REVOLVING CREDIT AGREEMENT

Exhibit 10.22

Execution Copy

 

$45,000,000

REVOLVING CREDIT AGREEMENT

dated as of February 26, 2009

among

REGENCY ENERGY PARTNERS LP

as Borrower,

and

THE GUARANTORS PARTY HERETO,

as Guarantors,

THE LENDERS PARTY HERETO,

and

GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent

 

TABLE OF CONTENTS

 

 

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REVOLVING CREDIT AGREEMENT

This REVOLVING CREDIT AGREEMENT (this “ Agreement ”) dated as of February 26, 2009, among REGENCY ENERGY PARTNERS LP, a Delaware limited partnership (including any successor-in-interest, “ Borrower ”), the Guarantors (such term and each other capitalized term used but not defined where used having the meaning given to it in Section 1.01 ), the Lenders, and GENERAL ELECTRIC CAPITAL CORPORATION, as administrative agent (in such capacity, the “ Administrative Agent ”) for the Lenders.

WITNESSETH:

WHEREAS, the Borrower has requested and the Lenders have agreed to make available to the Borrower a revolving credit facility upon and subject to the terms and conditions set forth herein to fund the Pre-Closing Expenditures.

NOW, THEREFORE, the parties hereto hereby agree that in consideration of the mutual agreements, provisions and covenants contained herein as follows:

ARTICLE I

DEFINITIONS

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

“ ABR ”, when used in reference to any Loan, is used when such Loan is bearing interest at a rate determined by reference to the Alternate Base Rate.

“ Adjusted LIBO Rate ” shall mean, with respect to any Eurodollar Loan for any Interest Period, (a) an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) determined by the Administrative Agent to be equal to the LIBO Rate for such Eurodollar Loan in effect for such Interest Period divided by (b) 1 minus the Statutory Reserves (if any) for such Eurodollar Loan for such Interest Period.

“ Administrative Agent ” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor pursuant to Article VIII .

“ Administrative Questionnaire ” shall mean an Administrative Questionnaire in substantially the form of Exhibit A .

“ Affiliate ” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified.

“ Agent Fees ” shall have the meaning assigned to such term in Section 2.05(b) .

“ Agreement ” shall have the meaning assigned to such term in the preamble hereto.

“ Alternate Base Rate ” shall mean, for any day, a rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the greater of (a) the Federal Funds Effective Rate in effect on such day plus 0.50% and (b) the Adjusted LIBO Rate for a borrowing with a one-month Interest Period plus 1.50% . If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the (i) Federal Funds Effective Rate or (ii) the Adjusted LIBO Rate, in each case, for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to (x) clause (b) of the preceding sentence in the case of clause (i) in this sentence and (y) clause (c) of the preceding sentence in the case of clause (ii) in this sentence, in each case, until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective on the effective date of such change in the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.

“ Amended Credit Agreement ” shall mean that certain Fourth Amended and Restated Credit Agreement dated as of August 15, 2006, as amended by a first amendment dated as of June 15, 2007, as further amended by a second amendment dated as of June 29, 2007, as further amended by a third amendment dated as of September 28, 2007, as further amended by a fourth amendment dated as of January 15, 2008, as further amended by a fifth amendment dated as of February 13, 2008 and as further amended by a sixth amendment and waiver dated as of May 9, 2008, by and among Regency Gas Services, Borrower, the guarantors party thereto, Wachovia Bank, National Association, as administrative agent, collateral agent, swingline lender and issuing bank and the lenders and other parties thereto.

“ Amendment Agreement ” shall mean that certain Amendment No. 7 to the Amended Credit Agreement, dated as of the Effective Date, among Regency Gas Services, Wachovia Bank, National Association, as administrative agent, and the lenders party thereto.

“ Amendment Effective Date ” shall mean the date upon which the conditions to effectiveness of the Amendment Agreement set forth in Section 2 thereof are satisfied or waived in accordance with the terms thereof.

“ Anti-Terrorism Laws ” shall have the meaning assigned to such term in Section 3.20 .

“ Applicable Margin ” shall mean: (a) with respect to an ABR Loan (i) from the Effective Date to the last day of the third calendar month immediately thereafter, three percent (3.00%) per annum and (ii) from the first day of the fourth calendar month immediately following the Effective Date, ten percent (10.00%) per annum; and (b) with respect to a Eurodollar Loan (i) from the Effective Date to the last day of the third calendar month immediately thereafter, four percent (4.00%) per annum and (ii) from the first day of the fourth calendar month immediately following the Effective Date, eleven percent (11.00%) per annum.

“ Approved Fund ” shall mean 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.

 

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“ Assignment and Assumption ” shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.04(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit B , or any other form approved by the Administrative Agent.

“ Board ” shall mean the Board of Governors of the Federal Reserve System of the United States.

“ Board of Directors ” shall mean, with respect to any person, (i) in the case of any corporation, the board of directors of such person, (ii) in the case of any limited liability company, the board of managers (or equivalent) of such person, (iii) in the case of any partnership, the Board of Directors (or equivalent) of the general partner of such person and (iv) in any other case, the functional equivalent of the foregoing.

“ Borrower ” shall have the meaning assigned to such term in the preamble hereto.

“ Borrowing Request ” shall mean a request by Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C , or such other form as shall be approved by the Administrative Agent.

“ Business Day ” shall mean any day other than a Saturday, Sunday or other day on which banks in New York City are authorized or required by law to close; provided, however, that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“ Capital Lease Obligations ” of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

A “ Change in Control ” shall be deemed to have occurred if (a) Borrower at any time ceases to own, directly or indirectly, 100% of the Equity Interests of Regency Gas Services; (b) (i) the Permitted Holders cease to own, or to have the power to vote or direct the voting of, Voting Stock of the Ultimate General Partner representing a majority of the voting power of the total outstanding Voting Stock of the Ultimate General Partner or (ii) the Permitted Holders cease to own Equity Interests representing a majority of the total economic interests of the Equity Interests of the Ultimate General Partner; or (c) the Ultimate General Partner shall cease to exercise Control over Borrower.

For purposes of this definition, a person shall not be deemed to have beneficial ownership of Equity Interests subject to a stock purchase agreement, merger agreement or similar agreement, including an agreement relating to a sale of Voting Stock or Equity Interests of the Ultimate General Partner, until the consummation of the transactions contemplated by such agreement.

 

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“ Change in Law ” shall mean the occurrence, after the Effective Date (or with respect to any Lender, if later, the date on which such Lender becomes a Lender, except to the extent that such change was considered a Change in Law with respect to such Lender’s assignor immediately prior to such Lender becoming a Lender), of any of the following: (a) the adoption or taking into effect of any law, treaty, order, policy, rule or regulation, (b) any change in any law, treaty, order, policy, rule or regulation or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“ Charges ” shall have the meaning assigned to such term in Section 9.14 .

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

“ Commitment ” shall mean (i) with respect to each Lender on the Effective Date, the commitment of such Lender to make Loans pursuant to Section 2.01 and (ii) the commitment of each person after the Effective Date to make Loans pursuant to an Assignment and Assumption, in each case as the same may be or (x) reduced from time to time pursuant to Section 2.07 , (y) reduced or increased from time to time pursuant to assignments to or by such Lender pursuant to Section 9.04 . The aggregate principal amount of the Commitments on the Effective Date is $45.0 million.

“ Commitment Fee ” shall have the meaning assigned to such term in Section 2.05(a) .

“ Communications ” shall have the meaning assigned to such term in Section 9.01(d) .

“ Companies ” shall mean Borrower and its Subsidiaries; and “ Company ” shall mean any one of them.

“ Contingent Obligation ” shall mean, as to any person, any obligation, agreement or arrangement of such person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“ primary obligations ”) of any other person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of such person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement obligation arises (which reimbursement obligation shall constitute Indebtedness); or (e) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “ Contingent Obligation ” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product warranties. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such person may be liable, whether

 

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singly or jointly, pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.

“ Control ” shall mean 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 ownership of voting securities, by contract or otherwise, and the terms “ Controlling ” and “ Controlled ” shall have meanings correlative thereto.

“ Default ” shall mean any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.

“ Default Rate ” shall have the meaning assigned to such term in Section 2.06(c) .

“ dollars ” or “ $ ” shall mean lawful money of the United States.

“ Effective Date ” shall mean February 26, 2009.

“ Eligible Assignee ” shall mean (a) any Lender, (b) an Affiliate of any Lender, (c) an Approved Fund of a Lender and (d) any other person approved by the Administrative Agent and Borrower (each such approval not to be unreasonably withheld or delayed); provided that (x) no approval of Borrower shall be required during the continuance of an Event of Default and (y) “ Eligible Assignee ” shall not include Borrower or any of its Affiliates or Subsidiaries or any natural person.

“ Embargoed Person ” shall have the meaning assigned to such term in Section 5.11 .

“ Environment ” shall mean ambient air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources, the workplace or as otherwise defined in any Environmental Law.

“ Environmental Claim ” shall mean any claim, notice, demand, order, action, suit, proceeding or other communication alleging liability for investigation, remediation, removal, cleanup, response, corrective action, damages to natural resources, personal injury, property damage, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release in or into the Environment of Hazardous Material at any location or (ii) any violation of Environmental Law, and shall include any claim seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to health, safety or the Environment.

“ Environmental Law ” shall mean any and all applicable present and future treaties, laws, statutes, ordinances, regulations, rules, decrees, orders, judgments, consent orders, consent decrees, code or other binding requirements, and the common law, relating to protection of public health or the Environment, the Release or threatened Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health.

 

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“ Equity Interest ” shall mean, with respect to any person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on the Effective Date or issued after the Effective Date, but excluding debt securities convertible or exchangeable into such equity.

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“ ERISA Affiliate ” shall mean, with respect to any person, any trade or business (whether or not incorporated) that, together with such person, is treated as a single employer under Section 414 of the Code.

“ ERISA Event ” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived by regulation); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the failure to make by its due date a required installment under Section 412(m) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e) the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by any Company or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence by any Company or any of its ERISA Affiliates of any liability with respect to the withdrawal from any Plan or Multiemployer Plan; (h) the receipt by any Company or its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (i) the “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA with respect to a Plan; (j) the making of any amendment to any Plan which could result in the imposition of a lien or the posting of a bond or other security; and (k) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in liability to any Company.

“ Eurodollar Loan ” shall mean any Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II .

“ Event of Default ” shall have the meaning assigned to such term in Section 7.01 .

“ Excluded Taxes ” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of Borrower

 

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hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), franchise taxes imposed on it (in lieu of net income taxes) and branch profits taxes imposed on it, by a jurisdiction (or any political subdivision thereof) as a result of the recipient being organized or having its principal office or, in the case of any Lender, having its applicable lending office or doing or having done business (other than a business deemed to arise by virtue of the transactions contemplated by this Agreement) in such jurisdiction and (b) in the case of a Foreign Lender (other than an assignee pursuant to a request by Borrower under Section 2.15 ), any U.S. federal withholding tax that (i) is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from Borrower with respect to such withholding tax pursuant to Section 2.14(a) ; provided that this subclause (b)(i) shall not apply to any Tax imposed on a Lender in connection with an interest or participation in any Loan or other obligation that such Lender was required to acquire pursuant to Section 2.13(c) , or (ii) is attributable to such Foreign Lender’s failure to comply with Section 2.14(e) .

“ Executive Order ” shall have the meaning assigned to such term in Section 3.20 .

“ Federal Funds Effective Rate ” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“ Fee Letter ” shall mean the confidential Fee Letter, dated February 26, 2009, among Borrower and the Administrative Agent.

“ Fees ” shall mean the Commitment Fees and the Agent Fees.

“ Foreign Lender ” shall mean any Lender that is not, for United States federal income tax purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation, partnership or other entity treated as a corporation or partnership created or organized in or under the laws of the United States, or any political subdivision thereof, (iii) an estate whose income is subject to U.S. federal income taxation regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons have the authority to control all substantial decisions of such trust.

“ Foreign Subsidiary ” shall mean a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia.

“ Fund ” shall mean 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.

 

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“ GAAP ” shall mean generally accepted accounting principles in the United States applied on a consistent basis.

“ General Partner ” shall mean Regency GP LP, a Delaware limited partnership and the general partner of Borrower.

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

“ Guaranteed Obligations ” shall have the meaning assigned to such term in Section 6.01 .

“ Guarantees ” shall mean the guarantees issued pursuant to Article VI by the Guarantors.

“ Guarantors ” shall mean each Subsidiary listed on Schedule 1.01(a) and each other Subsidiary that is or becomes a party to this Agreement pursuant to Section 5.07 .

“ Haynesville Project ” shall mean the planned midstream infrastructure development in the Haynesville Shale region of northwestern Louisiana by the RIGS Holdings Joint Venture.

“ Hazardous Materials ” shall mean the following: hazardous substances; hazardous wastes; polychlorinated biphenyls (“ PCBs ”) or any substance or compound containing PCBs; asbestos or any asbestos-containing materials in any form or condition; radon or any other radioactive materials including any source, special nuclear or by-product material; petroleum, crude oil or any fraction thereof; and any other pollutant or contaminant or chemicals, wastes, materials, compounds, constituents or substances, subject to regulation or which can give rise to liability under any Environmental Laws.

“ Hedging Agreement ” shall mean any swap, cap, collar, forward purchase or similar agreements or arrangements dealing with interest rates, currency exchange rates or commodity prices, either generally or under specific contingencies.

“ Hedging Obligations ” shall mean obligations under or with respect to Hedging Agreements.

“ Indebtedness ” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money; (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person; (d) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business and not overdue by more than 90 days); (e) all Indebtedness of others secured by any Lien on property owned or acquired by such person, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property; (f) all Capital Lease

 

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Obligations, Purchase Money Obligations and synthetic lease obligations of such person; (g) all Hedging Obligations to the extent required to be reflected on a balance sheet of such person; (h) all Sale/Leaseback Attributable Indebtedness of such person; (i) all obligations of such person for the reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions; and (j) all Contingent Obligations of such person in respect of Indebtedness referred to in clauses (a) through (i) above. The Indebtedness of any person shall include the Indebtedness of any other entity (including any partnership in which such person is a general partner) to the extent such person is liable therefor as a result of such person’s ownership interest in or other relationship with such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such person is not liable therefor. Notwithstanding the foregoing, Indebtedness shall not include (A) deferred compensation arrangements, (B) earn-out obligations or purchase price adjustments until matured or earned or (C) non-compete or consulting obligations incurred in connection with Permitted Acquisitions.

“ Indenture ” shall mean that certain Indenture, dated as of December 12, 2006 among Borrower, Regency Energy Finance Corp., a Delaware corporation, the guarantors party thereto and Wells Fargo Bank, National Association, as trustee.

“ Indemnified Taxes ” shall mean all Taxes other than Excluded Taxes.

“ Indemnitee ” shall have the meaning assigned to such term in Section 9.03(b) .

“ Information ” shall have the meaning assigned to such term in Section 9.12 .

“ Intellectual Property ” shall have the meaning assigned to such term in Section 3.06 .

“ Interest Election Request ” shall mean a request by Borrower to convert or continue a Loan in accordance with Section 2.08(b) , substantially in the form of Exhibit D .

“ Interest Payment Date ” shall mean (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December to occur during any period in which such Loan is outstanding, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Loan and, in the case of a Eurodollar Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to any Loan, the Maturity Date or such earlier date on which the Commitments are terminated.

“ Interest Period ” shall mean, with respect to any Eurodollar Loan, the period commencing on the date of such Loan and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, if each affected Lender so agrees, nine or twelve months) thereafter, as Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of

 

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such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan.

“ Investment Agreement ” shall mean that certain contribution agreement to be entered into by and among Regency HIG, General Electric Capital Corporation, Alinda Gas Pipeline I, L.P. and Alinda Gas Pipeline II, L.P. relating to the RIGS Holding Joint Venture.

“ Joinder Agreement ” shall mean a joinder agreement substantially in the form of Exhibit E .

“ Joint Venture ” shall mean (i) a joint venture with a third party so long as such entity would not constitute a Subsidiary, (ii) a Subsidiary formed with the intention of establishing a joint venture; provided that if such entity still constitutes a Subsidiary ninety days after formation it shall no longer constitute a Joint Venture, or (iii) notwithstanding anything to the contrary herein, each of Edwards Lime Gathering LLC and (except as otherwise expressly set forth herein) the RIGS Holdings Joint Venture, for so long as any portion of the ownership interests therein are owned by a Person that is not a Loan Party or an Affiliate of any Loan Party.

“ Lenders ” shall mean (i) on the Effective Date, (a) each lender signatory hereto and (ii) after the Effective Date, any financial institution that becomes a party hereto pursuant to an Assignment and Assumption, other than, in each case, any such financial institution that ceases to be a party hereto pursuant to an Assignment and Assumption.

“ LIBO Rate ” shall mean, with respect to any Eurodollar Loan for any Interest Period, the rate per annum determined by the Administrative Agent to be the arithmetic mean (rounded upward, if necessary, to the nearest 1/100th of 1%) of the offered rates for deposits in dollars with a term comparable to such Interest Period that appears on the Telerate British Bankers Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00 a.m., London, England time, on the second full Business Day preceding the first day of such Interest Period; provided, however, that (i) if no comparable term for an Interest Period is available, the LIBO Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if there shall at any time no longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page, “ LIBO Rate ” shall mean, with respect to each day during each Interest Period pertaining to Eurodollar Loans, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in dollars at approximately 11:00 a.m., London, England time, two Business Days prior to the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Eurodollar Loan to be outstanding during such Interest Period; provided, further , that in no event shall the LIBO Rate be less than three percent (3.00%) per annum. “ Telerate British Bankers Assoc. Interest Settlement Rates Page ” shall mean the display designated as Page 3750 on the Telerate System Incorporated Service (or such other page as may replace such page on such service for the purpose of displaying the rates at which dollar deposits are offered by leading banks in the London interbank deposit market).

 

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“ Lien ” shall mean, with respect to any property, (a) any mortgage, deed of trust, lien, pledge, claim, charge, assignment, hypothecation, security interest or encumbrance of any kind or any arrangement to provide priority or preference or any filing of any financing statement under the UCC or any other similar notice of lien under any similar notice or recording statute of any Governmental Authority, including any easement, right-of-way or other encumbrance on title to Real Property or Pipelines in each of the foregoing cases whether voluntary or imposed by law, and any agreement to give any of the foregoing; (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such property; and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

“ Loan ” shall mean a loan made by the Lenders to Borrower pursuant to Section 2.01 . Each Loan shall either be an ABR Loan or a Eurodollar Loan.

“ Loan Documents ” shall mean this Agreement, the Notes (if any) and, solely for purposes of paragraph (e) of Section 7.01 , the Fee Letter.

“ Loan Parties ” shall mean Borrower and the Guarantors.

“ Margin Stock ” shall have the meaning assigned to such term in Regulation U.

“ Material Adverse Effect ” shall mean (a) a material adverse effect on the business, property, results of operations or condition, financial or otherwise, of Borrower and its Subsidiaries, taken as a whole; (b) material impairment of the ability of the Loan Parties to fully and timely perform any of their material obligations under any Loan Document; or (c) material impairment of the rights of or benefits or remedies, taken as a whole, available to the Lenders under any Loan Document.

“ Maturity Date ” shall mean the date that is the earlier of (i) the date that is three months after the Final Maturity Date (as such term is defined in the Amended Credit Agreement) and (ii) November 15, 2011, or if such date is not a Business Day, the first Business Day thereafter.

“ Maximum Rate ” shall have the meaning assigned to such term in Section 9.14 .

“ Multiemployer Plan ” shall mean a multiemployer plan within the meaning of Section 4001(a)(3) or Section 3(37) of ERISA (a) to which any Company or any ERISA Affiliate is then making or accruing an obligation to make contributions; (b) to which any Company or any ERISA Affiliate has within the preceding five plan years made contributions; or (c) with respect to which any Company could incur liability.

“ Notes ” shall mean any notes evidencing the Loans issued pursuant to this Agreement, if any, substantially in the form of Exhibit G .

“ Obligations ” shall mean (a) obligations of Borrower and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed

 

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or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Borrower and the other Loan Parties under this Agreement and the other Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of Borrower and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents.

“ OFAC ” shall have the meaning assigned to such term in Section 3.20 .

“ Organizational Documents ” shall mean, with respect to any person, (i) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such person, (ii) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such person, (iv) in the case of any general partnership, the partnership agreement (or similar document) of such person and (v) in any other case, the functional equivalent of the foregoing.

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

“ Participant ” shall have the meaning assigned to such term in Section 9.04(d) .

“ PBGC ” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

“ Permitted Acquisitions ” shall have the meaning assigned to such term in the Amended Credit Agreement.

“ Permitted Holders ” shall mean (a) Regency GP Acquirer LP and (b) any other Affiliate of General Electric Company.

“ Permitted Liens ” shall have the meaning assigned to such term in the Amended Credit Agreement.

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

“ Pipeline ” shall mean gathering systems and pipelines, together with all contracts, rights-of-way, easements, servitudes, fixtures, equipment, improvements, permits, records, and other real property appertaining thereto.

“ Plan ” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA which is maintained or contributed to by any Company or its ERISA Affiliate or with respect to which any Company could incur liability (including under Section 4069 of ERISA).

 

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“ Platform ” shall have the meaning assigned to such term in Section 9.01(d) .

“ Pre-Closing Expenditures ” shall mean the amount of all reasonable out-of-pocket third party invoiced expenditures actually paid in connection with the development and construction of the Haynesville Project by RIGS and its Affiliates from the Effective Date to but not including the earlier of (i) the Amendment Effective Date and (ii) April 30, 2009.

“ property ” shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests or other ownership interests of any person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property or Pipelines.

“ Purchase Money Obligation ” shall mean, for any person, the obligations of such person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any property (including Equity Interests of any person) or the cost of installation, construction or improvement of any property and any refinancing thereof; provided, however, that (i) such Indebtedness is incurred prior to, contemporaneously with or within one year after such acquisition of such property by such person and (ii) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction or improvement, as the case may be, including related costs, fees and expenses.

“ Real Property ” shall mean, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

“ Regency Gas Services ” shall mean Regency Gas Services LP, a Delaware limited partnership.

“ Regency Haynesville ” shall mean a direct or indirect Subsidiary of Regency Gas Services formed for the sole purpose of directly holding all direct or indirect ownership interests of Regency Gas Services in the RIGS Holdings Joint Venture.

“ Regency HIG ” shall mean Regency Haynesville Intrastate Gas LLC, a Delaware limited liability company.

“ Register ” shall have the meaning assigned to such term in Section 9.04(c) .

“ Regulation D ” shall mean Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

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“ Regulation T ” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“ Regulation U ” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“ Regulation X ” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

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

“ Release ” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the Environment.

“ Required Lenders ” shall mean Lenders having more than 50% of all Commitments.

“ Requirements of Law ” shall mean, collectively, any and all requirements of any Governmental Authority including any and all laws, judgments, orders, decrees, ordinances, rules, regulations, statutes or case law.

“ RIGS ” shall mean Regency Intrastate Gas LLC, a Delaware limited liability company.

“ RIGS Assets ” shall mean all Equity Interests issued, and all assets owned, by RIGS.

“ RIGS Holdings Joint Venture ” shall mean an entity formed by Regency Haynesville for the purpose of such entity becoming a joint venture with a third party, owning all of the RIGS Assets and participating in the Haynesville Project. RIGS Holdings Joint Venture shall, except as expressly set forth herein, be treated for all purposes as a “Joint Venture” hereunder.

“ RIGS JV Documents ” shall mean (i) the Investment Agreement and (ii) all other material agreements and definitive documentation relating to the RIGS Holding Joint Venture, including the shareholders or limited liability company agreement relating thereto and the management services agreement relating thereto.

“ Sale and Leaseback Transaction ” shall have the meaning assigned to such term in the Amended Credit Agreement.

“ Sale/Leaseback Attributable Indebtedness ” shall mean, when used with respect to any Sale and Leaseback Transaction, as at the time of determination, the present value (discounted at a rate equivalent to Borrower’s then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such Sale and Leaseback Transaction.

 

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“ Statutory Reserves ” shall mean, for any Interest Period for any Eurodollar Loan, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the United States Federal Reserve System in New York City with deposits exceeding one billion dollars against “Eurocurrency liabilities” (as such term is used in Regulation D). Eurodollar Loans shall be deemed to constitute Eurodollar liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D.

“ Subsidiary ” shall mean, with respect to any person (the “ parent ”) at any date, (i) any person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (ii) any other corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the context requires otherwise, “ Subsidiary ” refers to a Subsidiary of Borrower. Notwithstanding any of the foregoing, neither Edwards Lime Gathering LLC nor the RIGS Holdings Joint Venture shall be a Subsidiary for so long as it is a Joint Venture (except, with respect to the RIGS Holdings Joint Venture, as shall be otherwise expressly set forth herein).

“ Tax Return ” shall mean all returns, statements, filings, attachments and other documents or certifications required to be filed in respect of Taxes.

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

“ Transferred Guarantor ” shall have the meaning assigned to such term in Section 6.09 .

“ Type ,” when used in reference to any Loan, refers to whether the rate of interest on such Loan is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“ UCC ” shall mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

“ Ultimate General Partner ” shall mean Regency GP LLC, a Delaware limited liability company and the general partner of the General Partner.

“ United States ” shall mean the United States of America.

 

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“ Voting Stock ” shall mean, with respect to any person, any class or classes of Equity Interests pursuant to which the holders thereof have the general voting power under ordinary circumstances to vote in the election of the Board of Directors of such person.

“ Withdrawal Liability ” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

SECTION 1.02 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any Loan Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any person shall be construed to include such person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall refer to such law or regulation as amended, modified or supplemented from time to time and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

SECTION 1.03 Accounting Terms; GAAP . Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to time and all terms of an accounting or financial nature shall be construed and interpreted in accordance with GAAP, as in effect on the Effective Date unless otherwise agreed to by Borrower and the Required Lenders. If GAAP shall change after the date hereof, the parties hereto agree to negotiate in good faith to modify the covenants herein so that they may be construed and interpreted in accordance with GAAP as then in effect.

SECTION 1.04 Resolution of Drafting Ambiguities . Each Loan Party acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of the Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof.

 

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ARTICLE II

THE CREDITS

SECTION 2.01 Commitments . Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly to make Loans to Borrower, from time to time on any Business Day from and including the Effective Date to the earlier of (i) April 30, 2009 and (ii) termination of the Commitments in accordance with the terms hereof, in an aggregate principal amount at any time outstanding not exceeding such Lender’s Commitment. Within the limits set forth in the immediately preceding sentence and subject to the terms, conditions and limitations set forth herein, Borrower may borrow, pay or prepay and reborrow Loans.

SECTION 2.02 Loans .

(a) Each Loan shall be made by the Lenders ratably in accordance with their applicable Commitments; provided that the failure of any Lender to make its Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). ABR Loans shall be in an aggregate principal amount that is (i) an integral multiple of $100,000 and not less than $1.0 million or (ii) equal to the remaining available balance of the applicable Commitments. Eurodollar Loans shall be in an aggregate principal amount that is (i) an integral multiple of $100,000 and not less than $3.0 million or (ii) equal to the remaining available balance of the applicable Commitments.

(b) Subject to Sections 2.10 and 2.11 , each Loan shall be either an ABR Loan or Eurodollar Loan as Borrower may request pursuant to Section 2.03 . Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Borrower to repay such Loan in accordance with the terms of this Agreement. Loans of more than one Type may be outstanding at the same time; provided that Borrower shall not be entitled to request any Loan that, if made, would result in more than seven Eurodollar Loans outstanding hereunder at any one time. For purposes of the foregoing, Loans having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Loans.

(c) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate not later than 11:00 a.m., New York City time, and the Administrative Agent shall promptly credit the amounts so received to an account as directed by Borrower in the applicable Borrowing Request maintained with the Administrative Agent or, if a Loan shall not be made on such date because any condition precedent herein specified shall not have been met, return the amounts so received to the respective Lenders.

(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Loan that such Lender will not make available to the Administrative Agent such Lender’s portion of such Loan, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Loan in

 

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accordance with paragraph (c) above, and the Administrative Agent may, in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and Borrower severally agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to Borrower until the date such amount is repaid to the Administrative Agent at (i) in the case of Borrower, the interest rate applicable at the time to the Loans and (ii) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan for purposes of this Agreement, and Borrower’s obligation to repay the Administrative Agent such corresponding amount pursuant to this Section 2.02(d) shall cease.

(e) Notwithstanding any other provision of this Agreement, Borrower shall not be entitled to request, or to elect to convert or continue, any Loan if the Interest Period requested with respect thereto would end after the Maturity Date.

SECTION 2.03 Borrowing Procedure . To request a Loan, Borrower shall deliver, by hand delivery or telecopier, a duly completed and executed Borrowing Request to the Administrative Agent (i) in the case of a Eurodollar Loan, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Loan or (ii) in the case of an ABR Loan, (A) equal to or less than $5.0M, not later than 9:00 a.m., New York City time, on the date of the proposed Loan and (B) in excess of $5.0M, not later than 9:00 a.m., New York City time, one Business Day before the date of the proposed Loan. Each Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02 :

(a) the aggregate amount of such Loan;

(b) the date of such Loan, which shall be a Business Day;

(c) whether such Loan is to be an ABR Loan or of Eurodollar Loan;

(d) in the case of a Eurodollar Loan, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

(e) the location and number of Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(c) ; and

(f) that the conditions set forth in Sections 4.02(b) - (c)  have been satisfied as of the date of the notice.

If no election as to the Type of Loan is specified, then the requested Loan shall be an ABR Loan. If no Interest Period is specified with respect to any requested Eurodollar Loans, then Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part thereof.

 

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SECTION 2.04 Evidence of Debt; Repayment of Loans .

(a) Promise to Repay . Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender, the then unpaid principal amount of each Loan of such Lender on the Maturity Date.

(b) Lender and Administrative Agent Records . Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto; (ii) the amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder; and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof. The entries made in the accounts maintained pursuant to this paragraph shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of Borrower to repay the Loans in accordance with their terms.

(c) Promissory Notes . Any Lender by written notice to Borrower (with a copy to the Administrative Agent) may request that Loans made by it be evidenced by a promissory note. In such event, Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in the form of Exhibit G . Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04 ) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

SECTION 2.05 Fees .

(a) Commitment Fee . Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee (a “ Commitment Fee ”) equal to 0.75% per annum on the average daily unused amount of the Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which such Commitment terminates. Accrued Commitment Fees shall be payable in arrears (A) on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Effective Date, and (B) on the date on which such Commitment terminates. Commitment Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

 

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(b) Agent Fees . Borrower agrees to pay to the Administrative Agent, for its own account, the fees set forth in the Fee Letter and/or such other fees payable in the amounts and at the times separately agreed upon between Borrower and the Administrative Agent (the “ Agent Fees ”).

(c) All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders. Once paid, none of the Fees shall be refundable under any circumstances.

SECTION 2.06 Interest on Loans .

(a) ABR Loans . Subject to the provisions of Section 2.06(c) , ABR Loans shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin in effect from time to time.

(b) Eurodollar Loans . Subject to the provisions of Section 2.06(c) , Eurodollar Loans shall bear interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Loan plus the Applicable Margin in effect from time to time.

(c) Default Rate . Notwithstanding the foregoing, during the continuance of an Event of Default, all overdue Obligations shall, to the extent permitted by applicable law, bear interest, after as well as before judgment, at a per annum rate equal to (i) in the case of principal of or interest on any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section 2.06 or (ii) in the case of any other amount, 2% plus the rate otherwise applicable to such amount (in either case, the “ Default Rate ”).

(d) Interest Payment Dates . Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.06(c) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e) Interest Calculation . All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive absent manifest error.

SECTION 2.07 Termination and Reduction of Commitments .

(a) Termination of Commitments . Unless otherwise terminated earlier pursuant to the terms hereof, the Commitments shall automatically terminate on the earlier of (i) the Amendment Effective Date and (ii) April 30, 2009.

 

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(b) Optional Terminations and Reductions . At its option, Borrower may at any time terminate, or from time to time permanently reduce, the Commitments; provided that each reduction of the Commitments shall be in an amount that is an integral multiple of $500,000 and not less than $1.0 million.

(c) Borrower Notice . Borrower shall notify the Administrative Agent in writing of any election to terminate or reduce the Commitments under Section 2.07(b) at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

SECTION 2.08 Interest Elections .

(a) Generally . Each Loan initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Loan, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, Borrower may elect to convert such Loan to a different Type or to continue such Loan and, in the case of a Eurodollar Loan, may elect Interest Periods therefor, all as provided in this Section. Any Loan (or, if outstanding Loans are being combined, any group of Loans having the same proposed Interest Period) to be made or continued as, or converted into, Eurodollar Loans shall be in an amount that is an integral multiple of $500,000 and not less than $5.0 million. Notwithstanding anything to the contrary, Borrower shall not be entitled to request any conversion or continuation that, if made, would result in more than seven Eurodollar Loans outstanding hereunder at any one time.

(b) Interest Election Notice . To make an election pursuant to this Section, Borrower shall deliver, by hand delivery or telecopier, a duly completed and executed Interest Election Request to the Administrative Agent not later than the time that a Borrowing Request would be required under Section 2.03 if Borrower were requesting a Loan of the Type resulting from such election to be made on the effective date of such election. Each Interest Election Request shall be irrevocable. Each Interest Election Request shall specify the following information in compliance with Section 2.02 :

(i) the Loan to which such Interest Election Request applies, or if outstanding Loans are being combined, allocation to each resulting Loan (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Loan);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

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(iii) whether the resulting Loan is to be an ABR Loan or a Eurodollar Loan; and

(iv) if the resulting Loan is a Eurodollar Loan, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurodollar Loan but does not specify an Interest Period, then Borrower shall be deemed to have selected an Interest Period of one month’s duration.

Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Loan.

(c) Automatic Conversion to ABR Loan . If an Interest Election Request with respect to a Eurodollar Loan is not timely delivered prior to the end of the Interest Period applicable thereto, then, unless such Loan is repaid as provided herein, at the end of such Interest Period such Loan shall be converted to an ABR Loan. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, the Administrative Agent or the Required Lenders may require, by notice to Borrower, that (i) no outstanding Loan may be converted to or continued as a Eurodollar Loan and (ii) unless repaid, each Eurodollar Loan shall be converted to an ABR Loan at the end of the Interest Period applicable thereto.

SECTION 2.09 Optional and Mandatory Prepayments of Loans .

(a) Optional Prepayments . Borrower shall have the right at any time and from time to time to prepay any Loan, in whole or in part, subject to the requirements of this Section 2.09 ; provided that each partial prepayment shall be in an amount that is an integral multiple of $500,000 and not less than $1.0 million.

(b) Mandatory Prepayments . Upon the occurrence of the Amendment Effective Date, Borrower shall, on such date, repay or prepay all its outstanding Loans.

(c) Notice of Prepayment . Borrower shall notify the Administrative Agent by written notice of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Loan, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment and (ii) in the case of prepayment of an ABR Loan, not later than four hours (during the normal Business Day) prior to such prepayment; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.07 , then such notice of prepayment may be revoked if such termination is revoked in accordance with Section 2.07 . Each such notice shall specify the prepayment date, the principal amount of each Loan or portion thereof to be prepaid. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Loan shall be in an amount that would be permitted in the case of a Loan of the same Type as provided in Section 2.02 , except as necessary to apply fully the required amount of a mandatory prepayment.

 

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SECTION 2.10 Alternate Rate of Interest . If prior to the commencement of any Interest Period for a Eurodollar Loan:

(a) the Administrative Agent determines (which determination shall be final and conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or

(b) the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Loan for such Interest Period;

then the Administrative Agent shall give written notice thereof to Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies Borrower and the Lenders that the circumstances giving rise to such notice no longer exist (which notice shall be promptly given), (i) any Interest Election Request that requests the conversion of any Loan to, or continuation of any Loan as, a Eurodollar Loan shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Loan, such Loan shall be made as an ABR Loan.

SECTION 2.11 Yield Protection .

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

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in, by any Lender (except any reserve requirement reflected in the Adjusted LIBO Rate);

(ii) subject any Lender to any tax of any kind whatsoever with respect to this Agreement, or any Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.14 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or

(iii) impose on any Lender or the London interbank market any other condition, cost or expense (excluding Taxes) affecting this Agreement or Eurodollar Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such Lender’s holding company, if any, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount), then, upon request of such Lender, Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

(b) Capital Requirements . If any Lender determines (in good faith, but in its sole absolute discretion) that any Change in Law affecting such Lender or any lending office of

 

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such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement . A certificate of a Lender setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.11 and delivered to Borrower shall be conclusive absent manifest error. Subject to Section 2.11(d) , Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

(d) Delay in Requests . Failure