Exhibit 10.5


 


[EXECUTION]


 


AMENDED AND RESTATED INTERCREDITOR AGREEMENT


 


This AMENDED AND RESTATED INTERCREDITOR AGREEMENT (as
amended or supplemented from time to time, herein called this “Agreement”), is entered into as of November 22,
2005, by and among the BANKS (as defined below), BANK OF AMERICA, N.A., as
Administrative Agent for the Banks (in such capacity, the “Agent”) and as Collateral Agent for the
Lenders (in such capacity, the “Collateral
Agent”), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“PICA”), PRUCO LIFE INSURANCE COMPANY (“Pruco”), PRUDENTIAL INVESTMENT MANAGEMENT,
INC. (“Prudential”), PRUCO LIFE INSURANCE
COMPANY OF NEW JERSEY (“Pruco NJ”),
GIBRALTAR LIFE INSURANCE CO., LTD. (“Gibraltar”),
RGA REINSURANCE COMPANY (“RGA”),
AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, INC. (“American”), FORTIS BENEFITS INSURANCE
COMPANY (“Fortis”), and
CONNECTICUT GENERAL LIFE INSURANCE COMPANY (“Connecticut”
and, together with PICA, Pruco, Prudential, Pruco NJ, Gibraltar, RGA, American,
and Fortis, collectively, the “Initial
Prudential Noteholders”).


 


W I T N E S S E T H:


 


WHEREAS, WESTERN
GAS RESOURCES, INC., a Delaware corporation (herein called the “Company”), the Banks and the Agent have
entered into that certain Amended and Restated Credit Agreement of even date
herewith (herein, as from time to time amended, supplemented or restated,
called the “Bank Agreement”) which
amends and restates in its entirety the Amended and Restated Credit Agreement
dated as of June 29, 2004 among the Company, the Agent and the lenders
named therein (the “Existing Credit Agreement”);


 


WHEREAS, pursuant
to the Bank Agreement, the Banks have agreed to make revolving loans to the
Company and to issue letters of credit for the account of the Company, and the
Company has executed in favor of each Bank a promissory note (such promissory
notes, as from time to time supplemented or amended and all promissory notes
given in renewal and extension thereof are collectively referred to herein as
the “Bank Notes”);


 


WHEREAS, one or
more of the Banks or Prudential Affiliates (as defined herein) may, from time
to time, enter into Swap Contracts with the Company or Affiliates of the
Company;


 


WHEREAS, payment of
the obligations of the Company to the Banks and the Agent arising under or in
connection with the Bank Agreement and the Swap Contracts from time to time is
guaranteed pursuant to that certain Guaranty of even date herewith from the
Guarantors in favor of Agent and the Banks (herein, as amended from time to
time, collectively called the


 





















 


“Bank Guaranty”) which
amends and restates the Guaranty dated as of June 29, 2004 from each
Guarantor in favor of the Banks and the Agent;


 


WHEREAS, the
Company and the Initial Prudential Noteholders have entered into that certain
Third Amended and Restated Master Shelf Agreement dated as of December 19,
1991 and effective as of January 13, 2003 (herein, as from time to time
amended, supplemented or restated, called the “Prudential Agreement”), which amended and restated the Master
Shelf Agreement dated as of December 19, 1991 between the Company and
PICA;


 


WHEREAS, the
Company has issued and may hereafter issue Senior Notes pursuant to the
Prudential Agreement, in each case evidencing indebtedness of the Company to
the Initial Prudential Noteholders and all subsequent holders of Prudential
Notes;


 


WHEREAS, each
Guarantor has heretofore executed and delivered to Prudential its guaranty
(herein, as amended from time to time, collectively called the “Prudential Guaranties”), guaranteeing
payment of obligations of the Company to Prudential, for itself and on behalf
of the Initial Prudential Noteholders under the Prudential Agreement and all
subsequent holders of Prudential Notes under the Prudential Agreement, arising
under or in connection with the Prudential Notes and the Prudential Agreement
and, to the extent any Prudential Affiliate enters into a Swap Contract, any
such Swap Contract (by amendment to the Prudential Guaranties);


 


WHEREAS, hereafter
subsidiaries of the Company may from time to time issue additional guaranties
in favor of the Banks or any of them in connection with the Bank Agreement, in
favor of any Swap Lenders in connection with any Swap Contracts, or in favor of
Prudential in connection with the Prudential Notes and the Prudential Agreement
(any such guaranties herein being called “Additional
Guaranties” and any subsidiaries executing Additional Guaranties
herein being called the “Additional
Guarantors”);


 


WHEREAS, the
Company has executed and delivered to the Agent for the benefit of the Banks
that certain Amended and Restated Stock Pledge Agreement of even date herewith
(as from time to time supplemented, amended or restated, the “Company Pledge Agreement”), which amends
and restates in its entirety the Pledge Agreement dated as of June 29,
2004, pursuant to which the Company has granted to the Agent a security
interest in all of its ownership interests in certain of its subsidiaries (the “Domestic Subsidiaries”);


 


WHEREAS, Western Power Services, Inc.
(“Power”) has executed and delivered to Agent for the benefit of the Banks that
certain Foreign Subsidiary Stock Pledge Agreement of even date herewith (as
from time to time supplemented amended or restated the “Foreign
Subsidiary Pledge Agreement”, pursuant to which Power has granted to
Agent a security interest in sixty five percent (65%) of its ownership interest
in Western Gas Resources Canada Company.


 


WHEREAS, the
Company has executed and delivered to Prudential that certain Pledge Agreement
dated as of April 29, 1999 (as amended by Amendment No. 2 to Pledge
Agreement dated as of April 24, 2003 appointing Bank of America, N.A. as
collateral agent thereunder),


 


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pursuant to which the Company has granted to Prudential, for itself and
on behalf of the Initial Prudential Noteholders under the Prudential Agreement
and all subsequent holders of the Prudential Notes under the Prudential
Agreement, a security interest in all of its ownership interests in the
Domestic Subsidiaries, and Power has executed and delivered to Prudential that
certain Foreign Subsidiary Stock Pledge Agreement of even date herewith,
pursuant to which Power has granted to Bank of America, N.A., as collateral
agent thereunder, for itself and on behalf of the Initial Prudential
Noteholders under the Prudential Agreement and all subsequent holders of the
Prudential Notes under the Prudential Agreement a security interest in
sixty-five percent (65%) of its ownership interest in Western Gas Resources
Canada Company, (such Pledge Agreements as from time to time amended,
supplemented or restated herein being collectively called the “Prudential Pledge Agreements”);


 


WHEREAS, subsidiaries
of the Company may from time to time create additional pledge agreements in
favor of the Banks or any of them in connection with the Bank Agreement, in
favor of any Swap Lenders in connection with any Swap Contracts, or in favor of
the holders of the Prudential Notes in connection with the Prudential Agreement
(any such pledge agreements herein being called the “Additional Pledge Agreements” and any subsidiaries executing
such Additional Pledge Agreement herein being collectively called the “Additional Pledgors”);


 


WHEREAS, the Agent,
the Collateral Agent, Prudential, and the Banks have entered into that certain
Amended and Restated Intercreditor Agreement dated as of as of June 29,
2004 (as amended and supplemented to the date hereof, the “Existing Intercreditor Agreement”) to
evidence their agreement with respect to certain payments that may be received
by the Lenders under or in connection with the Subject Guaranties and the
Pledge Agreements; and


 


WHEREAS, the
Lenders desire to amend and restate the Existing Intercreditor Agreement as
provided herein;


 


NOW, THEREFORE, in
consideration of the premises and the mutual agreements herein contained, the
Lenders hereby agree that the Existing Intercreditor Agreement is hereby
amended and restated to read in its entirety as follows:


 


1.                                       Definitions.  As used herein the following definitions
shall have the meanings set forth below:


 


“Acceleration Event” means (i) the
failure by the Company to pay in full the outstanding principal balance of and
any accrued and unpaid interest on any Note on the final maturity date of such
Note; (ii) the acceleration of the outstanding principal balance of and
any accrued and unpaid interest on, any Note by any Lender or by any person or
entity acting on behalf of any Lender; or (iii) any of the Debtor Parties (A) suffers
the entry against it of a judgment, decree or order or relief by a court of
competent jurisdiction in an involuntary proceeding commenced under any
applicable bankruptcy, insolvency or other similar law of any jurisdiction now
or hereafter in effect, including the federal Bankruptcy Code, as from time to
time amended, or has any such proceeding commenced against it which remains
undismissed for a period of sixty days; (B) commences a voluntary case
under any applicable bankruptcy,


 


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insolvency or similar law now or hereafter in effect,
including the federal Bankruptcy Code, as from time to time amended; or applies
for or consents to the entry of an order for relief in an involuntary case
under any such law; or makes a general assignment for the benefit of creditors;
or fails generally to pay (or admits in writing its inability to pay) its debts
as such debts become due; or takes corporate or other action to authorize any
of the foregoing; or (C) suffers the appointment of or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of all or a substantial part of its assets in a proceeding
brought against or initiated by it, and such appointment or taking possession
is neither made ineffective nor discharged within thirty days after the making
thereof, or such appointment or taking possession is at any time consented to,
requested by, or acquiesced to by it.


 


“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”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Additional
Guaranties” has the meaning assigned to such term in the preamble of
this Agreement.


 


“Additional
Guarantors” has the meaning assigned to such term in the preamble of
this Agreement.


 


“Additional Pledge
Agreements” has the meaning assigned to such term in the preamble of
this Agreement.


 


“Additional Pledgors”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Banks”
means the “Lenders” as such term is defined in the Bank Agreement.


 


“Bank Agreement”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Bank Agreement
Obligations” means all “Obligations” as defined in the Bank
Agreement, as from time to time supplemented, amended or restated (including,
without limitation, default interest, interest accruing at the then applicable
rate provided in the Bank Agreement after the maturity of the Bank Notes and
interest accruing at the then applicable rate provided in the Bank Agreement
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to any of the Debtor
Parties, whether or not a claim for post-filing or post-petition interest is
allowed in such


 


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proceeding), whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, that arise under, out of,
or in connection with, the Bank Agreement, any Bank Notes or any other document
made, delivered or given in connection therewith, whether on account of
principal, interest, premium, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Agent and the Banks that are required to be paid by any of the Debtor Parties
pursuant to the terms of this Agreement, the Bank Agreement, any Bank Notes or
any other document made, delivered or given in connection therewith).


 


“Bank Guaranty”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Bank Notes”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Bank Pledge
Agreements” means the Company Pledge Agreement and the Foreign
Subsidiary Pledge Agreement.


 


“Calculation Date”
has the meaning assigned to such term in Section 2 of this Agreement.


 


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


 


“Collateral Agent”
means Bank of America, N.A., in its capacity as Collateral Agent under and
subject to the terms and conditions of this Agreement.


 


“Collateral
Agent-Related Persons” means the Collateral Agent, together with its
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.


 


“Company”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Company Pledge
Agreement” has the meaning assigned to such term in the preamble of
this Agreement


 


“Credit Agreements”
means the Bank Agreement, the Swap Contracts, and the Prudential Agreement.


 


“Debtor Parties”
means the Company, any Guarantor, any Additional Guarantor, any Additional
Pledgor.


 


“Determination Date”
has the meaning assigned to such term in Section 3 of this Agreement


 


“Existing Credit
Agreement” has the meaning assigned to such term in the preamble of
this Agreement.


 


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“Existing
Intercreditor Agreement” has the meaning assigned to such term in
the preamble of this Agreement.


 


“Finance Documents”
means this Agreement, the Credit Agreements, the Security Documents and all
other documents and instruments under, by reason of which, or pursuant to which
any or all of the indebtedness and obligations arising under or pursuant to the
Credit Agreements are evidenced, governed, secured, guarantied, or otherwise
dealt with, and all other agreements, certificates, and other documents,
instruments and writings heretofore or hereafter delivered in connection
herewith or therewith.


 


“Foreign Subsidiary
Pledge Agreement” has the meaning assigned to such term in the
preamble of this Agreement.


 


“Guarantors”
means Mountain Gas Resources, Inc., a Delaware corporation, Western Gas
Resources-Texas, Inc., a Texas corporation, MIGC, Inc., a Delaware
corporation (“MIGC”), Lance Oil &
Gas Company, Inc., a Delaware corporation, and Western Gas Wyoming,
L.L.C., a Wyoming limited liability company.


 


“Indebtedness”
means, with respect to any Calculation Date or Determination Date, the
aggregate outstanding principal amount of indebtedness of the Company under the
Bank Agreement, the Bank Notes, the Prudential Agreement, and the Prudential
Notes on such date.


 


“Indemnified
Liabilities” means any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including reasonable attorney’s costs and expenses) of any
kind or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any Collateral Agent-Related Person in any way relating to or
arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of this Agreement or any Security
Document, (b) the use or proposed use of the proceeds of any Collateral,
or (c) 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).


 


“Initial Prudential
Noteholders” has the meaning assigned to such term in the preamble
of this Agreement.


 


“Lenders”
means the Banks, the Agent, the Initial Prudential Noteholders and the other
holders from time to time of the Prudential Notes.


 


“Majority Lenders”
means two or more Lenders, including at least one holder of a Bank Note and one
holder of a Prudential Note, whose Proportionate Shares equal or exceed
sixty-six and two-thirds percent (66 2/3%).


 


“Make-Whole Amount”
means with respect to the holders of the Prudential Notes, the “Yield Maintenance
Amount” as defined in the Prudential Agreement except that (for purposes of
this Agreement only) the “Reinvestment Yield”, which is defined in the
Prudential Agreement and used in computing such Yield Maintenance Amount, shall
be the rate of 1.55% per annum


 


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with respect to the 7.61% Notes, 1.62% per annum with respect to the
5.92% Notes, and 1.42% per annum with respect to the 5.57% Notes above the
Reinvestment Yield, as it would otherwise be calculated under the Prudential
Agreement, and with respect to additional Prudential Notes issued under the
Prudential Agreement, the initial spread over comparable average life U.S.
treasuries at time of commitment to purchase such Prudential Notes above the Reinvestment
Yield, as it would otherwise be calculated under the Prudential Agreement.


 


“Notes” means the Bank Notes and the
Prudential Notes.


 


“Obligations”
means (i) the Bank Agreement Obligations, (ii) the Swap Agreement
Obligations and (iii) the Prudential Agreement Obligations.


 


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


 


“PICA”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Pledge Agreements”
means the Bank Pledge Agreements, the Prudential Pledge Agreements, and all
Additional Pledge Agreements.


 


“Proportionate Share” means a fraction (i) the
numerator of which is the sum of the Indebtedness owing to such Lender plus the
Swap Amount and/or Make-Whole Amount owing to such Lender and (ii) the
denominator of which is the sum of the Indebtedness owing to all Lenders plus
the Swap Amount and/or Make-Whole Amount owing to all Lenders;


 


“Pruco”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Prudential”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Prudential
Affiliate” means (i) any corporation or other entity
controlling, controlled by, or under common control with, Prudential either
directly or through subsidiaries and (ii) any managed account or
investment fund which is managed by Prudential or a Prudential Affiliate
described in clause (i) of this definition.  For purposes of this definition, the terms “control”,
“controlling” and “controlled” shall mean the ownership, directly or through
subsidiaries, of a majority of a corporation’s or other entity’s Voting Stock
or equivalent voting securities or interests.


 


“Prudential
Agreement” has the meaning assigned to such term in the preamble of
this Agreement.


 


“Prudential
Agreement Obligations” means the unpaid principal of, interest on
and “Yield Maintenance Amount” as defined in the Prudential Agreement, if any,
on the Prudential Notes and all other obligations and liabilities of any of the
Debtor Parties to the holders from time to time of the Prudential Notes
(including, without limitation, interest accruing at the then applicable rate
provided in the Prudential Agreement, as from time to time supplemented,
amended or restated, or the
Prudential Notes, as applicable, after the maturity thereof and interest
accruing at the then applicable rate provided in the Prudential Agreement or
the Prudential


 


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Notes, as applicable, after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to any of the Debtor Parties, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Prudential Agreement, any Prudential Notes or any other document made,
delivered or given in connection therewith, whether on account of principal,
interest, Make-Whole Amount, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to any
holder(s) of the Prudential Notes that are required to be paid by the Debtor
Parties pursuant to the terms of this Agreement, the Prudential Agreement, the
Prudential Notes or any other document made, delivered or given in connection
therewith).


 


“Prudential Guaranties”
has the meaning assigned to such term in the preamble of this Agreement.


 


“Prudential Notes”
means the 7.61% Senior Notes due July 28, 2007 (the “7.61% Notes”), the 5.92% Senior Notes, Series I,
due June 30, 2011 (the “5.92% Notes”),
the 5.57% Senior Notes, Series J, due January 18, 2015 (the “5.57% Notes”) and any additional Senior Notes issued
pursuant to the Prudential Agreement or in replacement thereof.


 


“Prudential Pledge
Agreements” has the meaning assigned to such term in the preamble of
this Agreement.


 


“Subject Guaranties”
means the Bank Guaranty, the Prudential Guaranties and the Additional
Guaranties.


 


“Subject Guaranty
Excess Amount” has the meaning assigned to such term in Section 2
of this Agreement.


 


“Security Documents” means the Pledge
Agreements.


 


“Security Document
Excess Amount” has the meaning assigned to such term in Section 3
of this Agreement.


 


“Swap Agreement
Obligations” means any
amounts that, at the time in question, are due and payable to any Swap Lender
under any Swap Contract.


 


“Swap Amount”
means with respect to each Swap Lender on each Calculation Date and on each
Determination Date, the Swap Termination Value under all Swap Contracts which
would be due and owing thereunder to such Swap Lender on such Calculation Date
or Determination Date if any such Swap Contract were terminated on such date
whether or not such Swap Amount is actually due and owing on such date.


 


“Swap Lender” means with respect to any
Calculation Date or any Determination Date, each Lender that is a party to a
Swap Contract with the Company or an Affiliate of the Company on such date.


 


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“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).


 


“Voting Stock” means, with respect to any corporation,
any shares of stock of such corporation whose holders are entitled under
ordinary circumstances to vote for the election of directors of such
corporation (irrespective of whether at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).


 


2.                                       Subject
Guaranties.  If, after the occurrence
and during the continuance of a “Default” or “Event of Default” under any
Credit Agreement (as “Default” or “Event of Default” is defined in each Credit
Agreement) any Lender shall at any time obtain any payment or other recovery
(whether voluntary, involuntary, by application of setoff or otherwise) from
any Guarantor pursuant to a Subject Guaranty (each date on which a Lender
receives any such payment or recovery is herein called a “Calculation Date”) in excess of its
Proportionate Share calculated as of such date of payments or other recoveries
then or therewith obtained by all Lenders with respect to the Subject
Guaranties, such Lender shall purchase from the other Lenders such
participation(s) in the Indebtedness (and interest thereon) of the Company held
by such other Lenders that is guaranteed pursuant to such other Lenders’
Subject Guaranty or Subject Guaranties, as shall be necessary to cause such
purchasing Lender to share such payment or other recovery ratably with such
selling Lenders; provided, however, that if all or any portion of
such payment or other recovery is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded, and each selling Lender shall repay to
the purchasing Lender the purchase price, to the ratable extent of such
recovery, together with an amount equal to such selling Lender’s ratable share
(according to the proportion of (x) the amount of such selling


 


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Lender’s required repayment to the purchasing Lender to (y) 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.  Notwithstanding the foregoing,
if a Swap Amount is not due and owing on a Calculation Date or does not
actually become due and owing within 30 days of such Calculation Date, and as a
result of the inclusion of the Swap Amount in calculating a Swap Lender’s
Proportionate Share, such Swap Lender receives a greater portion of any payment
or other recovery from any Guarantor than it would have if the Swap Amount had
not been included in such calculation (such amount is herein called a “Subject Guaranty Excess Amount”), then such
Swap Lender shall immediately purchase from each other Lender such
participation(s) in the Indebtedness (and interest thereon) of the Company held
by such other Lender that is guaranteed pursuant to such other Lender’s Subject
Guaranty or Subject Guaranties in an amount equal to such other Lender’s Proportionate
Share as of such Calculation Date (after being recalculated to exclude the Swap
Amount) of the Subject Guaranty Excess Amount plus such other Lender’s
Proportionate Share of any interest earned by the Swap Lender on such Subject
Guaranty Excess Amount.


 


3.                                       Security
Documents.  If any Lender shall at
any time obtain any payment or other recovery (whether voluntary, involuntary,
or otherwise) under a Security Document (each date on which a Lender receives
any such payment or recovery is herein called a “Determination Date”) in excess of its Proportionate Share
calculated as of such date of payments or other recoveries then or therewith
obtained by all Lenders under a Security Document, such Lender shall purchase
from the other Lenders such participation(s) in the Indebtedness (and interest
thereon) of the Company held by such other Lenders that is secured by the
Security Documents, as shall be necessary to cause such purchasing Lender to
share such payment or other recovery ratably with such selling Lenders; provided,
however, that if all or any portion of such payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded, and each selling Lender shall repay to the purchasing Lender the
purchase price, to the ratable extent of such recovery, together with an amount
equal to such selling Lender’s ratable share (according to the proportion of
(x) the amount of such selling Lender’s required repayment to the purchasing
Lender to (y) 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. 
Notwithstanding the foregoing, if a Swap Amount is not due and owing on
a Determination Date or does not actually become due and owing within 30 days
of such Determination Date, and as a result of the inclusion of the Swap Amount
in calculating a Swap Lender’s Proportionate Share, such Swap Lender receives a
greater portion of any payment or other recovery with respect to the Collateral
under any Security Documents than it would have if the Swap Amount had not been
included in such calculation (such amount is herein called a “Security Document Excess Amount”), then
such Swap Lender shall immediately purchase from each other Lender such
participation(s) in the Indebtedness (and interest thereon) of the Company held
by such other Lender that is secured under such other Lender’s Security
Document in an amount equal to such other Lender’s Proportionate Share as of such
Determination Date (after being recalculated to exclude the Swap Amount) of the
Security Document Excess Amount plus such other Lender’s Proportionate Share of
any interest earned by the Swap Lender on such Security Document Excess Amount.


 


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4.                                       Consent
and Agreement.  Each of the Company
and each Guarantor, by signing the Consent and Agreement attached hereto,
agrees that each Lender so purchasing a participation from another Lender
pursuant to Section 2 or 3 hereof may, to the fullest extent permitted by
law, exercise all its rights of payment (including rights of setoff) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company and such Guarantor in the amount of such
participation.  By its execution of the
Consent and Agreement, the Company hereby agrees that it shall cause each
Additional Guarantor and each Additional Pledgor to execute and deliver to
Lenders a Consent and Agreement substantially in the form attached hereto
concurrently with the delivery of its respective Additional Guaranty or
Additional Pledge Agreement, as applicable.


 


5.                                       Bankruptcy
Claims.  If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which Section 3 hereof applies, such Lender
shall exercise its rights in respect of such secured claim in a manner
consistent with the rights of the other Lenders in accordance with Section 3
hereof.


 


6.                                       Perfection
and Priority.  All security interests
of the Lenders in the Collateral shall be pari passu regardless of the
order of filing of any financing statements with respect thereto or the taking
of any other action relevant to the determination of the perfection or priority
of such security interests.  Except for
the filings to be made by the Agent on behalf of the Banks, each Lender shall
be responsible for the preparation and filing of its respective financing
statement covering the Collateral.  The
Lenders hereby direct the Agent to receive and maintain physical possession, of
all certificates (the “Certificates”)
evidencing the Collateral.  The Agent
will hold the Certificates to perfect each Lender’s security interest in the
Collateral.  The Agent will hold the
Certificates in its capacity as collateral agent for the Lenders.


 


7.                                       Collateral
Agent Appointment, Powers, and Immunities.


 


(a)                                  Each
Lender hereby irrevocably appoints and authorizes Bank of America, N.A. to act
as Collateral Agent under the Security Documents on the terms and conditions
set forth in this Agreement and any other Security Documents (including,
without limitation, the Bank Pledge Agreements and any Additional Pledge
Agreements), as applicable, in the name of and for the benefit of the Lenders,
and Bank of America, N.A., hereby accepts such appointment and shall have all
of the rights and obligations of the Collateral Agent hereunder and under the
Security Documents.


 


(b)                                 Each
Lender hereby authorizes Collateral Agent to do the following in accordance with
the terms of this Agreement and the Security Documents:


 


(i)                                     to
receive all documents and items to be furnished from time to time to Collateral
Agent or any Lender under the Security Documents;


 


(ii)                                  to
distribute to the Lenders information, requests, documents, and other items
received from the Company and other Persons under the Security Documents;


 


11





















 


(iii)                               to execute and deliver
to the Company and other Persons requests, demands, notices, approvals, consents,
waivers, and other communications received from Lenders in connection with the
Security Documents and herewith subject to the terms and conditions set forth
therein and herein;


 


(iv)                              to
receive on behalf of each of the Lenders any payment of monies paid to
Collateral Agent in accordance with this Agreement and the Security Documents,
and to distribute to each Lender in accordance with the terms of this Agreement
such Lender’s share of all payments so received based upon such Lender’s
Proportionate Share;


 


(v)                                 to
act on behalf of Lenders at the direction of any Lender to maintain the
perfection and priority of the Liens created under the Security Documents;


 


(vi)                              subject
to the terms and conditions of the Security Documents and this Agreement, to exercise
on behalf of each Lender all remedies of Lenders under the Security Documents
upon the occurrence of any Acceleration Event; and


 


(vii)                           subject to the terms and
conditions of the Security Documents and this Agreement, to take such other
actions as may be directed by Majority Lenders as are reasonably incident to
any powers granted to Collateral Agent hereunder, including but not limited to
any action described in Sections 8 and 9(a) hereof.


 


8.                                       Enforcement
Against Collateral; Application of Proceeds from Collateral.


 


(a)                                  Prior
to the occurrence of an Acceleration Event, no Lender shall exercise any remedy
or other right available to it with respect to any Collateral.  Concurrently with the occurrence of any event
described in either clause (i) or (ii) of the definition of
Acceleration Event, the Lender whose Note has matured and has not been paid at
maturity or so accelerating its Note, as the case may be, shall give written
notice of such Acceleration Event to the Agent, in its capacity as Collateral Agent,
and each other Lender.


 


(b)                                 The
Lenders agree among themselves and for their own benefit alone that the liens
and security interests granted and provided for in the Security Documents shall
not be enforced against any of the Collateral except at the direction of the
Majority Lenders upon the occurrence of one or more Acceleration Events and in
compliance with the provisions hereof. Each Lender agrees that, as long as any
Indebtedness exists or may become outstanding pursuant to the terms of the Finance
Documents, the provisions of this Agreement shall provide the exclusive method
by which any Lender may exercise rights and remedies under the Security
Documents.


 


(c)                                  Upon
the occurrence of any Acceleration Event and the Collateral Agent’s actual
knowledge of or receipt of a notice of Acceleration Event, the Collateral
Agent, at the direction of the Majority Lenders, shall seek to realize upon the
security interests and liens granted to the Collateral Agent and/or any Lenders
under the Security Documents in such manner as shall be directed by the
Majority Lenders. Whether before or after any Acceleration Event, subject to
the terms and conditions hereof, the Collateral Agent shall (except to the
limited extent provided in


 


12





















 


the last sentence of Section 9(e)) act only on the directions of
the Majority Lenders with respect to the preservation, protection, collection
or realization upon any Collateral. 
Notwithstanding the foregoing, in the event that the Collateral Agent
deems (in its reasonable discretion) that the provisions of this Agreement are
not adequate to protect the Collateral Agent against the liabilities associated
with any of the actions described above, then the Collateral Agent may refuse
to take such action until such time as the Lenders have granted to Collateral
Agent additional security or indemnifications satisfactory to Collateral Agent
in its reasonable discretion to protect it against such liabilities.


 


(d)                                 Whenever
Collateral Agent applies any cash proceeds received by Collateral Agent in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral, the same shall be applied in the following order:


 


(i)                                     To
the repayment of all costs and expenses, including reasonable attorneys’ fees
and legal expenses, incurred by Collateral Agent in connection with (1) the
administration of the Security Documents, (2) the custody, preservation,
use or operation of, or the sale of, collection from, or other realization
upon, any Collateral, (3) the exercise or enforcement of any of the rights
of Collateral Agent hereunder or under the Security Documents, or (4) the
failure of the Company or any Affiliate of the Company to perform or observe
any of the provisions of the Security Documents and to any Indemnified
Liabilities and reimbursements due Collateral Agent under Section 9(g);


 


(ii)                                  To
the payment or other satisfaction of any Liens, encumbrances, or adverse claims
upon or against any of the Collateral that are prior to those of the Collateral
Agent or which Collateral Agent is otherwise required to pay under applicable
law;


 


(iii)                               To the reimbursement of
Collateral Agent for the amount of any obligations of the Company or any
Affiliate of the Company that are prior to those of the Collateral Agent or
which Collateral Agent is otherwise required to pay under applicable law and
are paid or discharged by Collateral Agent (other than amounts for principal
and interest under the Notes) pursuant to the provisions hereof or of the
Security Documents, and of any expenses of Collateral Agent payable by the
Company or any Affiliate of the Company hereunder or thereunder;


 


(iv)                              To
the satisfaction the Obligations of the Lenders, to each Lender in accordance
with such Lender’s Proportionate Share;


 


(v)                                 To
the payment or prepayment of any other Obligations of a Lender not included in
subsection (iv) above, which payment shall be made ratably to each
Lender in accordance with its pro rata share of such Obligations;


 


(vi)                              To
the payment of any other amounts required by applicable law (including any
provision of the UCC); and


 


13





















 


(vii)                           By delivery to the Company
or to whomever shall be lawfully entitled to receive the same or as a court of
competent jurisdiction shall direct.


 


The provisions of this Section 8(d) are
intended solely to establish the manner and amount of distribution of proceeds
as among the Lenders.  The provisions of
this Agreement are not intended, as among the Banks, to modify or amend the
manner of application of funds as set forth in the Bank Agreement and related
documents or to modify or amend the manner of application of funds as set forth
in the Prudential Agreement and related documents.  Any amounts distributable hereunder to a
Lender shall be applied in accordance with the priorities set forth in the
applicable Finance Documents, regardless of how such payments are characterized
or the order of priority under this Section 8(d).


 


(e)                                  Whenever
Collateral Agent in good faith determines that it is uncertain about how to
distribute to Lenders any funds which it has received, or whenever Collateral
Agent in good faith determines that there is any dispute among Lenders about
how such funds should be distributed, Collateral Agent may choose to defer
distribution of the funds which are the subject of such uncertainty or
dispute.  If Collateral Agent in good
faith believes that the uncertainty or dispute will not be promptly resolved,
or if Collateral Agent is otherwise required to invest funds pending
distribution to Lenders, Collateral Agent shall invest such funds pending
distribution; all interest on any such investment shall be distributed upon the
distribution of such investment and in the same proportion and to the same
Persons as such investment.  All moneys
received by Collateral Agent for distribution to Lenders shall be held by
Collateral Agent pending such distribution solely as Collateral Agent for such
Lenders, and Collateral Agent shall have no equitable title to any portion
thereof except in its separate capacity as a Lender.


 


9.                                       Provisions
Concerning Collateral Agent.


 


(a)                                  Duties
as Collateral Agent.  Notwithstanding
any provision to the contrary contained elsewhere herein or in any other
Finance Document, the Collateral Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Collateral 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 Finance Document or otherwise exist against the Collateral Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein with reference to the
Collateral 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.  The Lenders irrevocably authorize the
Collateral Agent, at its option and in its discretion, to release any lien on
or security interest in any Collateral (i) if the property subject to such
lien or security interest is permitted to be sold or otherwise transferred
pursuant to both the Bank Agreement and the Prudential Agreement or such lien
is otherwise permitted to be released pursuant to such Credit Agreements and (ii) upon
termination of and payment in full of all Obligations (other than contingent
indemnification obligations, including but not limited to obligations of the
Debtor Parties under the Swap Agreements that are not yet due).


 


14





















 


(b)                                 Delegation
of Duties.  The Collateral Agent may
execute any of its duties under this Agreement or any Security 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 Collateral 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.


 


(c)                                  Liability
of Collateral Agent.  No Collateral
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
Security Document or the transactions contemplated hereby and thereby including but not limited to those arising from its
own negligence  (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 the Company, any of the Company’s Affiliates or any officer thereof,
contained herein or in any other Security Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Collateral Agent under or in connection with, this Agreement or any
Security Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any Security Document, or for any failure
of the Company or any of its Affiliates to perform its obligations hereunder or
thereunder.  No Collateral 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 Security Document, or to
inspect the properties, books or records of the Company or any of its
Affiliates.


 


(d)                                 Reliance
by Collateral Agent.  The Collateral
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 reasonably 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 the Company or any of its
Affiliates), independent accountants and other experts selected by the
Collateral Agent.  The Collateral Agent
shall be fully justified in failing or refusing to take any action under any
Security Document unless it shall first receive such advice or concurrence of
the Majority 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
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any Security Document in
accordance with a request or consent of the Majority 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.


 


(e)                                  Notice
of Default.  The Collateral Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Acceleration Event or any “Default” or “Event of Default” under any Credit
Agreement or Security Document (as “Default” or “Event of Default” is defined
in each Credit Agreement and Security Document), except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Collateral Agent, acting in its


 


15





















 


capacity as “Administrative Agent” under the Bank Agreement, as for the
account of the Banks, or unless the Collateral Agent shall have received
written notice from a Lender or the Company, describing such “Default” or “Event
of Default” and stating that such notice is a “notice of default.”  The Collateral Agent will notify the Lenders
of its receipt of any such notice.  The
Collateral Agent shall take such action with respect to the Collateral after
any such “Default” or “Event of Default” as may be directed by the Majority
Lenders in accordance with the terms hereof. 
Unless and until the Collateral Agent has received any such direction,
the Collateral Agent shall not be obligated to take such action with respect to
such “Default” or “Event of Default”. 
Furthermore, the Collateral Agent may (but shall not be obligated to)
take action hereunder to the extent necessary to maintain insurance on the
Collateral or otherwise protect the Collateral from damage or destruction.


 


(f)                                    Credit
Decision; Disclosure of Information by Collateral Agent.  Each Lender acknowledges that no Collateral
Agent-Related Person has made any representation or warranty to it, and that no
act by the Collateral Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of the Company or any of
its Affiliates, shall be deemed to constitute any representation or warranty by
any Collateral Agent-Related Person to any Lender as to any matter, including
whether Collateral Agent-Related Persons have disclosed material information in
their possession.  Each Lender represents
to the Collateral Agent that it has, independently and without reliance upon
any Collateral 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 Company and its Affiliates, and all applicable bank
or other regulatory laws relating to the transactions contemplated hereby, and
made its own decision to enter into the Finance Documents and this Agreement
and to extend credit to the Company under its Credit Agreement.  Each Lender also represents that it will,
independently and without reliance upon any Collateral 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 Finance
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 Company. 
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Collateral Agent herein (or required to be
furnished to the Banks by the Agent, in its capacity as “Administrative Agent”
under the Bank Agreement), the Collateral 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 and other
condition or creditworthiness of any of the Company or its Affiliates which may
come into the possession of any Collateral Agent-Related Person.


 


(g)                                 Indemnification
of Collateral Agent.  The Lenders
shall indemnify upon demand each Collateral Agent-Related Person (to the extent
not reimbursed by or on behalf of the Company or any of its Affiliates and
without limiting the obligation of the Company or any of its Affiliates to do
so), to the extent of each Lender’s Proportionate Share, and hold harmless each
Collateral Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it, including but not
limited to those arising from its own negligence;  provided,
however, that no Lender shall be liable for the payment to any
Collateral Agent-Related Person of


 


16





















 


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 Collateral Agent-Related Person’s own
gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Majority 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 Collateral Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including reasonable attorney’s fees and expenses) incurred by the Collateral
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 or any Security Document to the extent
that the Collateral Agent is not reimbursed for such expenses by or on behalf
of the Company.  The undertaking in this Section shall
survive termination of the Indebtedness. 
Notwithstanding anything herein to
the contrary, the parties hereto agree that the obligations of each holder of a
Prudential Note to Collateral Agent under this Section 9(g) shall be
limited to the amount of the proceeds of the Collateral it receives hereunder,
under the Security Documents or from any other source that is attributable to
the Collateral.


 


(h)                                 Collateral
Agent in its Individual Capacity. 
Bank of America, N.A. (“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 the Company and its
Affiliates as though Bank of America were not the Collateral Agent 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 the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or such
Affiliate) and acknowledge that the Collateral Agent shall be under no
obligation to provide such information to them.  With respect to the Collateral, Bank of
America shall have the same rights and powers under this Agreement and the
Security Documents as any other Lender and may exercise such rights and powers
as though it were not the Collateral Agent, and the terms “Lender” and “Lenders”
include Bank of America in its individual capacity.


 


(i)                                     Successor
Collateral Agent.  The Collateral
Agent may resign as Collateral Agent upon not less than 60 days’ notice to the
Lenders, with such resignation to take effect upon the acceptance by a
successor Collateral Agent of its appointment as the Collateral Agent
hereunder.  In addition, the Majority
Lenders may remove the Collateral Agent by giving written notice thereof to the
Collateral Agent at least 30 days’ prior to the effective date of such removal.
Upon any such resignation or removal, the Majority Lenders shall have the right
to appoint a successor Collateral Agent. 
If no successor Collateral Agent shall have been so appointed and shall
have accepted such appointment in writing within 30 days after the retiring
Collateral Agent’s giving of notice of resignation or its removal, then the
retiring Collateral Agent may, on behalf of the Lenders, appoint a successor
Collateral Agent which meets the eligibility requirements of Section 9(k),
and the Debtor Parties agree to pay such reasonable fees and expenses of any
such appointee as shall be necessary to induce such appointee to agree to
become a successor Collateral Agent hereunder. Upon acceptance of appointment
as Collateral Agent, such successor shall thereupon and forthwith succeed to
and become vested with all the rights, powers and


 


17





















 


privileges, immunities and duties of the retiring Collateral Agent, the
term “Collateral Agent” shall mean such successor Collateral Agent, and the
retiring Collateral Agent, upon the transferring and setting over to such
successor Collateral Agent all rights, moneys and other collateral held by it
in its capacity as Collateral Agent, shall be discharged from its duties and
obligations hereunder.  After any
retiring Collateral Agent’s resignation or removal hereunder as Collateral
Agent, the provisions of this Section 9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Collateral Agent
under this Agreement.


 


(j)                                     Succession
of Successor Collateral Agent.  Any
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to the Debtor Parties, the Banks, the holders of the Prudential Notes
and the predecessor Collateral Agent an instrument accepting such appointment,
and thereupon such successor Collateral Agent, without any further act, deed,
conveyance or transfer, shall become vested with the title to the Collateral,
and with all the rights, powers, duties and obligations of the predecessor
Collateral Agent in the trust hereunder, with like effect as if originally
named as Collateral Agent herein.  Upon
the request of any such successor Collateral Agent, the Debtor Parties and the predecessor
Collateral Agent shall promptly execute and deliver such instruments of
conveyance and further assurance reflecting terms consistent with the terms of
the Finance Documents then in effect and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in such
successor Collateral Agent its interest in the Collateral and all such rights,
powers, duties and obligations of the predecessor Collateral Agent hereunder,
and the predecessor Collateral Agent shall also promptly assign and deliver to
the successor Collateral Agent any Collateral subject to the lien and security
interest of this Agreement which may then be in its possession.


 


(k)                                  Eligibility
of Designated Replacement Collateral Agent. 
Any successor Collateral Agent appointed by a retiring Collateral Agent
pursuant to Section 9(i) shall be a state or national bank or trust
company in good standing, organized under the laws of the United States of
America or of any state, having a capital, surplus and undivided profits
aggregating at least $500,000,000 and whose certificates of deposit have a
Satisfactory Rating, if there be such a bank or trust company willing and able
to accept the duties hereunder upon reasonable and customary terms.  As used in this Section 9(k), the term “Satisfactory
Rating” means, with respect to any Person, that such Person and its bank
deposits or other short term credit obligations have both a short-term bank
deposit rating of Prime-2 or better from Moody’s Investors Service, Inc.
and a short term credit obligation rating of A-3 or better from Standard and
Poor’s, a division of The McGraw-Hill Companies.


 


(l)                                     Successor
Collateral Agent by Merger.  Any
corporation into which the Collateral Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Collateral Agent shall be a party, or any state or national bank
or trust company in any manner succeeding to the corporate trust business of
the Collateral Agent as a whole or substantially as a whole shall be the
successor of the Collateral Agent hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
to the contrary contained herein notwithstanding.


 


10.                                 Unconditional
Agreement.  This Agreement shall in
all respects be a continuing, absolute, unconditional and irrevocable
agreement, and shall remain in full force and effect until


 


18





















 


the payment in full of all Obligations (other than contingent
obligations, including but not limited to obligations of the Debtor Parties
under Swap Agreements which are not yet due) satisfied in full, all obligations
of all Lenders to the other Lenders hereunder shall have been satisfied in full
and all Security Documents have been terminated.  Each Lender agrees that this Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the obligations of the Company, any
of the Guarantors or any of the Additional Guarantors is rescinded or must
otherwise be restored by any Lender, upon the insolvency, bankruptcy or
reorganization of the Company, any of the Guarantors or any of the Additional
Guarantors or otherwise, as though such payment had not been made.


 


11.                                 Representations
and Warranties of Bank.  In order to
induce the Initial Prudential Noteholders to enter into this Agreement, each of
the Banks and the Agent severally represent and warrant to the Initial
Prudential Noteholders that it has full corporate power, and has taken all
action necessary, to execute and deliver this Agreement and to fulfill its
respective obligations hereunder, and that no governmental or other
authorizations are required in connection herewith, and that this Agreement
constitutes its legal, valid and binding obligation, enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium, regulatory and similar laws of general application and by general
principles of equity.


 


12.                                 Representations
and Warranties of the Initial Prudential Noteholders.  In order to induce the Banks and the Agent to
enter into this Agreement, each Initial Prudential Noteholder represents and
warrants to the Banks and the Agent that it has full corporate power, and has
taken all action necessary, to execute and deliver this Agreement and to
fulfill its obligations hereunder, and that no governmental or other
authorizations are required in connection herewith, and that this Agreement
constitutes its legal, valid and binding obligation, enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium, regulatory and similar laws of general application and by general
principles of equity.


 


13.                                 Successors
and Assigns.  This Agreement shall be
binding upon, and inure to the benefit of and be enforceable by, the Lenders
and each of their respective successors, transferees and assigns.  Without limiting the generality of the
foregoing sentence, any Lender may assign or otherwise transfer (in whole or in
part) to any other person or entity the obligations of the Debtor Parties to
such Lender (with respect to the Banks, subject to the provisions of the Bank Agreement
and with respect to the holders of the Prudential Notes, subject to the
Prudential Agreement), and such other person or entity shall thereupon become
vested with all rights and benefits, and become subject to all the obligations,
in respect thereof granted to or imposed upon such Lender under this Agreement,
subject, however, to any contrary provisions in such assignment or transfer
(with respect to the Banks, subject to the provisions of the Bank Agreement and
with respect to the holders of the Prudential Notes, subject to the Prudential
Agreement).


 


14.                                 Benefit
of Agreement.  None of the provisions
of this Agreement shall inure to the benefit of any of the Debtor Parties or
any other Person other than the Lenders; consequently, neither the  Debtor Parties nor any other persons shall be
entitled to rely upon, or to raise as a


 


19





















 


defense, in any manner whatsoever, the provisions of this Agreement or
the failure of any Lender to comply with such provisions.


 


15.                                 Amendments
and Waivers.  No amendment to or
waiver of any provision of this Agreement, nor consent to any departure by any
Lender herefrom, shall in any event be effective unless the same shall be in
writing and signed by Majority Lenders, 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 without the consent of each
Lender, no such amendment, waiver or consent shall: (a) amend this Section 15,
(b) amend the definition of Proportionate Share or (c) change
Sections 2, 3, 6 or 8 in a manner that would alter the pari passu treatment of
the security interests of the Lenders, the order of priority or the pro rata
sharing of payments required thereby.


 


16.                                 Notices.  All notices and other communications provided
to any Lender under this Agreement shall be in writing or by facsimile and
addressed, delivered or transmitted to such Lender at its address or facsimile
number set forth (a) on Annex 1 hereto, or (b) at such other address
or facsimile number as may be designated by such Lender in a notice to the
other Lenders.  Any notice, if mailed and
properly addressed with postage prepaid or if properly addressed and sent by prepaid
courier service, shall be deemed given received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted if actually received, and the
burden of proving receipt shall be on the transmitting Lender.


 


17.                                 Remedies
Cumulative.  No failure or delay on
the part of any Lender in exercising any power or right under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof of the
exercise of any other power or right. 
The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.


 


18.                                 Integration.  Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.


 


19.                               NO
ORAL AGREEMENTS.  THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF TEXAS.  THIS AGREEMENT
CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR AGREEMENTS, WRITTEN OR ORAL,
WITH RESPECT THERETO.


 


20.                               JURY
TRIAL.  EACH LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER


 


20





















 


ORAL OR WRITTEN) OR ACTIONS OF ANY LENDER IN
CONNECTION HEREWITH.  EACH LENDER
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
OTHER LENDERS ENTERING INTO THIS AGREEMENT.


 


21.                                 Restatement.  This Agreement amends and restates in its
entirety the Existing Intercreditor Agreement.


 


22.                                 Counterparts.  This Agreement may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Agreement.  This Agreement may be duly
executed by facsimile or other electronic transmission.


 


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


 


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


 


21





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as
  Agent for the Banks and as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph F. Scott

  	
   

  
	
   

  	
  Name:
   Joseph F. Scott

  
	
   

  	
  Title:
   Vice President

  



 





















 


	
   

  	
  THE PRUDENTIAL
  INSURANCE COMPANY

  
	
   

  	
  OF AMERICA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRUCO LIFE
  INSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRUDENTIAL
  INVESTMENT MANAGEMENT,

  
	
   

  	
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRUCO LIFE
  INSURANCE COMPANY OF

  
	
   

  	
  NEW JERSEY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
   

  	
  GIBRALTAR LIFE INSURANCE CO., LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Investment Management (Japan),

  
	
   

  	
   

  	
  Inc., as Investment Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Investment Management, Inc.,

  
	
   

  	
   

  	
  as Sub-Adviser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RGA REINSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Private Placement Investors,

  
	
   

  	
   

  	
  L.P. (as Investment Advisor)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Private Placement Investors, Inc.

  
	
   

  	
   

  	
  (as its General Partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN BANKERS LIFE ASSURANCE

  
	
   

  	
  COMPANY OF FLORIDA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Private Placement Investors,

  
	
   

  	
   

  	
  L.P. (as Investment Advisor)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Private Placement Investors, Inc.

  
	
   

  	
   

  	
  (as its General Partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
  Vice President

  



 





















 


	
   

  	
  FORTIS BENEFITS INSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Private Placement Investors,

  
	
   

  	
   

  	
  L.P. (as Investment Advisor)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Private Placement Investors, Inc.

  
	
   

  	
   

  	
  (as its General Partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONNECTICUT GENERAL LIFE INSURANCE

  
	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Prudential Investment Management, Inc.,

  
	
   

  	
   

  	
  as Investment Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Brian E. Lemmons

  	
   

  
	
   

  	
   

  	
  Brian E. Lemmons

  
	
   

  	
   

  	
  Vice President

  



 





















 


CONSENT AND AGREEMENT


 


Each of the undersigned hereby consents to Section 4,
Section 7(a), Section 9(i) and Section 9(j) of the
foregoing Agreement as of the date first written above.


 


 


	
   

  	
  WESTERN GAS RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Krysiak

  	
   

  
	
   

  	
   

  	
  William J. Krysiak

  
	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MIGC, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Krysiak

  	
   

  
	
   

  	
   

  	
  William J. Krysiak

  
	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTERN GAS RESOURCES-TEXAS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Krysiak

  	
   

  
	
   

  	
   

  	
  William J. Krysiak

  
	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MOUNTAIN GAS RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Krysiak

  	
   

  
	
   

  	
   

  	
  William J. Krysiak

  
	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  



 





















 


	
   

  	
  LANCE OIL & GAS COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Krysiak

  	
   

  
	
   

  	
   

  	
  William J. Krysiak

  
	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTERN GAS WYOMING, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  WESTERN GAS RESOURCES, INC., its

  
	
   

  	
   

  	
  sole member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William J. Krysiak

  	
   

  
	
   

  	
   

  	
   

  	
  William J. Krysiak

  
	
   

  	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
						



 





















 


Annex 1


 


ADDRESSES FOR NOTICE


 


	
  BANK
  OF AMERICA, N.A.

  
	
  901 Main Street,
  14th Floor

  
	
  Dallas, TX 75201

  
	
  Attn:

  	
  Renita
  Cummings

  
	
  Tel:

  	
  214.209-4130

  
	
  Fax:

  	
  214.290-8371

  
	
   

  	
   

  
	
  with
  a copy to:

  
	
  BANK
  OF AMERICA, N.A.

  
	
  700 Louisiana, 8th Floor

  
	
  TX4-213-08-14

  
	
  Houston, TX
  77002

  
	
  Attn:

  	
  Joseph
  Scott

  
	
  Tel:

  	
  713.247.7247

  
	
  Fax:

  	
  713.247.7286

  
	
   

  	
   

  
	
  THE
  PRUDENTIAL INSURANCE COMPANY OF AMERICA

  
	
  PRUCO
  LIFE INSURANCE COMPANY

  
	
  PRUDENTIAL
  INVESTMENT MANAGEMENT, INC.

  
	
  PRUCO
  LIFE INSURANCE COMPANY OF NEW JERSEY

  
	
  2200 Ross
  Avenue, Suite 4200E

  
	
  Dallas, TX 75201

  
	
  Attn:

  	
  Ric
  Abel

  
	
  Tel:

  	
  214.720.6202

  
	
  Fax:

  	
  214.720.6299

  
	
   

  	
   

  
	
  GIBRALTAR
  LIFE INSURANCE CO., LTD.

  
	
  c/o Prudential
  Investment Management (Japan), Inc.

  
	
  2200 Ross
  Avenue, Suite 4200E

  
	
  Dallas, TX 75201

  
	
  Attn:

  	
  Ric
  Abel

  
	
  Tel:

  	
  214.720.6202

  
	
  Fax:

  	
  214.720.6299

  



 





















 


	
  RGA
  REINSURANCE COMPANY

  
	
  AMERICAN
  BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, INC.

  
	
  FORTIS
  BENEFITS INSURANCE COMPANY

  
	
  c/o Prudential
  Private Placement Investors, L.P.

  
	
  4 Gateway
  Center, 100 Mulberry Street

  
	
  Newark NJ 07102

  
	
  Attn:

  	
  Albert
  Trank

  
	
  Tel:

  	
  973.802.8608

  
	
  Fax:

  	
  973.624.6432

  
	
   

  	
   

  
	
  CONNECTICUT
  GENERAL LIFE INSURANCE COMPANY

  
	
  c/o Prudential
  Investment Management, Inc.

  
	
  2200 Ross
  Avenue, Suite 4200E

  
	
  Dallas, TX 75201

  
	
  Attn:

  	
  Ric
  Abel

  
	
  Tel:

  	
  214.720.6202

  
	
  Fax:

  	
  214.720.6299

  



 


2