REVOLVING CREDIT AND TERM LOAN AGREEMENT

Exhibit 10.12(a)

$1,130,000,000

REVOLVING CREDIT AND TERM LOAN AGREEMENT

Dated as of July 27, 2007

among

ATLAS PIPELINE PARTNERS, L.P.,

as Borrower

ATLAS ARKANSAS PIPELINE, LLC

ATLAS CHANEY DELL, LLC

ATLAS MIDKIFF, LLC

ATLAS PIPELINE NEW YORK, LLC

ATLAS PIPELINE OHIO, LLC

ATLAS PIPELINE PENNSYLVANIA, LLC

ATLAS PIPELINE OPERATING PARTNERSHIP, L.P.

ATLAS PIPELINE MID-CONTINENT LLC

ELK CITY OKLAHOMA PIPELINE, L.P.

ELK CITY OKLAHOMA GP, LLC,

MID-CONTINENT ARKANSAS PIPELINE, LLC

NOARK PIPELINE SYSTEM, LIMITED PARTNERSHIP

NOARK ENERGY SERVICES, L.L.C.

OZARK GAS GATHERING, L.L.C.

OZARK GAS TRANSMISSION, L.L.C.

as Guarantors

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender

BANK OF AMERICA, N.A.

BANK OF OKLAHOMA, N.A.

WELLS FARGO FOOTHILL, LLC

BNP PARIBAS

as Co-Documentation Agents

and

THE LENDERS SIGNATORY HERETO

WACHOVIA CAPITAL MARKETS, LLC,

Sole Lead Arranger and Sole Book Runner

TABLE OF CONTENTS

 

 

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REVOLVING CREDIT AND TERM LOAN AGREEMENT

THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of July 27, 2007, among ATLAS PIPELINE PARTNERS, L.P., a Delaware limited partnership (“ Borrower ”); ATLAS PIPELINE NEW YORK, LLC, a Pennsylvania limited liability company (“ APL New York ”); ATLAS CHANEY DELL, LLC, a Delaware limited liability company (“ Atlas Chaney ”), ATLAS MIDKIFF, LLC, a Delaware limited liability company (“ Atlas Midkiff ”), ATLAS PIPELINE OHIO, LLC, a Pennsylvania limited liability company (“ APL Ohio ”); ATLAS PIPELINE PENNSYLVANIA, LLC, a Pennsylvania limited liability company (“ APL Pennsylvania ”); ATLAS PIPELINE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (“ APL Operating ”); ATLAS PIPELINE MID-CONTINENT LLC, a Delaware limited liability company (“ APL Mid-Continent ”); ELK CITY OKLAHOMA PIPELINE, L.P., a Texas limited partnership (“ Elk City ”); ELK CITY OKLAHOMA GP, LLC, a Delaware limited liability company (“ Elk City GP ”); ATLAS ARKANSAS PIPELINE LLC, an Oklahoma limited liability company (“ Atlas Arkansas ”); MID-CONTINENT ARKANSAS PIPELINE, LLC, an Arkansas limited liability company (“ AAPL2 ”); NOARK PIPELINE SYSTEM, LIMITED PARTNERSHIP, an Arkansas limited partnership (“ NOARK ”); NOARK ENERGY SERVICES, L.L.C., an Oklahoma limited liability company (“ NOARK Energy ”); OZARK GAS GATHERING, L.L.C., an Oklahoma limited liability company (“ OGG ”); and OZARK GAS TRANSMISSION, L.L.C., an Oklahoma limited liability company (“ OGT ”; OGT, OGG, NOARK Energy, NOARK, AAPL2, Atlas Arkansas, Atlas Chaney, Atlas Midkiff, Elk City GP, Elk City, APL Mid-Continent, APL New York, APL Ohio, APL Pennsylvania and APL Operating are collectively referred to herein as the “ Initial Guarantors ,” and the Borrower and the Initial Guarantors are collectively referred to herein as the “ Initial Obligors ”); each of the lenders that is a signatory hereto or which becomes a signatory hereto as provided in Section 12.06 (individually, together with its successors and assigns, a “ Lender ,” and collectively, the “ Lenders ”); WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “ Administrative Agent ”); Wachovia Bank, National Association, as collateral Agent (in such capacity, together with its successors in such capacity, the “ Collateral Agent ”) WACHOVIA BANK, NATIONAL ASSOCIATION, as issuing bank (in such capacity, together with its successors in such capacity, the “ Issuing Bank ”); WACHOVIA BANK, NATIONAL ASSOCIATION, as swingline lender (in such capacity together with its successors in such capacity, the (“ Swingline Lender ”); BANK OF AMERICA, N.A., BANK OF OKLAHOMA, N.A., WELLS FARGO FOOTHILL, LLC and BNP PARIBAS as co-documentation agents; and WACHOVIA CAPITAL MARKETS, LLC, as sole Lead Arranger (in such capacity, together with its successors in such capacity, the “ Lead Arranger ”).

RECITALS

WHEREAS, pursuant to that certain Master Formation Agreement dated as of June 1, 2007 by and between Western Gas Resources, Inc. (“ Western ”) and the Borrower and that certain Master Formation Agreement dated as of June 1, 2007 by and among Western, Western Gas Resources-Westana, Inc. and the Borrower (together, as each may be amended, supplemented or otherwise modified through the date hereof, the “ Formation Agreements ”) the Borrower has agreed with Western to form (the formation of the Anadarko JVs, the Atlas Contribution and the Western Contribution collectively, the “ Anadarko Formation ”), Atlas Pipeline Midcontinent WestOK, LLC, a Delaware limited liability company (“ WestOK ”), and Atlas Pipeline Midcontinent WestTex, LLC, a Delaware limited liability company (“ WestTex ”; each of WestOK and WestTex, an “ Anadarko JV ” and together, the “ Anadarko JVs ”) and in connection therewith, Western has agreed to contribute (the “ Western Contribution ”) all of the gathering pipeline, processing plants and associated compression and related assets currently known as the Chaney Dell and Midkiff/Benedum Systems (the “ Acquired Business ”) to the Anadarko JVs and the Borrower has agreed to contribute an aggregate of approximately $1,850,000,000 in cash (the “ Atlas Contribution ”);

WHEREAS, Borrower has requested that (i) the Term Loan Lenders make Term Loans to Borrower of $830,000,000 in the aggregate and (ii) the Revolver Lenders provide Revolver Commitments of $300,000,000 in the aggregate to be available for Revolver Loans to Borrower and Letters of Credit issued for the account of Borrower; and

WHEREAS, the Lenders have agreed to extend certain credit facilities to Borrower on the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements herein contained and of the loans, extensions of credit and commitments hereinafter referred to, the parties hereto agree as follows:

ARTICLE I

Definitions and Accounting Matters

Section 1.01 Terms Defined Above . As used in this Agreement, the terms “AAPL2,” “Acquired Business,” “Administrative Agent,” “Anadarko Formation,” “Anadarko JVs,” “Atlas Arkansas,” “Atlas Contribution,” “APL New York,” “APL Ohio,” “APL Pennsylvania,” “APL Operating,” “APL Mid-Continent,” “Atlas Chaney,” “Atlas Midkiff,” “Borrower,” “Collateral Agent,” “Initial Guarantors,” “Issuing Bank,” “Lender,” “Lenders,” “Initial Obligors,” “Elk City,” “Elk City GP,” “Lead Arranger,” “NOARK,” “NOARK Energy,” “OGG,” “OGT,” “Western,” “Western Contribution,” “WestOK” and “WestTex” shall have the meanings indicated above.

Section 1.02 Certain Defined Terms . As used herein, the following terms shall have the following meanings (all terms defined in this Article I or in other provisions of this Agreement in the singular to have equivalent meanings when used in the plural, and vice versa):

Additional Costs has the meaning assigned such term in Section 5.01(a) .

Adjusted LIBOR means, with respect to any LIBOR Loan, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the quotient of (i) LIBOR for such Loan for the Interest Period for such Loan divided by (ii) 1 minus the Eurodollar Reserve Percentage for such Loan for such Interest Period.

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

Affected Loans has the meaning assigned such term in Section 5.04 .

Affiliate of any Person means (i) any Person directly or indirectly controlled by, controlling or under common control with such first Person, (ii) any director or officer of such first Person or of any Person referred to in clause (i) above and (iii) if any Person in clause (i) above is an individual, any member of the immediate family (including parents, spouse and children) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is controlled by any such member or trust. For purposes of this definition, any Person which owns directly or indirectly 10% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation or 10% or more of the partnership or other ownership

 

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interests of any other Person (other than as a limited partner of such other Person) will be deemed to “ control ” (including, with its correlative meanings, “ controlled by ” and “ under common control with ”) such corporation or other Person.

Agreement means this Revolving Credit and Term Loan Agreement, as the same may from time to time be further renewed, extended, amended, restated or supplemented.

Aggregate Maximum Revolver Amount at any time equals the sum of the Maximum Revolver Amounts of the several Revolver Lenders ($300,000,000), as the same may be reduced pursuant to Section 2.03(a) .

Aggregate Maximum Term Loan Amount at any time equals the sum of the Maximum Term Loan Amount of the several Term Loan Lenders ($830,000,000).

AHD means Atlas Pipeline Holdings, L.P., a Delaware limited partnership.

Applicable Lending Office means, for each Lender and for each Type of Loan, the lending office of such Lender (or an Affiliate of such Lender) designated for such Type of Loan on the signature pages hereof or such other offices of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.

Applicable Margin means (a) with respect to Term Loans, 2.75% for LIBOR Loans and 1.75% for Base Rate Loans; provided that upon the Borrower’s notice to the Administrative Agent of receipt of ratings for the Facilities from both S&P and Moody’s, the “Applicable Margin” with respect to Term Loans shall mean the Ratings Based Spread and (b) with respect to Revolver Loans, (i) prior to the end of the first full fiscal quarter ending after the Closing Date, 2.25% for LIBOR Loans and 1.25% for Base Rate Loans and (ii) thereafter the applicable per annum percentage set for at the appropriate intersection in the table shown below, based on the Leverage Ratio as in effect from time to time:

 

; provided that if the Borrower has not caused both S&P and Moody’s to issue a rating with respect to the Facilities (i) on or prior to the 90 ^th day following the Closing Date, the Applicable Margin with respect to Term Loans and Revolver Loans shall be increased by 0.25% from the Applicable Margin that would have otherwise been applicable to such Loans; and (ii) on or prior to the 180 ^th day following the Closing Date, the Applicable Margin with respect to Term Loans and Revolver Loans shall be increased by an additional 0.25% from the Applicable Margin that would have otherwise been applicable to such Loans (including after giving effect to clause (i) of this proviso); provided further that upon the Borrower’s notice to the Administrative Agent of receipt of ratings for the Facilities from both S&P and Moody’s, the “Applicable Margin” (x) with respect to Term Loans shall revert to the Ratings Based Spread and (y) with respect to Revolver Loans shall revert to the applicable per annum percentage set for at the appropriate intersection in the table shown above, based on the Leverage Ratio as in effect at such time.

 

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Each change in the Applicable Margin resulting from a change in the Leverage Ratio shall take effect on the date of delivery by the Borrower to the Administrative Agent of notice thereof pursuant to Section 8.01(j) . However, if the Borrower fails to deliver a compliance certificate when required pursuant to Section 8.01(j) , then the Applicable Margin shall be set at the highest level until such date as the Borrower delivers such compliance certificate to the Administrative Agent.

In the event that any financial statement or compliance certificate delivered pursuant to Section 8.01(j) is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy if corrected would have led to a higher Applicable Margin for any period (an “ Applicable Period ”) than the Applicable Margin applied for such Applicable Period, then (i) Borrower shall immediately deliver to the Administrative Agent a correct compliance certificate for such Applicable Period, (ii) the Applicable Margin shall be determined as if Pricing Level V were applicable for such Applicable Period and (iii) Borrower shall immediately pay to the Administrative Agent the additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with the terms hereof. Following the delivery of the corrected compliance certificate, the Applicable Margin for periods following the Applicable Period shall be calculated in accordance with the two preceding paragraphs. This paragraph shall not limit the rights of the Administrative Agent and the Lenders hereunder.

Approved Fund means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.

Assignment and Assumption means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.

Availability means, at any time, (i) the Revolver Lenders’ aggregate Revolver Commitments, minus (ii) the sum of (a) the Effective Amount of all outstanding Revolver Loans, (b) the Effective Amount of all LC Exposure and (c) the Effective Amount of all outstanding Swingline Loans.

Base Rate means, with respect to any Base Rate Loan, for any day, a rate per annum equal to the higher of (i) the Federal Funds Rate for any such day plus 1/2 of 1% or (ii) the Prime Rate for such day. Each change in any interest rate provided for herein based upon the Base Rate resulting from a change in the Base Rate shall take effect at the time of such change in the Base Rate.

Base Rate Loans means Loans that bear interest at rates based upon the Base Rate.

Business Day means any day other than a day on which commercial banks are authorized or required to close in North Carolina or New York and, where such term is used in the definition of “Quarterly Date” or if such day relates to a borrowing or continuation of, a payment or prepayment of principal of or interest on, or a conversion of or into, or the Interest Period for, a LIBOR Loan or a notice by the Borrower with respect to any such borrowing or continuation, payment, prepayment, conversion or Interest Period, any day which is also a day on which dealings in Dollar deposits are carried out in the London interbank market.

 

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Carve-out Financials has the meaning assigned such term in Section 6.01(q) .

Cash Management Agreement means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

Cash Management Bank means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

Change in Control means (i) except as permitted by clauses (iii)(c) and (iii)(d) hereof, any person or group of persons (within the meaning of Subsection 13(d) or 14(a) of the Securities Exchange Act of 1934, as amended) shall have acquired subsequent to the date hereof beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 25% or more of the equity securities of such Person entitled to vote for members of the board of directors or equivalent governing body of such Person (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) ( provided , however , that the acquisition by the General Partner or any Affiliate thereof of 25% or more of the partnership interests of the Borrower shall not constitute a Change in Control); (ii) within a period of twelve (12) consecutive calendar months, individuals who were managing board members of the General Partner on the first day of such period or persons who were appointed or nominated by such persons shall cease to constitute a majority of the managing board members of the General Partner, or (iii) the occurrence of any of the following:

(a) the sale, transfer, lease, conveyance or other disposition (other than by way of a permitted merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Borrower and its Wholly Owned Subsidiaries taken as a whole to any “person” (as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended);

(b) the adoption of a plan relating to the liquidation or dissolution of the Borrower or the General Partner unless, in the case of the General Partner, the General Partner is replaced by an affiliate of AHD acceptable to the Lenders in their reasonable discretion, such acceptance not to be unreasonably withheld;

(c) the General Partner ceases to own, directly or indirectly, at least 51% of the general partner interests of the Borrower or of APL Operating, or the General Partner ceases to serve as the only general partner of the Borrower or APL Operating unless, in the case of the General Partner, the General Partner is replaced by an affiliate of AHD acceptable to the Lenders in their reasonable discretion, such acceptance not to be unreasonably withheld; or

(d) AHD and/or one or more of its directly or indirectly wholly-owned subsidiaries ceases to own at least 51% of the membership units of the General Partner.

Change in Law means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

 

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Closing Date means the date upon which the conditions precedent for initial funding set forth in Section 6.01 are satisfied.

Code means the Internal Revenue Code of 1986, as amended from time to time and any successor statute.

Collateral means the collateral security for the Obligations pledged or granted pursuant to the Security Instruments.

Commitment means (i) for any Revolver Lender, its Revolver Commitment, and (ii) for any Term Loan Lender, its Term Loan Commitment.

Commitment Fee Percentage means (a) prior to the end of the first full fiscal quarter ending after the Closing Date, 0.375% and (b) thereafter the applicable per annum percentage set for at the appropriate intersection in the table shown below, based on the Leverage Ratio as in effect from time to time:

 

Each change in the Commitment Fee Percentage resulting from a change in the Total Leverage Ratio shall take effect on the date of delivery by the Borrower to the Administrative Agent of notice thereof pursuant to Section 8.01(j) . However, if the Borrower fails to deliver a compliance certificate when required pursuant to Section 8.01(j) , then the Applicable Margin shall be set at the highest level until such date as the Borrower delivers such compliance certificate to the Administrative Agent.

In the event that any financial statement or Compliance Certificate delivered pursuant to Section 8.01(j) is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy if corrected would have led to a higher Commitment Fee Percentage for any period (an “ Applicable Period ”) than the Commitment Fee Percentage applied for such Applicable Period, then (i) Borrower shall immediately deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the Commitment Fee Percentage shall be determined as if Pricing Level IV were applicable for such Applicable Period and (iii) Borrower shall immediately pay to the Administrative Agent the additional interest owing as a result of such increased Commitment Fee Percentage for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with the terms hereof. Following the delivery of the corrected compliance certificate, the Commitment Fee Percentage for periods following the Applicable Period shall be calculated in accordance with the two preceding paragraphs. This paragraph shall not limit the rights of the Administrative Agent and the Lenders hereunder.

Consolidated EBITDA means, for any trailing twelve-month period, the sum of (i) Consolidated Net Income for such period, plus without duplication (ii) the following expenses or charges to the extent deducted from Consolidated Net Income in such period: interest, income taxes, depreciation, depletion, amortization, non-cash compensation on long-term incentive plans, and other non-cash charges (other

 

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than a non-cash charge resulting from an accrual of a reserve for any cash charge in any future period) to Consolidated Net Income including non-cash losses resulting from mark to market accounting of Hedging Agreements, minus without duplication (iii) non-cash credits to Consolidated Net Income including non cash gains resulting from mark to market accounting of hedging agreements; provided that with respect to that portion of the Borrower’s Consolidated EBITDA attributable to the Acquired Business, (a) such portion of Consolidated EBITDA for the fiscal quarter ending December 31, 2007 shall be calculated by annualizing the Consolidated EBITDA of the Acquired Business for such fiscal quarter and the previous fiscal quarter and (b) such portion of Consolidated EBITDA for the fiscal quarter ending March 31, 2008 shall be calculated by annualizing the Consolidated EBITDA of the Acquired Business for such fiscal quarter and the two previous fiscal quarters. For purposes of this Agreement, Consolidated EBITDA shall be adjusted on a pro forma basis, in a manner reasonably acceptable to the Administrative Agent, to include, as of the first day of any applicable period, without duplication, (x) the Anadarko Formation or any acquisition permitted pursuant to Section 9.03(i) closed during such period, including, without limitation, adjustments reflecting any non-recurring costs and any extraordinary expenses of the Anadarko Formation or any acquisition permitted pursuant to Section 9.03(i) closed during such period calculated on a basis consistent with GAAP and Regulation S-X of the Securities Exchange Act of 1934, as amended, or as approved by the Administrative Agent and (y) any Pro Forma Cost Savings.

Consolidated Funded Debt means, for any Person and its Consolidated Subsidiaries, the sum of the following (without duplication): (i) all obligations of such Person and its Consolidated Subsidiaries for borrowed money or evidenced by bonds, debentures, notes or other similar instruments (including principal, interest, fees and charges); (ii) all obligations of such Person and its Consolidated Subsidiaries (whether contingent or otherwise) in respect of bankers’ acceptances, letters of credit, surety or other bonds and similar instruments; (iii) all obligations of such Person and its Consolidated Subsidiaries to pay the deferred purchase price of Property or services (other than for borrowed money); (iv) all obligations under leases which shall have been, or should have been, in accordance with GAAP, recorded as capital leases in respect of which such Person and its Consolidated Subsidiaries is liable (whether contingent or otherwise); (v) any capital stock of such Person and its Consolidated Subsidiaries in which such Person has a mandatory obligation to redeem such stock and (vi) any obligation, contingent or otherwise, of any such Person pursuant to which such Person has directly or indirectly guaranteed any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement condition or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided , that this clause (vi) shall not include endorsements for collection or deposit in the ordinary course of business.

Consolidated Interest Expense means with respect to such Person and its Consolidated Subsidiaries, for any period, the aggregate cash interest payments made or required to be made for such Person and its Consolidated Subsidiaries on a consolidated basis for such period; provided , that (i) Consolidated Interest Expense for the fiscal quarter ending December 31, 2007 shall be calculated by annualizing the Consolidated Interest Expense for such fiscal quarter, (ii) Consolidated Interest Expense for the fiscal quarter ending March 31, 2008 shall be calculated by annualizing the Consolidated Interest Expense for such fiscal quarter and the previous fiscal quarter and (iii) Consolidated Interest Expense for fiscal quarter ending June 30, 2008 shall be calculated by annualizing the Consolidated Interest Expense for such fiscal quarter and the two (2) previous fiscal quarters.

 

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Consolidated Net Income means with respect to such Person and its Consolidated Subsidiaries, for any period, the aggregate of the net income (or loss) of such Person and its Consolidated Subsidiaries after allowances for taxes for such period, determined on a consolidated basis in accordance with GAAP; provided , that there shall be excluded from such net income (to the extent otherwise included therein) the following: (i) the net income of any other entity other than a Consolidated Subsidiary), except to the extent of the amount of dividends or distributions actually paid in such period by such other entity to such Person or to a Consolidated Subsidiary, as the case may be; (ii) the net income (but not loss) of any Consolidated Subsidiary to the extent that the declaration or payment of dividends or similar distributions or transfers or loans by that Consolidated Subsidiary is not at the time permitted by operation of the terms of its charter or any agreement, instrument or Governmental Requirement applicable to such Consolidated Subsidiary, or is otherwise restricted or prohibited and (iii) the cumulative effect of a change in accounting principles and any gains or losses attributable to writeups or write downs of assets.

Consolidated Subsidiaries means each Subsidiary of a Person (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of such Person in accordance with GAAP, provided , however , that the Consolidated Subsidiaries of Borrower shall not include the Unrestricted Entities.

Coverage Ratio has the meaning set forth in Section 9.13 .

Debt means, for any Person the sum of the following (without duplication): (i) all obligations of such Person for borrowed money or evidenced by bonds, debentures, notes or other similar instruments (including principal, interest, fees and charges); (ii) all obligations of such Person (whether contingent or otherwise) in respect of bankers’ acceptances, letters of credit, surety or other bonds and similar instruments; (iii) all obligations of such Person to pay the deferred purchase price of Property or services (other than for borrowed money); (iv) all obligations under leases which shall have been, or should have been, in accordance with GAAP, recorded as capital leases in respect of which such Person is liable (whether contingent or otherwise); (v) all obligations under operating leases which require such Person or its Affiliate to make payments over the term of such lease, including payments at termination, based on the purchase price or appraisal value of the Property subject to such lease plus a marginal interest rate, and used primarily as a financing vehicle for, or to monetize, such Property; (vi) all Debt (as described in the other clauses of this definition) and other obligations of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person; (vii) all Debt (as described in the other clauses of this definition) and other obligations of others guaranteed by such Person or in which such Person otherwise assures a creditor against loss of the debtor or obligations of others; (viii) all obligations or undertakings of such Person to maintain or cause to be maintained the financial position or covenants of others or to purchase the Debt or Property of others; (ix) obligations to gather or transport Hydrocarbons in consideration of advance payments; (x) obligations to pay for goods or services whether or not such goods or services are actually received or utilized by such Person; (xi) any capital stock of such Person in which such Person has a mandatory obligation to redeem such stock; (xii) any Debt of a Subsidiary for which such Person is liable either by agreement or because of a Governmental Requirement; and (xiii) all obligations of such Person under Hedging Agreements.

Debt Issuance shall mean the issuance of any Debt for borrowed money by the Borrower or any of its Subsidiaries, excluding any Debt of the Borrower and its Subsidiaries permitted to be incurred pursuant to Section 9.01 (other than Section 9.01(i) ).

Default means an Event of Default or an event which with notice or lapse of applicable grace period or both would become an Event of Default.

 

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Defaulting Lender means any Lender that (i) has failed to fund any portion of the Loans or Letter of Credit reimbursement obligations required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (ii) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (iii) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

Disposition or Dispose means the sale, transfer or other disposition (including any sale-leaseback transaction) of any property by any Person, other than the sale transfer, or other disposition (or series of related sales, transfers or related dispositions) of property of such Person having a fair market value of less than $1,000,000. For the avoidance of doubt, “Disposition” includes Equity Offerings.

Dollars and $ means lawful money of the United States of America.

Effective Amount means (i) with respect to any Revolver Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Revolver Loans and prepayments or repayments thereof occurring on such date under the Revolver Facility; (ii) with respect to any outstanding LC Exposure on any date, the amount of such LC Exposure on such date after giving effect to any issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the LC Exposure as of such date, including as a result of any reimbursements of drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date and (iii) with respect to any Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Swingline Loans and any prepayments or repayments thereof occurring on such date.

Eligible Assignee means (i) a Lender; (ii) an Affiliate of a Lender; (iii) an Approved Fund; and (iv) any other Person (other than a natural Person) approved by (a) the Administrative Agent, (b) in the case of any assignment of a Revolver Commitment, the Swingline Lender and the Issuing Bank and (c) unless a Default or Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided , that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

Environmental Laws means any and all Governmental Requirements pertaining to health or the environment in effect in any and all jurisdictions in which the Borrower or any of its Subsidiaries is conducting or at any time has conducted business, or where any Property of the Borrower or any of its Subsidiaries is located, including without limitation, the Oil Pollution Act of 1990 (“ OPA ”), the Clean Air Act, as amended, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (“ CERCLA ”), as amended, the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health Act of 1970, as amended, the Resource Conservation and Recovery Act of 1976 (“ RCRA ”), as amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials Transportation Act, as amended, and other environmental conservation or protection laws. The term “ oil ” shall have the meaning specified in OPA, the terms “ hazardous substance ” and “ release ” or “ threatened release ” have the meanings specified in CERCLA, and the terms “ solid waste ” and “ disposal ” or “ disposed ” have the meanings specified in RCRA; provided , however , that (i) in the event either OPA, CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment and (ii) to the extent the laws of the state in which any Property of the Borrower or any of its Subsidiaries is located establish a meaning for “ oil ,” “ hazardous substance ,” “ release ,” “ solid waste ” or “ disposal ” which is broader than that specified in either OPA, CERCLA or RCRA, such broader meaning shall apply.

 

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Equity Issuance means the issuance of common equity by the Borrower pursuant to the Common Unit Purchase Agreement dated as of June 1, 2007 on the Closing Date and any additional issuances of equity pursuant thereto as liquidated damages.

Equity Offering means the issuance or sale of equity interests in the Borrower pursuant to a public or private offering.

ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statute.

ERISA Affiliate means each trade or business (whether or not incorporated) which together with the Borrower or any Subsidiary would be deemed to be a “ single employer ” within the meaning of section 4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Code.

ERISA Event means (i) a “ Reportable Event ” described in Section 4043 of ERISA and the regulations issued thereunder, (ii) the withdrawal of the Borrower, any Subsidiary or any ERISA Affiliate from a Plan during a plan year in which it was a “ substantial employer ” as defined in Section 4001(a)(2) of ERISA, (iii) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under Section 4041 of ERISA, (iv) the institution of proceedings to terminate a Plan by the PBGC or (v) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan.

Eurodollar Reserve Percentage means, for any day, the percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve system (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.

Event of Default has the meaning assigned such term in Section 10.01 .

Excepted Liens means: (i) Liens for taxes, assessments or other governmental charges or levies not yet due or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained; (ii) Liens in connection with worker’s compensation, unemployment insurance or other social security, old age pension or public liability obligations not yet due or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (iii) vendors’, carriers’, warehousemen’s, repairmen’s, mechanics’, workmen’s, materialmen’s, construction or other like Liens arising by operation of law in the ordinary course of business or incident to the gathering, transportation, operation and maintenance of the Pipeline Properties or statutory landlord’s liens, each of which is in respect of obligations that have not been outstanding more than 90 days or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP; (iv) encumbrances of third party surface owners and owners of other estates in lands (other than lands to which the Borrower or any of its Subsidiaries has fee simple title) covered by Pipeline right-of-ways, permits and easements; (v) encumbrances (other than to secure the payment of borrowed money or the deferred purchase price of Property or services), easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations in any rights of way or other Property of the Borrower or any of its Subsidiaries for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines for the removal of gas, oil, or timber, and other like purposes, or for the joint or common use of real estate, rights of way, facilities and equipment, and defects, irregularities, zoning restrictions and deficiencies in title of any rights of way or other

 

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Property which in the aggregate do not materially impair the use of such rights of way or other Property for the purposes of which such rights of way and other Property are held by the Borrower or any of its Subsidiaries or materially impair the value of such Property subject thereto; (vi) that certain Surface Lease Agreement dated as of February 1, 2000, by and between Texaco Exploration and Production, Inc., predecesssor in interest to APL Mid-Continent, as lessor, and Velma Federal Credit Union, as lessee; (vii) deposits of cash or securities to secure the performance of bids, trade contracts, leases, statutory obligations and other obligations of a like nature incurred in the ordinary course of business; and (viii) Liens which do not materially interfere with the occupation, use, and enjoyment by Borrower of the Pipeline Properties in the ordinary course of business as presently conducted or materially impair the value thereof for the purposes thereof.

Excluded Taxes means with respect to the Administrative Agent, any Lender, the Issuing Bank, the Swingline Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its net income, franchise taxes imposed in lieu of net income taxes and branch profit or similar taxes imposed by (i) any jurisdiction (or any political subdivision thereof) of which such Lender, the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be, is a resident or in which such Lender has an Applicable Lending Office, (ii) the jurisdiction (or any political subdivision thereof in which the Administrative Agent, the Issuing Bank, the Swingline Lender or such Lender is organized, or (iii) any jurisdiction (or any political subdivision thereof) in which such Lender, the Issuing Bank, the Swingline Lender or the Administrative Agent is presently doing business which taxes are imposed solely as a result of doing business in such jurisdiction (other than a business arising from or deemed to arise from any of the transactions contemplated by this Agreement or any other Loan Documents) and (b) in the case of a Lender, the Issuing Bank or the Swingline Lender, any U.S. federal withholding tax that (i) is imposed on amounts payable to such Lender, the Issuing Bank, or the Swingline Lender at the time such Lender, the Issuing Bank or the Swingline Lender becomes a party hereto (or designates a new lending office) except to the extent that such Lender, the Issuing Bank, or the Swingline Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 4.06(a) ; provided that this clause (b)(i) shall not apply to any Taxes imposed on a Lender, the Issuing Bank or the Swingline Lender in connection with an interest or participation in any Loan or other obligation that such Lender or Issuing Bank was required to acquire pursuant to Section 4.05 or (ii) is attributable to such Lender’s, the Issuing Bank’s or the Swingline Lender’s failure to comply with Section 4.06(d) (i.e., failure to provide a form that such Lender, the Issuing Bank or the Swingline Lender is legally entitled to provide).

Existing Credit Agreement means the Credit Agreement dated as of April 14, 2005 between the Borrower, the guarantors party thereto from time to time, the lenders party thereto from time to time and Wachovia Bank, National Association, as Administrative Agent, as amended by that certain First Amendment to Revolving Credit and Term Loan Agreement dated as of October 31, 2005, that certain Second Amendment to Revolving Credit and Term Loan Agreement dated as of May 1, 2006, and that certain Third Amendment to Revolving Credit and Term Loan Agreement dated as of June 29, 2006.

Existing Letters of Credit means those letters of credit previously issued under the Existing Credit Agreement for the account of the Borrower or any of its Subsidiaries that are (a) outstanding on the Closing Date and (b) listed on Schedule 1.01 .

Facilities means, collectively, the Revolver Facility and the Term Loan Facility, and Facility means either of the Revolver Facility or the Term Loan Facility.

 

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Federal Funds Rate means the rate per annum (rounded upwards, if necessary, to the next higher 1/100th of 1%) representing the daily effective federal funds rate as quoted by the Administrative Agent and confirmed in Federal Reserve Board Statistical Release H.15 (519) or any successor or substitute publication selected by the Administrative Agent. If, for any reason, such rate is not available, then “Federal Funds Rate” shall mean a daily rate which is determined, in the opinion of the Administrative Agent, to be the rate at which federal funds are being offered for sale in the national federal funds market at 9:00 a.m. Rates for weekends or holidays shall be the same as the rate for the most immediately preceding Business Day.

Fee Letter means that certain letter agreement from Wachovia Bank, National Association and Wachovia Capital Markets, LLC, to the Borrower dated June 1, 2007, concerning certain fees in connection with this Agreement and any agreements or instruments executed in connection therewith, as the same may be amended or replaced from time to time.

Financial Statements means the financial statement or statements of the Borrower and its Consolidated Subsidiaries described or referred to in Section 7.02 .

Foreign Lender means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

Foreign Subsidiary means any direct or indirect Subsidiary of the Borrower which (1) is not a “United States person” within the meaning of Section 7701(a)(30) of the Code, and ((2) is a controlled foreign corporation (within the meaning of Section 957(a) of the Code) or is owned directly or indirectly by such controlled foreign corporation.

Formation Agreements has the meaning assigned to such term in the preamble hereto.

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

GAAP means generally accepted accounting principles in the United States of America in effect from time to time.

General Partner means Atlas Pipeline Partners GP, LLC, a Delaware limited liability company.

Governmental Approvals means all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.

Governmental Authority includes the country, the state, county, city and political subdivisions in which any Person or such Person’s Property is located or which exercises valid jurisdiction over any such Person or such Person’s Property, and any court, agency, department, commission, board, bureau or instrumentality of any of them including monetary authorities which exercises valid jurisdiction over any such Person or such Person’s Property. Unless otherwise specified, all references to Governmental Authority herein shall mean a Governmental Authority having jurisdiction over, where applicable, the Borrower or any of its Subsidiaries or any of their Property or the Administrative Agent, any Lender or any Applicable Lending Office.

 

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Governmental Requirement means any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement (whether or not having the force of law), including, without limitation, Environmental Laws, energy regulations and occupational, safety and health standards or controls, of any Governmental Authority.

Guarantor means each Initial Guarantor and each Subsidiary of Borrower hereafter formed or acquired that is required to execute and deliver a Guaranty Agreement pursuant to Section 8.13 .

Guaranty Agreement means, an agreement executed by a Guarantor substantially in the form of Exhibit G guarantying, unconditionally, payment of the Obligations, together with any amendment, modification, supplement, restatement, ratification, or reaffirmation of any Guaranty Agreement made in accordance with the Loan Documents.

Hedge Bank means any Person that, at the time it enters into a Hedging Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Hedging Agreement.

Hedging Agreements means any commodity, interest rate or currency swap, cap, floor, collar, forward agreement or other exchange or protection agreements or any option with respect to any such transaction.

Highest Lawful Rate means, as of a particular date, the highest non-usurious rate of interest, if any, permitted from day to day by applicable law.

Hydrocarbons means oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all products refined or separated therefrom.

Indemnified Parties has the meaning assigned such term in Section 12.03(a)(ii) .

Indemnified Taxes means Taxes other than Excluded Taxes and Other Taxes.

Initial Funding means the funding of the initial Loans or issuance of the initial Letters of Credit upon satisfaction of the conditions set forth in Sections 6.01 and 6.02 .

Insurance and Condemnation Event means the receipt by the Borrower or any of its Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective property or assets.

Intercompany Debt means funded Debt that is owed by the Borrower or any of its Consolidated Subsidiaries to the Borrower or to any Obligor.

Intercompany Notes means the promissory notes executed to evidence the Intercompany Debt.

Interest Period means, with respect to any LIBOR Loan, the period commencing on the date such LIBOR Loan is made and ending on the numerically corresponding day in the first, second, third or sixth calendar month thereafter (or if agreed to by all Lenders, the ninth or twelfth calendar month thereafter), as the Borrower may select as provided in Section 2.02 , except that each Interest Period which commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month. Notwithstanding the foregoing: (i) no Interest Period with

 

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respect to Revolver Loans may end after the Termination Date in respect of the Revolver Facility, and no Interest Period with respect to Term Loans may end after the Termination Date in respect of the Term Loan Facility; (ii) each Interest Period which would otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day (or, if such next succeeding Business Day falls in the next succeeding calendar month, on the next preceding Business Day); and (iii) no Interest Period shall have a duration of less than one month and, if the Interest Period for any LIBOR Loans would otherwise be for a shorter period, such Loans shall not be available hereunder.

ISP98 means the International Standby Practices (1998 Revision, effective January 1, 1999), International Chamber of Commerce Publication No. 590.

JV Documents means the Formation Agreements and each other agreement, document and instrument executed and delivered by Borrower, the Anadarko JVs or any other Subsidiary and any counterparty thereto in connection with the Anadarko Formation, including, without limitation, the Operating Agreements.

LC Commitment at any time shall mean $50,000,000.

LC Exposure at any time means the sum of (i) the aggregate amount available to be drawn under all outstanding Letters of Credit plus (ii) the aggregate of all amounts drawn under all Letters of Credit and not yet reimbursed.

L/C Participants means the collective reference to all the Revolver Lenders other than the Issuing Bank.

Letter of Credit Agreements means the written agreements with the Issuing Bank, as issuing lender for any Letter of Credit, executed in connection with the issuance by the Issuing Bank of the Letters of Credit, such agreements to be on the Issuing Bank’s customary form for letters of credit of comparable amount and purpose as from time to time in effect or as otherwise agreed to by the Borrower and the Issuing Bank.

Letter of Credit Application means an application, in the form specified by the Issuing Lender from time to time, requesting the Issuing Lender to issue a Letter of Credit.

Letters of Credit means (a) the stand-by letters of credit issued pursuant to Section 2.01(b) and (b) the Existing Letters of Credit and, in each case, all reimbursement obligations pertaining to any such letters of credit, and Letter of Credit shall mean any one of the Letters of Credit and the reimbursement obligations pertaining thereto.

Leverage Ratio has the meaning set forth in Section 9.14 .

LIBOR means the rate per annum determined on the basis of the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a period equal to the applicable Interest Period which appears on the Reuters Screen LIBOR01 Page at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period (rounded upward, if necessary, to the nearest 1/100 ^th of 1%). If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page, then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars in minimum amounts of at least $5,000,000 would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period. Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest error.

 

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LIBOR Loans means Loans the interest rates on which are determined on the basis of rates referred to in the definition of “Adjusted LIBOR.”

Lien means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including but not limited to the lien or security interest arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term “Lien” shall include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting Property. For the purposes of this Agreement, any Person shall be deemed to be the owner of any Property which it has acquired or holds subject to a conditional sale agreement, or leases under a financing lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person in a transaction intended to create a financing.

Limited Partnership Agreement means that certain Second Amended and Restated Agreement of Limited Partnership of Borrower dated as of March 9, 2004, as such agreement may be amended, extended, revised or replaced from time to time in accordance with the terms hereof and thereof.

Loan Documents means this Agreement, the Notes, the Guaranty Agreements, all Letters of Credit, all Letter of Credit Agreements, the Fee Letter, the Security Instruments and each other document, instrument, certificate and agreement executed and delivered by the Borrower or any Subsidiary thereof in connection with this Agreement or otherwise referred to herein or contemplated hereby (excluding any Hedging Agreement and Cash Management Agreements), all as may be amended, restated, supplemented or otherwise modified from time to time.

Loans means the collective reference to the Revolver Loans, the Term Loans and Swingline Loans and Loan means any of such Loans.

Material Adverse Effect means any material and adverse effect on (i) the assets, liabilities, financial condition, business, operations or affairs of the Borrower, the General Partner, and the Guarantors taken as a whole, or (ii) the ability of the Borrower, the General Partner, or any Guarantor to carry out its business as at the Closing Date (excluding the dissolution or liquidation of any Guarantor pursuant to a merger to the extent permitted under Section 9.09 ) or meet its obligations under the Loan Documents on a timely basis, or (iii) the Collateral Agent’s and the Lenders’ interests in the collateral securing the Obligations, or the Administrative Agent’s, the Collateral Agent’s or the Lenders’ ability to enforce their rights and remedies under this Agreement or any other Loan Document, at law or in equity.

Material Agreements has the meaning assigned to such term in Section 7.23 .

Maximum Revolver Amount means, as to each Revolver Lender, the Dollar amount of such Revolver Lender’s Percentage Share of the Revolver Facility (as the same may be reduced pursuant to Section 2.03(a) pro rata to each Revolver Lender based on its Percentage Share of the Revolver Facility), as modified from time to time to reflect any assignments permitted by Section 12.06(b) .

Maximum Term Loan Amount means, as to each Term Loan Lender, the dollar amount of such Term Loan Lender’s Percentage Share of the Term Loan Facility.

 

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Moody’s means Moody’s Investor Service, Inc. and any successor thereto.

Mortgaged Property means the Property owned by the Obligors and which is subject to the Liens existing and to exist under the terms of the Security Instruments.

Mortgages means each of the Open-Ended Mortgages described or referred to in Exhibit D hereto.

Multiemployer Plan means a Plan defined as such in Section 3(37) or 4001(a)(3) of ERISA.

Net Cash Proceeds means, as applicable, (a) with respect to any Disposition by any Consolidated Subsidiary, the gross cash proceeds received by the Borrower or any of its Subsidiaries (after deducting the pro rata portion of such proceeds to be paid to any minority holders of such Subsidiary’s Capital Stock) from such sale less the sum of (i) all income taxes and other taxes assessed by a Governmental Authority as a result of such sale and any other fees and expenses incurred in connection therewith and (ii) the principal amount of, premium, if any, and interest on any Debt secured by a Lien on the asset (or a portion thereof) sold, which Debt is required to be repaid in connection with such sale, (b) with respect to any Equity Offering or Debt Issuance, the gross cash proceeds received by the Borrower or any of its Subsidiaries therefrom less all legal, underwriting and other fees and expenses incurred in connection therewith and (c) with respect to any payment under an insurance policy or in connection with an Insurance and Condemnation Event, the gross cash proceeds received by the Borrower or its Subsidiaries from an insurance company or Governmental Authority, as applicable, less the sum of (i) all fees and expenses in connection therewith and (ii) the principal amount of, premium, if any, and interest on any Debt secured by a Lien on the asset (or a portion thereof) subject to such loss or condemnation proceeding, which Debt is required to be repaid in connection with such loss or condemnation proceeding.

Notes means, collectively, the Revolver Notes, the Term Loan Notes and the Swingline Notes provided for by Section 2.06 , together with any and all renewals, extensions for any period, increases, rearrangements, substitutions or modifications thereof.

Notice of Election means a notice substantially in the form of Exhibit I hereto.

Obligations means any and all amounts owing or to be owing by the Borrower or any other Obligor to the Administrative Agent, the Issuing Bank, the Swingline Lender and/or the Lenders or any Affiliates of Lenders in connection with the Loan Documents now or hereafter arising between the Borrower or any other Obligor and the Administrative Agent, the Issuing Bank, the Swingline Lender, any Lender or its Affiliate and permitted by the terms of this Agreement, and all renewals, extensions and/or rearrangements of any of the foregoing. Obligations shall also include any obligation owing to any Person under Secured Hedge Agreements and Secured Cash Management Agreements.

Obligor means each Initial Obligor and each additional Person party to a Guaranty Agreement.

Oil and Gas Properties means all present and future Hydrocarbon reserves located in fields and regions accessed by the Pipelines for gathering and transportation to interstate and intrastate third party pipelines.

Operating Agreements means collectively that certain operating agreement for WestTex and that certain operating agreement for WestOK, in each case, as contemplated by the Formation Agreements as such agreements may be amended, extended, revised or replaced from time to timein accordance with the terms thereof and hereof.

 

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Other Taxes has the meaning assigned such term in Section 4.06(b) .

Participant has the meaning set forth in Section 12.06 .

PBGC means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions.

Pension Plan means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained for the employees of the Borrower or any ERISA Affiliates or (b) has at any time within the preceding six (6) years been maintained for the employees of the Borrower or any of its current or former ERISA Affiliates.

Percentage Share for each Lender means on any date of determination (i) for purposes of sharing any amount or fee payable to any Lender in respect of a specific Facility (or subfacility thereof), the proportion that the portion of the Principal Debt for the applicable Facility (or subfacility thereof) owed to such Lender (whether held directly or through a participation in respect of the Letter of Credit subfacility or Swingline Loan subfacility and determined after giving effect thereto) bears to the Principal Debt under the applicable Facility (or subfacility thereof) owed to all Lenders thereunder at the time in question and (b) for all other purposes, the proportion that the portion of the Principal Debt owed to such Lender bears to the Principal Debt owed to all Lenders at the time in question, or if no Principal Debt is outstanding, then the proportion that the aggregate of such Lender’s Commitment then in effect under the Facilities bears to the Total Commitment then in effect.

Perfection Certificate means a certificate substantially in the form of Exhibit H or any other form approved by the Collateral Agent.

Person means any individual, corporation, company, voluntary association, partnership, joint venture, trust, unincorporated organization or government or any agency, instrumentality or political subdivision thereof, or any other form of entity.

Pioneer Option Agreement means that certain Purchase Option Agreement dated July 27, 2007 by and between WestTex and Pioneer Natural Resources USA, Inc.

Pipeline Properties means all Property now or hereafter acquired related to the Pipelines and processing facilities including all buildings, structures, fuel separators, processing plants, treatment, dehydration, and fractionation facilities, storage and transportation equipment, liquid extraction plants, compressors, compressor stations, pipeline interconnections, fee lands, pumps, pumping units, field gathering systems, pipes and pipelines, tanks and tank batteries, fixtures, valves, fittings, machinery and parts, engines, boilers, meters, SCADA systems and software, apparatus, equipment, appliances, tools, implements, surface leases, rights-of-way, permits, licenses, crossing permits, easements and servitudes; all operating agreements, gathering agreements, processing agreements, contracts and other agreements which relate to any of the Pipelines or the gathering, transmission, exchange, processing, hedging and sale of Hydrocarbons through the Pipelines; all Hydrocarbons used as linefill or pad gas in the Pipelines, and all tariffs, rents, issues, profits, proceeds, revenues and other incomes from or attributable to the Pipelines and sale of Hydrocarbons; all Property, real or personal, now owned or hereinafter acquired and situated upon, used, held for use or useful in connection with the Pipelines (excluding automotive equipment or other personal property which may be on such premises for the purpose of constructing the Pipelines or for other similar temporary uses), together with all additions, substitutions, replacements, accessions and attachments to any and all of the foregoing.

 

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Pipelines means the natural gas transportation systems and gas gathering systems and related processing facilities now owned and operated as private use gathering systems by the Borrower and its Consolidated Subsidiaries located in the states of Arkansas, New York, Ohio, Pennsylvania, Oklahoma, Missouri and Texas, and all additions thereto, and such other natural gas gathering systems and related processing facilities owned and/or operated by the Borrower and its Consolidated Subsidiaries hereafter.

Plan means any employee pension benefit plan, as defined in Section 3(2) of ERISA, which (i) is currently or hereafter sponsored, maintained or contributed to by the Borrower, any Subsidiary or an ERISA Affiliate or (ii) was at any time during the preceding six calendar years sponsored, maintained or contributed to, by the Borrower, any Subsidiary or an ERISA Affiliate.

Pledges has the meaning assigned to such term in Section 10.03(d) .

Prime Rate means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.

Principal Debt means the sum of Revolver Principal Debt and Term Loan Principal Debt.

Principal Office means the principal office of the Administrative Agent, presently located at 201 South College Street, Charlotte, North Carolina 28288-0680.

Pro Forma Cost Savings means, with respect to any period, the reduction in net costs and related adjustments that (i) were directly attributable to an acquisition, merger, consolidation or disposition that occurred during the four-quarter reference period and calculated on a basis that is consistent with Regulation S-X under the Securities Act of 1933 as in effect and applied as of the Closing Date, (ii) were actually implemented by the business that was the subject of any such acquisition, merger, consolidation or disposition within 12 months after the date of the acquisition, merger, consolidation or disposition and prior to the relevant calculation date that are supportable and quantifiable by the underlying accounting records of such business or (iii) for all purposes other than determining the “Applicable Rate”, relate to the business that is the subject of any such acquisition, merger, consolidation or disposition and that the Borrower reasonably determines are probable based upon specifically identifiable actions to be taken within 12 months of the date of the acquisition, merger, consolidation or disposition and, in the case of each of (i), (ii) and (iii), are described in a certificate signed by the chief financial officer of the Borrower, as if all such reductions in costs had been effected as of the beginning of such period.

Pro Forma Financials has the meaning assigned such term in Section 6.01(q) .

Property means any interest in any kind of property or asset, whether real, personal or mixed, moveable or immoveable, tangible or intangible.

Quarterly Date means the first day of each January, April, July, and October in each year, the first of which shall be October 1, 2007; provided , however , that if any such day is not a Business Day, such Quarterly Date shall be the next succeeding Business Day.

Quarterly Reports has the meaning assigned to such term under Section 8.01(f) .

 

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Ratings Based Spread means (i) if the Borrower’s corporate family rating is at least B1 (stable outlook) from Moody’s and corporate credit rating is at least B+ (stable outlook) from S&P, 2.50% with respect to LIBOR Loans and 1.50% with respect to Base Rate Loans and (ii) if otherwise, 2.75% with respect to LIBOR Loans and 1.75% with respect to Base Rate Loans.

Register has the meaning set forth in Section 12.06(c) .

Regulation D means Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as the same may be amended or supplemented from time to time.

Regulatory Change means, with respect to any Lender, any change after the Closing Date in any Governmental Requirement (including Regulation D) or the adoption or making after such date of any interpretations, directives or requests applying to a class of lenders (including such Lender or its Applicable Lending Office) of or under any Governmental Requirement (whether or not having the force of law) by any Governmental Authority charged with the interpretation or administration thereof.

Reimbursement Obligation means the obligation of the Borrower to reimburse the Issuing Bank pursuant to Section 2.09 for amounts drawn under Letters of Credit.

Related Parties means, 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.

Required Lenders means Lenders holding more than 50% of the sum of (i) aggregate Revolver Commitment (or more than 50% of the outstanding Revolver Principal Debt, if the Revolver Commitment has been terminated) and (ii) outstanding Term Loan Principal Debt.

Required Payment has the meaning assigned such term in Section 4.04 .

Required Revolver Lenders means Revolver Lenders holding (i) more than 50% of the aggregate Revolver Commitments or (ii) more than 50% of the outstanding Revolver Principal Debt, if the Revolver Commitment has been terminated.

Requirements of Law means, collectively, any and all requirements of any Governmental Authority including any and all laws, judgments, orders, decrees, ordinances, rules, regulations, statutes or case law

Responsible Officer means, as to any Person, the Chief Executive Officer, the President or any Vice President of such Person and, with respect to financial matters, the term “ Responsible Officer ” shall include the Chief Financial Officer of such Person. Unless otherwise specified, all references to a Responsible Officer herein shall mean a Responsible Officer of the General Partner.

Revolver Commitment means, for any Revolver Lender, its obligation to make Revolver Loans as provided in Section 2.01(a)(i) and participate in the issuance of Letters of Credit as provided in Section 2.01(b) , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolver Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

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Revolver Facility means the credit facility as described in and subject to the limitations set forth in Section 2.01(a)(i) hereof (as the same may be decreased pursuant to Section 2.03(a) ).

Revolver Lenders means, collectively, on any date of determination, Lenders having Commitments under the Revolver Facility or that are owed Revolver Principal Debt.

Revolver Loan means any Loan made under the Revolver Facility.

Revolver Note means a promissory note in substantially the form of Exhibit A-1 , and all renewals and extensions of all or any part thereof.

Revolver Principal Debt means, on any date of determination, the aggregate unpaid principal balance of all Revolver Loans and Swingline Loans, together with the aggregate unpaid Reimbursement Obligations of Borrower in respect of drawings under any Letter of Credit.

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

SEC means the Securities and Exchange Commission or any successor Governmental Authority.

Secured Cash Management Agreement means any Cash Management Agreement that is entered into by and between any Obligor and any Cash Management Bank.

Secured Hedge Agreement means any Hedging Agreement that is entered into by and between any Obligor and any Hedge Bank.

Secured Parties means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Issuing Bank, the Hedge Banks, the Cash Management Banks each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 11.01 , and the other Persons the Obligations owing to which are or are purported to be secured by the terms of the Security Instruments.

Security Instruments means the agreements or instruments described or referred to in Exhibit D , and any and all other agreements or instruments now or hereafter executed and delivered by the Obligors or any other Person (other than participation or similar agreements between any Lender and any other lender or creditor with respect to any Obligations pursuant to this Agreement) in connection with, or as security for the payment or performance of, the Notes, the Guaranty Agreements, this Agreement, or reimbursement obligations under the Letters of Credit, as such agreements may be amended, supplemented or restated from time to time.

Significant Subsidiary means any Subsidiary of the Borrower that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as such regulation is in effect on the date hereof.

Specified Acquisition Period means, if the Borrower makes an acquisition permitted under Section 9.03(i) hereof after the fiscal quarter ending June 30, 2008 for a purchase price in excess of $75,000,000, the period from the date such acquisition is closed until the last day of the third fiscal quarter following the closing date of such acquisition; provided that another Specified Acquisition Period shall not commence until the current Specified Acquisition Period shall have terminated and there shall have been at least one fiscal quarter when there was no Specified Acquisition Period in effect and during such fiscal quarter when no Specified Acquisition Period was in effect the Borrower was in compliance with Sections 9.13 and 9.14 .

 

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Subordinated Debt means any Debt for borrowed money for which an Obligor is directly and primarily obligated, so long as such Debt (i) does not have any stated maturity before the latest maturity of the Facilities, (ii) has terms that are no more restrictive upon the Obligor than the terms of the Loan Documents, (iii) is subordinated, upon terms satisfactory to Administrative Agent, to the payment and collection of the Obligations, and (iv) is unsecured.

Subsidiary means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity is at the time owned by or the management is otherwise controlled by such Person (irrespective of whether, at the time, capital stock of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency). Unless otherwise qualified references to “Subsidiary” or “Subsidiaries” herein shall refer to those of the Borrower.

Swingline Commitment means $15,000,000.

Swingline Lender means Wachovia in its capacity as swingline lender hereunder.

Swingline Loan means any swingline loan made by the Swingline Lender to the Borrower pursuant to Section 2.01(d) , and all such swingline loans collectively as the context requires.

Swingline Note means a promissory note made by the Borrower in favor of the Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the form of Exhibit A-3 , and any amendments, supplements and modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

Swingline Termination Date means the first to occur of (a) the resignation of Wachovia as Administrative Agent in accordance with Section 11.08 and (b) the Termination Date with respect to the Revolver Facility.

Taxes means 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.

Term Loan means any Loan made under the Term Loan Facility.

Term Loan Commitment means, for any Term Loan Lender, its obligation to make Term Loans as provided in Section 2.01(a)(ii) , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Term Loan Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term Loan Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

Term Loan Facility means the credit facility as described in and subject to the limitations set forth in Section 2.01(a)(ii) hereof.

 

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Term Loan Lenders means, collectively, on any date of determination, Lenders having Commitments under the Term Loan Facility or that are owed Term Loan Principal Debt.

Term Loan Note means a promissory note substantially in the form of Exhibit A-2 , and all renewals and extensions of all or any part thereof.

Term Loan Principal Debt means, on any date of determination, the aggregate unpaid principal balance of all Loans under the Term Loan Facility.

Termination Date means (i) for purposes of the Revolver Facility, the earlier of (a) the sixth anniversary of the Closing Date, and (b) the effective date that Revolver Lenders’ Revolver Commitments are otherwise canceled or terminated, and (ii) for purposes of the Term Loan Facility, (a) the earlier of the seventh anniversary of the Closing Date, and (b) the effective date of any other termination, cancellation or acceleration of the Term Loan Facility.

Termination Event means except for any such event or condition that could not reasonably be expected to have a Material Adverse Effect: (a) a “Reportable Event” described in Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, or (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the partial or complete withdrawal of the Borrower of any ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such plan, or (h) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA, or (i) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA.

Total Commitment means, at any time, the sum of the aggregate Revolver Commitments and aggregate Term Loan Commitments in effect for all Lenders in respect of the Revolver Facility and the Term Loan Facility.

Transactions means, collectively, the transactions to occur on or prior to the Closing Date pursuant to the Formation Documents, including (a) the consummation of the Anadarko Formation; (b) the execution, delivery and performance of the Loan Documents and the initial borrowings hereunder; (c) the Western Contribution; (d) the Atlas Contribution; and (e) the payment of all fees and expenses to be paid on or prior to the Closing Date and owing in connection with the foregoing.

Transfer means any sale, assignment, sub-lease, conveyance or other transfer of any Pipeline Property, or any interest in any Pipeline Property of the Borrower or any of its Subsidiaries, except for (i) the sale of firm transportation space or interruptible transportation space in the Pipelines in the ordinary course of business on a current basis, or (ii) the sale or transfer of equipment in the ordinary course of business that is no longer necessary for the business of the Borrower or any of its Subsidiaries or is contemporaneously replaced by equipment of at least comparable value and use.

Type means, with respect to any Loan, a Base Rate Loan or a LIBOR Loan.

 

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Uniform Customs means the Uniform Customs and Practice for Documentary Credits (1993 Revision), effective January, 1994 International Chamber of Commerce Publication No. 500.

Unrestricted Entities means Subsidiaries of the Borrower designated as Unrestricted Entities by the Borrower pursuant to Section 8.17 and each Subsidiary of such Subsidiaries.

Wachovia means Wachovia Bank, National Association.

Wholly Owned Subsidiary means a Subsidiary for which all of the outstanding shares of stock or other equity of such entity is owned directly or indirectly by Borrower.

Section 1.03 Accounting Terms and Determinations . Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Administrative Agent or the Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the audited financial statements of the Borrower referred to in Section 7.02 (except for changes concurred with by the Borrower’s independent public accountants).

ARTICLE II

Commitments

Section 2.01 Loans and Letters of Credit .

(a) Loans .

(i) Subject to and in reliance upon the terms, conditions, representations and warranties in the Loan Documents, each Revolver Lender severally agrees to make Revolver Loans to the Borrower during the period from and including (i) the Closing Date or (ii) such later date that such Revolver Lender becomes a party to this Agreement as provided in Section 12.06(b) , to and up to, but excluding, the Termination Date in respect of the Revolver Facility in an aggregate principal amount at any one time outstanding up to, but not exceeding, the amount of such Revolver Lender’s Revolver Commitment as then in effect; provided , however , that the aggregate principal amount of all such Revolver Loans by all Revolver Lenders hereunder at any one time outstanding, together with the LC Exposure and Swingline Loans then outstanding, shall not exceed the Aggregate Maximum Revolver Amount. Subject to the terms of this Agreement, during the period from the Closing Date to and up to, but excluding, the Termination Date in respect of the Revolver Facility, the Borrower may borrow, repay and reborrow the amount described in this Section 2.01(a) . Notwithstanding the foregoing, not more than $60,000,000 in Revolver Loans may be drawn on the Closing Date.

(ii) Subject to and in reliance upon the terms, conditions, representations and warranties in the Loan Documents, each Term Loan Lender severally, but not jointly, agrees to lend to the Borrower in a single advance on the Closing Date a Term Loan in an amount equal to such Lender’s Term Loan Commitment. The aggregate principal amount of the Term Loans of the Lenders shall not exceed the Aggregate Maximum Term Loan Amount. If all or any portion of the Term Loan Principal Debt is paid or prepaid by the Borrower, then the amount so paid or prepaid may not be reborrowed.

 

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(b) Letters of Credit . During the period from and including the Closing Date to, but excluding, five (5) Business Days prior to the Termination Date in respect of the Revolver Facility, the Issuing Bank, as issuing bank for the Revolver Lenders, agrees to extend credit for the account of the Borrower at any time and from time to time by issuing, renewing, extending or reissuing Letters of Credit; provided , however , that the LC Exposure at any one time outstanding shall not exceed the lesser of (i) the LC Commitment or (ii) the Aggregate Maximum Revolver Amount, as then in effect, minus the sum of (x) the aggregate principal amount of all Revolver Loans then outstanding and (y) all Swingline Loans then outstanding. The Revolver Lenders shall participate in such Letters of Credit according to their respective Percentage Shares of the Revolver Facility. Each of the Letters of Credit shall (i) be issued by the Issuing Bank, (ii) contain such terms and provisions as are reasonably required by the Issuing Bank, (iii) be issued to support obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, incurred in the ordinary course of business, and (iv) expire not later than the earlier of (A) twelve months from the date of issuance of such Letter of Credit and (B) five (5) Business Days before the Termination Date in respect of the Revolver Facility and (v) be subject to the Uniform Customs and/or ISP98, as set forth in the Letter of Credit Application or as determined by the Issuing Bank and, to the extent not inconsistent therewith, the laws of the State of New York. The Issuing Bank shall not at any time be obligated to issue any Letter of Credit hereunder if such issuance would conflict with, or cause the Issuing Bank or L/C Participants to exceed any limits imposed by, any Governmental Requirement. References herein to “issue” and derivations thereof with respect to Letters of Credit shall also include extensions or modifications of any outstanding Letters of Credit, unless the context otherwise requires. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

(c) Limitation on Types of Loans . Subject to the other terms and provisions of this Agreement, at the option of the Borrower, the Loans may be Base Rate Loans or LIBOR Loans; provided that, without the prior written consent of the Required Lenders, no more than ten LIBOR Loans may be outstanding at any time.

(d) Swingline Loans . Subject to the terms and conditions of this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time from the Closing Date through, but not including, the Swingline Termination Date; provided , however , that the aggregate principal amount of all outstanding Swingline Loans (after giving effect to any amount requested), shall not exceed the lesser of (i) the Revolver Commitment less the sum of all outstanding Revolver Loans and the LC Exposure and (ii) the Swingline Commitment.

(e) Refunding of Swingline Loans .

(i) Swingline Loans shall be refunded by the Revolver Lenders on demand by the Swingline Lender. Such refundings shall be made by the Revolver Lenders in accordance with their respective Percentage Share and shall thereafter be reflected as Revolver Loans of the Revolver Lenders on the books and records of the Administrative Agent. Each Revolver Lender shall fund its respective Percentage Share of Revolver Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Revolver Lender’s obligation to fund its respective Percentage Share of a Swingline Loan shall be affected by any other Revolver Lender’s failure to fund its Percentage Share of a Swingline Loan, nor shall any Revolver Lender’s Percentage Share be increased as a result of any such failure of any other Revolver Lender to fund its Percentage Share of a Swingline Loan.

 

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(ii) The Borrower shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from the Revolver Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the Borrower hereby authorizes the Administrative Agent to charge any account maintained by the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent amounts received from the Revolver Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Revolver Lenders in accordance with their respective Percentage Share in respect of the Revolver Facility (unless the amounts so recovered by or on behalf of the Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Administrative Agent has received notice in the manner required pursuant to Section 12.02 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable).

(iii) Each Revolver Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article VI . Further, each Revolver Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section, one of the events described in Section 10.01(f) or (g)  shall have occurred, each Revolver Lender will, on the date the applicable Revolver Loan would have been made, purchase an undivided participating interest in the Swingline Loan to be refunded in an amount equal to its Percentage Share of the aggregate amount of such Swingline Loan. Each Revolver Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Revolver Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Revolver Lender such Revolver Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Revolver Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolver Lender’s participating interest was outstanding and funded).

Section 2.02 Borrowings, Continuations and Conversions, Letters of Credit .

(a) Borrowings . The Borrower shall give the Administrative Agent (which shall promptly notify the Lenders) advance notice as hereinafter provided of each borrowing hereunder, which shall specify (i) the aggregate amount of such borrowing, (ii) the Type and (iii) the date (which shall be a Business Day) of the Loans, and (iv) (in the case of LIBOR Loans) the duration of the Interest Period therefor.

(b) Minimum Amounts . If a borrowing consists of LIBOR Loans, such LIBOR Loans shall be in amounts of at least $2,000,000 or any whole multiple of $1,000,000 in excess thereof. If a borrowing consists of Base Rate Loans (other than Swingline Loans), such Base Rate Loans shall be in amounts of at least $1,000,000 or integral multiples of $500,000 in excess thereof. If a borrowing consists of Swingline Loans, such Swingline Loans shall be in amounts of at least $500,000 or any whole multiplied $100,000 in excess thereof.

 

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(c) Notices . All borrowings, continuations and conversions shall require advance written notice to the Administrative Agent (which shall promptly notify the Lenders) in the form of Exhibit B (or telephonic notice promptly confirmed by such a written notice), which in each case shall be irrevocable, from the Borrower to be received by the Administrative Agent not later than 12:00 p.m. Charlotte, North Carolina time (i) at least one Business Day prior to the date of each Base Rate Loan borrowing (other than a borrowing of Swingline Loans), (ii) on the same Business Day as each Swingline Loan and (iii) three Business Days prior to the date of each LIBOR Loan borrowing, continuation or conversion; provided that any notice with respect to the initial borrowing of Term Loans on the Closing Date may be delivered by the Borrower on the Closing Date. Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Administrative Agent may act without liability upon the basis of telephonic notice believed by the Administrative Agent in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms of such telephonic notice except in the case of gross negligence or willful misconduct by the Administrative Agent.

(d) Continuation Options . Subject to the provisions made in this Section 2.02(d) , the Borrower may elect to continue all or any part of any LIBOR Loan beyond the expiration of the then current Interest Period relating thereto by giving advance notice as provided in Section 2.02(c) to the Administrative Agent (which shall promptly notify the Lenders) of such election, specifying the amount of such Loan to be continued and the Interest Period therefor. In the absence of such a timely and proper election, the Borrower shall be deemed to have elected to convert such LIBOR Loan to a Base Rate Loan pursuant to Section 2.02(e) . All or any part of any LIBOR Loan may be continued as provided herein, provided that (i) any continuation of any such Loan shall be (as to each Loan as continued for an applicable Interest Period) in amounts of at least $2,000,000 or any whole multiple of $1,000,000 in excess thereof and (ii) no Default shall have occurred and be continuing. If a Default shall have occurred and be continuing, each LIBOR Loan shall be converted to a Base Rate Loan on the last day of the Interest Period applicable thereto.

(e) Conversion Options . The Borrower may elect to convert all or any part of any LIBOR Loan on the last day of the then current Interest Period relating thereto to a Base Rate Loan by giving advance notice to the Administrative Agent (which shall promptly notify the Lenders) of such election. Subject to the provisions made in this Section 2.02(e) , the Borrower may elect to convert all or any part of any Base Rate Loan at any time and from time to time to a LIBOR Loan by giving advance notice as provided in Section 2.02(c) to the Administrative Agent (which shall promptly notify the Lenders) of such election. All or any part of any outstanding Loan may be converted as provided herein, provided that (i) any conversion of any Base Rate Loan into a LIBOR Loan shall be (as to each such Loan into which there is a conversion for an applicable Interest Period) in amounts of at least $2,000,000 or any whole multiple of $1,000,000 in excess thereof and (ii) no Default shall have occurred and be continuing. If a Default shall have occurred and be continuing, no Base Rate Loan may be converted into a LIBOR Loan.

(f) Advances . Not later than 12:00 p.m. Charlotte, North Carolina time on the date specified for each borrowing hereunder, (i) each Lender shall make available the amount of the Loan to be made by it on such date to the Administrative Agent, to an account which the Administrative Agent shall specify, in immediately available funds, for the account of the Borrower and (ii) the Swingline Lender will make available the amount of the Swingline Loan to be made by it on such date to the Administrative Agent, to an amount which the Administrative Agent shall specify, in immediately available funds, for the account of the Borrower. The amounts so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower by depositing the same, in immediately available funds, in an account of the Borrower, designated by the Borrower and maintained at the Principal Office, or in such other accounts designated by the Borrower.

 

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(g) Letters of Credit . The Borrower shall give the Issuing Bank (which shall promptly notify the Lenders of such request and their Percentage Share of such Letter of Credit) advance notice to be received by the Issuing Bank not later than 12:00 p.m. Charlotte, North Carolina time not less than three Business Days prior thereto of each request for the issuance, and at least ten Business Days prior to the date of the renewal or extension, of a Letter of Credit hereunder which request shall specify (i) the amount of such Letter of Credit, (ii) the date (which shall be a Business Day) such Letter of Credit is to be issued, renewed or extended, (iii) the duration thereof, (iv) the name and address of the beneficiary thereof, and (v) such other information as the Issuing Bank may reasonably request, all of which shall be reasonably satisfactory to the Issuing Bank. Subject to the terms and conditions of this Agreement, on the date specified for the issuance, renewal or extension of a Letter of Credit, the Administrative Agent shall issue, renew or extend such Letter of Credit to the beneficiary thereof.

In conjunction with the issuance of each Letter of Credit, the Borrower shall execute a Letter of Credit Agreement. In the event of any conflict between any provision of a Letter of Credit Agreement and this Agreement, the Borrower, the Issuing Bank, the Administrative Agent and the Revolver Lenders hereby agree that the provisions of this Agreement shall govern.

The Issuing Bank will send to the Borrower and each Revolver Lender, immediately upon issuance of any Letter of Credit, or an amendment thereto, a true and complete copy of such Letter of Credit, or such amendment thereto.

Section 2.03 Changes of Commitments .

(a) The Borrower shall have the right to terminate or to reduce the amount of the Aggregate Maximum Revolver Amounts at any time, or from time to time, upon not less than thirty (30) days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders) of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction (which shall not be less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and no more than an amount by which the Aggregate Maximum Revolver Amounts would be less than the aggregate outstanding principal amount of the Revolver Loans plus the LC Exposure plus all Swingline Loans then outstanding) and shall be irrevocable and effective only upon receipt by the Administrative Agent.

(b) The Aggregate Maximum Revolver Amounts, once terminated or reduced, may not be reinstated.

Section 2.04 Fees .

(a) The Borrower shall pay to the Administrative Agent for the account of each Revolver Lender a commitment fee on the daily average unused amount of the aggregate Revolver Commitments (which for purposes of this Section 2.04(a) shall be calculated without giving effect to any outstanding Swingline Loans), up to, but excluding, the Termination Date in respect of the Revolver Facility at a rate per annum equal to Commitment Fee Percentage. Accrued commitment fees shall be payable quarterly in arrears on each Quarterly Date and on the Termination Date in respect of the Revolver Facility. Each change in the commitment fee resulting from a change in the Leverage Ratio shall take effect on the date of delivery by the Borrower to the Administrative Agent of notice thereof pursuant to Section 8.01(j) . If the Borrower fails to deliver a compliance certificate when required pursuant to Section 8.01(j) , then the commitment fee shall equal 0.375% until such date as the Borrower delivers such compliance certificate to the Administrative Agent.

 

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(b) Letter of Credit Fees .

(i) The Borrower agrees to pay the Administrative Agent, for the account of each Revolver Lender, commissions for issuing the Letters of Credit on the daily average outstanding of the maximum liability of the Issuing Bank existing from time to time under such Letter of Credit (calculated separately for each Letter of Credit) at the rate per annum equal to the Applicable Margin in effect from time to time for LIBOR Loans in respect of the Revolver Facility, provided that each Letter of Credit shall bear a minimum commission of $500. Each Letter of Credit shall be deemed to be outstanding up to the full face amount of the Letter of Credit until the Issuing Bank has received the canceled Letter of Credit or a written cancellation of the Letter of Credit from the beneficiary of such Letter of Credit in form and substance acceptable to the Issuing Bank, or for any reductions in the amount of the Letter of Credit (other than from a drawing), written notification from the beneficiary of such Letter of Credit. Such commissions are payable in advance at issuance of the Letter of Credit for the first year thereof and thereafter, quarterly in arrears on each Quarterly Date and upon cancellation or expiration of each such Letter of Credit.

(ii) The Borrower agrees to pay the Administrative Agent, for the account of the Issuing Bank, commissions for issuing the Letters of Credit (calculated separately for each Letter of Credit) equal to 0.125% of the face amount of each Letter of Credit, payable quarterly in arrears on the last Business Day of each calendar quarter commencing with the first such date to occur after the issuance of such letter of Credit, on the Termination Date and thereafter on demand of the Administrative Agent.

(iii) The Borrower shall pay to the Administrative Agent, for the account of the Issuing Bank, other customary fees assessed by the Issuing Bank in connection with the administration of its Letters of Credit.

(c) Fee Letter . The Borrower shall pay to Administrative Agent and the Lead Arranger for their respective accounts such other fees as are set forth in the Fee Letter on the dates specified therein to the extent not paid prior to the Closing Date.

Section 2.05 Several Obligations . The failure of any Lender to make any Loan to be made by it or to provide funds for disbursements or reimbursements under Letters of Credit on the date specified therefor shall not relieve any other Lender of its obligation to make its Loan or provide funds on such date, but no Lender shall be responsible for the failure of any other Lender to make a Loan to be made by such other Lender or to provide funds to be provided by such other Lender.

Section 2.06 Notes . Upon the request of any applicable Lender, (a) the Revolver Loans made by each Revolver Lender shall be evidenced by a Revolver Note dated as of (i) the Closing Date or (ii) the effective date of an Assignment and Assumption, payable to the order of such Revolver Lender in a principal amount equal to its Maximum Revolver Amount as originally in effect and otherwise duly completed and such substitute Notes as required by Section 12.06 ; (b) the Term Loan made by each Term Loan Lender shall be evidenced by a Term Loan Note dated as of (i) the Closing Date or (ii) the effective date of an Assignment and Assumption, payable to the order of such Term Loan Lender in a principal amount equal to its Maximum Term Loan Amount as originally in effect and otherwise duly completed and such substitute Term Loan Notes as required by Section 12.06 ; and (c) the Swingline Loan made by the Swingline Lender shall be evidenced by a Swingline Note in a principal amount equal to its Swingline

 

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Commitment as originally in effect and otherwise duly completed and such substitute Notes as required by Section 12.06 . The date, amount, Type, interest rate and Interest Period of each Loan made by each Lender, and all payments made on account of the principal thereof, shall be recorded by such Lender on its books for its Note, and, prior to any transfer may be endorsed by such Lender on the schedule attached to such Note or any continuation thereof or on any separate record maintained by such Lender. Failure to make any such notation or to attach a schedule shall not affect any Lender’s or the Borrower’s rights or obligations in respect of such Loans or affect the validity of such transfer by any Lender of its Note.

Section 2.07 Voluntary Prepayments . The Borrower may prepay the Base Rate Loans and Swingline Loans upon prior notice given not later than 11:00 a.m. on the same Business Day to the Administrative Agent (which shall promptly notify the Lenders), which notice shall specify the prepayment date (which shall be a Business Day) and the amount of the prepayment (which shall be at least $3,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to Base Rate Loans (other than Swingline Loans) and $100,000 or a whole multiple of $100,000 in excess thereof with respect to Swingline Loans or the remaining aggregate principal balance outstanding on the Notes) and shall be irrevocable and effective only upon receipt by the Administrative Agent, provided that interest on the principal prepaid, accrued to the prepayment date, shall be paid on the prepayment date. The Borrower may prepay LIBOR Loans on the same conditions as for Base Rate Loans (except that prior notice to the Administrative Agent shall be not less than three (3) Business Days for LIBOR Loans) and in addition such prepayments of LIBOR Loans shall be subject to the terms of Section 5.05 and shall be in an amount equal to all of the LIBOR Loans for the Interest Period prepaid. In the event of a voluntary prepayment of any Revolver Loans pursuant to this Section 2.07 , Borrower shall be entitled to reborrow such amounts pursuant to Section 2.01(a)(i) . Notices of prepayment received after 11:00 a.m. shall be deemed to be received on the next Business Day.

Section 2.08 Assumption of Risks . The Borrower assumes all risks of the acts or omissions of any beneficiary of any Letter of Credit or any transferee thereof with respect to its use of such Letter of Credit. Neither the Issuing Bank (except in the case of gross negligence or willful misconduct on the part of the Issuing Bank or any of its employees), its correspondents nor any Revolver Lender shall be responsible for the validity, sufficiency or genuineness of certificates or other documents or any endorsements thereon, even if such certificates or other documents should in fact prove to be invalid, insufficient, fraudulent or forged; for errors, omissions, interruptions or delays in transmissions or delivery of any messages by mail, telex, or otherwise, whether or not they be in code; for errors in translation or for errors in interpretation of technical terms; the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; the failure of any beneficiary or any transferee of any Letter of Credit to comply fully with conditions required in order to draw upon any Letter of Credit; or for any other consequences arising from causes beyond the Issuing Bank’s control or the control of the Issuing Bank’s correspondents. In addition, neither the Issuing Bank, the Administrative Agent nor any Revolver Lender shall be responsible for any error, neglect, or default of any of the Issuing Bank’s correspondents; and none of the above shall affect, impair or prevent the vesting of any of the Issuing Bank’s, the Administrative Agent’s or any Revolver Lender’s rights or powers hereunder or under the Letter of Credit Agreements, all of which rights shall be cumulative. The Issuing Bank and its correspondents may accept certificates or other documents that appear on their face to be in order, without responsibility for further investigation of any matter contained therein regardless of any notice or information to the contrary. In furtherance and not in limitation of the foregoing provisions, the Borrower agrees that any action, inaction or omission taken or not taken by the Issuing Bank or by any correspondent for the Issuing Bank in good faith in connection with any Letter of Credit, or any related drafts, certificates, documents or instruments, shall be binding on the Borrower and shall not put the Issuing Bank or its correspondents under any resulting liability to the Borrower.

 

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Section 2.09 Obligation to Reimburse and to Prepay .

(a) If a disbursement by the Issuing Bank is made under any Letter of Credit, the Borrower shall pay to the Administrative Agent within five (5) Business Days after notice of any such disbursement is received by the Borrower, the amount of each such disbursement made by the Issuing Bank under the Letter of Credit (if such payment is not sooner effected as may be required under this Section 2.09 or under other provisions of the Letter of Credit), together with interest on the amount disbursed from and including the date of disbursement until payment in full of such disbursed amount at a varying rate per annum equal to (i) the then applicable interest rate for Base Rate Loans through the second Business Day after notice of such disbursement is received by the Borrower and (ii) thereafter, the then applicable interest rate for Base Rate Loans plus two percent (2%) (but in no event to exceed the Highest Lawful Rate) for the period from and including the third Business Day following the date of such disbursement to and including the date of repayment in full of such disbursed amount. The obligations of the Borrower under this Agreement with respect to each Letter of Credit shall be absolute, unconditional and irrevocable and shall be paid or performed strictly in accordance with the terms of this Agreement under all circumstances whatsoever, including, without limitation, but only to the fullest extent permitted by applicable law, the following circumstances: (i) any lack of validity or enforceability of this Agreement, any Letter of Credit or any of the Security Instruments; (ii) any amendment or waiver of (including any default), or any consent to departure from this Agreement (except to the extent permitted by any amendment or waiver), any Letter of Credit or any of the Security Instruments; (iii) the existence of any claim, set-off, defense or other rights which the Borrower may have at any time against the beneficiary of any Letter of Credit or any transferee of any Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Issuing Bank, the Administrative Agent, any Revolver Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the Security Instruments, the transactions contemplated hereby or any unrelated transaction; (iv) any statement, certificate, draft, notice or any other document presented under any Letter of Credit proves to have been forged, fraudulent, insufficient or invalid in any respect or any statement therein proves to have been untrue or inaccurate in any respect whatsoever; (v) payment by the Issuing Bank under any Letter of Credit against presentation of a draft certificate which appears on its face to comply, but does not comply, with the terms of such Letter of Credit; and (vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

Notwithstanding anything in this Agreement to the contrary, the Borrower will not be liable for payment or performance that results from the gross negligence or willful misconduct of the Issuing Bank, except (i) where the Borrower or any Subsidiary actually recovers the proceeds for itself or the Issuing Bank of any payment made by the Issuing Bank in connection with such gross negligence or willful misconduct or (ii) in cases where the Administrative Agent makes payment to the named beneficiary of a Letter of Credit.

(b) In the event of the occurrence of any Event of Default or the maturity of the Revolver Notes, whether by acceleration or otherwise, an amount equal to the LC Exposure shall be deemed to be forthwith due and owing by the Borrower to the Issuing Bank, the Administrative Agent and the Revolver Lenders as of the date of any such occurrence; and the Borrower’s obligation to pay such amount shall be absolute and unconditional, without regard to whether any beneficiary of any such Letter of Credit has attempted to draw down all or a portion of such amount under the terms of a Letter of Credit, and, to the fullest extent permitted by applicable law, shall not be subject to any defense or be affected by a right of set-off, counterclaim or recoupment which the Borrower may now or hereafter have against any such beneficiary, the Issuing Bank, the Administrative Agent, the Revolver Lenders or any other Person for any reason whatsoever. Such payments shall be held by the Issuing Bank on behalf of the Revolver Lenders as cash collateral securing the LC Exposure in an account or accounts at the Principal Office; and

 

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the Borrower hereby grants to and by its deposit with the Administrative Agent grants to the Administrative Agent a security interest in such cash collateral. In the event of any such payment by the Borrower of amounts contingently owing under outstanding Letters of Credit and in the event that thereafter drafts or other demands for payment complying with the terms of such Letters of Credit are not made prior to the respective expiration dates thereof, the Administrative Agent agrees, if no Event of Default has occurred and is continuing or if no other amounts are outstanding under this Agreement, the Notes or the Security Instruments, to remit to the Borrower amounts for which the contingent obligations evidenced by the Letters of Credit have ceased.

(c) Each Revolver Lender severally and unconditionally agrees that it shall promptly reimburse the Issuing Bank an amount equal to such Revolver Lender’s Percentage Share of any disbursement made by the Issuing Bank under any Letter of Credit that is not reimbursed according to this Section 2.09 ; except to the extent such disbursements shall have been finally determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Issuing Bank.

(d) Notwithstanding anything to the contrary contained herein, if no Event of Default has occurred and is continuing, and subject to Availability under the Revolver Facility, to the extent the Borrower has not reimbursed the Issuing Bank for any drawn upon Letter of Credit within five (5) Business Days after notice of such disbursement has been received by the Borrower, the amount of such Letter of Credit reimbursement obligation shall automatically be funded by the Revolver Lenders as a Revolver Loan hereunder and used by the Revolver Lenders to pay such Letter of Credit reimbursement obligation. If an Event of Default has occurred and is continuing, or if the funding of such Letter of Credit reimbursement obligation as a Revolver Loan would cause the aggregate amount of all Revolver Loans outstanding to exceed the Aggregate Maximum Revolver Amount (after reduction for LC Exposure), such Letter of Credit reimbursement obligation shall not be funded as a Revolver Loan, but instead shall accrue interest as provided in Section 2.09(a) .

Section 2.10 Lending Offices . The Loans of each Type made by each Lender shall be made and maintained at such Lender’s Applicable Lending Office for Loans of such Type.

Section 2.11 L/C Participations .

(a) The Issuing Bank irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce the Issuing Bank to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Bank, on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolver Commitment in the Issuing Bank’s obligations and rights under and in respect of each Letter of Credit issued hereunder and the amount of each draft paid by the Issuing Bank thereunder. Each L/C Participant unconditionally and irrevocably agrees with the Issuing Bank that, if a draft is paid under any Letter of Credit for which the Issuing Bank is not reimbursed in full by the Borrower through a Revolver Loan or otherwise in accordance with the terms of this Agreement, such L/C Participant shall pay to the Issuing Bank upon demand at the Issuing Bank’s address for notices specified herein an amount equal to such L/C Participant’s Revolver Commitment of the amount of such draft, or any part thereof, which is not so reimbursed.

(b) Upon becoming aware of any amount required to be paid by any L/C Participant to the Issuing Bank pursuant to Section 2.11(a) in respect of any unreimbursed portion of any payment made by the Issuing Bank under any Letter of Credit, the Issuing Bank shall notify each L/C Participant of the amount and due date of such required payment and such L/C Participant shall pay to the Issuing Bank the amount specified on the applicable due date. If any such amount is paid to the Issuing Bank

 

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after the date such payment is due, such L/C Participant shall pay to the Issuing Bank on demand, in addition to such amount, the product of (i) such amount, times (ii) the daily average Federal Funds Rate as determined by the Administrative Agent during the period from and including the date such payment is due to the date on which such payment is immediately available to the Issuing Bank, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. A certificate of the Issuing Bank with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error. With respect to payment to the Issuing Bank of the unreimbursed amounts described in this Section, if the L/C Participants receive notice that any such payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall be due that Business Day, and (B) after 1:00 p.m. on any Business Day, such payment shall be due on the following Business Day.

(c) Whenever, at any time after the Issuing Bank has made payment under any Letter of Credit and has received from any L/C Participant its Revolver Commitment of such payment in accordance with this Section, the Issuing Bank receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise), or any payment of interest on account thereof, the Issuing Bank will distribute to such L/C Participant its pro rata share thereof; provided , that in the event that any such payment received by the Issuing Bank shall be required to be returned by the Issuing Bank, such L/C Participant shall return to the Issuing Bank the portion thereof previously distributed by the Issuing Bank to it.

ARTICLE III

Payments of Principal and Interest

Section 3.01 Repayment of Loans.

(a) Maturity .

(i) The Revolver Principal Debt is due and payable on the Termination Date in respect of the Revolver Facility.

(ii) The Term Loan Principal Debt is due and payable on the Termination Date in respect of the Term Loan Facility in an amount equal to all Term Loan Principal Debt then outstanding.

(b) Mandatory Prepayments .

(i) If at any time the outstanding principal amount of all Revolver Loans plus the sum of all outstanding Swingline Loans and LC Exposure exceeds the then available Aggregate Maximum Revolver Amount, the Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Lenders, an amount equal to such excess with each such repayment applied first to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolver Loans and third , with respect to any Letters of Credit then outstanding, a payment of cash collateral into a cash collateral account opened by the Administrative Agent, for the benefit of the Lenders in an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit (such cash collateral to be applied in accordance with Section 2.09(b) ).

(ii) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Debt Issuance by the Borrower or any of its Subsidiaries or other Debt not permitted pursuant to this Agreement. Such prepayment shall be made within five (5) Business Days after the date of receipt of Net Cash Proceeds of any such transaction.

 

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(iii) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to fifty percent (50%) (or if the Borrower’s Leverage Ratio is less than 5.0:1.0, 0%) of the aggregate Net Cash Proceeds from any Equity Offering by or capital contribution to the Borrower or any of its Subsidiaries other than (a) the exercise price on stock options issued as part of employee compensation and (b) the Equity Issuance. Such prepayment shall be made within five (5) Business Days after the date of receipt of Net Cash Proceeds of any such transaction.

(iv) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Disposition by the Borrower or any of its Subsidiaries. Such prepayments shall be made within five (5) Business Days after receipt of Net Cash Proceeds of any such transaction by the Borrower or any of its Subsidiaries; provided that, so long as no Default or Event of Default has occurred and is continuing, no prepayments shall be required hereunder (A) in connection with up to $50,000,000 of aggregate Net Cash Proceeds in any fiscal year from Dispositions (other than any Disposition pursuant to the terms of the Pioneer Option Agreement) by the Borrower or any of its Subsidiaries which is reinvested within three hundred sixty (360) days after receipt of such Net Cash Proceeds by the Borrower or any of its Subsidiaries in similar replacement assets, or (B) in connection with Dispositions permitted pursuant to Section 9.17 (other than Section 9.17(f) ).

(v) The Borrower shall prepay the Loans in the manner set forth in clause (vi) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Insurance and Condemnation Event by the Borrower or any of its Subsidiaries. Such prepayments shall be made within three (3) Business Days after receipt of Net Cash Proceeds of any such transaction by the Borrower or any of its Subsidiaries; provided that, so long as no Default or Event of Default has occurred and is continuing, no prepayments shall be required hereunder in connection with up to $50,000,000 of aggregate Net Cash Proceeds in any fiscal year from Insurance and Condemnation Events by the Borrower or any of its Subsidiaries which is reinvested within three hundred sixty (360) days after receipt of such Net Cash Proceeds by the Borrower or any of its Subsidiaries in similar replacement assets.

(vi) Notice; Manner of Payment . Upon the occurrence of any event triggering the prepayment requirement under clauses (i) through and including (v) above, the Borrower shall promptly deliver a notice of prepayment to the Administrative Agent and upon receipt of such notice, the Administrative Agent shall promptly so notify the Lenders. Each prepayment of the Loans under this Section shall be applied as follows: first , to reduce the Term Loans and (ii)  second , to the extent of any excess, to repay the Revolver Loans pursuant to Section 2.07 .

(vii) So long as any Term Loans remain outstanding, any Term Loan Lender may elect to decline the entire portion of the prepayment of its Term Loans pursuant to Section 3.01(b) by delivery of a completed Notice of Election to the Administrative Agent by telecopy at least one Business Day prior to the applicable prepayment date, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In the

 

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event of such a re-offer, the relevant Lenders may elect to decline in such Notice of Election all of the amount of such prepayment that is re-offered to them, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans pursuant to such re-offer but was so declined shall be applied to repay Revolver Loans; provided that no reduction of the Revolver Commitments shall be required in connection with such prepayment. Any amounts remaining following repayment of the Revolver Loans shall be returned to the Borrower. In the absence of delivery of a completed Notice of Election with respect to any prepayment at least one Business Day prior to the applicable prepayment date, such Lender shall automatically be deemed to have accepted such prepayment and any re-offer in respect thereof.

Section 3.02 Interest .

(a) Interest Rates . The Borrower will pay to the Administrative Agent, for the account of each Lender, interest on the unpaid principal amount of each Loan made by such Lender for the period commencing on the date such Loan is made to, but excluding, the date such Loan shall be paid in full, at the following rates per annum:

(i) if such a Loan is a Base Rate Loan, the Base Rate (as in effect from time to time) plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate;

(ii) if such a Loan is a LIBOR Loan, for each Interest Period relating thereto, the Adjusted LIBOR for such Loan plus the Applicable Margin (as in effect from time to time), but in no event to exceed the Highest Lawful Rate; and

(iii) if such Loans is a Swingline Loan, the Base Rate (as in effect from time to time), plus the Applicable Margin in respect of Revolver Loans, but in no event to exceed the Highest Lawful Rate.

(b) Post-Default Rate . (i) Immediately upon the occurrence and during the continuance of an Event of Default under Section 10.01(f) or (g) , or (ii) at the election of the Required Lenders, upon the occurrence and during the continuance of any other Event of Default, (A) the Borrower shall no longer have the option to request LIBOR Loans or, Swingline Loans or Letters of Credit, (B) all outstanding LIBOR Loans shall bear interest at a rate per annum of two percent (2%) in excess of the rate then applicable to LIBOR Loans until the end of the applicable Interest Period and thereafter at a rate equal to two percent (2%) in excess of the rate then applicable to Base Rate Loans, and (C) all outstanding Base Rate Loans and other Obligations arising hereunder or under any other Loan Document shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate then applicable to Base Rate Loans or such other Obligations arising hereunder or under any other Loan Document. Interest shall continue to accrue on the Obligations after the filing by or against the Borrower of any petition seeking any relief in bankruptcy or under any act or law pertaining to insolvency or debtor relief, whether state, federal or foreign.

(c) Due Dates . Accrued interest on Base Rate Loans shall be payable on each Quarterly Date commencing on September 30, 2007, and accrued interest on each LIBOR Loan shall be payable on the last day of the Interest Period therefor and, if such Interest Period is longer than three months, at three-month intervals following the first day of such Interest Period, except that interest payable pursuant to Section 3.02(b) shall be payable from time to time on demand and interest on any LIBOR Loan that is converted into a Base Rate Loan (pursuant to Section 5.04 ) shall be payable on the date of conversion (but only to the extent so converted). Any accrued and unpaid interest on the Revolver Loans on the Termination Date in respect of the Revolver Facility shall be paid on such date and any accrued and unpaid interest on the Term Loans on the Termination Date in respect of the Term Loan Facility shall be paid on such date.

 

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(d) Determination of Rates . Promptly after the determination of any interest rate provided for herein or any change therein, the Administrative Agent shall notify the Lenders to which such interest is payable and the Borrower thereof. Each determination by the Administrative Agent of an interest rate or fee hereunder shall, except in cases of manifest error, be final, conclusive and binding on the parties.

ARTICLE IV

Payments; Pro Rata Treatment; Computations; Etc.

Section 4.01 Payments . Except to the extent otherwise provided herein, all payments of principal, interest and other amounts to be made by the Borrower under this Agreement, the Notes, Letters of Credit, and the Letter of Credit Agreements shall be made in Dollars, in immediately available funds, to the Administrative Agent at such account as the Administrative Agent shall specify by notice to the Borrower from time to time, not later than 12:00 p.m. Charlotte, North Carolina time on the date on which such payments shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Such payments shall be made without (to the fullest extent permitted by applicable law) defense, set-off or counterclaim. Each payment received by the Administrative Agent under this Agreement or any Note for account of a Lender shall be paid promptly to such Lender in immediately available funds. Except as otherwise provided in the definition of “Interest Period,” if the due date of any payment under this Agreement or any Note would otherwise fall on a day which is not a Business Day such date shall be extended to the next succeeding Business Day and interest shall be payable for any principal so extended for the period of such extension. At the time of each payment to the Administrative Agent of any principal of or interest on any borrowing, the Borrower shall notify the Administrative Agent of the Loans to which such payment shall apply. In the absence of such notice the Administrative Agent may specify the Loans to which such payment shall apply, but to the extent possible such payment or prepayment will be applied first to the Loans comprised of Base Rate Loans.

Section 4.02 Pro Rata Treatment . Except to the extent otherwise provided herein, each Lender agrees that: (i) each borrowing from the Lenders under Section 2.01 and each continuation and conversion under Section 2.02 shall be made from the Lenders pro rata in accordance with their Percentage Share of the aggregate Revolver Commitments or aggregate Term Loan Commitments, as the case may be, each payment of fees under Sections 2.04(a) and 2.04(b)(i) , shall be made for account of the Revolver Lenders pro rata in accordance with their Percentage Share of the aggregate Revolver Commitments, and each termination or reduction of the amount of the Aggregate Maximum Revolver Amount under Section 2.03(a) shall be applied to the Revolver Commitment of each Revolver Lender, pro rata according to the amounts of its respective Revolver Commitment; (ii) each payment of principal of Revolver Loans by the Borrower shall be made for account of the Revolver Lenders pro rata in accordance with the respective unpaid principal amount of the Revolver Loans held by the Revolver Lenders; (iii) each payment of interest on Revolver Loans by the Borrower shall be made for account of the Revolver Lenders pro rata in accordance with the amounts of interest due and payable to the respective Revolver Lenders; (iv) each payment of principal of Term Loans by the Borrower shall be made for account of the Term Loan Lenders pro rata in accordance with the respective unpaid principal amount of the Term Loans held by the Term Loan Lenders; (v) each payment of interest on Term Loans by the Borrower shall be made for account of the Term Loan Lenders pro rata in accordance with the amounts of interest due and payable to the respective Term Loan Lenders; and (vi) each reimbursement by the Borrower of disbursements under Letters of Credit shall be made for account of the Issuing Bank or, if funded by the Revolver Lenders, pro rata for the account of the Revolver Lend