


 


6.11                        Use of
Proceeds.  Use the proceeds of the
Credit Extensions for general corporate purposes not in contravention of any
Law or of any Loan Document, including repayment of Indebtedness under the
Existing Credit Agreement and financing acquisitions.


 


6.12                        Guaranties
of Borrower’s Subsidiaries.  Subject to Section 6.13(b), cause
each of the following Domestic Subsidiaries to execute and deliver to
Administrative Agent an absolute and unconditional guaranty of the timely
repayment of the Obligations of Borrower and the due and punctual performance
of the Obligations of Borrower, which guaranty shall be substantially in the
form of Exhibit E:


 


(a)                                  Each
Domestic Subsidiary of Borrower that is a Material Subsidiary as of the Closing
Date or thereafter becomes a Material Subsidiary;


 


(b)                                 If
the aggregate amount of Borrower’s unconsolidated EBITDA for any fiscal quarter
of Borrower plus the aggregate EBITDA of the Guarantors during such fiscal
quarter does not constitute eighty- five percent (85%) or more of Borrower’s
Consolidated EBITDA for such fiscal quarter or if the book value of Borrower’s
individual assets at any time plus the aggregate book value of the assets of
Guarantors at such time does not exceed eight-five percent


 


52





















 


(85%) of the book value of the Borrower’s consolidated assets at such
time, then additional Domestic Subsidiaries of Borrower with aggregate assets
and/or EBITDA sufficient to comply with the eighty-five percent (85%) tests
contained in this subsection;


 


(c)                                  Each
Domestic Subsidiary which Guarantees the Debt Securities or the Subordinated
Debt; and


 


(d)                                 Upon
request by the Administrative Agent on behalf of the Required Lenders, any
other Domestic Subsidiary of Borrower.


 


6.13                        Additional
Guarantors.


 


(a)                                  Notify
the Administrative Agent when any Person becomes a Domestic Subsidiary that is
required to execute and deliver a Guaranty pursuant to Section 6.12 ,
and (i) subject to Section 6.13(b), promptly thereafter (and
in any event within 30 days), cause such Person to  become a Guarantor by executing and
delivering to the Administrative Agent a counterpart of the Guaranty or such
other document as the Administrative Agent shall deem appropriate for such
purpose and (ii) deliver to the Administrative Agent documents of the
types referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clauses (i) and (ii) above), all in
form, content and scope reasonably satisfactory to the Administrative Agent.


 


(b)                                 No
PUC Subsidiary shall be required to provide a Guaranty or to approve an
increase in the underlying amount guaranteed by such Guaranty pursuant to Section 6.12
or Section 6.13(a) unless regulatory approval shall have been
obtained for such Guaranty from the applicable public utility commission or
FERC having such regulatory authority over such PUC Subsidiary (in this Section called
the applicable “PUC”).  Borrower shall
cause each PUC Subsidiary required to deliver a Guaranty or approve an increase
in the underlying amount guaranteed pursuant to Sections 6.12 and 6.13(a) to
use its best efforts to obtain the approval of the applicable PUC for a
Guaranty (or increase thereof) of the Obligations. In the event that the
applicable PUC shall require a Subsidiary to withdraw from the Guaranty or
shall not approve the PUC Subsidiary to guaranty an increased amount, such
Subsidiary may withdraw and the Administrative Agent shall release such
Subsidiary from the Guaranty or limit the Guaranty to the previously approved
amount, if applicable; provided that a substitute Subsidiary guarantor meeting
the requirements of Sections 6.12 and 6.13 shall have executed
and delivered the Guaranty unless all such substitute Subsidiaries are Foreign
Subsidiaries or PUC Subsidiaries and are prohibited by the applicable PUC from
delivering a Guaranty.


 


(c)                                  Neither
this Section 6.13, Section 6.14 nor any other provision of any
Loan Document shall require a Guaranty or a Security Document by a PUC
Subsidiary, in either case, to the extent that such PUC Subsidiary shall not
have obtained the required approval of the applicable PUC after the exercise of
its best efforts in accordance with Sections 6.13(b) and
6.14(c).


 


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6.14                        Stock
Pledge.


 


(a)                                  Grant
to Administrative Agent (or cause its Subsidiaries to grant to Administrative
Agent) for the benefit of Lenders, a first priority Lien in one hundred percent
(100%) of the equity interests in all Guarantors and in sixty-five percent
(65%) of the equity interests in all Foreign Subsidiaries that are Material
Subsidiaries.


 


(b)                                 Notify
the Administrative Agent when any Person becomes a Guarantor or a Foreign
Subsidiary that is a Material Subsidiary, and (i) subject to Section 6.14(c),
promptly thereafter (and in any event within 30 days), cause the equity
interests in such Subsidiary (in the amounts described in subsection (a) immediately
above) to be pledged by executing and delivering (or causing the appropriate
Subsidiary to execute and deliver) to the Administrative Agent a counterpart of
the Stock Pledge or such other document as the Administrative Agent shall deem
appropriate for such purpose and (ii) deliver to the Administrative Agent
documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clauses (i) and (ii) above), all in
form, content and scope reasonably satisfactory to the Administrative Agent.


 


(c)                                  No
PUC Subsidiary shall be required to execute and deliver any Security Document
pursuant to Section 6.13 unless regulatory approval shall have been
obtained for such Security Document from the applicable PUC.  Borrower shall cause each PUC Subsidiary
required to deliver a Security Document pursuant to Section 6.13 to
use its best efforts to obtain the approval of the applicable PUC for such
Security Document, granting to Administrative Agent, for the benefit of the
Lenders, Liens in such Collateral as required by Section 6.14 to secure
the Obligations. In the event that the applicable PUC shall require that the
equity interests of a PUC Subsidiary be released from the Lien in favor of the
Administrative Agent, the Administrative Agent shall so release such equity
interests; provided that replacement equity interests of another Subsidiary
acceptable to the Administrative Agent shall have been pledged to
Administrative Agent for the benefit of the Lenders unless all such substitute
Subsidiaries are PUC Subsidiaries and are prohibited by the applicable PUC from
having their equity interests pledged to Administrative Agent.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, the Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly:


 


7.01                        Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than the following (each a “Permitted Lien” and
collectively, the “Permitted Liens”):


 


(a)                                  Liens
pursuant to any Loan Document;


 


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(b)                                 Liens
existing on the date hereof and listed on Schedule 7.01
and any renewals or extensions thereof, provided that the property
covered thereby is not increased and any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);


 


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


 


(d)                                 carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period
of more than 30 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;


 


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


 


(f)                                    deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business;


 


(g)                                 easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person;


 


(h)                                 Liens
securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h) or securing appeal or other
surety bonds related to such judgments;


 


(i)                                     Liens
securing capital leases permitted under Section 7.03(e); provided
that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (ii) 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 acquisition;


 


(j)                                     Liens
on capital stock of the Guarantors securing the Debt Securities; and


 


(k)                                  Liens
on margin accounts established in connection with Swap Contracts permitted
under Section 7.11.


 


7.02                        Investments.  Make any Investments, except:


 


(a)                                  Investments
held by the Borrower or such Subsidiary in the form of cash equivalents;


 


55





















 


(b)                                 Investments
in Subsidiaries already wholly owned by Borrower and/or its Subsidiaries and
the joint ventures described on Schedule 7.02;


 


(c)                                  Investments
maturing within one year from the date of acquisition in direct obligations of
or obligations supported by, the full faith and credit of, the United States of
America;


 


(d)                                 purchases
of open market commercial paper, maturing within 270 days after acquisition
thereof, with the highest or second highest credit rating given by either S &
P or Moody’s and investments in money market mutual funds with equivalent
ratings;


 


(e)                                  acquisitions
of or investments in gas processing, treating, fractionation, transmission,
gathering and storage facilities, and domestic oil and gas properties (whether
in the United States or Canada);


 


(f)                                    loans
to finance the purchase by Borrower’s employees of certain real property,
provided that the aggregate outstanding amount of such loans shall not exceed
$500,000;


 


(g)                                 Investments
of the Borrower in any Guarantor and Investments of any Guarantor in the
Borrower or in another Guarantor;


 


(h)                                 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;


 


(i)                                     Guarantees
permitted by Section 7.03;


 


(j)                                     Investments
of the Borrower or any Subsidiary made pursuant to any Swap Contract permitted
under Section 7.11; and


 


(k)                                  other
Investments not exceeding $25,000,000 in the aggregate in any fiscal year of
the Borrower.


 


7.03                        Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness, except (without duplication):


 


(a)                                  Indebtedness
under the Loan Documents;


 


(b)                                 Indebtedness
outstanding on the date hereof and listed on Schedule 7.03
and any refinancings, refundings, renewals or extensions thereof; provided
that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;


 


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(c)                                  Guarantees
of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted
hereunder of the Borrower;


 


(d)                                 Indebtedness
(contingent or otherwise) of the Borrower or any Subsidiary existing or arising
under any Swap Contract permitted under Section 7.11; provided that
such 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;


 


(e)                                  Indebtedness
under leases, whether capital leases or operating leases, entered into in the
ordinary course of business in arm’s-length transactions at competitive market
rates under competitive terms and conditions considering all aspects thereof,
provided that the obligations payable over the remaining lives of any such
leases (excluding obligations under oil and gas leases, real estate leases for
office space used by Borrower, leases for vehicles, office equipment and data
processing equipment and gas compressor and gas processing plant site leases)
do not in the aggregate exceed $85,000,000;


 


(f)                                    unsecured
Indebtedness between Borrower and any Guarantor;


 


(g)                                 Indebtedness
under the Debt Securities;


 


(h)                                 the
Subordinated Debt;


 


(i)                                     unsecured
Indebtedness of the Borrower not described in subsections (a) through (h) above
which meets the following requirements: (A) the documentation evidencing
such Indebtedness shall contain no terms, conditions or defaults (other than
pricing) which are more favorable to the third party creditor than those
contained in this Agreement are to Lenders, as determined by Required Lenders
in their discretion (provided that Required Lenders shall make any such
determination considering any amendments or modifications to this Agreement
existing at the time of the incurrence of such Indebtedness) and shall not
contain any provision which attempts to modify, amend or restrict any of the
rights or remedies of Agent or Lenders hereunder or under any of the other Loan
Documents, (B) such Indebtedness shall have no scheduled principal
payments due prior to the final maturity of the Obligations, (C) at the
time the Borrower incurs such Indebtedness, no Default or Event of Default
shall have occurred and be continuing hereunder and (D) if such
Indebtedness is to be guaranteed by any Affiliate of the Borrower, then such
third party lender(s) must enter into an inter-creditor agreement with Lenders,
in form, scope and substance which is acceptable to Required Lenders, as
evidenced by their written consent;


 


(j)                                     CP
Debt; and


 


(k)                                  miscellaneous
items of unsecured Indebtedness not described in subsections (a) through
(k) of this Section 7.03 which do not in the aggregate (taking into
account all Indebtedness of Borrower and its Subsidiaries) exceed $25,000,000
at any one time outstanding.


 


7.04                        Fundamental
Changes; Issuance of Stock.  Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series


 


57





















 


of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Default exists or would result therefrom:


 


(a)                                  the
Borrower may merge with another Person; provided that the Borrower is the
surviving Person and immediately after such merger or consolidation, no Default
would exist;


 


(b)                                 any
Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or
more other Subsidiaries, provided that when any Guarantor is merging
with another Subsidiary, the Guarantor shall be the continuing or surviving
Person or if the other Subsidiary is the continuing or surviving Person, such
Subsidiary shall, prior to or concurrently with the merger, become a Guarantor;
and


 


(c)                                  any
Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided
that if the transferor in such a transaction is a Guarantor, then the
transferee must either be the Borrower or a Guarantor or if the transferee is
another Subsidiary, such Subsidiary shall, prior to or concurrently with
receiving the transferred assets, become a Guarantor.


 


Neither the Borrower nor any Subsidiary will issue
partnership interests, stock, or other securities of Borrower or of any of
Borrower’s Subsidiaries (other than shares of its common stock or warrants to
purchase its common stock or warrants or options to acquire such common stock),
nor will any Subsidiary of the Borrower allow any diminution of the Borrower’s
interest (direct or indirect) therein; provided that preferred stock of the
Borrower may be issued if such preferred stock (including without limitation,
the amount and terms thereof) has been approved in writing by Required Lenders
prior to the issuance thereof.


 


7.05                        Dispositions.  Make any Disposition or enter into any
agreement to make any Disposition, except:


 


(a)                                  Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business or property otherwise not being used in the
operations of the Borrower or any Subsidiary;


 


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


 


(c)                                  Dispositions
of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property
or (ii) the proceeds of such Disposition are reasonably promptly applied
to the purchase price of such replacement property;


 


(d)                                 Dispositions
of property by any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided
that if the transferor of such property is a Guarantor, the transferee thereof
must either be the Borrower or a Guarantor;


 


(e)                                  Dispositions
permitted by Section 7.04;


 


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(f)                                    Dispositions
of property by the Borrower and its Subsidiaries in arms’ length transactions
to third parties that are not Affiliates of the Borrower for consideration (i) solely
in property similar to the property being disposed of and (ii) with a fair
market value that is equivalent to the fair market value of the property being
disposed of; and


 


(g)                                 Dispositions
by the Borrower and its Subsidiaries in arms’ length transactions to third
parties that are not Affiliates of the Borrower and which are not otherwise
covered by this Section 7.05 for consideration equal to the fair
market value thereof; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition and (ii) the
aggregate book value of all property Disposed of in reliance on this clause (f) in
any fiscal year shall not exceed $50,000,000.


 


7.06                        Restricted
Payments.  Declare or make, directly
or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that:


 


(a)                                  the
Borrower may declare and make dividend payments to its shareholders so long as
no Default or Event of Default exists at the time such dividend is declared or
paid or would occur as a result thereof;


 


(b)                                 each
Subsidiary may make Restricted Payments to the Borrower and any Guarantor;


 


(c)                                  the
Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common equity
interests of such Person;


 


(d)                                 so
long as no Default or Event of Default has occurred and is continuing, or will
occur as a result thereof, Borrower and each Subsidiary may make contributions,
purchases, redemptions, acquisitions and retirements with respect to any shares
of its capital stock;


 


(e)                                  the
Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares
of its common stock or other common equity interests or warrants or options to
acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common equity
interests;


 


(f)                                    the
Borrower may make Restricted Payments with respect to the Debt Securities so
long as no Default or Event of Default exists at the time thereof or will occur
as a result thereof.


 


7.07                        Change in
Nature of Business.  Engage in any
material line of business substantially different from those lines of business
conducted by the Borrower and its Subsidiaries on the date hereof or any
business substantially related or incidental thereto.


 


7.08                        Transactions
with Affiliates.  Enter into any
transaction of any kind with any Affiliate of the Borrower, whether or not in
the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be obtainable
by the Borrower or such Subsidiary at the time in a comparable arm’s length


 


59





















 


transaction with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to transactions between or among the Borrower and any Guarantor
or between and among any Guarantors.


 


7.09                        Burdensome
Agreements.  Enter into any
Contractual Obligation (other than this Agreement, any other Loan Document, the
Contractual Obligations entered into pursuant to the Debt Securities, and the
Indenture) that (a) limits the ability (i) of any Subsidiary to make
Restricted Payments to the Borrower or any Guarantor or to otherwise transfer
property to the Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee
the Indebtedness of the Borrower or (iii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of
such Person; provided, however, that this clause (iii) shall
not prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.03(e) solely to the
extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person.


 


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


 


7.11                        Limitation
for Net Products Exposure.  Enter
into, or otherwise be a party to any Swap Contract that does not comply with
the Risk Management Policy.  Furthermore,
the aggregate value at risk, or VaR limits (as defined below), calculated in
accordance with the Risk Management Policy, shall not at any time exceed
$5,000,000.  For purposes of this Section 7.11,
the term “VaR limits” means the maximum allowable change in aggregate
mark-to-market (i.e., unrealized losses) dollars, with a given probability,
over a one-day time horizon (as provided in the Risk Management Policy).


 


7.12                        Financial
Covenants.


 


(a)                                  Interest
Coverage Ratio.  Permit the Interest
Coverage Ratio as of the end of any fiscal quarter of the Borrower, calculated
for the four consecutive fiscal quarters then ended, to be less than 3.0 to
1.0.


 


(b)                                 Debt
to Capitalization Ratio.  Permit the
Debt to Capitalization Ratio for any fiscal quarter of the Borrower to be
greater than 0.55 to 1.0.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


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


 


(a)                                  Non-Payment.  The Borrower or any other Loan Party fails to
pay (i) when and as required to be paid herein, any amount of principal of
any Loan or any L/C Obligation, or


 


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(ii) within ten days after the same becomes due, any interest on
any Loan or on any L/C Obligation, or any Commitment Fee or other fee due
hereunder, or (iii) within ten days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or


 


(b)                                 Specific
Covenants.  The Borrower fails to perform
or observe any term, covenant or agreement contained in any of Sections 6.03,
6.12,  6.13 or 6.14 or in Article VII; or


 


(c)                                  Other
Defaults.  Any Loan Party or any
other Subsidiary that has executed and delivered a Stock Pledge fails to
perform or observe any other covenant or agreement (not specified in subsection (a) or
(b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for 30 days; or


 


(d)                                 Representations
and Warranties.  Any representation,
warranty, certification or statement of fact made or deemed made by or on
behalf of any Loan Party or any other Subsidiary that has executed and
delivered a Stock Pledge or any Loan Document, or in any document delivered in
connection therewith, shall be incorrect or misleading when made or deemed made
and such representation or warranty does not become true and correct within
thirty (30) days; or


 


(e)                                  Cross-Default.


 


(i)                                     the
Borrower or any Subsidiary (A) fails to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any of the Debt Securities or the Subordinated Debt, or (B) fails
to observe or perform any other agreement or condition relating to the Debt
Securities or the Subordinated Debt, or any other event occurs, in the instance
of both the circumstances of (i)(A) and (i)(B), the effect of which
default or other event is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to
its stated maturity; or


 


(ii)                                  the
Borrower or any Subsidiary (A) fails to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts, the Debt Securities and the Subordinated
Debt), (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
occurs, in the instance of both the circumstances of (ii)(A) and (ii)(B),
the effect of which default or other event is to cause, or to permit the holder
or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase,


 


61





















 


prepay, defease or redeem
such Indebtedness to be made, prior to its stated maturity, or such Guarantee
to become payable or cash collateral in respect thereof to be demanded unless
the Borrower or a Subsidiary is contesting the validity of such Obligation by
appropriate proceedings and has set aside on its books adequate allowance
accounts therefor in accordance with GAAP; or


 


(iii)                               there
occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined
in such Swap Contract) under such Swap Contract as to which the Borrower or any
Subsidiary is an Affected Party (as so defined) that in the case of (A) or
(B) causes Borrower or any Subsidiary to become obligated to make payments
to the counterparty thereunder and the aggregate amount of all such payments
for which Borrower is obligated under Swap Contracts at any time exceeds
$10,000,000; or


 


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


 


(g)                                 Inability
to Pay Debts; Attachment.  (i) the
Borrower or any Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against any of the Collateral or all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or


 


(h)                                 Judgments.  There is entered against the Borrower or any
Subsidiary (i) during any fiscal year of the Borrower, any one or more
final judgments or orders for the payment of money in an aggregate amount
exceeding $10,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect and,
in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10 consecutive
days during which a stay of enforcement of such judgment, by reason of a
pending appeal or otherwise, is not in effect; or


 


(i)                                     ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in


 


62





















 


an aggregate amount in excess of $10,000,000, or (ii) the Borrower
or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $10,000,000; or


 


(j)                                     Invalidity
of Loan Documents.  Any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or


 


(k)                                  Change
of Control.  There occurs any Change
of Control with respect to the Borrower; or


 


(l)                                     Debt
Securities.  Without the express
prior written consent of Required Lenders, the Borrower amends or modifies the
terms of any of the documents or instruments governing, or otherwise executed
in connection with, any of the Debt Securities (including, but not limited to,
an amendment or modification to shorten the maturity of the Debt Securities or
increase the maximum principal amount of the Debt Securities); provided,
however, that without the consent of any Lender, the Borrower may amend such
documents or instruments (1) to increase the interest rate or fees payable
under or with respect to the Debt Securities, (2) to conform to amendments
or modifications made to the Loan Documents, and (3) to make changes in
the administration of the Debt Securities; or


 


(m)                               Subordinated
Debt.  Without the express prior
written consent of Required Lenders, the Borrower amends or modifies the terms
of any of the documents or instruments governing, or otherwise executed in
connection with, the Subordinated Debt, including but not limited to, an amendment
or modification to (a) shorten the maturity of the Subordinated Debt, (b) increase
the maximum principal amount of the Subordinated Debt, or (c) modify the
terms of the subordination of the Subordinated Debt to the Senior Debt; or


 


(n)                                 Preferred
Stock.  Without the express prior
written consent of Required Lenders, the Borrower amends or modifies any term
of the Preferred Stock except for modifications to correct any non-substantive
ambiguity or defect in the documents governing any such Preferred Stock.


 


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


 


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


 


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


 


(c)                                  require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and


 


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


 


provided, however, that upon
the occurrence of an actual or deemed entry of an order for relief with respect
to the Borrower under the Bankruptcy Code of the United States, the obligation
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrower to
Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any
Lender.


 


8.03                        Application
of Funds.  After the exercise of
remedies provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the
Obligations (after distribution of any proceeds received by Administrative
Agent under the Security Documents in accordance with the terms of the
Intercreditor Agreement) shall be applied by the Administrative Agent in the
following order:


 


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


 


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


 


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


 


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


 


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


 


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


 


Subject to Section 2.03(c), amounts used
to Cash Collateralize the aggregate undrawn amount of Letters of Credit
pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. 
If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01                        Appointment
and Authorization of Administrative Agent.


 


(a)                                  Each
of the Lenders and the L/C Issuer hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document (including, without limitation, as a
secured party under any Security Document), together with such powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere herein
or in any other Loan Document, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.  Without limiting
the generality of the foregoing sentence, the use of the term “agent” herein
and in the other Loan Documents with reference to the Administrative Agent is
not intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


(b)                                 The
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer
shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term “Administrative Agent” as used in this Article IX
and in the definition of “Agent-Related Person” included the L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer.


 


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(c)                                  The
provisions of this Article IX are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.


 


9.02                        Delegation
of Duties.  The Administrative Agent
may execute any of its duties under this Agreement or any other Loan Document
by or through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel and other consultants or experts concerning all matters
pertaining to such duties.  The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.


 


9.03                        Liability
of Administrative Agent.  No
Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (in all cases, whether or not arising, in whole or in part, out of the
negligence of such Agent-Related Person, except for its own gross
negligence or willful misconduct in connection with its duties expressly set
forth herein), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other
party to any Loan Document to perform its obligations hereunder or
thereunder.  No Agent-Related Person
shall be under any obligation to any Lender or participant to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party or any Affiliate thereof.


 


9.04                        Reliance
by Administrative Agent.


 


(a)                                  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement 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 counsel to any Loan Party),
independent accountants and other experts selected by the Administrative
Agent.  The Administrative Agent shall be
fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, 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 Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.


 


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(b)                                 For
purposes of determining compliance with the conditions specified in Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


9.05                        Notice of
Default.  The Administrative Agent
shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity. 
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default and stating that such
notice is a “notice of default.”  The
Administrative Agent shall take such action with respect to such Default as may
be directed by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents) in accordance with Article VIII; provided, however,
that unless and until the Administrative Agent has received any such direction,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable or in the best interest of the Lenders.


 


9.06                        Credit
Decision; Disclosure of Information by Administrative Agent.  Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by the Administrative Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Loan Party or any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their
possession.  Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. 
Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person 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 Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the
Borrower.  Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information concerning
the business, prospects, operations, property, financial


 


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and other condition or creditworthiness of any of the
Loan Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.


 


9.07                        Indemnification
of Administrative Agent.  Whether or
not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed
by or on behalf of any Loan Party and without limiting the obligation of any
Loan Party to do so), pro rata, and hold harmless each Agent-Related Person
from and against any and all Indemnified Liabilities incurred by it, including
any Indemnified Liabilities in all cases, whether or
not caused by or arising, in whole or in part, out of the negligence of the
Indemnitee; provided, however, that no Lender shall be
liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person’s own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. 
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower.  The undertaking in this Section shall
survive termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.


 


9.08                        Administrative
Agent in its Individual Capacity. 
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent or the L/C Issuer hereunder and without notice to or consent of the
Lenders.  The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them.  With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the
Administrative Agent or the L/C Issuer, and the terms “Lender” and “Lenders”
include Bank of America in its individual capacity.


 


9.09                        Successor
Administrative Agent.  The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders.  If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). 
If no successor


 


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administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders; provided
that if the Administrative Agent shall notify the Borrower and the Lenders that
no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section.  Upon the acceptance of its appointment as
successor administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and
the term “Administrative Agent” shall mean such successor administrative agent and the retiring Administrative Agent’s
appointment, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on
the part of such retiring Administrative Agent.  After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Article IX
and Sections 10.04 and 10.05 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.


 


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


 


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


 


(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative


 


69





















 


Agent and their respective agents and counsel and all other amounts due
the Lenders and the Administrative Agent under Sections 2.03(i) and
2.03(j), 2.08 and 10.04) allowed in such judicial
proceeding; and


 


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


 


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.08
and 10.04.


 


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


 


9.11                        Collateral
and Guaranty Matters.  The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion,


 


(a)                                  to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments
and payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit, (ii) that
is part of a Disposition of property permitted hereunder or under any other
Loan Document or is permitted to be released under Section 6.13, or
(iii) subject to Section 10.01, if approved, authorized or
ratified in writing by the Required Lenders;


 


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


 


(c)                                  to
release any Guarantor from its obligations under the Guaranty or any Subsidiary
from its Stock Pledge if such Person ceases to be a Subsidiary or Material
Subsidary, if applicable, as a result of a transaction permitted hereunder or
ceases to be a Guarantor as provided under Section 6.13 or subject
to a Stock Pledge as provided under Section 6.13; and


 


(d)                                 to
enter into the Intercreditor Agreement of even date herewith by and among the
Lenders and Prudential, as from time to time amended, (a copy of which will be
reviewed by each Lender and the L/C Issuer prior to the execution and deliver
thereto) on behalf of Lenders.


 


Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in


 


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particular types or items of property, or to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.11.


 


9.12                        Other
Agents; Arrangers and Managers.  None
of the Lenders or other Persons identified on the facing page or signature
pages of this Agreement as a “syndication agent,” “documentation agent,” “co-agent,”
“book manager,” “lead manager,” “arranger,” “lead arranger” or “co-arranger”
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than, in the case of such Lenders, those applicable
to all Lenders as such.  Without limiting
the foregoing, none of the Lenders or other Persons so identified shall have or
be deemed to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.


 


ARTICLE X.

MISCELLANEOUS


 


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


 


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


 


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


 


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


 


(d)                                 reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document,
or change the manner of computation of any financial ratio (including any
change in any applicable defined term) used in determining the Applicable Rate
that would result in a reduction of any interest rate on any Loan or any fee
payable hereunder without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required
Lenders shall be necessary (i) to waive any obligation of the Borrower to
pay interest at the Default Rate or (ii) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such


 


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amendment would be to reduce the rate of interest on any Loan or L/C
Borrowing or to reduce any fee payable hereunder;


 


(e)                                  change
Section 2.11 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender;


 


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


 


(g)                                 release
any Guarantor from the Guaranty without the written consent of each Lender
unless authorized by Section 6.13 or Section 9.11(c) or
required by any applicable PUC or FERC; or


 


(h)                                 release
any Collateral from any Security Document without the written consent of each
Lender unless authorized such release is authorized by Section 6.14
or Section 9.11(c) or required by any applicable PUC or FERC.


 


and, provided  further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties
of the L/C Issuer under this Agreement or any Letter of Credit Application
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties
thereto.  Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.


 


10.02                 Notices
and Other Communications; Facsimile Copies.


 


(a)                                  General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). 
All such written notices shall be mailed, faxed or delivered to the
applicable address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)                                     if
to the Borrower, the Administrative Agent or the L/C Issuer, to the address,
facsimile number, electronic mail address or telephone number specified for
such Person on Schedule 10.02 or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the other parties; and


 


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(ii)                                  if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Borrower, the
Administrative Agent and the L/C Issuer.


 


All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt
by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if
delivered by mail, four Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been
confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of subsection (c) below),
when delivered; provided, however, that notices and other
communications to the Administrative Agent and the L/C Issuer pursuant to Article II
shall not be effective until actually received by such Person.  In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.


 


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


 


(c)                                  Limited
Use of Electronic Mail.  Electronic
mail and Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 6.01 and Section 6.02, and to distribute
Loan Documents for execution by the parties thereto, and may not be used for
any other purpose.


 


(d)                                 The
Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. 
NO WARRANTY OR ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall any of the Agent- Related
Persons have any liability to the Borrower, any Lender, the L/C Issuer or any
other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet in all cases whether or not caused by or arising, in
whole or in part, out of the negligence of the Agent Party, except
to the extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent


 


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jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that
in no event shall any Agent Party have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


 


(e)                                  Change
of Address, Etc.  Each of the Borrower, the Administrative Agent,
and the L/C Issuer may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties
hereto.  Each other Lender may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrower, the Administrative Agent, the L/C
Issuer.  In addition, each Lender agrees
to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.


 


(f)                                    Reliance
by Administrative Agent and Lenders. 
The Administrative Agent and the Lenders shall be entitled to rely and
act upon any notices issued in accordance with Section 10.02(a) (including
telephonic Loan Notices) purportedly given by or on behalf of the Borrower even
if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof.  The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly
given by or on behalf of the Borrower. 
All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.


 


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


 


10.04                 Attorney Costs,
Expenses and Taxes.  The Borrower
agrees (a) to pay or reimburse the Administrative Agent and L/C Issuer for
all reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) to pay or reimburse the Administrative Agent and each Lender for
all reasonable costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs


 


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and expenses incurred during any “workout” or restructuring
in respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs.  The foregoing costs and expenses shall
include all reasonable search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket expenses
incurred by the Administrative Agent and the reasonable cost of independent
public accountants and other outside experts retained by the Administrative
Agent or any Lender.  All amounts due
under this Section 10.04 shall be payable within ten Business Days
after demand therefor.  The agreements in
this Section shall survive the termination of the Aggregate Commitments
and repayment of all other Obligations.


 


10.05                 Indemnification
by the Borrower.  Whether or not the
transactions contemplated hereby are consummated, the Borrower shall indemnify
and hold harmless each Agent-Related Person (and each sub-agent thereof), L/C
Issuer, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnitee by any third party or by any Loan Party
or in any way relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (c) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or
operated by the Borrower, any Subsidiary or any other Loan Party, or any
Environmental Liability related in any way to the Borrower, any Subsidiary or
any other Loan Party, or(d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or
not caused by or arising, in whole or in part, out of the negligence of the
Indemnitee; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee. 
No Indemnitee shall be liable for any damages arising from the use by
others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether
before or after the Closing Date).  All
amounts due under this Section 10.05 shall be payable within ten
Business Days after demand therefor.  The
agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the


 


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termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.


 


10.06                 Reimbursement by
Lenders.  To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under Sections
10.04 or 10.05 to be paid by it to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Agent-Related Person of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Agent-Related Person, as the case
may be, such Lender’s Pro Rata Share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or the
L/C Issuer in its capacity as such, or against any Agent-Related Person of any
of the foregoing acting for the Administrative Agent (or any such sub-agent) or
L/C Issuer in connection with such capacity. 
The obligations of the Lenders under this Section 10.06 are
subject to the provisions of Section 2.11(c).


 


10.07                 Payments Set
Aside.  To the extent that any
payment by or on behalf of the Borrower is made to the Administrative Agent or
any Lender, or the Administrative Agent or any Lender exercises its right of
set-off, and such payment or the proceeds of such set-off or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.


 


10.08                 Successors
and Assigns.


 


(a)                                  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section, (ii) by
way of participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


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(b)                                 Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations) at the time owing to it); provided
that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or
an Approved Fund (as defined in subsection (g) of this Section) with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); (ii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned; (iii) any assignment of a
Commitment must be approved by the Administrative Agent and the L/C Issuer
unless the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500.  Subject
to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05,  10.04
and 10.05, with respect to facts and circumstances occurring prior to
the effective date of such assignment). 
Upon request, the Borrower (at its expense) shall execute and deliver a
Note to the assignee Lender.  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this
Section.


 


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


 


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(d)                                 Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that
directly affects such Participant. 
Subject to subsection (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.09
as though it were a Lender, provided such Participant agrees to be
subject to Section 2.11 as though it were a Lender.


 


(e)                                  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 10.15
as though it were a Lender.


 


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


 


(g)                                 As
used herein, the following terms have the following meanings:


 


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


 


“Eligible Assignee” means (a) a Lender; (b) an
Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person
(other than a natural person) approved by (i) the Administrative Agent and
the L/C Issuer, and (ii) unless an Event of Default has


 


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occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries and, provided further, that any such Eligible Assignee
shall have capital and surplus in excess of $1,000,000,000 and, in
Administrative Agent’s reasonable opinion, has experience in lending to
companies in the oil and gas business.


 


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


 


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


 


10.09                 Confidentiality.  Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to
the extent requested by any regulatory authority; (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process; (d) to any other party to this Agreement; (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder; (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect
contractual counterparty or prospective counterparty (or such contractual
counterparty’s or prospective counterparty’s professional advisor) to any
credit derivative transaction relating to obligations of the Loan Parties; (g) with
the consent of the Borrower; (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower; or (i) to the National Association
of Insurance Commissioners or any other similar organization.  In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions.  For the purposes of this Section, “Information”
means all information received from any Loan Party relating to any Loan Party
or its business, other than any such information that is available to the
Administrative Agent or any


 


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


 


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


 


10.10                 Set-off.  In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of any
Event of Default, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower or any other Loan Party, any such notice
being waived by the Borrower (on its own behalf and on behalf of each Loan
Party) to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender L/C Issuer to
or for the credit or the account of the respective Loan Parties against any and
all Obligations owing to such Lender hereunder or under any other Loan
Document, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender L/C Issuer shall have made demand under
this Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness.  Each
Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.


 


10.11                 Interest Rate Limitation.  Agent, LC Issuer, Lenders, the Borrower and
Guarantors intend to contract in strict compliance with applicable usury law
from time to time in effect.  In
furtherance thereof such Persons stipulate and agree that none of the terms and
provisions contained in the Loan Documents shall ever be construed to create a
contract to pay, for the use, forbearance or detention of money, interest in
excess of the maximum amount of interest permitted to be charged by applicable
law from time to time in effect.  Neither
the Borrower nor any Guarantor nor any present or future guarantors, endorsers,
or other Persons hereafter becoming liable for payment of any Obligation shall
ever be liable for unearned interest thereon or shall ever be required to pay
interest thereon in excess of the maximum amount that may be lawfully charged
under applicable law from time to time in effect, and the provisions of this section shall
control over all other provisions of the Loan Documents which may be in
conflict or apparent conflict herewith. 
Agent, LC Issuer and Lenders expressly disavow any intention to charge
or collect excessive unearned interest or finance charges in the event the
maturity of any Obligation is accelerated. 
If (a) the maturity of any Obligation is accelerated for any
reason, (b) any Obligation is prepaid and as a result any amounts held to
constitute interest are determined to be in excess of the legal maximum, or (c) Agent,
LC Issuer or any Lender or


 


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any other holder of any or all of the Obligations
shall otherwise collect moneys which are determined to constitute interest
which would otherwise increase the interest on any or all of the Obligations to
an amount in excess of that permitted to be charged by applicable law then in
effect, then all sums determined to constitute interest in excess of such legal
limit shall, without penalty, be promptly applied to reduce the then
outstanding principal of the related Obligations or, at Agent’s, LC Issuer’s or
such Lender’s or holder’s option, promptly returned to the Borrower or the
other payor thereof upon such determination. 
In determining whether or not the interest paid or payable, under any
specific circumstance, exceeds the maximum amount permitted under applicable
law, Agent, LC Issuer, Lenders and the Related Persons (and any other payors
thereof) shall to the greatest extent permitted under applicable law, (i) characterize
any non-principal payment as an expense, fee or premium rather than as
interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize,
prorate, allocate, and spread the total amount of interest throughout the
entire contemplated term of the instruments evidencing the Obligations in
accordance with the amounts outstanding from time to time thereunder and the
maximum legal rate of interest from time to time in effect under applicable law
in order to lawfully charge the maximum amount of interest permitted under
applicable law.  In the event applicable
law provides for an interest ceiling under Chapter 303 of the Texas Finance
Code, as amended, for that day, the ceiling shall be the “weekly ceiling” as
defined in the Texas Finance Code, provided that if any applicable law permits
greater interest, the law permitting the greatest interest shall apply and
shall be used when appropriate in determining the Highest Lawful Rate.  As used in this section the term “applicable
law” means the laws of the State of Texas or the laws of the United States of
America, whichever laws allow the greater interest, as such laws now exist or
may be changed or amended or come into effect in the future.


 


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


 


10.13                 Integration.  This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. 
In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies
in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement.  Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair
meaning thereof.


 


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


 


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


 


10.16                 Tax
Forms.


 


(a)                                  (i)                                     Each
Lender that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code (a “Foreign Lender”) shall deliver to the Administrative
Agent, prior to receipt of any payment subject to withholding under the Code
(or upon accepting an assignment of an interest herein), two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any
successor thereto (relating to all payments to be made to such Foreign Lender
by the Borrower pursuant to this Agreement) or such other evidence satisfactory
to the Borrower and the Administrative Agent that such Foreign Lender is
entitled to an exemption from, or reduction of, U.S. withholding tax, including
any exemption pursuant to Section 881(c) of the Code.  Thereafter and from time to time, each such
Foreign Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
the Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Foreign Lender by the Borrower pursuant to this Agreement, (B) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any


 


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requirement of applicable
Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.


 


(ii)                                  Each
Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Administrative Agent on the
date when such Foreign Lender ceases to act for its own account with respect to
any portion of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed copies of the
forms or statements required to be provided by such Lender as set forth above,
to establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its
own account with respect to a portion of any such sums payable to such Lender.


 


(iii)                               The
Borrower shall not be required to pay any additional amount to any Foreign
Lender under Section 3.01 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS Form W-8IMY
pursuant to this Section 10.16(a) or (B) if such Lender
shall have failed to satisfy the foregoing provisions of this Section 10.16(a);
provided that if such Lender shall have satisfied the requirement of
this Section 10.16(a) on the date such Lender became a Lender
or ceased to act for its own account with respect to any payment under any of
the Loan Documents, nothing in this Section 10.16(a) shall relieve
the Borrower of its obligation to pay any amounts pursuant to Section 3.01
in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.


 


(iv)                              The
Administrative Agent may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Loan Documents with
respect to which the Borrower is not required to pay additional amounts under
this Section 10.16(a).


 


(b)                                 Upon
the request of the Administrative Agent, each Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code shall
deliver to the Administrative Agent two duly signed completed copies of IRS Form W-9.  If such Lender fails to deliver such forms,
then the Administrative Agent may withhold from any interest payment to


 


83





















 


such Lender an amount equivalent to the applicable back-up withholding
tax imposed by the Code, without reduction.


 


(c)                                  If
any Governmental Authority asserts that the Administrative Agent did not
properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. 
The obligation of the Lenders under this Section shall survive the
termination of the Aggregate Commitments, repayment of all other Obligations
hereunder and the resignation of the Administrative Agent.


 


10.17                 Replacement of
Lenders.  Under any circumstances set
forth herein providing that the Borrower shall have the right to replace a
Lender as a party to this Agreement, the Borrower may, upon notice to such
Lender and the Administrative Agent, replace such Lender by causing such Lender
to assign its Commitment (with the assignment fee to be paid by the Borrower in
such instance) pursuant to Section 10.08(b) to one or more
other Lenders or Eligible Assignees procured by the Borrower; provided, however,
that if the Borrower elects to exercise such right with respect to any Lender
pursuant to Section 3.06(b), it shall be obligated to replace all
Lenders that have made similar requests for compensation pursuant to Section 3.01
or 3.04.  The Borrower shall (x)
pay in full all principal, interest, fees and other amounts owing to such
Lender through the date of replacement (including any amounts payable pursuant
to Section 3.05), (y) provide appropriate assurances and
indemnities (which may include letters of credit) to the L/C Issuer as it may
reasonably require with respect to any continuing obligation to fund
participation interests in any L/C Obligations then outstanding, and (z) release
such Lender from its obligations under the Loan Documents.  Any Lender being replaced shall execute and
deliver an Assignment and Assumption with respect to such Lender’s Commitment
and outstanding Loans and participations in L/C Obligations.


 


10.18                 Governing
Law.


 


(a)                                  THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)                                 ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTING IN
DALLAS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. 
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED


 


84





















 


ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. 
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY
ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.


 


CHAPTER
346 OF THE TEXAS FINANCE CODE (THE “TEXAS FINANCE CODE”) AS AMENDED (WHICH
REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS AND REVOLVING TRI-PARTY
ACCOUNTS) DOES NOT APPLY TO THIS AGREEMENT OR TO THE NOTES.


 


10.19                 Waiver of Right
to Trial by Jury.  EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.


 


10.20                 Waiver of
Consequential Damages, Etc.  TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER SHALL NOT ASSERT, AND
HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, ON ANY THEORY OF LIABILITY,
FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT
OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED
HEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR LETTER OF
CREDIT OR THE USE OF THE PROCEEDS THEREOF. 
NO INDEMNITEE REFERRED TO IN SECTION 10.05 SHALL BE LIABLE FOR ANY
DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR
OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR
OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


10.21                 ENTIRE AGREEMENT.  THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,


 


85





















 


OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.  THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


 


10.22                 Restatement.  This Agreement restates and amends the
Existing Credit Agreement in its entirety, and all of the terms and provisions
hereof shall supersede the terms and provisions thereof.


 


10.23                 USA PATRIOT Act Notice.  Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.


 


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK.]


 


86





















 


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


 


 


	
   

  	
  WESTERN GAS RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Krysiak

  	
   

  
	
   

  	
   

  	
  William J. Krysiak

  
	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  



 





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joseph F. Scott

  	
   

  
	
   

  	
  Name:

  	
  Joseph
  F. Scott

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a
  Lender and L/C Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joseph F. Scott

  	
   

  
	
   

  	
  Name:

  	
  Joseph
  F. Scott

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

  	
  BNP PARIBAS, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  J. Onischuk

  	
   

  
	
   

  	
  Name:

  	
  J.
  Onischuk

  	
   

  
	
   

  	
  Title:

  	
   Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Greg Smothers

  	
   

  
	
   

  	
  Name:

  	
  Greg
  Smothers

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert C. Mertensotto

  	
   

  
	
   

  	
  Name:

  	
  Robert
  C. Mertensotto

  	
   

  
	
   

  	
  Title:

  	
   Managing Director

  	
   

  
						



 





















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND plc, as a

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Keith Johnson

  	
   

  
	
   

  	
  Name:

  	
  Keith
  Johnson

  	
   

  
	
   

  	
  Title:

  	
   Managing Director

  	
   

  
						



 





















 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Allison Newman

  	
   

  
	
   

  	
  Name:

  	
  Allison
  Newman

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

  	
  WELLS FARGO BANK, N.A., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Duc Duong

  	
   

  
	
   

  	
  Name:

  	
  Duc
  Duong

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

  	
  FORTIS CAPITAL CORP., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darrell Holley

  	
   

  
	
   

  	
  Name:

  	
  Darrell
  Holley

  	
   

  
	
   

  	
  Title:

  	
   Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Casey Lowary

  	
   

  
	
   

  	
  Name:

  	
  Casey
  Lowary

  	
   

  
	
   

  	
  Title:

  	
   Senior Vice President

  	
   

  
							



 





















 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kimberly Coll

  	
   

  
	
   

  	
  Name:

  	
  Kimberly
  Coll

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

  	
  COMERICA BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter L. Sefzik

  	
   

  
	
   

  	
  Name:

  	
  Peter
  L. Sefzik

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

  	
  COMPASS BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Murray E. Brasseux

  	
   

  
	
   

  	
  Name:

  	
  Murray
  E. Brasseux

  	
   

  
	
   

  	
  Title:

  	
   Executive Vice President

  	
   

  
						



 





















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as a

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Justin M. Alexander

  	
   

  
	
   

  	
  Name:

  	
  Justin
  M. Alexander

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
						



 





















 


	
   

  	
  ROYAL BANK OF CANADA, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Linda M. Stephens

  	
   

  
	
   

  	
  Name:

  	
  Linda
  M. Stephens

  	
   

  
	
   

  	
  Title:

  	
   Authorized Signatory

  	
   

  
						



 





















 


	
   

  	
  WESTLB AG, NY BRANCH, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Duncan Robertson

  	
   

  
	
   

  	
  Name:

  	
  Duncan
  Robertson

  	
   

  
	
   

  	
  Title:

  	
   Executive Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey S. Davidson

  	
   

  
	
   

  	
  Name:

  	
  Jeffrey
  S. Davidson

  	
   

  
	
   

  	
  Title:

  	
   Associate Director